eight back against wilkie mr carpenter please begin when you're ready thank you very much your honor may please the court kenneth carpenter appearing on behalf of mr corey back the stench tory presumption in this case  i think is my key problem with the argument you say that it is undisputed that the presumption was triggered why is that true it is true your honor because all that is required is that there would be a chronic disease as listed in the statute and regulation that is identified in the record the fact that there are other diagnoses in the record is not relevant to whether or not this statute was operational based upon the undisputed facts of mr beck hospitalization immediately following the service for disability manifestation are whatever you want to call it oh i'm sorry if it that is the qualification you're putting on it i disagree i believe it is a presumption of service connection because of the uniqueness of this statute this statute applies sure sure no no no no i get you that but i guess my question is is the presumption here is not that the disease considered to have been encouraged or aggravated by service so it's a presumption one of those diseases or conditions being connected to service it doesn't say that the d's itself is presumed to exist just by the mere existence of a medical record predicate for the presumption applying no your honor because in this case it only pertains to diseases which are present to a degree of ten percent disability it was not it was a legal question based upon whether or not there was evidence of a chronic disease in this case a psychosis and a psychosis that had manifested to a degree of ten percent disability following service by the nature of his hospitalization for more than twenty one days under v a regulations a condition is considered totally disabling obviously more than ten percent within for that period of hospitalization as a consequence we have met all of the factual predicates to trigger this presumption and this presumption different from the one o five a presumption of service connection for a disease or injury present in service this is a disease or injury that is present post submit that is correct your honor other than the fact that this is a statute and not a regulation there is a regulation that implements the statute but this is a statute created by congress that uniquely provides for presumpti service connection for a disability which manifests itself as the result of a chronic disease at a rating of ten percent or more post service and your view is that the presumption is not just for service connection but a presumption that the disease occurred if any kind of like prima facia evidence is presented yes your honor because of the very wording of the disagreement if we disagree with your reading of the statute and find that this is simply a presumption of service connection statute and that in order to gain the presumption you still have to prove the predicate underlying fact of the chronic disease  if the court were to make that determination the veterans court in this case did not address that issue the veterans court presume that my interpretation was correct and said even if it was correct that this would have been a harmless error therefore remain and if required by this court if the court adopt that interpretation to send it back to the veterans court to make that determination in the st instance based upon whether or not there is an adequate statement of reasons or bases by the board to support that determination determinations are not refutable by this court under seven thousand two hundred and ninety two whether this is a case in which there is no jurisdiction in our court because of the way that the veterans court decided the of the problem with that with the decision made below is that the decision made below was predicated upon a i guess a judicial concession that even assuming that the interpretation or the allegation vermin of error by mr back in his briefing was correct that that would have been a harmless error the problem is is that based its decision on the determination of harmless error without reaching the question of law that we've been discussing the scope of section levon twelve  was correct in that room if saying is not another way of saying that we don't have to decide whether it's correct or not we will assume that it's correct and then we will rule on a different ground to it and  that is correct your honor and that's why the challenge here is whether or not the veterans court relied upon a misinterpretation and in interpretation that requires the  finding the predicate for the q and i realize i'm going over my time is that there was would not have been a man officially different outcome there would have been a manifestly different outcome under the correct interpretation therefore aprs a question of law is being presented in this case which is critical for this court to address because as judge hughes indicated if my interpretation is correct then as a matter of law mr back was intitled and the original adjudication to an award of service connected compensation without having to demonstrate anything more than there was medical evidence of a identified chronic disease that had manifested to a degree of ten percent or more mr carpenter this is just trying to do do you dispute that even if your view of o or in the review of the requests for revision by mr back in the board's decision denying that provision in which there was any suggestion that the presumption had been rebutted therefore the presumption stands because there is no proffer by the government that they rebutted the presumption based upon the criteria set out in  harmless why is there jurisdiction in our court to decide that given the cases that we have in which we have held that determinations of harmless error by the veterans i think i was hearing mr carpenter suggest that in this case the harmless error analysis of the veterans court was itself infected by a legal error and that  the merits of vak contention that a harmless error analysis rested on a leak or a legal error required consideration of just how i'm going to call it minimal the showing is that's understand it coming from the regulation is that there has to be what would amount to a prime official showing enough evidence that it's on rebutted which support the agency's position in order to rebut the presumption to have that would give us jurisdiction to address how to twelve even if it was somehow through the back door of a alleged incorrect legal premise underlying position because it seems like a case that i was a little surprised when i read the brief that the government would have come in and argue we don't have the court doesn't have jurisdiction because this is based upon a harmless error analysis that is entirely fact based and you know it's u d we don't have jurisdiction over that factual harmless error analysis so what legal content is there to the harmless error rolling apart from the statutory interpretation question or do you think those two are the same thing here  ron i'd like to begin with the language i've been thirteen and i agree with judge hughes observation that it is very difficult to suss out from the language used by congress what the  number one the government did not assert the language in the regulation in its briefings so they are raising an argument that was not raised there briefing but more importantly the reliance upon the  regulation even if permissible is not supportive of the government's position for two reasons the st is that the language used in the regulation specifically refers to the question of whether something was incurred in service the question under one thousand one hundred and twelve dollars a one is whether or not something occurred within a post service presumptive period it is not whether something took place at during service and therefore any language in the regulation would not have application to this particular statute more importantly on the question of what the legal standard is and whether it is as low as the secretary has written in his regulation that cannot be supported because this regulation applies that we've been discussing yes the arctic and in particular why this isn't a case in which the veterans court decision relies entirely on a fa based harmless error analysis without any kind of legal error in the picture i do not believe that the veterans court made any factual statement and to read into that that there was some factual determination made by the veterans court is simply overgenerous what the veterans court in fact said was harmless that's the end of the discussion there was no factual predicate upon which that was based at best it was a reference to the  standard without any further lab aeration and as was suggested earlier in the colloquy with the government mr beck's position is is that the harmless error analysis was tainted in a chronic disease and then the question becomes was that chronic diseases manifest at a degree of ten percent or more