i look at the board and you've said this repeatedly and i still can't get it so i really would like to to to understand this when i look at the board's opinion there is a reference to regulations to the authority to have regulations coming out of n a s reports but i don't see any reference to the two thousand and fourteen report even if i look back at the regulations at the federal register and trees from twenty  and sixteen where the regulations were enacted there is no specific reference as far as i can tell from searching to the two thousand and fourteen update i'm not sure that it's an important part of your argument but you make it rather central including in your opening sentence today two places for sure your honor that are very obvious one appendix sixty six the board references the n a s report and also it was considered an oral argument can you can you show me where the board references the two thousand and fourteen update it does not specifically say the two thousand and fourteen update your honor but it does discuss the national cut academy of case that the board and more importantly truly is that the agency including the board of veterans appeals has direct knowledge i think that's what i thought that the concession was that the agency referring to yes your honor i believe so your honor i'm sorry to make a do big deal out of it but but you know you rather centrally feature this idea of what the board knew as a potential limiting principle for your argument and so if i keep looking this and concerns that lurk about this case it really is one thing to say that the board the particular board judges who are writing this actually knew about it and didn't attend to it and another thing to say that somewhere in this mammoth agency is this report along with lots of other things this is this and the dissent frankly hits this head on this is not something that's buried somewhere in a library far far away the n a s report when you google n a s and v a you get a hit from some obscure you know as seller said the unguided safari this is far from something that is just so far outside of the realm of the department's knowledge is it something that is utilized truly every day in agent orange cases to help you out a little bit didn't judge allen specifically cite to something where he said the secretary conceded at oral argument before the court that the board was actually aware of it  yes your honor he did and just just to double check i mean do we have that transcript or no proposition that we're making and our and our pleadings that event court should have asked if v a had knowledge of the n a s report and i quote it did it whether the board or be a bit large does it did it had actual knowledge and then did that report contain relevant information supporting an indication that mr yousef died what condition is related to agent orange exposure and sir a direct relationship is not required and that's the veterans courts legal error here by re required a stronger connection to place evidence before the board than the law requires to trigger a medical opinion can i just k k k you start kind of have to have the foundation which is why is any constructive possession doctrine permissible under the statu board i think that's probably the primary argument that the government makes and the record is the actual record the argument goes not things that were not put before the board right and it and that your honor is i read the secretary's argument there to say essentially what they've been arguing for many years which is that the record is only what is a pain in the file and bell dispensed with that at the very early stages of judicial review and in many cases came down interpreting the statute and so it is just just a bell is a veterans court case not a case from us right it is your honor in the lang case this court did rely on and so i would also rely on lang i would also rely as we did in our pleadings on the goals case  before the c d c he's seeking an examination is a threshold matter and asking that his ability to get that exam paste on all the evidence the board knew about and be a note was about to paraphrase this court in making the n a s report is not applicable to medically examination is part of what the agency was required to do under the duty to assist the court before i began my presentation i just want to address the points that mr stolz just made in order number one his point about whether or not this report this particular report was before this in fact had that been the case i would have thought that they would have remanded under the st prong of the belt rule which is premised on whether or not an actual submission was made because if indeed the board has had possession of it or had been provided report the under under bell one its failure to be included in the record on appeal would have been resolved by a remember back to the board for clarification so and fourteen report it is currently being reviewed by the folks within v a who are charged with looking at that kind of information to determine whether changes need to be made to the presumpti exposure to agent orange those are not the board judges so generally outside their belly work so the only way any or judge i think would necessarily become aware of it is if somebody raised to them wait wait this board their whole job is analysis of veterans claims and this report has has not only been with the agency but it is been the subject of much litigation as has all of the agent orange issue i mean how how could it be that someone whose job is to analyze veterans claims wouldn't know yeah again this is a report from two thousand and fourteen the board has the the report is that report is not designed to inform board judges it's designed to inform agency regulate regulation people the other side of the if you will