case for argument just sixteen two one two three times versus sho this case involves a new and expanded interpretation of the statute and regulation regarding clear and unmistakable error it's based on a complete even in one nine hundred eighty three decisions had to be made based on evidence and in this case law permitted a a medical doctor to sit on a panel and to render judgment the law committed that if that is correct but as you noticed in this case that trance court specifically said that they could not consider the decision itself three is that an exercise of a person's judgment as a panelist that naturally involves our the background of his medical expertise which of committed at that point it or is that the introduction if you look at decision that has this big question mark over the problem is that the law at that time permitted that question it it did not obligate as it does now right for pell members to articulate a well reasoned analysis of the decision so they'd left us with a big question mark the problem is that the law at that time permitted them to do it  out the analysis of their decision and that's why we have to look at what evidence was there to support that decision because if you say that the ford had no obligation in any of his left hand was what resulted in islam hip injury but it wasn't as a result of the shoulder injury as a result of somebody who told him well don't use your right here and that's what was sitting there in front of this three groups in person including one judge ram pointed out there was a doctor on that correct and i can't when my job is to try to figure out if i can think is to figure out whether that fact finding number two tha then you win if you win on that too but it is hard for me to see how you can win when the facts that were in front of this deciding modesty which you believe decided without any well because you're giving dr palmer all the weight on the back scale and that they have any credit to the three years worth of medical examiners in the v a hospital assume it was the doctor who just because they would know this stuff better than anybody else somebody at that three person board meeting only two eighty three put up their hand and said i'm sorry  on the record well i'm saying is ninety three the board very specifically stated stated they understand the claim was of a connection however the records show almost full range of motion the ninety three board says we understand the panel member who was a doctor that it was his judgment that swayed the decision here what if what if he slept during this whole thing and one of them lawyers because the other two panelists were lawyers and one of the other two or say well my experience  think and that's why they decided we don't know do we we do not have that level after can you argue that i mean we don't know how that decision was reached and that's the problem here well fundamentally the regulations in place when at the time but i just don't want to hear any arguments that that it was a medical doctors decision that swayed the panel or already was a learned medical opinion that casts credibility and dou decide the factual question how much weight you give to one car or freedom of motion compared to the other doctors there and that is beyond your jurisdiction to look and been mixing of those facts states because we do not know whether or not it was a medical doctor that someone's discount isn't dr hong and i think goes without saying yeah who did it i mean it could have been the new evidence introduced never gets to confront the doctor on the panel who rendered this evidence doesn't get to introduce his own witnesses or evidence and basically what i'm describing is the due process safeguards ok that's not that would not be prejudicial well if the issue is that they used the word evidence where they should have used the word in our judgment then there is no prejudice because what they've done is they've chosen the wrong three board actually view this is evidence as opposed to viewing it as it's medical judgment as it's judgment there's still no prejudice because they should have used it as their medical judgment but they'd still get to the same place it's a term that doesn't make an actual that they said it was evidence they get to the same place anyway the corrective measure if this was evidence as we point out our would have been to file a motion for reconsideration or be here raising it as a q but fundamentally the point is the board's opinion in ninety three isn't evidence it's judged it's what it's supposed to do it's supposed to weigh the evidence in front of it which is what it did based on its statement and come to a conclusion which is what it did that the overall evidence skating the particular issue cannot be considered negative beyond that though i would like to get to this due process question and even more than the hypothetical that judge r all that the veterans court decision said is well we can't rule out the possibility that maybe they disbelieve to the positive evidence now in that situation the actual situation before us mr h have to very specifically say what you felt the error was that they make and it's not good enough to simply say i disagree with the fact that he would have to be able to say well i disagree with th because the board member said whatever and has the opportunity  so i don't see why we are should be put in the position of trying to go back and decide whether that was factually mistaken or them to enter a fact finding true as opposed that maybe somebody didn't believe the evidence how can you ever have seen the very fact that they denied the claim with the evidence and say well somebody must feel this believe that there you go