right from your brief that you think that what should have happened what should now happen is that in order to give a full and accurate or to be ignored too small remedy for the nine hundred fifty three disability ratings during that time which might change over time i thought your brief acknowledged that not change over time but changed at the specific time of the one nine hundred fifty six and one nine hundred sixty six decisions to honor and it's part of this court's presidential decision in this case in two thousand and thirteen that said that this was part of the implementing action and that mr perkel had the right to what peel the v a s implementation of that request for revision right which then terminated at fifteen that any and even the government can see that there was jurisdiction to implement no question about that and say but nevertheless fifty hundred percent situation seventy to fifty to fifty take effect to the pieman scale reduce immediately even during the many years you're in front of the board yes they do is they're outside  that's the critical piece here because what this court found in the original decision in this case was that and this was an issue of first impression for this court what happens when there are subsequent decisions that made in decision one and in this case it means that the rate is elevated back to the one hundred percent rating it was not seventy and it was not fifty three in fifty six and sixty six it was one hundred what you're proposing is basically an extra statutory collateral attack on reading decision there's there's too statutory ways there was i understand clearly a mystical error in a new material evidence those are provided for in the statute that's correct in an otherwise you know final deny claim for conference and now here through this avenue that you're proposing which is an implementation  of our earlier decision from a few years ago would essentially be a third non statutory collateral attack on those fifty six and sixty six decisions and i understand that that's their position and that that was the reasoning of the board it is not a statutory yeah it is also correct to say that it was judicially mandated and the judicially mandated decision was based upon an interpretation of the statu remedy on this on the fifty three c u that's correct and i believe that that was the mistake made by the board and the mistake then repeated by the veterans court because they saw this through the narrow lens of a right to attack for the fifty six and sixty six decisions for q which is not what has happened what has happened is that mr burke was successful in his attack of the fifty three decision which then had consequential impact on the fifty six and sixty six decisions and this court made clear that mr perkel was entitled to that remedy and he never got that remedy it was the remedy be to look live regulation frequent three four three actually three point one well actually i don't believe it's as simple or as as i think you've gone to a later consideration under the regulation under both versions of the regulation what is required is a v examination prior to that action and in both cases in fifty six and in sixty six there was no preceding v a examination as required that nullified any legal ability to take a reduction oh ok what happened then if you recall because i don't what happened in fifty six and sixty six that triggered the v a to lower the rating then they mistakenly  adjudicated it as though it were not a reduction case but a case of entitlement to the rating and the entitlement to the rating has been found by the veterans court to be a completely different process than the process of reduction that at his v a medical treatment records and based upon those medical treatment records lined up whether the symptomatology as reported in those records scored as it were for a third or fifty percent rating or a seventy percent rating and they said that scored for a fifty percent rate that is not the proper analysis the procedural protection under three point one seven zero and three point three four three requires a v a examination to make a finding of material improvement under the ordinary circumstances of life and that simply did not happen just just to get back to where maybe we started i took it that you acknowledge that were we to send this back the v a you know has the option of and skiing the question what would have happened to his conclude it would have been reduced if yes it was if you understood that from my response then i misspoke or was unclear the regulation itself requires the presence of a v examination that makes such a finding so if no such of the salmon nation is in the record and it is not then that reg that were duction foot be unlawful as a matter of law they simply could not go further they could look to as they did in fifty six and sixty six to the v a treatment records of all that's what is the protection that is provided by these two regulations if i just run out of time can we talk about price and style and what i mean factually speaking in that case looks very similar to this case and so i'm wondering why shouldn't the stories of the two veterans rising sign and purple rise and fall together well the ri strike case was predicated upon a stage rating based upon a graph over a significant period of time that is not the factual circumstance here there was no retrospective determination over a period of decades as to what the rating should be and what the court held in rise and stein was is that using the state rating of the theory that they were able to look sequence only through that decades long period and determine at one point he was seventy at one point he was at one hundred and at a later point he was seventy so what if the board here had said ok rising sign in the board no but when it issued the q decision fifty three and said ok you get one hundred fifty three fifty six you get seventy i mean you get fifty from fifty six to sixty six and from sixty six to eighty eight you get thirty with that the little you wholly improper that would be unlawful and illegal it is simply not possible under the statute or the regulatory framework ok why couldn't the order do that period at different sequence will periods that's not what happened here what happened here i understand is not what happened my question is a hypothetical right hypothetical question is whether the board position issue the q decision it a veteran is assigned a one hundred percent rating and has that rating in place for five years or more there are special protections that were created she was found by the secretary these are not statutory mandates these secretaries regulations that mandate that you do not touch that one hundred percent rating until certain predicates are met that is not a prospective rating that is a continuation of the protected rating of i don't think it makes any difference you are ok i don't think it makes any difference at all ok on it seems to me that the language of this regulation is readily susceptible to the rising sun stage reading interpretation because the language of this regulation is  the hundred percent situation without complying with the regulation the stage rating determination simply doesn't involve that it's looking backwards and say when and where you disabled by how much even on the initial the language