four or thirty eight c f r twenty point two or two that would support distinguishing between pro se and represented claimants there's also no legislative or regular looking at it differently than you're looking at is if someone who is represented gets treated differently i look at it is if whether a pro se litigant whether one arguably at least thinks about cutting a little slack given that the person is on represented isn't that an acceptable way to proceed to give that pro se defendant a little leeway no i don't think that's the right way to look and i think that you have to look at it as the v a is a not adversarial inquisitorial system that it's not like anything it has an adversarial system i think that's hard it's a hard concept to get because the american jurisprudence if the is vector is overwhelming dominantly adversarial and so what we think of it when we start tackling something so unique we're not used to is consciously or unconsciously subconsciously if we tend to slip in and have a circle concepts the point is that it's the v a s primary duty to identify issues and to develop the record the attorneys are participants they're not adversaries of the view they're working together at least that's the way it's supposed to be to try to get the veteran all of us in title benefits but at some point shouldn't whether the adjudicatory body is the c b c or us have the ability just say you got to have raise this below pink i mean your client's case i think is already gone that twice i mean it's been around for a lot of years and to allow new issues to be raised at the c a v sea level just means it's going to be another bounceback the core here should've addressed i mean they spent more time going over the issue of cost and analysis rather than dealing with the merits if you look at the pages of the veterans court it wasn't something with somebody below should have a a system that never allows any and exhaustion to be accounted for even at the c a v sea level means that there's just going to be a constant bounce back of cases no no i mean the question is whether or not what they raise is whether it was whether the examinations were adequate and a factual question i would have thought issue now this is just there was new evidence on that point now so what would be different  personally examined it was more probative than the one that the subsequent one that didn't examine it didn't examine the client so i mean i think he raised it but since that's a fact i didn't argue that for this court but veteran had appropriate process to process opportunity and all the rest of it and to understand that if there was some reasonable basis some some change in that or in this situation advanced produced to assure that there was an opportunity for that to be considered but i'm looking here to find where those events may have occurred and i can't find it in your argument burke who did review the who did perform a personal examination and did the record review and had in there and made a came to the affirmative opinion the service connection would be followed but that was considered a valid psychiatric examination without interviewing the client but the point of the argument in this case is that you had to lie for it was an opportunity to challenge that when this case was here before this is the third time around that it's come up the chain right and you thought it jointly me and with the government to consider dr berger this verdict or whatever and that if you were challenging other opinions at that time that should have been part of the basket that's helpful to your client and not hurtful to get him to raise the concerns promptly so that he can get his case of juda case right at breit and why did you not claiming so it's been like that but service connection for mr blithers sleep disorder should be granted the only opinion to be based upon examination of the veterans rather than simply review of the service medical records concludes that primary insomnia began while mr blythe's was on active duty as set forth in the joint joint motion burning man the lack of an actual examination mr blight rendered prior examinations inadequate as the only opinion regarding the sleep disorder there are two different disorders of sleep apnea but the psychological disorders this sleep disorder place upon actually seen mr glidin first and is favorable service connection must be granted i mean i would think the better  just creating obstacles just just so that the v a the decision to get a firm make the lawyers did their job and this document was before the joint motion for remained where they were actually the second joint motion for a write up right at this point this was a think just believe it was before the  second or denial in december of two thousand and fifteen yes now so i don't see where we have to constantly keep raising the argument the point is pretty clear that we don't believe that psychological the issues that the briefs are focused on are really twofold one is whether or not i know i know that before you go if you gave him a gauge of the argument he was making there i mean so leaving aside for a moment that you would say if the real issue he was raising in this inadequate and the two object is that it focuses on our one in july twenty sixth joint motion for remand which post dates the document that he directed your attention to a moment ago and that's on pages eighty today was remanded to the board and a page is at page one thirty two of the appendix you have mr blythe's prefer an october twenty six team brief and the veterans court discuss that acknowledged that he had made arguments about the medical evaluations of the evidence that was before the board but the day he did not make the specific argument that he made before the court the first instance so were the various court probably probably construe the record as saying that this were inadequate so it was that was a reasonable construction of the record that the court used in order to arrive there but what if you just directed our attention to an a one thirty and next one thirty two the court has granted two motions for remains in the first frame and the parties agreed that examinations that relied upon a review of the service the medical records alone without examining mr flight were in adequate but you're suggesting that doesn't mean that those examinations themselves were inadequate but had to do with dr burk's your honor yes and this is