during the course of the administrative proceedings on the grounds that that evidence according to court's own finding of fact was not inconsistent with and with the  negative c and p exam and was general in nature you'd using judge castle opinion that's in the back of your brief follow up of that question and point to where in that opinion the castle addresses the statute if you're citing and reads it accordingly to the way you are the one with the peculiar statute of limitations judge's interpretation of it he does not cite to the statute we argued the statute i argued the statute to him in throughout the course of the lower proceedings in the opening brief in the reply brief  issue would come up somewhat during the course of the earlier proceedings when the record was going to be amended because the underlying issue here is that the cold injury report was not part of the record that the board refused and so i argued mr lewis argued that the board a partner in keeping with c b c president that the court had to send the case back so that the board could consider that in the first instance and that was presented to the lower court as i said in the opening brief in the reply brief and then again in the after this decision was issued in the motion for reconsideration and the motion for on bond consideration specifically arguing that the lower court was required by its by its statute and by seventy one of four to have the board consider the evidence and so all those judge castle does not specifically cite  seventy one of four and it's on page eight of the joint appendix it's page two of his of his memorandum decision of the first paragraph he says he acknowledges that said the record does not support mr his argument that the board provided an inadequate statement of reasons or bases for failing to address the articles interviewed generated report discussing cold injuries and then he in other words the board is excuse from considering that evidence why is the board excused from considering that evidence next sentence the documents are general in nature furthermore i don't see q you have to read it that way it was obvious and it appropriate to read that as saying that that by admitting the report the veterans court was saying in effect that the report was destructively before the board there would be no other basis on which to to to reach that conclusion and that no normally courts every view would consider whatever evidence in the record to have been considered by the where there might have been an error in overlooking something in their record report to simply of the failure of any show where there's an error well i think there's two  if i'm understanding you correctly plan i think there's two questions in your comment and the first is did the and obviously correct me if i'm mistaken but it is the really just saying yes the war did considerate is excused from considering anything well the thing that is distinct about this case is that it is acknowledged repeatedly by the secretary both a low a and before this court that the board did not look at this record not that it didn't discuss it not that it didn't weigh it properly but that it simply did not look at it that it was not it was not part of what the rest of the board looked at the board looked at that you they had an obligation to look at exactly if they failed to look at they failed to look at its applying the law to those i respectfully disagree judge because it's it is i the extent that it's applying want to facts it is first creating a law in other words creating an x or an excuse the law says they have to consider all evidence and judge castle says well they don't have to consider this evidence because in the end then he gives his explanation for why and second as an independent problem in terms of any application of law to fact is that the board made no findings of fact it was judge caseloads finding of fact that he as to which he applied the law he invented the board never looked at this document never and judge castle for the first time anyone during the course of the proceedings look at it other than when it was admitted to the record said i'm deciding in the first instance that this record that this report is not inconsistent with the other harmless error in view of the stuff the supplemental report was just general talking about cold injuries and that they had been finding that this particular individual did not suffer from cold and no it's not harmless error because first because we don't know what the board would have done with the report had looked at it that the finding and the board could have changed its mind about the adequacy of the medical evidence that that would weighed against the veteran it could have decided even that even though that evidence was adequate it could have decided that it wanted more evidence that raised questions about whether the record was fully developed at that point and so it's not harmless error that outcome statutory duty in addressing the evidence in the first instance c created a definition a new definition of epa law and here the war court failed to order the board to consider evidence it had ignored again because it created this limited definition in terms of the second issue that in terms of whether the court had the authority to make a finding of fact in the first instance the secretary simply maintains that the court did not do that but in fact it did it read the report repeatedly throughout the secretary's brief he indicates the letter hasn't demonstrated demonstrated to the court but the board never  the v a about this about its own report a report that contained significant information about what happened to men at the chosin reservoir such as this veteran and about the symptoms that those people suffer which were the identical symptoms that mr lewis suffers from and that their report corroborates for mr lewis that the symptoms that he feels are real they're not in his head which is what the a has said and he submitted that information to the board and in the form of a newspaper article but they never got the report they never got the medical background to that and nonetheless deny the claim which is evidence which is an indication of finding rather unpleasant finding that the record is relevant because the lower court would not have ordered it added to the record if it were not relevant and so once that happened the court given that the board never looked at this document and that it was relevant it wasn't relevant it meant for this it was a cornerstone of his it cost you about its relevance risk or the question is whether the information before that was us was sufficient to support the decision they made they had this medical report which indicated that may be true that these studies indicated there were consequences of serving in chosin reservoir but if i have the facts correct but this particular mr dean while he has a very sad medical history there's no connection that according to the medical evidence that was before the board and before the court so those reports are relevant to the overall question but the specific question seemed to have been decided against him on the record and we we can't really weigh that  you cannot reweigh that evidence and i am not asking that you really weigh the evidence but the lower court cannot really weigh the evidence either that that's the problem with it making the findings of fact in