provided certain conditions for special monthly compensation for compensation over and above the scheduler rate my statement mr comey let me ask you this gets thirty eight c f r three point three five t yeah and so while i don't think it is a so your honor because the involuntary commitment in this case would not have happened but for the psychiatric you know you know no you're not answering my question what facility is that his service connected disability provided or skewed me required the care in such an environment that it has to be in a facility that is required by the service connected disability the service connected disability is what require is the care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her guests they let there a multiple fact findings in this case that in this instance mr shirk was not involuntarily committed checked him from danger he was involuntarily committed to protect others from him causing them danger that is him harming them it says expressly to protect him from harm and our assertion is that this care was not required to protect others although that was the reason for the carpenter the best the only way you have any legal issue here is that you need to convince me that three three five two extends not just protecting him but also extends to protecting others because otherwise your case is entirely one of fact and i can't review facts like i said we only way you can prevail that i can see is if you convince me that three three five two extends to protecting other people from him arming them and i don't see how that language in is that in this regulation can be construed that believe that that that description of protecting other people is in fact what is required by the regulation what is required by the regulation is is that the service connected disease or scoobie of service connected disability in this case of a psychiatric disease at age seventeen and sixteen of the joint appendix the right appendix in the commitment order specifically board also received evidence that mr sherk was affected by a mental disease as demonstrated by the underlying facts of this case so it is that underlying disease the service connected to me that i wanted to seize but the facts in this case  insanity that is presented in a criminal proceeding that is protect predicated entirely upon the service connected disability the relationship between special monthly compensation saying a lot of words that don't respond to my point you want me to find as a factual matter that his diagnosis automatically makes him a danger to himself that's the only way you get yes your honor i am that the nature of paranoid schizophrenia is such that it presents an obvious i'm not a psych in the record to support what you've just said no fact finder in this record said what you just said and they did make fact findings expressly that his involuntary commitment was to protect others because he was an ar st so that's in the record but what you'd like me to find while it may sound sensible and seem very logical to me and even have intuitive appeal to me given his particular mental health diagnosis i'm not a doctor and an appellate court judge with no ability to review fact findings and i'm not asking you to live a review of the fact finding i'm asking you to find that just as there is no evidence in the record that says that this involuntary commitment was for anything other than to protect other citizens from mr sure there is no fact finding that contradicts that it was the severity of his service connected disability that caused him to be found not guilty by reason of insanity and in voluntarily committed and that the very nature of an involuntary commitment is is the relationship between the service connected psychiatric disability and his for lack of better term involuntary incarceration mr carpenter even correct me if i'm wrong but are you not seeking special monthly compensation yet to cover necessary  attendance for your client that's what it's for is it not if well i'm not quite sure what you mean as you phrased it but you are using the words that exist in the regulation but what i am saying that somebody doesn't need aid in attendance they can't get special monthly compensation is that not correct that that is correct your honor but in this case it is clear that he needs aid and attendance for his service connected disability  and needed to be hospitalized in a viewing mental psychiatric facility because he was threatening to kill himself as a result of night terrors of yours having to be p t s already despite the fact that it would mean carcer getting three square meals a day have nurses and doctors watching him around the clock  he would be qualified for special would he be qualified for compensation for regular in attendance in your view under those circumstances yes because it is the nature of the service that that mr sure to be arguing that his involuntary commitment to the oregon state hospital as a matter of law entitle them to s m c and a benefit that's correct that's your position that is my position ok that  it is the only reasonable interpretation and that the interpretation relied upon by both the board and by the veterans court attempts to impose exclusions or exemptions from a n a so you would say you would say you don't and your view correct me if i'm wrong please you would say that you do not have to get into the circumstances of his condition just the fact that he was in voluntarily committed it so facto is a matter of law entitles him to this benefit that is correct or because of the nature of his service connected disability if he had a physical disability that required him to be in hospital care for his treatment then that qualifies him for a in a that qualifies him for the aid in attendance of additional benefit the additional benefit is only provided when there is a relationship between the service not i'm not sure there's anything in either the statute or the regulation that suggests that the money received is to go to that purpose the money that is watching call it's for in th the the service connected disability requires aid and attendance he is entitled to additional compensation it's just like the dependent benefit where the veteran gets the benefit not the dependent mean i don't i don't think that we even need to go beyond the regulations themselves certainly three point three five why i know what it's that's one my money's so boggled i just think the plain language here controls exactly what the board is required to do and exactly what the veteran that's required to prove and the board applied the criteria set forth in three five three five two as three point three five would require us so you don't have any you don't know anything else for me though no your honor nothing else is required is that was my question it's required if i ask you and you can answer no your honor other than the regulation language of the regulations and selves as moses i understand you and mr carpenter confirmed this to me i mean i think the one point i would disagree with you and i think there is a legal issue within our jurisdiction here because he sense that the regulation under the regulation one as a matter of law once you go in volunteer in voluntarily to a state mental hospital like this in oregon you're automatically ipso facto entitled to entitle these benefits so may i think he does make a legal argument now whether or not it has merit is another question but it does seem to be a legal argument in th under the regulation once i go into the hospital i'm tired of the benefits so you know why why is that view of the regulation i mean that's what he says he's arguing the why is that in your view is that view of the regulation war that view of the regulation is incorrect because first there is no presumption that's allowed for under three point three five two a the veteran must establish a factual need for aid in attendance and at three point three five to a set forth the criteria for that and it does not mention confinement at all there may be some circumstances under which a veteran who is involuntarily confined may be in need of aid in attendance but what the board is required to do is to look at all of the facts of the case and determine whether the veteran actually has a need for that so what you're saying use his legal argument is wrong because the statute doesn't carry the presumption that his arguments are just suppose so the legal argument goes away and then once that goes away you're in a factor she over which we have no jurisdiction and yes your honor so that's you that's basically what you said yes your honor and interestingly at mr shirts reply brief  eight he says that he's not asking or seeking or arguing that a presumption exists but well i would agree with that he's asking for more than a presumption he's saying i think he's right in that  saying no i'm not asking for presumption i have some for a free pass once i get involuntarily committed the regulation so is on the title to these benefits and i understand what your argument is yes sure and i think that it exposes the entire problem with this is because the position urged by mr sherk would have the effect of the abandoning its duty to look at the facts and apply the law to the fact that the case and the court doesn't have any further questions we ask that you dismiss or in the alternative affirm the decision of the veterans court you mr carpenter supposing your client has been sent look there could be circumstances as the government conceded where he might need psychiatric care for example that wasn't available from from an overcrowded attendance claims under that basis no because congress has specifically spoken to the issue by statute and said that one a veteran is incarcerated which was the alternative for mr short here then  those any benefits that they're receiving are automatically reduced to ten percent so a veteran while incarcerated could not however what they do get benefits i know only ten percent and that they're limited to the ten percent so the s m c would not come into play for a direct benefit to the veterans but if there were a circumstance in which during incarceration the veteran were in need of hospital care in a facility that treated and dealt with his service connected disability if there were dependent those dependents could get the apportionment of the full amount of his benefit which would include aid in the fifty s and i think it's important to understand that when congress  wrote statute at eleven fourteen it did not make a correlation between qualifying for the benefit and using the benefit as you suggest quite logically it should go towards the aid and attendance that is being provided  at eleven fourteen s for instance there is a provision for being housebound and that's all it requires is that you are house about and so there is no money to go towards that condition