mr boyd's entitlement to service connected compensation for disability incurred during the second period of his active duty service boards acted in excess of its jurisdiction because the board only had jurisdiction over the question that was appealed by mr boyce which was the v a s character of discharge decisions that related to his second period of service the v a s character discharge and terminate the board in that decision treated the character connection i find the whole argument about this rather confusing since the board seemed to address the things on the side of the end that we're on our position is that the status o character discharge determination is dispositive as a matter of law for the entitlement service connected compensation in other words because he was disqualified by those statute and lace and under the v a s decision then the board could not possibly have had jurisdiction to adjudicate the matter of his entitle merits because the merits could not have been adjudicated by the v a as a matter of law that the character discharge determination which was withheld from mr boyd and was not disclosed to him until after he filed but they didn't go on the are on and then later decisions to the press service  destruction they did your honor but that they did so beyond the ability for that decision to have ever been favorable because as a matter of law based upon the character just charged determination there was no ability for the board to have ever resolved the entitlement the v a benefits in mr boyd's favor so that was frankly a legal knowledge that they did do that and mr boies in an effort to protect himself filed a notice of disagreement with that substantive determination but you'll note in that substantive determination that no distinction was made between periods of service and it is the second period of service that the v a expressly found was a mar a benefit that determination was dispositive the board when it favorably disposed of that question should have returned the matter back to the v a for a decision on the merits i agree you can read the board's decision as having addressed that issue which is what the court below did but the fact of the matter is that as a matter of law the board was precluded from going forward with that because the v a had incorrectly previously because the v a doesn't make decisions in the alternative the v a is supposed to be adjudicating in order to award benefits not and they made a dispositive determination that precluded that there is no provision within the v a statutory regulatory structure to say but if we're wrong then you're not entitled to benefits on this basis they made a dispositive decision that had to do with the application of a specific statute and a specific regulation that barred in the v a benefits based on the characters is this chart mr boyd prevailed on that appeal and that was the end of that appeal and the board should have simply sen adversarial nature of this process the non adversarial nature of this the least once maybe with a sir and but the jackson case is a question of the reopening of a case that had already been adjudicated this is a question of the disposition of the entitlement to v a benefits in the first instance that the jackson case is entirely distinguishable because the jackson case is based upon the fact that the board had an honor and the only pertinent decision was the disposition of the character of discharge question because that was an absolute bar to the a benefit on until that decision was modified as it was by the board and that was the one decision of the secretary as it related to the second period of service the second period of service here is the period of service that there was found by the v a to have been an a bargain for that decision control the ability or as it were the inability for the v a to ever pay mr boyd benefits he took an appeal of that decision any prevailed on that decision and he was entitle then to go back for a re adjudication based upon the determination that he was intitled to benefit there was no adjudication based in the alternative and although you can certainly read the decision that way that is an action in my view that applies in the context of an abscess area proceeding not in the context of a non adversarial proceeding mr boy was misled about the v a s decision on status and didn't find out until he filed a notice of disagreement with the denial of the benefits on the merits when he found  opportunity to deal with the matter since he was gone no your honor because he was precluded from consideration of the merits because of the status determination because they determined that he no longer had the status he argued the merits before the board yes he didn't well but but the fact of the matter is is that he had to do that because the decision below was that he wasn't qualified that if they overturn that decision then it would have to go back on the merits of the second period of service what's unique in this case is that there are two periods of service if there only been one period of service  believe that it is logical and intuitive for the v a to go ahead and proceed with the mariners but we have to separately distinct periods of service in which the v a found that there was no in title meant morning to me please the court as a general matter the regional office of the veteran the veterans administration adjudicate claims in the first instance but it is been well established that the for the not adversarial proceeding no that's not right and i think we need to be clear about what we're advocating given that we don't want to categorical rule like that enough number one in this case mr boies represented so it's not an issue here but looking beyond that the general rules the general rule the v a are a will consider an issue in the first instance but the board should be allowed the flexibility in particular cases when there procedural safeguards in place like the waiver determination that can be reviewed at adjudicated expeditiously and it's important to balance it out of course with fairness now but tell me procedurally if the november decision disposed of the first time curious isn't it a case of that plane was no longer before that they'd already render decision on that so technically should they really be in a subsequent proceeding addressing that same time period and offering a different reason in a subsequent proceeding oro head an administrative decision in november of two thousand and four that pertain just to the second period of service in december there's a decision from the arnold that says the first greatest service on the merits denying the client that gets appealed and that's where the veterans court made some findings or about the sort of prejudice they noted that mr boyd received and this is sort of the the flipside we have the waiver issue which argued that the board decision on appeal denied in the opportunity to make its case on the merits after reversing the decision on the discharge that's the same argument that's the core of the argument that mr boies making here today the veterans court looked at that issue consider that consider the notice that mr boies received consistently his opportunity submitted to tional evidence well long after he knew that the administrative decision from november two thousand or cut against him  the v a offers the notion that the general rule is a general rule and i'm not exactly sure what that is intended to mean in the context of this case it is a question of whether or not the board did or did not have jurisdiction to act beyond their disposition of the character discharged for the second period it serves the v a has conceded in its argument this morning that it is difficult to determine what period of service the v a decided in the first instance at one point to be a suggested well the general rule that the v a applies is that the board will not take away a benefit and if they find that the character discharge benefits was then the board would probably have adopted that but frankly i would have to that under the notion of the board jurisdiction i do not believe that they can make decisions in the alternative but clearly a favorable decision for award of benefits in the alternative is far more consistent with the not had this aerial process then the notion that you make an adverse decision in the alternative so ambiguously that the government can stand up here before this court and state clearly what decision it was that the v a made in the first instance and therefore i don't believe that the board could possibly have reviewed a decision that the v a simply never made the only clear decision that was made