case number one seven one seven four nine and it is appeal an appeal from the united states court of appeals from that trance claims that if i understand you want two minutes for rebuttal yes please the court this is appeal is about requiring the board to abide by a fair process there are three criteria governing effective withdraw all of an appeal under thirty eight c f r section twenty  the one withdrawal must be explicit unambiguous and done with a full understanding of the consequences on the part of the claimant when you when you say those are three requirements you're not reading from the from the regulation  regulation itself is silent here we have to decide whether that three part interpretation is in fact a proper interpretation of one or the other of the two regulations that you relied on here i would submit that the court has to adopt some interpretation i think the v a s brief cites to a number of non presidential decisions that have recently been put forward by the veterans who are to see that there is some disparity in terms of how this rule applied and this court is free to reinterpret it differently than the veterans court but a minimum i think this court has to interpretation regulation so there is some guidance both to the board and to claimants who are in the situation it's your view that the interpretation of the regulation as as applied by the board was unreasonable there was no application of the legal standard the three criteria by the board there were absolutely no factual findings as to what the veteran did or did not understand and so we would argue it's not a misstep location it's that there's no application and that's erroneous and cannot shield the v a from further review when when when i look at this transcript in which of a lie i feel like i'm coming in the middle of a conversation it appears that there was at least some understanding on the on the part of the hearing officer that that this that something was going to be withdrawn where did that come from i would agree with your honor unfortunately whatever conversation may have been had was not on the record as was required by the regulation what seems to have happened is that the representative who was not an attorney he was assigned by the disabled veterans association of america had some sort of off the record discussion with the hearing officer we have no indication that that conforms to what mr kerry understood what he wanted to happen and i believe if mr reid were being called to testify again we can't rely on this but he would say that he never intended to give up certain claims especially the p t s d claim and the claim for gulf war hazards those were incredibly important to him his representative had some sort of conversation with the hearing officer on the record he said ye and that it was over and i think that that's just illustrates the need for the questions from the hearing officer to be coming directly to the veteran and there were there to be some clarification of you understand this is being given up forever not forever  we're giving up this plane you understand what the consequences of this will withdrawal are do you have the you know are you want to be substances today that would prevent you from agreeing to what we understand is occurring and it would take really thirty seconds to would not impairing medications or something why would there be more at an oral hearing than in writing i understand the regulation is just state certain information that must be provided to withdraw the claim i would submit that the standard should be different because when you're submitting something in a writing you know you have time to go ask questions of someone you have time to think about it you have time to maybe research and make sure that you're comfortable with what it is that you're signing your firm and of like making the submission i think a really good analogy is the settlement agreement that's done you know in the court room or in the midst of a proceedings if you have a settlement agreement that's in writing that submitted to the court you have the text of what the parties have agreed to and you can presume that there's an informed consent and that everyone is entering into this willingly but when the settlement agreement is put on the record in court very often there's a discussion with the court that everyone has agreed to these terms there are no misunderstandings because the last thing that a court presiding over a case that's settled wants to happen is that people are not sure it's what it is they agreed to so just the nature of submitting something in a writing which has kind of built into it informed consent and the that the veteran himself does not have to sign this writing right you know his representative can sign the writing so is it your position that to the extent the work off the record conversations that those off the record conversations actually violated the writing requirement that there was no writing and i think the writing requirement just doesn't apply in this case if the representative had had these conversations with the hearing of a server gone back to his client they had written it all down to sign it and they submitted it we wouldn't be here today we're here today because we have no confirmation that the veteran actually stood what was transpiring in the middle of this hearing where you know people are nervous and you have a person of authority have the bench and you know just saying yes and not delving into that further it is  to narrow what was what the party wanted to discuss i can't find that in the record or any reference to it in the record do you have access to that's he or do i have never seen that cd or just what i would say is court acknowledged eliseo never suggested there was anything wrong with the standard said first to trace your e r mat and we find them met very strongly so we need not address the third factor and that is that cannot be the role that in some situations the board has to apply all three factors and in other situations it can only apply to and then stop and not worry about whether or not the plan under what did the court really say we don't need to address the third factor or did the courts say that when the first two factors were so clearly apparent that we can infer that that that the third factor were satisfied it said that the board was not required to delve into further analysis and that the explanation provided is adequate respectfully that is never it's never going to be the case where the first two factors can be so strong that you can presume the third factor because you have no indication one way or the other what the better and actually thought it would have taken it very little to just simply ask you understand that you are giving up these claims and here