and it's not my suggestions of the various court consider this document interpreter that same really the argument that he's making is that dr ms berg her opinion should have been considered and relied upon and rather than the others because there was an examination and that notwithstanding that cursory statement that he did not preserve the fish and that is the issue i mean the adequacy i mean he's he made the argument that they didn't examine him personally so they should not be given credit that that was an issue in play w not well your i don't think it was in play i think that the various court recognized that particular when you have the joint motion for the joint motion for every man and recognize the parties together represented by counsel on the sides identified an the board is then evaluating that issue now no course that does not deprive the veteran or mr bligh from then making the argument that he made later before the court but the entire purpose of issue was to make countries abouts of the me let me try to identify the following scenario let's suppose i think you disagree with this and maybe even the veterans court disagreed with it that in november twenty fifteen i'm looking at one thirty and one thirty two that at that point this is still in front of the board for the december twenty fifth teen board ruling so hence before the second joint motion and remand suppose that this document did in fact make the argument that each of what two of the three examinations other than mr burke that did not involve a personal examination i think  does that agreement on three man and require that the argument that was already already had been decided by the board based on one thirty by assumption and was part of his appeal to the veterans court be renewed or is a remained something that can be to address an aspect of the record that really ought to be addressed before the whole set of arguments is is addressed by the veteran secure i think in this case i think it would be the answer is it may depend on the circumstances and i think in this case when you have a joint motion for a real man and actually  that that when you go to the court of appeals or veterans court and you've got four arguments and the parties say it would really be a stupid idea to decide this matter when there is something that really needs to be supplemented and so we agreed to or remain for the supplemental but the other three or four arguments that are being made what would be the point of saying they have to be renewed before the board well i think if it goes back to the notion of issue exhaustion that the court was considering imagine and that is apparent in the regulation of twenty point two or two statute which is that the that even though you have the student to construe evidence liberally something like the adequacy of a medical records but i mean what i was i guess trying to explore is is the scenario that if this november twenty fifth clean document did a first round in the border maybe it's even the second round but a menaka last round before the board did raise the issue so that the board actually did decide the issue then when you go to the veterans court you don't have a board undecided issue that that you're trying to raise you have a board decided issue but just not repetitive well here i think it may make a difference and i have the central question let me make a difference as to whether or not the court actually decides the issue of the if the parties are to have to identify patients that go back if they don't do that or if they did they did choose to wait for the veteran chooses to wait on an objection that could have been raised at that point that he runs t to review assuming that we agreed that they have some discretion that's appropriately exercised under the statute to apply an issue exhaustion principle we don't have the jurisdiction to review the merits of yes sure i think the least until they reach the podium to examine the facts of the case principal his argument is seeking to do away with the issue joshie doctrine we don't think that that the bar was the one to respond to one of his initial the so called not have or serial nature of the proceedings and the court in scott consider the non adversarial nature of the proceedings when it when it reaffirmed the rule of magic and said issue exhaustion is still a doctrine that applies has force in the context of veterans appeals now standing the fact that for example we the board has to construe pleadings literally so the courts consider this it does make sense although you do have could reasonably change the result we don't find those facts but now there's been some sort of cloud placed on the absolute discretion whereby we have no authority to review the facts we honor an occasion again looking to assure that the veteran received the full procedure to sit in an adversarial situation and also  medical opinion which well changes the balance well actually your honor i'm not sure that you could characterize dr herbst opinion as new evidence because it was in the record along i'm not sure either the real question is what procedure in order to assure up the movement not adversarial attention to the veterans claim that everything is considered well your honor they did the veterans courts that weight issue exhaustion doctor works is if there is a situation where there's newman information that has come to light and there hasn't been an opportunity to raise it earlier and it comes out for example let's say the veterans court surely the veterans court overturn what he wants the court to overturn is the notion that any time a veteran makes a new argument that he did have the opportunity to raise below and did not pursue that therefore the the course of hear that argument the first  and the court imagine recognize that there are important objectives of finality and judicial economy that are served by the jewish tree that the exhaustion principle and so getting to the point about representation by counsel i would just particular circumstances it was appropriate to invoke issue exhaustion doctrine not because it was represented by counsel but because he had an opportunity to raise his argument below and he didn't do it and the at the attorney didn't offer it evidence a record contains only one medical opinion based upon an examination of the veteran and which addresses the relationship between the current sleep disorder and service dr phil is per and