saying that he was not credible that his state's and your view is here the board said something that was ambiguous because there seemed to be a clash between couple of their comments this quarter that can claim is recognize twelve decision clearly found that mr custer was credible and that the statement explaining to the board on this is the record of one hundred twenty eight the board of knowledge of veterans place statements that is back to disability can be attributed to his in service these and as noted in service back spasms the border deserves in this regard while the veteran is credible he's not competent to discuss medical issues ok and then it went on to say that a couple o not experience chronic back pain continuously since his service separation for that same and deals with his competency to describe medical issues with the board is doing here is they're saying that this is a veteran he's credible to make the statements he's credible to report these conditions but he's not a doctor so he can't competently identify whether or not the back condition was related to serve and we have jurisdiction to kind of review and second guess the quarter to quarter veterans claims about there was an inconsistency or an ambiguity your symptoms and then later on in their decision they said yes you're not competent because you're not a doctor there or that the veteran has been under the understanding that he is credible to report what happened to them now the reason why this is important is because look what happened here truly is the board that as a lay person he's credible to report having experienced kind of back pain and then the later statement says the persuasively there are some kids that have back problems the fact that it's back problems were triggered by the two thousand and report having sprint chronic back pain but given his inconsistent statements it's not a crisp persuasively good experience back pain and other words you are suggesting here you're making a factual argument that we're supposed to interpret these two sentences in a particular way but the veterans court looked at it and said this is it consists of when we want to really hand it i mean it winds like that why can't you read the statement of j one twenty eight it's reading as a but i can't see that but basically it is i can't see where where that language is not clear to to this court i can't see how it's not clear to the veterans court when the board is what the veteran is credible to report having experienced chronic back pain what else did that mean in but we're not going to we're going to we're going to find holes in those medical opinions because social security records say differently so it's really a battle of the record that's not it's not an issue of whether or not the veteran statements are credible th board is using this socially thrity records to downgrade the private medical opinion submitted by the better it has nothing to do with his credibility and quite frankly he has never been he was never given an opportunity to have noticed that he was not credible the first time he's provided that opportunity is in the most recent board decision instead of if the v a wanted a decision we're reviewing the opportunity with the due process well we did not have the opportunity at no point in time to the v a issue a supplemental statement the case do they provide any other notice that mr custer at this point in time even though for the past six years we've found a credible we're not going to do so any longer that notice is first given in the followup board decision and at that point in time mr custer is not allowed to submit any new evidence if you provided the supplemental tape of the case he can then turn around and say ok i need to get buddy statements i need to get supporting evidence i need to get documentation from friends family coworkers who could testify and to man affidavits i was suffering from low back pain conserves he doesn't have that opportunity because he has no notice that the board's going to do a one eighty on and that the court's going to do  on if you're a veteran and you read this board decision in two thousand and twelve and the language says a veteran is credible reports having back pain how are you going to know that ok i'm going to turn around two years from now and i'm not going to be credible there's no there's you it's not a court hearing you don't go sit and provide evidence the board just makes a decision on the papers so there's no there was no opportunity of reason there's no briefing there's no argument in front of the board he had previously had a board hearing but that was before the two thousand and twelve board decision so he was not given a new board hearing he was not given an opportunity to vote with his and that's with the read me and there's not an opportunity to submit for us here on the board you can certainly submit further material to the clear on one thirty six of the main paragraph that the court says basically is to such discussing the continuity of symptomatology crime that the board have found him credible to report having experience chronic back to the board doesn't or this is what the court doesn't say there is an issue here with whether or not mr custer is credible it'll come out of it and say that what they do is they say bored you need to go back and you need to examine whether or not based on his statements which reading the court's decision there's nothing that the court says the veterans court says the credibility is going to be an issue who are about one thirty seven where the top of the page the court will remain and this matter of the words may properly consider all the evidence including lay evidence and determine whether mr caster's lay evidence as to continuity of system symptoms is credible and probably but that is in regards to whether or not it's and it satisfies requirements of under the continuity of symptomatology it's it's not saying that the board is going to reanalyze whether or not he's he's credible what the court