are the claims that you're giving up and then there would be a record as to what the better not understood but just saying could never get you to satisfy the third factor that someone actually understood it to the extent that we find that the board and in a court properly cited the legal standard and then made a finding that the legal standard was satisfied do we have the jurisdiction to review that conclusion  board wrote is that the withdrawal is a fact and without giving any indication as to how they got there and then the veterans court in reviewing how the board may have got their side well you know looking at this we think the first two criteria satisfy need not decision may have rested on an incorrect rule of law and moreover to determine that the correct rule of law requires factual determination missing from the board's decision and so here we believe that everything that happened below it rested on an incorrect rule yes so much which is what was in correct rule of law but not everything that we don't get to decide everything that happens below we get to decide whether the veterans court i think the language in martin building on me or can ever say that cases thing is that where the veterans court decision may well have rested on a legal error we can determine whether what it did was was at the bottom of page three seems to have changed the three part test into a two part test is that the reading out the third requirement is the legal error and excusing the board ego said in that sentence until it's you know do we have an independent basis for saying that the apparent inconsistency between the top of page three and the bottom of page three is a legal error i would answer yes because it's problematic in this case that the veterans court is saying that it can mix there can be some sort of factual determination between situations where there is some confusion and situations where there are not that that standard would be incredibly difficult to apply and would be in cracked and unfair to the  an adversarial setting when the v a is is required to really help the veteran get through this process rather than put the burden on them to demonstrate some sort of confusion in order to have the protections under that federal regulation is what's appropriate and the court has said we'll look at every part and we make factual findings have asked every part i think you're right we wouldn't have jurisdiction over that the real question though is is the question the board it was making a factual finding that was reviewed by the veterans court for clear error and the analysis to the veterans court applied was to look at whether there was adequate statement i do what adequate explanation of the reasons or basis for the decision so that the board that the veterans courts analysis was focused on whether the board said enough to reach this conclusion that mr rackley had withdrawn his claims and what it said was in this situation in this case it actually uses those words in this case it was not necessary for the board it's not a rony astrue or it was of making that adequate explanation of the withdrawal finding to explain and reach the affirmative decision as to whether or not mr alternatively was there an adequate explanation of the reasons or basis for the decision whether those are factual the terminations right the theory depend on the legal standard that the governing of factual determination fright yes your honor that's correct and but the there is what the board did here consistent with the regulation was adopt the actual finding that was consistent with what the regulation requires which is the appellant and see the regulation silent as to what it takes to effectively withdraw a claim and the board didn't make a factual finding the board on page eleven of the appendix did say under the heading of finding a fact and noted the fact that mr acarya testified before the hearing officer during this hearing that a backing away from to lease you know as a governing legal standard no your honor i think we're not as we've said in our brief or not we're taking issue with the lease e o but we don't believe that in this case the board but just saying the board doesn't apply it in every case well i'm not saying that the board doesn't have to apply and what i'm not taking issue with those findings and that with the receipt formulation we haven't taken that as we don't have to apply it well your honor i think the question comes down to the way that the veterans court has applied those criteria have not adequately made an explanation made sufficient factual findings to provide for meaningful judicial review that was the prism through which the veterans court looked it was applying that standard to determine whether if it was expli unambiguous and based on the record in the absence of any other indication in the record that mr achree did not understand the consequences of what was happening here now in other words if one and two are clearly satisfy you don't need three anymore well i think that's true but i think that's what the veterans said yes when he had asked us to withdraw his plea and the veterans court said in that case the veteran on appeal before the veterans court had not demonstrated that he didn't understand the consequences so there had not been an explicit finding me by the board that's really what i think this records are going to driving at how much does the board need to explain in order to meet these standards are you saying the burden is on the that friend to say he didn't understand well i question i think if the veteran is challenging it or decision on appeal there is a burden on the better and to show that there was some sort of clear in the in the ford case and i believe in that case the veteran  standard should be explicit unambiguous and the veteran hasn't brought anything forward to indicate that he didn't understand you're not suggesting that's the case i think that that what the veterans court has done with the standard is to apply it and withdrawals made during a hearing are supposed to be affected and that's important to especially look at the purpose of that there were two changes made in two thousand and three one was to allow for an on the record withdrawing hearing but the other was to let the veterans  the withdrawing for the better i think the will that mr achree is advocating would really complicate that process in part because if you have a veterans representative who speaking on behalf of the veterans we want that to be to count for something if the veterans but but in this piece one forty seven and one forty eight what you see is and i do want to respond to your initial question i think or earlier about the middle of the conversation because i i would agree that that's the way this transcript reads