always here asking for early appeals and to move things along and now we have the interesting instance of a veteran who wants to wait five years before he has his case heard up and letting some things go for five years and others and the veterans pushing for an immediate appeal happen what's in the better the overall veterans best interest here is in the veterans artillery fire and those two claims are brought before the are all at the same time what possible interest is there in delaying an appeal for the leg clearly until there's a resolution  d i don't think there is a basis in that context or in the context of this deal when you're dealing with the same claim all he's quoting ever played is a respiratory condition that oh service he separable bases for the right to the benefit the only time that that might be different is when you're dealing with multiple claims for increase compensation for different benefits in that context you dealing with potentially issues that expand beyond the schedule or context because the v a has an extra schedule or waiting criteria that includes consideration of all those things if we went back to the is a premature decision by the board some of the issues and not all the issues when the case goes back up to the veterans corps clearly the court does have jurisdiction at that point to correct that mistake for not dealing with all of the inexplicably intertwined issues go back to the parents test then the best friend has to make a determination on whether to appeal when one part of the and then subsequently files the appeal and there's a determination that no no they were not in extra could be intertwined and you should have been for appeal no one separate claim the statu when you're on a walk so so i take it that your position is that you would like us to return back not only to harris but harris with a brownlee gloss absolutely and  that's why i started with bottomley it seems to me that probably really addresses at least for the facts of this case the problem that exists for the broader problem that rater is asking me to address you do in jeopardy based on that call why not just allow sequential appeals he gets the earliest possible compensation in both appeals he can go as quick as he wants up on the truck leg injury and the hearing injury will be remained in he may have to wait five years but he gets his compensation for his leg early and his hearing later isn't that what they look at the time wants he wants early compensation and not have to wait five years normally in the hypothetical and in the abstract you are absolutely correct that did not it would not apply to this  issues when all they have to understand is appeal according to what you're told appealed the piece as early as you can but as i understand this court's analysis is roundly what is intended to be avoided is those kinds of premature appeals as was analyzed in the brown robot case alone that you don't want to be wasting resources to appeal a matter that could have been resolved favorably to the remain and see the problem here is under that alternative theory had the case on we've been been resolved in favor of the veteran that his appeal would have been new it would have it's really in favor of helping the precise dilemma the judge limited just described and is you articulating for the difficulty that the veteran faces when he doesn't know for sure what the effect is of the board's decision is you have to appeal to the board in the first instance why can't you just wait to do anything well because it was always in place until the resolution of both quiet because in this case neither he nor his representative understood that there was a no other basis for that in title i don't see that as an answer more you are you're saying yes he has to appeal to the board but no he doesn't have to build a coupe with veterans claims is that he was that we should i'm sorry he shouldn't have to be required t another issue raised another basis for entitle that is raised by the evidence and then a fight by the bor that's what happens here if he raises both theory and i'm sorry maybe i misunderstood that he was raising those theories in the veterans i don't know that necessarily makes sense but those are the rules that exist within the v a administrative appellate process we're talking about the appeal to obtain judicial review not to obtain intertwine or not that's final you've got to appeal what the veterans court can decide whether it wants to take it or not maybe there will be they'll say it's not prudent and sent it back but you've got to appeal since that time in this court is used in numerous cases but the context of all those cases where timely appeals you had basically a situation where the individual does follow direction of the notice of appeal and files his claim within could have been faced with here that his claim is not enough for the player twined and but but the added aspect of waiting is this potential and timeliness fine fine which is not there if you follow the directions of the notice of the statutory requirement to appeal before our court instead in the veterans court context that for more flexibility is well i can tell you that in the sense that that's certainly better and something that by having the rule right line test which tells you that you don't take the chance then you're protecting the doctrine and frankly i don't know who the council of veteran when there was some suggestion i mean i've been doing this for a long time and i've been aware of the and it's not the big sea change we're talking about i think most people follow the direction provided in the notice of appeal english times the appeal their decisions and when the shepherd dies harris you see that the cop paris comes up over and over in the context presented is in the time you feel situation which court has said we're not going to review this now we're going to send it back and you've created a nice sort of procedural step where now induction is comforted by knowing i've done what i needed to do to protect my rights and those cases is that there was here alone i don't asking for protect a protected free man i think he's asking for either reversal and even grounds or i remain for additional developed saying that maybe the reason some bases were insufficient or something like that and so he's not saying you mr hockey mr carpenter to my years mr hockey runs the one defending the veterans today in my hearing that ron i believe so advantage of knowing what the rule is mr tight rules didn't know what the rule was in ninety eight ninety eight he didn't know he had the notice of appeal rights didn't the right in front of him telling the room i don't believe it did your honor because he only made one client what the the board of introns appeal did was to say there is a potential alternative basis for your intitled to the claim for compensation that you see and we're going to split the date we're going to play solomon here and we're going to send part of your claim back and we're going to deny part of your plan now does he know that not all of his claim has been denied because one theory has been denied i suggest that he does not it's not fair to veterans to be deprived from the right that the government got in roundly to take an appeal at a time later when the administrative agency completed their review of all issues all issues in this case were not resolved when they were resolved in two thousand and four he took his appeal this court has direct review of contract decisions the veterans court has direct review of final four decisions the question is is there the save right to the flexibility of finality to veterans as there is to the government in government contracts but could that flexibility be achieved by the veteran taking protective appeal i'm saying there is no basis for taking the protective of people when you take an appeal you have to challenge the  so that i can argue this at some later date with respect that's a judicial fashioning a remedy that should have been provided for by congress congress did not provide for that remedy by statute the remedy that is available is an appeal of a final decision the question in this is the final decision made in one nine hundred eighty eight on the same claim for the same disability as was made in two thousand and this is for th analysis the concept of flexibility is right or under this court's decision in smith the go over this court said that they were going to send it back without prejudice to continuing to challenge that decision without any consideration of the merits of the appeal of the denial that one portion of q versus new with material evidence that was raised in the smith case that same analysis should be afforded to the veteran  appealing from the board to the veterans court and he should not be punished he should not be deprived from the right to appeal in two thousand and four the alternative theory that was decided in two ninety nine