is saying there is i want you the board to determine whether or not his statements are sufficient for the whether or not his back disability is related to service that is the question but there's two ways to get to that service connection so way one is to get a medical nexus opinion stating that his current back condition is related to service now the veteran ha that in his file but that the board of the v a says those opinions are relevant because he's not credible the second way that you could get service connection is to prove you've had these symptoms since you've left service and the entire time the case was pending until the most recent board decision that had not been an issue it had not been discussed by the v a and had not been discussed by the board because it had been missed and that's what the court is doing here is they're saying you the board you've missed these arguments you've missed the continuity symptomatology arguments and because of that go back and make a determination under that section whether or not the evidence is sufficient for service conviction and we have t sankyo please the court in mr custer's brief in his arguments to the court today he's inviting the court to take a new look at this record the facts in this record the evidence submitted that's different from the about the factual findings and the obligation to provide findings regarding credibility as part of its obligation to provide reasons and bases for its decision so any better and any claimant appearing before the board always has noticed that the board will address credibility here analysis regarding the veterans prior conflicting statements that his back injury essentially started in two thousand and six not in service in one thousand nine hundred eighty and the veterans court found that there was a conflict because of this trying to say was that the veteran is competent to report these types of symptoms here the conflicting evidence shows he was not credible the the best way to read the court that the veterans courts next decision i think is just  reading the record in the way most favorable to the veteran essentially because of the the board should have used the word competent instead of credible the veterans court seems to be saying reading that in the way that's most helpful to the veteran there is a conflict and so we will send it back the court will send it back to the board for a reach terminations regarding credibility to ensure that the board's ultimate finding is clear but the extent there's the sense the court does not choose to defer to that the better well respectfully rather this type of notice that he's mentioning here is completely foreign to other types of notice traditionally understood and due process context notice in due process is normally referring to a notice of the pendency of the claim which certainly there's no dispute that he had that here or is referring to the opportunity to respond again there's no dispute there were multiple hearings mr prosser had the opportunity to submit written submissions that were to appeals the veterans court and nor is there any argument i that are so that the board may properly consider all the evidence including the lay of events and determine whether mr custer's lay evidence as to continuity of symptoms is credible and probative and there's no other reason i'm sorry i didn't think we were i'm not voting we may we have a different the last sentence of that paragraph and there's no other basis well there is the medical record from dr topo as an alternate as an additional basis for e mail and but the reason for the remained is for the board to make a clear always consider credibility but but then the entire analysis leading up to that is addressing what the veterans court viewed as a deficiency in the statement of reasons and bases for guiding credibility in the first place so  competent to provide medical evidence regarding nexus between a prior injury and a current injuries of the current back injury the exception to that is is for chronic illnesses like outcome we request if the court reaches the merits but if we do think that in order to escape obtain jurisdiction of the court in the first place there has to be at least some argument for why and why this either involves traditional elements of due process which it does not or why this involves some good faith extension of the law regarding due process perhaps using an application of the factors in mathews the eldridge or something akin to that here the provided that by the veterans private chiropractor suggested a symptoms could be correlated directly to his in service injury but what the board does is they downplay that medical evidence submitted by the veterans because they find that it and injured back so they've instinctively find it incredible by that they were there for the veteran service rumors do not show any in service back injury so there implicitly saying well the veteran can can tell us all day information from the records is insufficient and that they've got to address was described by standout r m m m a but we addressed the entire time whether or not he's credible once we've had the opportunity to do so much we've had notice to do so but if the board finds that  a veteran is not credible it's impossible to win a case it's impossible and because if even if you have the the the thousand ten thousand dollars medical expert opinion it doesn't matter because that opinion is going to be based upon a veteran statements and the board's going to downgrade that opinion so by finding that the veteran statements are not credible he cannot win his case based on continuity of symptomatology he cannot win his case on the traditional route and that's quite simply what the what the board and what the v a did here they initially find incredible and then they turn around and they realize they made a mistake because they're going to grant this award and they turn around and based on the exact same facts the exact thing that it's nothing has changed they say