of the regulation permeated the rise and stymie interpretation i don't see how the language of this regulation permits this interpretation that there is supposed to be that the  years and you go to the veterans court and takes another two years and you come here and finally you get a decision saying the board was wrong to make that reduction or you can say that because there were no hundred percent payments that the remedy from that is only from that point forward and the five or six years of fifty percent payments don't get remedied because after all this regulation doesn't apply hasn't been getting the money well in this context  what lump sum a back retroactive yes they got one hundred percent similar to it you hear they got one hundred percent for the folk area from fifty three fifty seven i think when we're not going to communicating you have this theory that if the person has not been getting the money the regulation doesn't apply during the period when the person has not been getting the money that seems to me to require you to say outside the two contacts in a five year appeal o reduction that turns out to be wrong the remedy on that appeal eliminate doesn't provide for truing up that five years worth of of half under payments because the regulation doesn't apply you context and say as long as you weren't getting the money we can ignore the regulation for the periods of the regular you weren't getting the money i don't see how that makes any sense so the because it was genuinely would  would genuinely would would require as far as i can tell that in a direct appeal of the reduction from one hundred to fifty that relief when you finally get out of the veterans court or even the board years later  not pay you for the missing years of the incorrect reduction understanding i'm standing here is that if you've gotten one hundred percent rating at some point at that point if you're going to have a later examination to lower that to a lower level that's the point one three point three four three would kick in now the effect of how you get that hundred percent rating whether it's on the appeal from a lower rating on the board makes it a higher reading that's a different question i'm not i don't think i have all the answers to what the court asking about that but what we're talking about here is if you're starting with one hundred percent rating when you have and you hear the q says ok there's one hundred percent rating from the fifty three to fifty seven period what is you know what is the here about the kind of statutory reclusive effect of what happened in fifty six and sixty six or sixty seven and and straightforward regulation applicability question i do not see how this regulation does not apply in fifty six so i guess the answer to that would be if fact we had a time machine to go back to nine hundred fifty six and that's a very that's what make home remedies are they are you know but for hypothetical reconstructions of what would have happened so the best evidence we have that is on page seventy six of the record which was the statement of the case from the regional office in february of two board decision about what would have happened in fifty six if coming into fifty six he had one hundred percent well and he got mr carpenter wants to take that further than i' six first we have you haven't from page seventy six the record that the original office concluded that yes it did that and then looking at the definitions of the the standards for disability which were a seventy one of the record that the examination from fifty six met the definitions of what would be a fifty percent disability rate now the board did not make those factual determinations on a reading man and from this court's decision  any action that would have occurred in fifty six perhaps the regulation was not complied but if the remedy question now his weapon would have happened then why isn't express disagreement in a point with jaros conclusion but if the question is does the board address the same question that the r o took up in seventy six the answer is no except that the board did take up that question of whether there was q in the sixty seven board decision and in august of two thousand to conclude that there was no two we believe that the proper procedural mechanism for the board to take up is not a on the going forward effect of the fifty three decision without reference to later raising decisions but whether there was actually a q in those later rating decisions which among other things would require an examination of the very kind of medical evidence that  the courts questions asked whether the board was actively considering in this context therefore there's already been the aros already turned down the cuban for both radio care is on the board on an appeal turn down and sixty seven so under the court's hillyard decision then you know that decision can no longer have to claim this would be a way to get around basically the court's hillyard decision which would be one problem with that approach but putting that aside for each time period that his counsel made reference to there was a v eight regulation and stabilize ratings once a rating has been a place for five years then there's heightened standards to lower vat that would be a portable here because of the rating from fifty three to fifty seven was in effect for less than five years and more than fifty six sixty six was a rating of an independent rating of fifty percent so explicit factual analysis even though we think that they've already gotten the analysis that they were the veteran already got the two analysis back in two thousand and five and and for the sixty seven borders and two or be doing a factual analysis of whether the medical records here at age thirty one thirty four of the records comply with the standards that were in effect at the time three point one seven zero and three point three four three address rising steam if the court concludes that that analysis was incorrect the proper remedy would be to remain and for the board to look at that specific factual question but we think there's evidence in the record to support conclusion that there was no q and was a fifty percent rating and it complied with the standards for mental illness disability that were put forth at page seventy one of the record among other things you know whether the person is remain employed there is a question of rating we don't have a definition of what material improving would be but a fifty percent level compared one hundred percent level would represent a material improvement and was the regional offices assessment at page seventy six the r any further questions from the panel you told me earlier that there was no medical examination either fifty six or sixty six that's correct and i stand by that so what's going to be thirty one thirty four i have no idea what the government's talking about is not in was a newly acquired v a medical examination sixty six so i'm just trying to get to the bottom of this and i apologize for i made of what do you not been clear there is not a v a examination of record that addressed the procedural criteria of the regulation ok that require different than saying that there was never a v a examination and i apologize or not it's that i misspoke i thought it was not the record that states plus or the questions of clarification s