make in your about flexibility except for a and what you're saying is i think and you can clarify this for me is that the board articulated a particular standard the correct may have articulated a correct standard but it actually apply a different now on our limited standard of review which i'm sure you're aware of why do we have jurisdiction to you is we don't have jurisdiction to review the application of  occurred despite the fact that they the veterans court may have recited the correct legal standard james teaches us that what's mattered is what it actually applied and when you look at the veterans court decision just trying to connect can i ask you about that so tell me why the following is is wrong so the veterans court address these four silos to use your word there is nothing there during the relevant period which is separate to june of two thousand and seventeen anything at all in those other categories comes to late and therefore there's literally nothing in those silos so that there's no prejudicial difference between considering them all together and considering the medical condition silo by itself appeal was filed following the board's denial of the request for reconsideration on february th two thousand and eighteen so the real relevant appeal period here is that one from february to june  one hundred and twenty day period for the notice of appeal is in fact suspended in fact set back to zero if during that same period a reconsideration request is filed but there was no such re period was essentially closed and when that nd decision came down and two thousand and eighteen that commenced the one hundred and twenty day period following following that that decision itself so that is the relevant appeal period here and the other circumstances that you started off mentioning those all existed prior to and into that relevant appeal period beginning february of two thousand and eighteen and  and it was it was part of the record before the agency your honor so it is it is before you and that in that regard but i'm happy to supplement if you so desire right so your honors that the air with these extraordinary circumstances was sidling them into a separate individual circumstances and never taking an honest look at how they together could the veterans court made a per se determination that a veteran cannot use the same evidence to establish both extraordinary circumstances and due diligence here on specifically rip furring to mr parrot responded to with those letters in this situation those letters are evidence both of the extraordinary circumstance of non response and of due diligence in timely pursuing  his claim furthermore we have cases from the federal circuit saying that divider and court need to consider non response as evidence of due diligence i am referring to the elliott v shinseki case that was a two thousand and fourteen case granted that was an unpublished opinion from the federal circuit but it is very instructive in that case we had an attorney writing letters to the agency requests requesting status updates and those letters were never answered whatsoever and show the federal circuit remanded that case to  proposition that unanswered letters can be demonstrative of due diligence and here we also have a case where those unanswered letters that itself is also part of his totality of extraordinary circumstances and show the veterans court can only make the determination that mr perry presented no evidence or argument demonstrating that he acted diligently that's almost verbatim quote no evidence or argument they can only make that determination if they've made the improper per se determination that the veteran cannot use that same evidence for both products and to do so was error as regards the the due diligence aspect of the of the test for nexus is that the veteran has to show causation between extraordinary circumstances the extraordinary circumstances and the period that he or she seeks to tol that standard incorporates the extraordinary circumstances standard therefore if a court made an error as to the extraordinary circumstances determination in which case in this case it did by failing to consider the totality if it makes that error in the st instance the nexus analysis will be inherently flawed and that's exactly what we have here we have you know the court addressing next requirement by merely saying that he's not submitted any information showing how the circumstances constrain his ability again that can only be a determination that is made if they have not appropriately analyzed the extraordinary circumstances which again we allege here that they applied that incorrect legal standard too and moreover there's there's just sort of a  practical problem here in saying that he didn't submit any information when the court below ordered him to show cause while he was still acting pro se mind you when they ordered him to show cause he wrote a letter to the court detailing the different medical appointments that he had had over the last year which that would have spanned into that tolling period from february to june of two thousand and eighteen he detailed the medical appointments he gave the names of his doctors the frequency he detailed that he was you know having to do lab tests and things of that nature and furthermore he referenced the fact that he was still waiting for his medical exam that reference is a reference to those reconsideration and i think it is fair to say at least on a quick reading it is very much on the merits as a paid actually this is this is not timely something that without the document i don't remember been any discussion of what law case law or otherwise might there be to suggest what i think is part of your argument that we shouldn't focus on the addresses on the merits has been recognized to fall within this kind of tolling of notice of appeal rule and i say rule with a small r i think that's something the veterans court  announced rather than it appearing in any statute or or enacted rule but where do we where would we look to try to figure out whether when the board chair acts on the merits a motion for reconsideration even if that motion was filed outside one hundred and twenty dollars day time period it has the effect of starting a new clock for the notices of you i don't have a good cite for that exact proposition