standards concerning the presumption of aggravation there are two relevant legal standards in that presumption the first standard deals with the triggering event for the application of that presumption which is that there is an increase in the couple places articulates the wrong standard yes and the question is whether that requires reversal the betterness court on appeal said no so why were they wrong well i believe they were wrong because they relied upon the notion that confusion and mis phrasing which creates obvious imprecision is an acceptable interpretation and thus application of a statutory presumption there are very precise terms and increase in order to trigger an clear and unmistakable evidence in order to rebuff the board was quite candidly all over the map clearly finding that the presumption of soundness did not apply but never directly addressing whether the presumption of aggravation applied and they didn't do that because they didn't address  threshold question the first legal standard under the statutory presumption which is that there was an increase in fact they used medical evidence that substantially said there was no increase to substantiate their claim that somehow there was a natural progression in fact if the evidence showed there was no increase then the presumption simply doesn't apply mr shumate had the right to have the correct legal standard applied when the veterans court especially said that any errors of confusion with the board's phrasing was not prejudicial simply undermines the use of a statutory presumption it is that a language within the statutory presumption that gives the veteran the benefit of that presumption and if there was and we believe there was and that the board implicitly found that there was an increase then clearly the presumption applies and there is a heavy burden on the board to come forward with evidence that the increase that was that occurred during service was well it may have been below but i do not believe it is here here it is a question of whether or not the statute can be interpreted in such a way to simply dismiss the phrasing and items that can be confused by the decision maker in this case the more and the board is the critical decision maker in this process to determine whether or not the veteran is or is not afforded the benefit of the presumption of aggravation if he is afforded that benefit we believe that the only resolution in this case is for him to prevail if we think that the veterans court understood the correct legal center and looked at the board evidence of that it that that type legal standard are we without jurisdiction to do anything else aren't your argument that you're making who are properly directed to the veterans square where they were made to the veterans court and they were rejected as simply not being sufficient because the confusion was of them in a given are as you know them yes i understand reveal if you were the usa because it seems that it was not the case i believe that the lower court found that they did not apply the correct legal standard they the court then rationalized that conclusion and said that it wasn't prejudicial based upon the confusing phrase i am suggesting that as a matter of law the veteran is entitle to the plain meaning of the statutory language and he did not receive that benefit and the veterans court in act finding that the use of confusing phrasing is permissible when you're dealing with a question of statutory interpretation to implement right and i'm suggesting that that decision is inconsistent with the law that the intent of congress in affording a statutory presumption is to set out certain legal standards that if met the veteran is relieved from the responsibility of coming forward with evidence if you accept the interpretation relied upon by the veterans court to support their non prejudiced determination if this or rates the statutory presumption  because it's meaningless the war can simply be as it was in this case without any clear direction and the real problem in this case your honor is that the veterans court does not go into any analysis about what eleven fifty three and the  regulation requires and they require clear and specific and precise things a finding of an increase in order to trigger the presumption and clear and unmistakable evidence to rebut that if the lower court had done an analysis instead and based upon the evidence before the board the board was justified in its conclusion then that is an application of fact and we're out of this court's jurisdiction but that's not what the veterans court did the veterans to court took the shortcut and said well yes it's confusing but it's not prejudicial well in the context of the statutory presumption it is present it was there for the questions from the  taking your assumption your honor which we dispute obviously the veterans court aren't ga fired says the board's decision when read in whole including the board's discussion of the evidence relied upon indicates that the board found that there was clear and unmistakable evidence that the changes in mr schumi pairing during service were due to natural progression of conditions that is the correct standard to be applied and the veterans c responsibility and and reviewing the board's decision is to take this factual determinations by the board and then determine whether there is in fact a clear and unmistakable evidence that in miller versus west at the so we get to the point where the veterans courts her whole air center is just it becomes impossible for that i mean suppose you have a legal standard as a board house to apply it makes every single specific finding heaved a language using an outdated or incorrect legal standard and that goes up on appeal in the courts as well they use all the language but i think i get what they mean and even under the new standard they would have come out the same like even though every single finding the pack was using a perfect without a legal error there you know not i'm not prepared mr should make argues that that is an incorrect stand because rather than saying there was no increase beyond the natural question there had to be a finding that the increase was due to the natural progression but that's the  for the reasons and bases that they articulate the correct standard it is certainly regrettable that the the board used that language in one place in different language the incorrect made an incorrect legal standard said said unemployable rather than the standard that was actually required but said that when you look at the board's decision as a whole one can determine they didn't actually rely on that you briefly honor it's clear that the board did not use the correct legal standard in its finding of facts and quite frankly i do not believe that the veterans court used the correct legal standard because left out of what the veterans court said was the critical qualifier in the legal standard under the v a s regulation which is clear and unmistakable evidence it is not simply a matter that there was an increase due to the natural progression and increase due to the natural progression and evidence there of is not sufficient that evidence under the correct legal standard must be clear and unmistakable and in the words of the v a s regulation must be obvious and manifest those are important precise considerations that require analysis by the board of the evidence of record and that evidence simply wasn't there because the board used the wrong analysis changes or due to the natural progression of the finish and that they did make that finding and that finding was based upon evidence that was exclusive to opinions by their v a exam i believe in their analysis of whether this was or wasn't prejudicial because if that is the correct legal standard as articulated by the veterans court and then it cannot be non prejudicial for the board to simply have abandoned them the board didn't go to the critical piece in determining whether or not that presumption was or wasn't real but the court below concedes that implicitly the board found that there was an increase that seems to me to be an error of law because you don't make an implicit signing you make it explicit binding in order to trigger it but then once it's triggered then the evidence freebird shifts to  and the v a must come forward with clear and unmistakable evidence and what is described in the v a s regulation is based upon medical facts and data there are no medical facts and no data in this record and the board attempts to point to not the board simply points to the unsubstantiated conclusion of their examiners which included the language of the regulations that it did not increase beyond the natural  progression by clear and unmistakable evidence but that is not the legal standard the legal standard as defined by the b a s regulation is is that it must be a manifest and obvious evidence and