following up on the preceding argument then i don't think that i want to try to plot new ground here but i would like to focus the court's attention on the regulation itself because it seems to me that the regulation itself here is what makes the error clearly mistaken that was made by both the board and the veterans court in this case by relying upon evidence  again were retrospective if you will for contemporaneous confining by a wife at the time of the incident the first statement was by her first husband who reported that she had been informed that she had been raped shortly after the two met while serving in the military in one thousand eight the second statement was from a fellow service member who was stationed with a y at the time of her alleged sexual assault and reported t c f r three o four s fox and that is corroboration by means of sources other than service records well that is certainly true that the regulation allows other kinds of corroborative evidence what seems to me to be a bit difficult is to read the regulation as addressing the question that we've been talking about today rather with seems to be difficult to read the regulations as foreclosing reliance on the absence of records it seems live well it is silent in regards to that not exactly what the regulation says it can be based on evidence from sources other the veterans service records that would certainly suggest that the veterans service records are pertinent to the pursuit of the truth i disagree on or i don't believe that that is the  the whole issue in the only disability in the v a system which requires corroboration is post traumatic stress disorder and now we're talking about a subclass within person suffering from post traumatic stress disorder or victims of in service sexual assault and those individuals are permitted by this regulation to rely on sources other than the service records so what that does in my view is to nullify the absence of a record in service and says if there is no record of this incident in service which is the undisputed fact in this case then you may go outside of the service records to gain corroborative testimony and two of those sources are family members and fellow service members that's precisely what was in this case and the error in this case by both the board and the veterans court was not to examine those statements what they did was to use the veteran statement to undermine the statement of the corroborate or when in yes but the proof of it didn't happen can't be used by the absence of a notation in the service or so you're trying to say that there's a regulatory interpretation argument to get to the point system that was being pressed and there really are yes thought well implicit is one way to put it in the language of the regulation well it's based upon the plain language of the regulation the plain language of this regulation is that it provides a live as in addition to what may be there can have other things with all due respect on it does not say in addition to it says other than service records acknowledges as the v a did in its promulgated into this regulation that these were under reported or not reported circumstances that were less likely than not to have a service record that confirmed or corroborated that the incident happened as you correctly suggested if we have a situation where it's noted in the service record that's correct your honor and this assertion is further substantiated by this court's interpretation of the pertinent statute and regulation at eleven fifty four am at three o three a and in particular in three zero three a because what three zero three eight specifically says is that by affirmative showing you can establish in currents and that's what asked five provides that corroboration is an affirmative showing that the event took place in service because it is corroborating as clearly contemplated unquestionably contemplated by the crane language of the regulation the credibility determination by talking about it in terms of diminishment of the probative value of that evidence and that is paint a nice spin but it is not a proper way to analyze the evidence conclude for example that i didn't think any reasonable person could reach the fact findings that the board did in this case would i be allowed to reverse as a matter of law determination like suppose that the board's decision was just completely on its face and so untenable that as a matter of law that tiny little bit of evidence can not overwhelm the mountain on the that is one of the dilemmas that this court has dealt with in whether or not the underlying facts are or are not undisputed if the underlying facts are undisputed as we submit they are in this case that there are two relevant late evidence which corroborates the testimony of a why as to what happened here her former husband and the fellow service member and those undisputed facts require question and i thought perhaps he was asking you if we were to conclude that the reliance on the absence of a record was improper i'm sorry and then the question becomes whether that was harmless error in the light of the other evidence my understanding from our cases is that since that's an actual matter it's not within our jurisdiction to terminate that was harmless error under those circuits again i think that call harmless error analysis goes back to whether or not the facts are  not undisputed and if you take out of the equation the absence of the service records and that is the only supposed negative evidence or more probative evidence against the corroborative evidence then i think that you're perfectly capable of finding at prejudice because i didn't would rely on your client statements over the course of time talking about other possible causes of the p t s d that yes the boy did but the question then becomes what to do that isn't that relevant evidence in the mix here not have because the issue well i think you do it the same way you do that and you can you go back to the underlying statutory and regulatory structure relative to lay evidence and that structure says that lay evidence can be the basis to substantiate  claim now in this case it's very important to remember that the only element that's missing here is in currents is whether or not this event did or did not happen in service and as was suggested in the preceding argument apparently congress is considering merging five and three frankly that's first time i've heard about this but if obviously they do that then under three you go to the late evidence alone so long as a mental rated but that's just not right it can't be right they can be right because suppose that she says i was raped by you know mr x and her brothers and sisters say she told us she was raped by mr f and everybody seems credible except turns out mr x was in canada that day fifty people witness in there he's got a flight record that establishes it certainly the government would be allowed to introduce this contrary evidence that you're saying no no no absolutely absolutely they would be able to but that's what differentiates this case from your hypothetical we're not talking about evidence that can be substantiated other independent events that he was out of the country  could not possibly have been involved in what was relied upon by the board was the fact that her service records did not substantiate a suicide but the suicide that was reported doesn't have to do with the in service stress or events the in service stress or an event was the radio no but it has to do with whether or not the witness who is doing the corroborating is credible because if the witness doing corroborating says yes she told me right after she was raped and then that witness goes on to say a bunch of other stuff which is untrue and the witness is clearly a ph d on that other stuff isn't of or free to give no or very low not you can use the absence of the notation in a service record to make that in future well and that cannot be the law absence of well ok they there were other things that they pointed to that were  attempted like for example the inconsistency in the testimony of her own account was inconsistent with what the witnesses reported and that her account changed over time i mean there were other things that were pointed to which are really the traditional ways in which credibility is assessed and i think what this court has to look at is whether or