appearing on behalf of gore's mail that turns court has consistently interpreted the provisions of thirty eight c f r four point one six b require a referral to the director of compensation services at the central office of the v a for a decision on the merits in the first instance on the question of an extra schedule or total rating the decision of the veterans court in this case affirm the board's decision on the merits ccrued benefit claim of mrs mail without there having been a referral and a decision in the first instance by the director the veterans court in fisher clearly held that where the there were six training circumstances presented that the director mike consider that a referral to the director on the subject matter of the appeal was required these stanton case the veterans court held that the veterans testimony that he or she was unable to obtain employment due to service connected disability was sufficient to meet the threshold requirement for the entitlement to an to be made by the board or the result office and if the board or reasonal office determined that the case was not one which warranted being submitted to the director then that determination would be made by the board or the regional office and subject to a a clear error analysis but that decision would be whether or not there was a there was the threshold requirements to make the referral not the merit determination but simply whether or not there is a reasonable basis a plausible basis in the record to make a referral and under the stanton case that was met with mr mail prior to his death so that he couldn't work due to a service connected disability that required the referral and by requiring the referral it required a decision by the director so your argument then is that here the mistake that was made was that the board did not correctly assess the strength of his case for purposes of a federal didn't follow the case law of the veterans court in the stanton case that required that a referral be made when there is a crime a facia evidence in this case from the veteran in his late testimony that he was unable to work due to a service connected disability they then went on to make the threshold determination which is mandated by the terms of the regulation to only be made by the director but that there wasn't threshold evidence in this case was that there was no threshold evidence to make that referral and that would have been the issue appeal to the board instead the final decision that was made was on the merits that there was no entitle meant t if you talk a little bit about the case as i understand it we've already interpreted a particular regulation three point three two one b one but also we commented on four point one six b and one  determination of whether there's a possible basis but in fact call for those entities to first decide for themselves whether they believe an extra scheduler is warranted and if so then they send it on to the director and i believe if that were in fact the correct interpretation then the decision of the veterans court in the cases that are cited in my brief were wrongly decided so it would seem to me that it would be up to this court to decide that the rule in fun applies here i do not believe the rule of law applies here because the language of the regulation three point three two one b one is significantly different then the language in four point one six b the language in three point three two one b as the court decided and fun had two specific threshold requirements that were the basis for determining whether or not a referral needs to be there is no such criteria outlined in the plain language of four one six b and the language of four one six b in the fisher stanton bowling as well as the wages case which was recently decided  fifteen says that that decision is to be made by the director now under this regulatory scheme just getting back to fund in order to decide the meaning of three point three two one v and that case we also consulted four point one six b and and engage in some kind of interpretive exercises as the meaning of four point one six eight and when i do not believe you did your honor are these that's not the way that required a referral to be made to the director or the undersecretary in the case of three point three two one b for a decision on the question of entitlement to extra schedule or consideration for the sense of both of these regulations required a referral to the central office to make the ultimate decision and precluded in both cases the decision be made by the agency of original jurisdiction or the board in the first instance but the you it's i understand the language from certain the determination as to whether the that the claim that is unemployable by reason a service connected disability that determination being made by the regional office of the board right well that couldn't be the language from fun because fun deals not with well i'm i'm actually regulation does not go to an employee ability under three point three two one b three point three two one b is for an extra schedule or when the rating criteria is inadequate to adequately compensate the veteran at the scheduling rate three point three two one b deals with schedule or ratings and whether you can get more than what the scheduler rating calls for on what they call an extra schedule or bases it does not go to an extra schedule or total bases only for one six does and for one six language is different than the language in three point three two one b one and i would just urge the court to compare the language of each of these regulations to confirm that my representation is correct regardless of how it may have been framed in the decision the regulation in fact for three point three two one b only deals with schedule criteria to get what would be potentially a total rating but the predicate is not on the inability to work it is on the inability of the scheduler criteria to adequately compensate for the symptoms and manifestations of that particular disability because the v a s rating rating criteria does not adequately cover those symptoms i see that i'm in to my reserve entitled to total disability due to individual unemployment delivery or t b i you contrary to mrs may was arguments there is no question of statutory or regulatory interpretation for the court to resolve in this case is not within the court's limited jurisdiction the position taken by miss nao is that as a matter of law this regulation has to be read in a particular way that you disagree with mr carpenter over the scene of the reading of the regulation place isn't that a pure question of law suitable for i resolution because your honor the veterans court was not interpreting that statute the fact that mrs mayo on appeal has raised hell to the nation does not mean that the lower court was making any interpretation the veteran stuart took the language of four point one since being and applying it to the situation of veterans kearney viewed the board's factual determination and how the board weighed the evidence and decided that there had been no clear ever the veterans court did not make any jurisdictional statute that if what if the board's application of the regulation is premised necessarily on a particular conception of that regulation maybe not articulated but the logic of their decision making is necessarily based on understanding the regulation is as requiring the board to make a m based determination right there on that extra schedule or question and not just a mere threshold question of whether there's a plausible basis for an extra scheduler that would then warrants referring the matter to the director well and the director of the board simply took that mandate to determine the unemployed ability and made factual determinations on that matter which the veteran story upheld the veterans tour it was not there is no argument about differing interpretations of the process before the veterans or at the veterans court that the plain language of the statute so they really shows that there must be a determination of unemployed ability before a referral is made and was there an argument to either of the board where the veterans court below by mrs may have the right understanding of this regulation four point one six b requires a finding of just a mere plausible basis next are scheduled for and only when once that small threshold is met then the da is required to send it over to the director no your honor i believe mrs mayo's argument before the veterans court revolved around the weighing of evidence primarily how the lay evidence was treated versus the medical evidence which is now being crafted into us regulatory interpretation argument at