the first instance given that the report was relevant the court had to send the case back there may be instances in which for example if the if the if the facts underlying if the facts are not contested perhaps and then the court does not have to send the case back because perhaps then it becomes a finding of law but in this case where everyone admits and agrees that the board never looked at a decidedly relevant admittedly relevant piece of evidence the only evidence the veteran on his own was able to submit to the board and that can affect the board's analysis of the other evidence we dispute that that the that the the holding to report is we maintain that it is inconsistent with that this court doesn't have to decide that but the lower court should not have decided that in the first instance that was a function for the board because finding the lower court considered the cold injury report as under its own jurisdictional statute and present from this court it was required to do so in order to make a interpreted by thirty eight u s c seventy two sixty one b the veterans court is required to consider the entire record both before the board and the secretary in under seventy two sixty one b the court as you pointed out the the people of the veterans court allowed the right to recognizing that the document was not before the board under this idea of constructive notice which is has been articulated in the veterans court jurisprudence allows it to consider evidence that was both before the board and in possession of the secretary and based upon its determination that this cold injury report was a v a generated document it was then in possession of the secretary and it could take constructive notice of it for purposes of its own appellate review to determine whether or not there was any prejudicial error by the board not addressing or reviewing the court shall be on the record of proceeding before the secretary and the or the extent of the review shall be limited to the scope provided in section seventy two sixty one of th title i if i hear you correctly what you're saying is that the veterans court resume that the report the v a report was actually before the board because it's part  da undertaking if the evidence was to the contrary wasn't well i think it it didn't presume that it was actually before the board recognized that the the record had never actually been presented her the report had never actually been presented to the board it took it said it was constructively before the board so it we really not the record of proceedings before the secretary and the board but it reviewed presumes that the record of the board maybe enlarged to include the record before the secretary and that's where this idea of constructive notice comes from the notion that this document the not before the not presented to the board because it was generated by the v a can be included and it's still quite odd to me that that prince court would say well all right fine we're going to include this report so that it's part of the record but in effect we're we're just going to assume that it was it was fined and it was considered unless if they were going to consider it and since they can't make any findings of fact that means rim or e mail judgment i'm certainly not going to disagree with your characterization of the veteran's court's decision to include it  first clause of that sentence if such material could be determined up the claim requires suggests that the veterans court does have to make some sort of determination as to whether or not the piece of evidence that is subjective  could in fact have an outcome upon the veterans claim for benefits and that the notion that the veterans court has to make such a consideration is consistent with the requirement of the veterans court under rule seventy eight under section seventy sixty one b to take account of the rule of prejudicial error and as this court explained in new house that statute seventy two sixty one assuming the lack of inclusion of the cold and report was an error the veterans court under seventy one seventy sixty one b is still required to make a determination even if the board has not made a specific finding of fact as to that specific document whether or not the lack of consideration wasn't there here that's that's all the veterans court that it did not make a finding of fact that this court has said is improper under instead it simply said for purposes of considering whether or not there was an error in the board's decision we are looking at this called injury report and recognizing that the board based its decision on a far more specific and more recent examination of mr lewis that included consideration of all his cold injury related symptoms that acknowledged that he had in fact been exposed to extreme conditions while in service in korea and simply concluded that notwithstanding those facts his symptoms did not demonstrate a service connected cold injury the veterans court determine that based upon that specific finding this cold injury report that predated that and that examination by four years that did not speak directly to mr lewis or his specific symptoms did not in if the two thousand and six examination had said we refuse to acknowledge the possibility that exposure to extreme cold conditions could result in a cold injury for which service connection was available then admittedly there would be a problem but that's not what the examination for examination hell just the the opposite that in fact mr lewis had in fact been a exposed to extreme conditions but that nonetheless such that the decision upon his cold injury can be considered by the school when there are certainly other jurisdictional concerns that we've raised specifically that the veterans court cision did not speak to and the veterans court finding no error in the board's decision that error was harmless for the reasons i've already explained because we called in to report the question was in fact general in nature and does not cast any doubt upon me more recent more specifically the v a examination that was conducted prior to concluding that mr lewis did not have a service related service connected told and unless th simply did not have all the rights of the entire record before it when it made that decision and in keeping with c b c precedent it was required to send the case back and in that regard it is the same as hensley intensely the a ten percent rating for a psychiatric disorder because the v a considers his symptoms that he has described as psychogenic and that's the only benefit he's currently board there are throughout the appendix pages forty one forty eight fifty seven sixty fifty one fifty seven the cold into report says things that the examiner that contradict directly contradict what the examiner said and again this is the the lower court said no they didn't but that's not its role that has to go back to the board and it is not harmless error because the as a result of the lower court finding and misinterpretation of the law relevant evidence was left out of the record and because as i noted the board might have found that the exam that it relied on was an adequate or may have decided to get more evidence on the issue this exact example that the supreme court recently used in sanders as as an error that is obviously prejudicial keeping excluding evidence this court has recognized and wagner three sixty five th