not that is consistent with the v a having promulgated this regulation did they write a regulation that was going to allow for the creation of the victim as target in order to be able to attack the victim or the victims corroborate yours on the basis of inconsistency credibility of course i mean you you have to assess the credibility of the of these witnesses and thereby reject their testimony well vince and you have no answers yes the answer is yes but the problem with that answer is is that like it or not i don't like it no question i will stipulate i do not like that but what i don't like about it is is that it distorts and converts the system into it and the serial system and this is not supposed to be an adversarial system this existing evidence not against service records that do not exist ok i think but i remember a time will give you a minute for a while please the court the post traumatic stress disorder regulations do provide the ability to weigh whether supporting evidence is ultimately credible in this particular  evidence with the absence of evidence in the record that the board was considering as not go to the question of whether she was sexually assaulted rather they go to other conflicting accounts for example a declaration was submitted in which supposedly the the claimant had attempted suicide and had a psychiatric evaluation on base however there was no record of those undermining the credibility of that team the one of the claims to clarence claim she regularly had for hygiene was were a state with that something was in fact reported and it's not in the records that is significant question is when the there is no record of the sexual assault  we say that that is evidence that didn't happen your honor i don't think that's as pertinent to this particular case because what the court the courts weighing in in this skin a while you know see see what we don't know what i don't know if one of the fact finder here considers the absence of any notation in the records of the assault to be a very very significant piece of evidence or rather it's just a to be sure there's more in the mix in this case than there was in the case we heard first in terms of facts that might be supportive of the secretary's point but what this whole discussion has been seemed at is whether indication that it was that's true there's no indication that was not what i mean when you tie goes to who when you go through pages and pages of analysis of multiple factors and you simply fulfil your duty of noting whether or not there is  didn't we didn't notice that there was a of of reliance on it but they don't state they don't compare it they don't they don't place it up against any of the other evidence when they're talking about the program value of the evidence they're talking about other factors rather than merely the notation or the lack of the notation of sexual assault i mean they do note it but they note it separately as opposed to two weighing when they're weighing the probative value of the other evidence in the late statements that were submitted and they're weighing the lay statements against know i think for five a year at least maybe upwards of ten on that but what i've seen from the veterans you know from the veterans court opinions may be only a subset of those cases so i asked a question that goes into absence of a record is ultimately dispositive when you're not weighing it against other evidence so i wouldn't say that would control this case in the case of a z they are weighing it but again you know as as we've as we've noted one problem i have with the board's opinion is it says the lay statements have diminished probative value lump them all together one of the lay statements talks about the hospitalization and a large board then to reduce the credibility or probative value of the lay statement which makes that claim and sent contradicted by the absence of those records correct that's ok so what about the other lay statement that make no such claims and i can find no best basis in the opinion for addressing their lack of credibility on any other grail let me give you an example the one appearing on page one twenty two dependent this is a very thoughtfully well written laced statement by a fellow service member and roommate who said basically immediately upon coming back after being raped she told me she was raped it goes through one of my problems is is it correct under arrest size for the board to lump them all together find a flaw in one of them and then from all out the window as a result what is what is the basis upon which the board rejected says corroboration write a single person can corroborate you i can corroborate that you're standing right here even if they don't and aren't willing to or even if they talk about them inconsistent accounts all that have classes to not have classes i don't remember i alone can corroborate you've got to change reduce additional corroborative evidence that turns out to have some flaws in it why does that provide a basis for throwing the baby in the bathwater out together well because it's weighed against the other evidence record it's not simply just you submitted one statement which you know helps cooperate your account that the women didn't didn't maybe doesn't your corroborate your account then you have three other statements for which the board set has low probative value because of concerns about the credibility of those other statements given that there are unrelated set sections of those statements i e the emergency room visits and stuff which have nothing to do not the result of the race so so those other statements left credibility in some form not related to this statement or to what's claimed in the statement all the statements are consistent with regard to her claim of rape that's what the statement stands for what is wrong with the st are any way in which the board addressed this statement in particular or or felt it to have low probably value or lack credibility well i would say in its other findings with regards to the other evidence of the record i mean i i don't think the board specifically does this board does not specifically address that were specifically speak to that statement in the village through that to the extent that the board find flaws in the quote lay witnesses for the emergency room visit due to the alleged suicide that none of that can in any way detract from the corrupted value of this statement and this statement doesn't appear less any of those things so to the extent that the board finds that the statement which does make those allegations lacks credibility conflicting accounts they talk about a number of other of the other factors i got i want you that's one of the conflicting accounts the fact that she didn't report it at an earlier period is and the fact that she later reported it those are what you deem to be conflict when she first i mean there well there are multiple conflicting accounts which they take into account the first they take into account is they take into account that her allegation what the what the stressor was has changed over time so she had initially come in to the to the v a and said that she had a structure that was due to mental stress at west point and then she came in several months later at the right left point isn't inconsistent with the fact that she was mentally stressed after she was right but but she wasn't calling it the men she wasn't feeling the right she was not really she was not revealing very but she also was not revealing the she wasn't discussing at all in terms of of sort of a subsidiary effect of her time that was not westover basically and you can actually see boils down to a failure to report the rape at an earlier time you know not just that i mean she's she's calling it something else she then says you know that's not the stressors because you know she has a stress or it was hurt her knee she had me issues and she couldn't get out of the out of the service during basic training and so that was actually her stressor and finally she openly says well actually it was revealed to me that this is all due to a sexual assault which seems to indicate that you know her previous statements she was not thinking about sexual assault stress or she would not raising the sexual assault stressor in those previous instances so and when she described  now five pages each side of that would be in both cases we have