count carpenter appearing on behalf of mr jackie robinson this appeal concerns the legal standard required by the use of the phrase to secure or follow a substantial gainful occupation as used in the provisions of thirty eight c f r four point one six the veterans court heard by affirming the board's use of this in correctly all standard the v a in a joint motion for remained in the previous proceeding in this case and below indicated that the board had not addressed whether or not the appellant was able to secure or follow a substantially gainful occupation but rather had focused largely on whether or not the public was unable to work in the decision on the legal standard used by the board to determine whether or not mr robinson was unemployable was whether or not due to his service connected disability he was unable to obscene or sustain gainful employment the inability to my view it did not rely upon it and in fact when you look at what the board did in explaining itself it said that the v a will grant a total rating for compensation purposes based on employee ability when the evidence shows that a veteran is precluded by reason of a service connected disability from obtaining or maintaining any form of gainful employment consistent with his education and occupational experience and then cited to three regulations including four point one six that standard of any form of game full employment is not the standard in any of those regulations the standard in standard or that it that it went back and forth in terms of its phrasing sometimes using shorthand that you think reflected the wrong state while you're at it in our view they consistently used the wrong standard now whether they went back and forth as the court below found i don't think they went back and forth they simply noted the correct standard in two thousand civic places in their decision but when they went to apply the standard they articulate the wrong legal standard that's page one sixteen to one seventeen in the joint appendix the board concluded that the preponderance of the evidence is against a finding that the veteran was unable to obviating or sustain gainful employment the wrong legal standard and if they identified the wrong legal standard that it was up to the veterans court to tell the board to do it over again using the correct legal standard in a decision in which there is not a complete loss for the case like lighter but vital the case where i recall that this court looked at that the language was much similar to and did not as they did in this case use the term an ape or the phrase unable to of pain or sustain a full employment and the difference is that under four point one six a the regulation allows for the veteran to actually be employed he can be employed he could have a form of employment but it must not be substantially gainful employment and therefore when they've used terms like ob sustained substantial gainful employment it raises that bar to a different level than what is intended by the regulations the regulation clearly provides that a veteran is capable of even earning more yes but there must be an evidentiary basis for it in the record and there is no evidentiary basis for it in the record in fact the record of an organ won't know you're on it i'm responding to your question as to whether or not they could apply and the standard by simply saying that he's capable of working they cannot apply the standard under four one six because they have to show that he was in fact working at a substantial this case the evidence of record in this case is is that during the current period he had no employment and his late testimony was which was part of the reason this was sent back to the board for the second time was that he was unable you didn't make it to the veterans court it wasn't made to the veterans court and you haven't made it to us before it's a big because the argument we relied upon was the use of the wrong legal standard that mr robinson when he went back on remained did not get the benefit the court ordered remain and that was agreed upon by the government to go back and look at it under the correct legal standard right but but but your problem is the veterans court assessed the board's opinion and said they actually think that's what support sent the correct legal standard was a lot because the correct legal standard wasn't applied and i pointed to specific points in the decision in which it was not applied and when in my view there is ambiguity about what that board was doing in applying the legal standard in saying they're going to use one of the gold standard here and then another legal standard here when they're analyzing the evidence that simply is not applying the correct legal standard they made a specific conclusion that there was a preponderance of evidence in which there was in fact no evidence even if you exclude mr robinson's evidence there was no affirmative evidence in this record that standard under which the board rendered its decision at pages one sixteen to one seventy it's said that the preponderance of evidence was against a finding that the that veterans was unable to obfuscate or some stain gainful employment that is not the correct legal standard the correct legal standard is his ability to secure or follow and that has to be based upon evidence in the record there is no evidence and the board other that its own unsubstantiated opinion made a conclusion that he was capable of that capability the terminations must be based upon evidence and the keep this position in this case is the board's conclusion that there was a preponderance of evidence against there is no propounder inch of evidence against him because there was no evidence that directly related to that issue from any source within the record no medical opinion no vocational opinion there was mr robinson's opinion and they discounted that so if there was no evidence then they should have sent it back decision both parties agreed on a joint motion for me manned and agreed on the correct standard to be applied in t r u and that's because the prior twenty eleven board decision as mr robinson noted did apply an incorrect standard whereas here the board had the benefit of following the guidance from the joint motion in which  parent because the board expressly said that's what it was doing at j one twelve it's sad it was conducting its entire t d i you analysis quote mindful of the guidance from the joint motion and so the board here was clear and and that's that's precisely where the veterans court itself started its analysis in considering the fact that the board was following the joint motion and that it made these correct factual findings whether the article made know to the extent that mr robinson's now arguing that the board's occasional reference to obtain and sustain as opposed to the regulatory language of secure and followed to the extent that he's arguing that's a meaningful or that that that that the question is not whether he was employed or not it's whether he was quote on able to secure follow in that that's a different question about whether he was in fact employed you argue in your harmless care or section of your brief that that's the board found that that mr robinson was capable of securing a following a substantial gainful employment as a truck driver or a repair worker and that that finding was never wrong legal standard saying generally wind when the alleged wrong legal standard is used and is the appropriate result and of course as i mentioned before we disagree that we think that the correct legal standard was applied but in any event the cases that mr robin relying on about remain and are really distinguishing between remain versus reversal it's true that in cases of prejudicial error in agency decisions the best route is to remand for the agency to exercise discretion but that doesn't address the question of prejudicial however the best conclusion to draw from these factual findings is that the board and in fact did what it static did that it followed the joint motion guidance it applied the substantially gainful standard it made important findings pursuant to that in the van whose case below was referred to by the government and cited by us at the opening brief discusses the standard in terms of whether the veteran is capable of performing the physical and mental act requires by employment and not whether or not the veteran is in fact employed the key in this case is the absence of the word substantially stood stanch only is the qualifier in the regulation for the employment for the substantial gainful occupation in the language of the regulation the legal standard relied upon by the board below which they introduced after remained from the court that told them that they were supposed to be using it they did not take that remained seriously they decided to use their own language and they impose that language that is counter to that legal standard and imposes a higher burden of any form of employment and it is not any form of employment the record is clear that prior to one nine hundred ninety six this veteran did work in those occupations the question is from one thousand nine hundred sixty to two thousand and one was he capable and where is the evidence in the record to support that conclusion that there is a preponderance of evidence it comes from the board's use of the wrong legal standard that they only had to look at whether or not he was capable performing any form of employment and in so doing they made a clear legal error which should have been recognized by the