i didn't discuss it because i don't believe it's relevant to the question that was presented by the decision made by the veterans court the decision made by the veterans court was that the fact that the rating board did not specifically reference the presumption of soundness or aggravation or did not specifically recite the political standard of proof the holdings of or decision that constituted as a matter of law relying upon this court's decision and that pollack naftali deals with the question of whether or not the presentation of a q claim on the basis of failure to discuss those presumptions constitute clear and unmistak error that is not what happened here what happened here was is that that print made a specific request for revision on the v a s failure in both the fifty four and fifty five decisions for failure to correctly apply the presumption apply it at all the presumption was not applied in this case because the end result is that the board when i examined the fifty and fifty five decisions did not discuss whether or not the board or the v a in those decisions met its statutory burden to rebut the presumption by clear and convincing skewed a clear and unmistakable evidence of both preexistence and aggravation the reference that you make to the red if is simply a reference to the fact that there was a declaration of that fact and a declaration that it constituted a clear and unmistakable evidence but that's not the legal standard to simply say that it inferential based upon the presumption of soundness but they in fact did not correctly apply it because as i was initially referencing at appendix one fourteen there is a v a examiners give me a medical secretary must come forward with clear and unmistakable evidence to rebut both prongs of the presumption of soundness not to merely declare that it has occurred which is all that happened in the fifty four decision that was confirmed and continued by the fifty five decision that is an error of law by the board of that principle and what was reviewed by the veterans court in this case was not whether there was or wasn't a clear and unmistakable error in either of those two rating decisions but was the review proper by the board and the review was not proper by the board because the board did not consider where our did not identify where in the record there was clear and unmistakable evidence to rebut both prongs of the presumption of sounds and over let me ask you if i could get at i realize you were not counsel representing the veteran before the veterans court but at the bottom of pending stewart says the appellant's sole argument this is the veterans court speaking is that the decision must contain a q as a matter of law as the cubans in the end as i understand it correct me if i'm wrong but don't have mr coote with us briefing briefing before the veterans come up no you do not just have to take that that well well you're saying that's not an accurate statement of what he contended before the  way in which the argument was presented to the veterans court and that what was presented to the veterans court was as a matter of law when you do not rebut the presumption of soundness the presumption of sound the stan and if the presumption of soundness stands then mr cooper than was entitle to the benefit of the presumption that he is the wattle ulcer was incurred while on active duty that once the presumption was triggered the evidentiary burden shifting then requires an examination by the board to determine whether in fifty four and fifty five the v a correctly  getting at what i'm asking this court to do is to examine the opinion was given to the board decision a local to determine whether there is any possible way that the veterans court could have  was a preexisting condition and that the condition was not appropriate that's all that appears in literally both decisions that is not a correct application of the correct application in this case by the board not by the two rating decisions must have examined the record to identify where in the record there existed a clear and unmistakable evidence of a but prong one it prong one is not is that the whole problem here is the use of the word reasonable yes that that implies that the board was using an incorrect standard correct but i mean isn't that really just almost hanging too much on argument be god no i don't believe so but i want to be sure that you understand that what's being appealed here is not that determination by the board but what is being appealed here is the veterans court determination that the government is court endorsed and its in its decision the veterans court indorsed what the board said yeah i guess i don't know the exact but at some point i know the veterans court alluded to this and support of its decision so yes that is what i was pointing to it but but the veterans court made its determination on the fact that the aro decisions before nine hundred eighty nine under this court's decision and that poly were not required to discuss and that that was the error made by below this appeal is not about whether or not there was or wasn't clear this word reasonably because that is not the correct legal standard the correct legal standard glared in a stable it and that is an evidentiary burden under this court's decision in wagner that once the misunderstanding on the part of those two tribunals of the clear and unmistakable standard yes that and and have heard the clear and unmistakable standard is triggered once the examination air to rebut the presumption of soundness that's exactly what the board supposed to do when undergoing a two analysis so  i'll do here is to address some of the questions that the court raised implied with some of your questions or could be an andre concern here with respect to whether or not the q claim that's being presented in this court was the same one that was at least presented to the veterans court and maybe below we looked into that although it does seem like the vaccine is court labeled the challenge as being in the tali challenge of just not referencing the presumption of soundness which the vaccine court disposed of by pointing out that the appendix forty one decision in one hundred fifty four clearly is addressing the presumption of sound that there's no other reason that the statements of the second and third statements at the discussion portion of that decision are even present without there being presumption taken into being taken into account and the third sentence clearly addresses the presumption of aggravation noting the medical evidence that showed that also had completely resolved after the dietary treatment so there's no question that and then you have to understand that at this time prior to one nine hundred ninety wasn't unusual for medical doctors to actually take part and rating decisions even to our own level and that happened in this case if the court looks at it and it's forty one  in both decisions they found that while the second decision focuses more on whether there is any new evidence submitted but the first clearly finds that based on sound medical principles this condition preexisted service so you can't say there's a me question they simply say i was not aware of any of these any of the symptomatology before service that doesn't answer the question and so it's not even really negative evidence in the balancing process and as far as the la statements that were submitted i think that board properly identified that lay statements made while want to seeking medical treatment generally are more productive than when seeking monetary benefits and there's nothing here for this court to to address two i know that in the record there is the actual motion for q that was filed on the start of this whole process and for purposes of my main focus what i'm looking at when we're looking at this question is is that basically what's being argued about that that is the argument was a little bit more about the application of the standard than it was whether or not the stand was used so i have no reason to question mr carpenter's recollection that the argument was a little bit more nuanced for the  train off the track so speaking my opening line here on my notes is this appeal is all about a sentence in the reviewing board decision that mr coop and suggest as they're focusing on were reasonable and i respond that that's entirely appropriate when a board who is in queue review mode is looking back in the past and so what that course post do is to determine whether there's any outcome determinative there upon which reasonable minds could not differ now whether or not the court of the time sort of got caught up with the reasonable minds could not differ and so thought it would be an appropriate way to characterize what the evidence was before the nine hundred four board i don't know but i do know that they are not required to redo like a live appeal the analysis and conduct addressing that if there was no evidence at all clearly in this case supporting the findings of the ninety four board one might presume that you know maybe the board goofed up here we know there's evidence th and really doesn't make an effort now i mean you mean the fact that when you can when you understand that there's clearly evidence in this case there's only evidence on one side of ledger but even hypothetically if there was evidence on both sides alleged in a q analysis argument was that the spouse was seeking benefits and couldn't establish that she was actually married when in fact the record contained america difficult lots of factual error and clearly you know that's a clear air that  outcome we don't have that here unmistakable air that is not the issue of this appeal the issue in this appeal is the fact that the veterans cork relied improperly on this court's decision and that power the result of that reliance is is that koosman was denied judicial review of his appeal of the board's decision the reliance upon that poly short cuts the q analysis by saying that you get a get out of jail free card government because prior to one nine hundred eighty nine there was no requirement to discuss with specificity the presumption of soundness that then precluded any analysis by the veterans court of whether or not the board did or did not correctly review the fifty four and fifty five decisions this is not enough pollies situation four and fifty five decisions that is a question to be resolved first by the agency and upon de novo review by the board that is their responsibility the veterans court short  but that's not the issue before the veterans court the veterans court said in the archer holding they that it does not make a plenary review of q writing so if they're not reviewing the fifty four and fifty five decision they're only reviewing what the board did and the question is did or did not the veterans court short circuit mr koosman zx opportunity to challenge what the board did in this case and ok clear and unmistakable evidence and this reasonable point sort of is support for the fact that they didn't look at it and proffer lands that's correct ok that that it if you will that is merely tangential