rule making or you know the distinction between rule making people who do not they're not or judges and the board side of the house who are sort educators of individual claims so there's this there's no there's no requirement there's no frankly no system really in  place outside the purple but now the purple book is a method by which folks in the board are advised of things but in this case the purple book that's been submitted to the court came out after the board decision so i mean that's what the noted to you can't look at a purple book and treat that post dates the board decision to say that the board wasn't aware of the purple book so the rule that you're proposing is not simply one that says well maybe if this this comprehensive report didn't get there in time for this particular board to analyze it that we shouldn't we shouldn't find that it was in their constructive possession the rule that you're proposing is that these kinds of things would never board's constructive possession so that even if the agency and the board had reviewed these things all topple times in the past that you can't say that this particular board  it right well there's a couple of ways i need to answer that your honor frankly that would have been an argument we would made and it did make and i read briefs and that we do believe is with respect to these non claim documents remember the balance progeny really relate to claim documents not sort of medical treaties or analyses of other things and over the years doctors court has dealt with attempts to impose knowledge or possession constructive receipt if you will of the sort of non claim specific documents on the v a but the way they've handled that is through application of the standard that was that was articulated by bell and over the years applied by the veterans court and most recently by this court in lange so so that's the sort of history of what we're dealing with here and think that that so you're saying that you could never have a when you call not claim documents i assume you mean that don't relate to their medical history or his precise service after bell the for the requirements that the a has for opinion documents and those requirements are conditioned on being made aware of the documents and that's what congress sets plainly in those statutes that  simply to the plain language of the instruction congress imposed on the v a which which says we will be a go out and get documents that the claimant makes you aware of now and actually have more to say to finish this question what the extent of the facts were extent at the times as the court may recall the russell language that was adopted in the legislative history of the two statutes and which we in this court i think it several times and including in the cook case i am not fully prepared to discuss length i guess to the extent that i thought lang focused on the concern constructive receipt doctrine itself and didn't deal with what i think i understand your question  included they might be someday if there was a regulation issued soon to report but at this stage there isn't although one could take advantage and look at the regulation and find that it's not a disability or is not included in gone so i know it's a long week and we're the last ones but the more i read lang i frankly think the more lang dresses pretty much this case we clearly are not pleased with the fact that that doll exists although we have accepted a portion of it as i just articulated the portion we don't like about bell obviously as the way the victims court on occasion has used the bell standard and let me be clear that standard really has never changed more recently some panels from the actions court have described the the goals mentioned the direct evidence or direct connection standard but that's a label the standard has always been as judge mally articulated in the length of the court articulated and the length of fish and whether there's a reasonable relation or reasonable expectation that something would have been part of the of the victim's claim and that's the language from bell and has been adopted by all the courts that have applied over the over the years and when it comes to some of these documents that are not actual claims documents the standard has still been applied with and with the sort of conclusory language about well this document or that document is to tenuous because it doesn't necessarily reflect anything particular about the claimant or his claim so those are the sort of those are all relevancy terms is my point here and so beginning from the one thousand and nine to bed are we supposed to at what point is that relevant supposed to be assessed i mean at this point there's if we're just looking at this document there's clear discussion of fire right homeostasis and and an agent orange now to to what extent that would reply to apply to these particular nodules i don't think it's something we should be assessing we should simply be saying could this assist in convincing the foreword that he was entitled to at least a medical exam so well the last part of it i'll have to answer separately but the st part of that your honor is that is exactly the question that the veterans court posed to itself and in fact they are the body that should be doing that as  suggesting footnote four in length they looked at this document and concluded that it did not come close enough such that there was an error they should consider that the board erred in not considering that when it was never brought to the board attention that was nd score performs in this case as it did on month ingo as it did in bowie as it did in goodwin our position would be this court is not in a position to step into the shoes of the court determine whether this particular document satisfy that standard our position would be you know