following so your primary argument is that this regulation applies and then i'm wondering what what benefit do you get out of that because you then go on and the next breath to say it applies but it's invalid and therefore the regulation must drop out of guaranteeing you any particular rights and you would be left with as far as i can tell nothing but a due process claim a constitutional or i guess the a fair process version of that and i don't see how you prevail on that because i don't see a due process or fair process right to present evidence for a given amount of time several reasons and the a should not be afforded any definite for that part of the regulation now it's irrational it promises something probably to the right and then makes it unattainable it makes it possible to be a suit to make it so that claimant cannot that became more evident to us as we were preparing for oral argument which is why we filed believe it was on thursday notice that we'd be discussing cook and quinn because they're there relevant became evident to us as we were as we were court something about any specific kind of evidence or argument you would have submitted to the board if only you had the full ninety days the court doesn't have any further questions so it's reiterate our conclusion we do urge the court to hold that there is you know for a does apply for remounted appeal such as mr williams and that it's limiting language is invalid and additionally correctly concluded that any reference to that regulation by the board was harmless finally in this is it an issue that i think has not been addressed just yet but the  to as the functional equivalent of the notice letter that is supposed to be triggering this this this language and this is appendix one hundred this letter from the board explicitly states that the appeal has been returned to the board of veterans appeals and has resumed its place on the docket it is not a notification that the appeal has been certified which happens once and it is not a notification that the record has been transferred for that reason i'd like you to put that aside but it is your position that if we were to conclude that this regulation did in fact apply we would remember this for the veterans court to consider the validity challenges instance ok and i will and which which if supposing we were to start entertaining the question of the validity of the regulation which among the challenges that have been presented to solidity do you think are out of time under twenty for a one year on i think it could be that this is sort of a question at this point but certainly i think mr williams making process itself that challenges is absolutely out of time i think to the extent that the sir williams is making an as applied  no argument to be made that mr williams did not obtain receive the process to which he was your to fair process he as you pointed out in the briefs and as demonstrated in the record he had the opportunity to present additional evidence in argument before the a o j when it was reminded he had opportunity to respond to the s s o see which he declined to do and indicated that he had no other information or  to submit and then he had the the time between when his appeal was returned to the board and when the board issued its decision to to insert additional evidence or argument which he did not  do this is certainly an instance where mr williams has had numerous opportunities to present all of the evidence he chooses to both in the initial tribunal and  believe the relevant language is no longer in the current regulations and so the current regulation no longer has this perhaps permissible but slightly surprising language about ninety days unless we decide the case before the ninety days elapses which is that right i believe that's correct  consistent among those three but in any case it doesn't contain the same language connected to all of them  it's worth noting that this is the purpose of this regulation is to encourage a expeditious  no longer permitted to present evidence or argument as of right and at that point the good cause requirement kicks in and this is simply a rule regarding the submission of it to mission of evidence be granted a period of ninety days following receipt of a notice if just agreement or up to and including the date the appellate decision is promulgated by the board whichever comes st so although that is not verbatim it still contains that limiting language and enables the board to cut cut short any ability to exercise that right down to zero days and practice your honor we have had this happen we have had a we've had clients like represent several several at the at the agency level and we have had clients who have actually received their board denial before they receive their ninety day letter because they were only created seven days apart from each other now as for the  that under smith and that the west this court has jurisdiction to address that issue avoidance of an issue by the veterans court when an issue was raised below did not deprive yourself of the right to raise that issue again at the federal circuit now i also want to highlight she speak directly to the tribe you know about to make that decision and the board is populated by two attorneys you know that would be the st time at that level that literally would have been presenting his best possible evidence or argument directly to the attorneys who are about to  as far as the secretary's argument that the limiting language is a valid because it allows for expeditious treatment this is also something we raised at the veterans court expedition does not mean a denial