you have the the judge beginning the hearing and saying off the record conversation it's not a violation of a regulation that took them to which i'm a lawyer but you know about what you would think that a careful judge or hearing officer would come on the record and describe in detail the conversation that occurred operetta they wanted it to be on the record well your honor i think i think in fairness to that the judge here i think what that it is what he attempted to do by describing what making sure that the veteran wished this thing out the claims asking if you wish to withdraw them the answer was yes but then what follows from that  also relevant because you have the the judge referring to the other claims that were still in contention and then a discussion ensued with that he asked the representative have i got it correct and course i'm paraphrasing have i got it correct the representative said yes yes structure and that's in the record as well well if if you agree that there's two steps to this process what does the regulation require and then the second would be the one that we wouldn't have essentially jurisdiction over with respect to actual findings and certainly would have would have jurisdiction over saying if the regulation requires three things and you never mention the third that there is an a problem in the record with respect to the ultimate conclusion but but how would you have us write this would you have us write it to say the regulation requires went to lease you know says and then say but we can't question at all whether or not they comply with that well not all of them and i just to be clear with respect to ford i'm not i'm not sure if yes you know we cite a number of cases where the deletes your formulation has been applied and it's been applied in a manner which is rather flexible i think that is really i think our position is that that that application works well it leaves it to the discretion of the hearing officer largely to determine on a case by case basis as to what is appropriate i think the rule mr acarya argues would really frustrate that i don't know i know that that veteran would have the opportunity to testify or your she wanted whether your question is whether the veteran could be completely absent i'm not sure because i keep thinking when i look at the regulation it's it lays out what's to be done in  writing and i think it's agreed here that as to our writing there is no requirement for further inquiry into whether the veteran understood what was being submitted in writing and you know it so i ask myself why should it be any different when the thing is done orally and one circumstance i guess occurs to meet the think about is what if the veteran isn't even there and the representative makes the withdrawal which the two thousand and three modification of the regulation expressively contemplates so is that a fictional scenario or is that a real world well drawn i can't speak to whether or not that really is the case recorder and so on up here so i don't know the answer to that but i do think first of all with respect to the lease you know language that the veterans court has applied that to situations involving a written submission as well as a moral one i think mr jack reese argument seems to be that we should have a different standard for hearing withdrawal versus a written withdrawal our position is that  to sort of adopt a really new formulation that would apply just the oral withdrawals because it cites it's a twenty ten decision but it's a number of cases that pre predate the two thousand and three change to the regulation and at that point you can only together with a waiver of regional office consideration probably lockstep that evidence into the record what does that mean your honor i think this goes to the question you asked earlier about a cd and that my understanding is and i don't know what's on the cd and i personally look at it but i think this particular reference on page one forty eight as to the veterans desire to provide a desk to the judge that contained certain evidence and i believe that that evidence was and was related to  his insomnia disability claim and so he was i believe that that reflects his desire to just give this but this cd on the record but i don't think that's pertinent really to the question that that we're talking about ok board must follow i don't think the board needs to make detailed findings as to each of the three factors to ultimately reach the place where they find it with trial is effective but there has to be a recognition at the  level that to reach the conclusion that the withdrawal is effective that there has been some records used that shows what the claimant did or did not understand in particular that the claimant understood that they were giving up this claim you want to say that at the least three part test is the most reasonable reading of the regulation yes turner and make that federal circuit precedent to judge toronto's question to my opponent as to whether the better it would be required to attend the hearing i submit that i don't know as a matter of procedure whether that requirement exists but it seems that it would because you can't make factual findings i don't think based on what a representative or a lawyer is saying and in the warning be mcdonald case we had a situation where the veteran called the v a on the phone and live so i don't think that that's a hard and fast rule but it is some indication that to make the factual findings you made an analogy earlier in your argument to the way things are the court and some idea if you think that depends on the type of matter i was in a family law dispute not very long ago where we entered into a settlement on the record at an evidentiary hearing and the state court judge there directed all of the questions char clients not to us and he wouldn't answer the settlement until it it's clear that the clients themselves understood what they agreed to and that they've been properly advised by their counsel so that's one situation and in my limited experience where  the court i don't think would have taken just the lawyers representation that everyone understood what was happening to rebut what my opponent said during his argument i think we heard him concede that the least you know is the proper standard if so the veterans court cannot ignore the third requirement we also heard my opponent going to say that the veterans court found that one right here in numbers one and two are satisfied satisfied and the third requirement need not be in th statements are internally inconsistent we also heard you say you can infer full understanding of the consequences from the transcript our position is that you can never do for full understanding and knowledge of the consequences must there is