we do have cases like ratliff that would if i may finish i think that we do as i said we don't i don't have a good cite for that exact proposition which of course i am willing to brief in supplemental briefings if you would if you would like but we do have cases like ratliff which stands for the proposition that filing a motion for reconsideration  distinguishable from our case however i think that simply as a matter of fairness when we are dealing with a regime that is designed to favor the veteran that is designed to place a thumb on the scales for the veteran i think it's fundamentally fair to say that if the board rules on a decision they can then go back and say that decision was still not final and we're still going to make you jump through the reach for that period issue for a motion for reconsideration to the board a veteran can file a motion for reconsideration at any point and it is considered timely and this is explicitly stated in this appeal notice as well this goes from appendix sixty three to sixty four specifically at the top of appendix sixty four dollars it says remember the board places no time limit on filing a motion for reconsideration and you can do this at any time however if you also plan to appeal this decision to the court you must file your motion within one hundred and twenty days from the date of this decision and again above when it discusses the appeal to the court it states that if a reconsideration motion is filed within the st one hundred and twenty d days twenty days restarts once that the decision is rendered on that motion for reconsideration but but but then but then the merits decision on a motion for reconsideration on an on timely motion for reconsideration itself can be appeal i motion for reconsideration filed on day one hundred and ninety six dollars that is acted on on the merits so that does not suspend the time for a notice of appeal from the original decision if again this is not as i think your honor is noted part of the joint appendix but if you have that reconsideration decision in front of you the rd page of it is again the appeal right and those state again that you have one hundred and twenty dollars days from the date of the board decision and it's talking about the the original decision and then it says however if you filed a motion for reconsideration within that one hundred and twenty dollars days you know have an additional one hundred and twenty dollars days there is no distinction between the characters of the decision on reconsideration presumably every decision on reconsideration is going to be on the merits again because there there is no such thing as a motion for reconsideration denied filed at any point you know twenty years down the road a veteran could timely file a motion for reconsideration before the board the court however has determined that there has to be a cutoff point to an appeal and that specifically talk about that that time frame the one hundred and twenty days so i think the veterans court law and the statutory framework here his argument surrounding the fact that the the the a arguably sent him a communication indicating that he need not take any further steps those communications occurred well after this one hundred and twenty day period in fact after he filed a motion for reconsideration so that they really are not relevant to the tolling question of this st one hundred and twenty days and that was explained by the veterans court and it's  as explained by mr parrish very briefly i will address the totality of the circumstances question but i think we've explained in our briefing that there is of the circumstances but even considering the fact that the court did explain the correct legal framework here explain that there is no mechanical rule no there there is a need for flexibility and given that they the court did indicate that it appears to have considered both individually and collectively the circumstances explained by mr parrot even assuming that that were some sort of totality of the circumstances were some sort of legal rule that the court would quote required to follow it did so here and they did clearly consider all of mr parrot's claims that he presented in the background section of the of of the court's decision it goes through each of both mr perez letter that it made in those in those filings and i did very clearly consider all of them on their own merits on their own facts as applied to the legal framework that has been provided by this court and in particular an  if there is new evidence or changed circumstances and that i think defines change circumstances in a quite limited way was there new evidence here that was put your honor i am not aware of any new evidence and all the perfectly honest i have not reviewed the that decision particularly closely at this point my understanding of the reconsideration motion was that the mr parrot argued that there were there were certain evidence that was already  did not consider and that the conclusion of the on reconsideration was that the record afflicted that in fact those records had in fact been considered i am unaware of any true new evidence that was rhonda st i'd just like to return to the this issue of the two appeal periods i'd i'd like to point out that the order to show cause that was issued to mr parish by the court of appeals for veterans claims contemplates to appeal th eighteen so clearly there are two relevant appeal periods that were addressed here at the very least there is i think there may i mean i'm sorry that that's not actually the order to show cause and i know i'm sorry i misunderstood are evidence of extraordinary circumstance and due diligence that were not considered as part of the totality of the circumstances as is the proper legal standard we would of course ask that this court reversed and  remanded the decision below with instructions to proceed on the merits of mr parrot's appeal barring that we would ask that this court vacate in remand with instructions to apply the correct legal standard barring that i think at the very least we need to remand to determine if this proper period you know whether it is two thousand and seventeen or whether it's two thousand and eighteen because that will bear directly on whether or not the extraordinary circumstances demonstrate due diligence and access