this court is that the path of the case below shows that mrs mayo understood that the board would be making fashionable determinations about unemployability and arguments went to the weight of the lay evidence and making that unemployed millipede to terminate and there was not an argument that this process should have some sort of extra step in it and any sort of possibility of an employee ability merited a referral to the director in fact that that argument went eliminate the board's ability to take in way evidence in the first instance there's numerous cases that are cited by the board in the veterans court about how they evidence should be considered and that does not always have to be taken as competent to weigh on medical questions and that body of case law would simply be erased if any statement of a veteran that he is unable to work would merit referral to the director for the director to make a merits finding about an playability the statute mrs mayo's argument is based on a conflation of two different decisions one is the factual question by the regional office or the board as to whether the veteran is an employee of all by reason of the service connected disability after if the veteran is found to be unemployable the referrals made to the director the director then has the ultimate power to award the rating of totally disabled so the cases that mrs mayo has cite that appear to limit the power of the board is the power of the board to award the rating there at mrs may it was argument is based on conflating the power to award the reading of totally disabled and the unemployed ability of terminations you being the prerequisite for a referral i believe pulling in fish or you use the language in those cases they state that they were going to reverse before the veterans what was reversing the board's finding because some of the evidence mayo was presenting are you ok but i'm asking you a question as to the proper construction of four point one six b not this ismailis argument and so tell me how you evidence was that of late statement that he was unable to work that he was completely disabled that's no different than in bowling there is various and disha of his on the veterans situation of one play ability which the veterans court found the board had not properly weighed when you mention that the preponderance standard but how does that square with the plausible basis standard that was used and bowl they seem to be two different standards to me well your honor in bowling the matter the issue in that court was that the board had not properly wait evidence evidence could be plausible without come this rising to the level of a preponderance that i think it would be i think it would be the same really the plot well simple as being i mean i would think plausible just just without digging deeply into the cases on  the issue that was addressed here because in any event the lay evidence that was presented by mrs mayo did not was the board found it was not competent to write to address the medical question of what of his many health problems was causing the unemployed melanie so in this case there's no question of how the evidence if if there is a if there's enough evidence to get over a certain threshold because all the evidence and the only evidence mrs mayo put counsel was advocating for plausible evidence standard two for a referral to the director as is the right understanding of three point three two one the and th should be first to the director in the question of what is plausible basis and what is the weighting of the evidence is the factual question that joe is that the board is determining in the first instance about the level of the weight of the evidence and how it interacts with the medical evidence that statements of a veteran the question of what weight various elements should be given to is the factual question that the board is deciding that is the question that needs to be determined before a matter goes to the regional office miss mayo director of compensation services and four point one cents being is to be made only when it has been determined that the claimant is an employee at will by reason of service connected disability and that the finding of unemployment realty is a condition precedent to referral to the regional office under four point one six b so here the board made that finding of unemployed ability it's furthermore there is nothing in bowling or fisher that limits the foreign to only considering office supposed to independently determine for itself on the merits by preponderance of evidence whether or not a particular claimant deserves an extra extra scheduler rating what is the purpose of doing any kind of referral to the director at that point so there has already been a fact finding made by the v a so why take the additional step in those situations where the order they are of does that the director is the one making the ultimate assigning the ultimate rating which centralizes the award of those ratings in one but if the board or the r o decides that there shouldn't be an extra schedule or awarded then that  that choice does not get referred to the director right the director of the r o or the board can stop the process but they don't have the authority to grant the extra skin to the board in the regional office mate fact element finding of unemployability by reason of the service can't a disability if that fact finding has made its way through to the director now the director can award the rating or could decide not to award the rating which would also be appealable i believe  ratings to see if the schedule needs to be changed since the director has the power over the schedule it eliminates all the different regional offices and or it's meeting different the terminations as to what merits the ultimate rating  determination is a no i'm really asking i think the same question that extended that if the board or the regional office makes a determination that the service connected disability individual an employer will what would be the basis on which the director could then do anything other than to grant to the director believe that the v a is incorrect as it represents the role of the v a in this process under this regulation the v a has asserted that the role and make the decision in the first instance and they're relying upon the language  fund to support that view first that is inconsistent with the decisions that are cited in the appellant's brief in support of it is the obligation of the director to make that decision as and judge bryson have correctly pointed out it makes no sense to read this regulation that the decision is made and then it's referred to the director to make the decision again clearly by this regulation and there is no statutory predicate to this regulation this is a regulation that the secretary himself has written and that regulation requires a decision by the director and it requires a referral there is a complete disconnect between a decision which by the board which says that there is a preponderance of evidence against the claim with the plain language of bowling and other cases which talk in terms of a plausible basis to make the refer regulation doesn't say possible basis the regulation does not your honor the case law does and that's why this is a question though isn't quite say it doesn't say possible yes no that's not possible no one does not say that at all and i would suggest that the language in through my relative to four one six is simply dicta and not controlling upon this court because this court was not looking at the language of four one six to determine the interpretation of three point three the that should be read and interpreted in in a very different way where now there should be a plausible basis or threshold injected into that regulation i'm saying that the involved court below said plausible basis in terms of the legal standard for making the referral to the director there was no referral to the director in this case therefore the rule in bowling was violated that was was this argued below was that four one six b was not correctly applied on moderates on the merit determination on the basis that they did not have the authority to make that merit decision in the first instance it was not it didn't get down into the weeds of the type of discussion that we're having in this case because it seemed self evident based upon the case law that the board was not able to make that decision in the first instance type of no it's actually correct there's not been able to secure and follow a substantially gainful occupation by reason of the service disk and connected disability that i take it was the thrust of the irgc yes or that they should have