assuming that applies all together and i'll get to that point the minute our position would be this court would simply determine whether the standard used in other words whether there was a reasonable could be reasonably expected to be connected to the victim's claim which was the standard you tear was the appropriate standard and of course the problem i think the studio has before this court today is in august this court said that very  that's the standard that this court said should be applied and looking at the decision at issue here that is exactly the standard that was applied and so would you be would you suggest that that that this decision should stay ingo doesn't really create a direct relationship claim it's simply just phrasing reasonable miss and i'm and i'm probably too narrow way well ago didn't articulate use the word direct in fact i think mind single may have quoted one of the earlier cases where there was bowyer goodwin just where there was a direct relationship and yes that's a useful to a different climate as opposed to a document that essentially addresses everyone who was in vietnam or exposed to agent orange or waters that were contaminated with agent orange singo the part of turner that this court left him place in length in length and in this case and that is this question of whether or not there was too tenuous a relationship between what was in the document and what was before the board statute so that's that whole thing to do with the medical evidence thing the medical evidence argument here is really a cart horse argument because that's the part a fifty one else a that imposes a imposes a requirement on by basically saying you must consider in certain circumstances but the plain language of the doing else says that that consideration is premised on the record and what we're discussing here today is not the determination to order a medical opinion but we're discussing is what should be in the record and the argument that we should we should focus on well it could be a medical exam is simply an attempt to take what mr dubio believes is a lesser standard related to medical exams and move it up into the question that we're really facing here which is what what's the real what's the requirement for including documents and that's a relevancy requirement plainly incorporated that mr hockey does this is just trying to isn't if you're asking the question whether a particular document that's not in the record here the two thousand and fourteen update is to ten us in its relation to what's going on in that claim before the agency might not the answer actually depend on whether you're talking about ten us in relation to the merits of the claim or ten us in relation discretion in how it undertakes that or concludes that consideration there is a right in there that can sometimes be reversed in force by reversal by the veterans court yes but so but the language of congress imposes on the secretary is that that decision that you're discussing whether or not there should be a medical examiner is premised on the record so that come right but i thought i thought we were already beyond this record point once when it starts once when except this whole line of cases up through you know our case in line well no i don't think so i think i think the whole i mean i thought the point of our our discussion here w what is the right standard that's the argument reasonably brief they try to argue i mean i guess they concede that there's a relevancy standard but they don't really articulate what it is our position is i think that the standard as articulated by the so series of cases that the court this court went through and lang and including in length the reasonable related standard is the appropriate standard the fact that and the and the my focus more recently in our discussion here on two tenuous is the sort of the conclusion that you know but but but but then i guess as it's phrased as the point differently reasonably related to what why isn't something reasonably related to the claim  result in a beneficial result for the claim well i appreciate that i'm so i'm going to stick to my guns here and say i want i think we need to proceed logically through this process and one of the reasons i say that is because judge truong if you accept your reading then you just read basically the relevancy of the only thing that's imposed on v medical opinion that would be that not all that it depends on what it is i mean if you've got a nice claim then this report is not going to be relevant well yeah but you would be asking limit our discussion here to this particular report on agent orange i'm talking generally this court issues a reminder order in this case then it would be would seem to be a clickable to any sort of treaties type evidence only about the concern of the administrative burden one would be placing on the board to find that a basis of error could be premised on the board not being aware of some treaties or or similar type  discussion that was never raised or presented to the board we've been working really hard this morning starting to feel like the never ending election cycle but i think we're going to have to  i think your points well made we've got we've got that and you're briefing thank you thank you mr sauls we went way over with mr hockey and so i will give you up to an extra three minutes but i don't feel the need to use it if you don't want to i'll try not to your honor i just want to to start by saying i am heartened by mr hockey's presentation because the daylight between us is not as far as the initial secretary's brief had me believing coming into this world argument it does appear that we both agree that this direct relationship test is no good that the c b c used and so i would just say that if the n a s report which was before the department of veterans