were not making that motion and that's ok well i'm not sure it's necessary on her i believe that this was a a complete misreading of what this court did and it was an effort to to find a resolution other than the one that was intended by this court and i believe that this court reaffirms its earlier decision that there isn't going to be a problem  judge decision because i would think the refusal the overt explicit refusal to follow the mandate of the a tell your might might be one of those grounds that is not such mundane common general resolution that it might have warranted more than a one judge resolution the very low in a case called frankel vs to win ski in the very early days of that court decided what would distinguish between a single judge decision and a panel to sit and you would have the been placed at another likely delayed in getting a very clear question that this court directed the board to address and i don't know how the board could possibly address it pursuant to th is the record of nineteenth street seemed far stronger for t v i used in the record in ninety one when the government granted the government acknowledge that at the end of their brief and did not dispute the state of the record these are the those two positions so if i am to conclude this is a pending on adjudicating claim that was never implicitly denied and if i were to conclude that again yes that is there any reason to send this back down or or isn't the state of this record undisputed such that if t d i you were warranted in ninety one it's also want to quickly under the undisputed facts of record warranted for eighty three i'm not looking to make any fact findings i would never do that in an appellate judge but if the record is completely hundred eighty three or the date that that claim in the one nine hundred eighty three decision was made and no i do not see any reason then and i felt that that was the resolution and i frankly was a bit blindsided below where there was requests for supplemental briefing on issues that did not seem to me to have any relevance to the disposition that was made by this court and that this court had in fact made a clear legal determination both on the record in the oral argument and in this court's decision and i think this mr andrews would be would be of grateful to receive that just to bring this to the end this is the third time mr sanders is before this court trying to get relief and the error in the first case was mine i did not properly pleaded i attempted to plead before the court for the first time the first idiot iteration of this case this court clarify that that has been present in this court for more than a decade we're now back here for the third time simply trying to get the benefit of what we thought we received when we were here  indeed and there are many ways in which we must discuss errors that mr andrews through his counsel may have created the confusion that brings us here today and the appropriate starting point for today's discussion is the two thousand and five  jurisdiction again this is a few motion it's a specific type of error it's a collateral attack on a final judgment and as such there's a heightened pleading with iron accumulation was that the agenc understand the confusion we ordered them to do exactly what mr carter alleged thing failed to do because we concluded they had done it so what does connect your honor it is that court didn't have the authority to make that and remember and i'm going to explain to you why the reason is that the role of interpret anything a claim is a fact finding determination and this is well  understandable because robertson had not been decided by that time and the government was consistently as it did in roe person arguing for a very very very high level of particularities to recognize an or claim being made by the veteran so i'm not faulting the government be clear because it was operating under a different legal standard and we clarified and roberson at the time it made those determinations because if you are going to argue to me that you recognize an implicit claim pretty rover said he actually at the government's brief right here in front of me and roberson and the government explains quite clearly what things must exist in the record for there to be an implicit claim that it would have any chief for a decade and then they do this about face after rovers and let me make it clear that yes in fact there actually was a claim here because we make it clear what the implicit claim standard is now the government says or you are right well maybe there was implicit claim ever there was well back then we implicitly denied it i mean is that not sort of the worst kind of hindsight reconstruction of what actually occurred it sure feels that way to me the government  its arguments in response to presidential orders from this court but i want to get back to presidential orders at this court that determine the outcome of this case and that is that the the barons court's decision should be affirmed and that is that a humiliation that is written by counsel as this one was very sophisticated counsel in v a benefits law that the there is no liberal construction of that claim every step thousand and fourteen found that the board did not the juda kate the issue and now needs to do so ok so what do you have a response to that i do your honor and that is that th allows the veteran to bring to us a problem in the process so why can't the problem be there feel your to my place because that is inconsistent with the and we would have jurisdiction over it so we sort of acquiesced in the government's argument that we didn't have jurisdiction decide that issue right then but the proper vehicle so i mean i have to feel a little sorry for mr carter because it seems to me he did exactly at every stage of this process what we told him to do to properly put this issue before the court and you know your argument is that still and properly put the issue before equal that's right and the reason is that as soon as mr andrews received his two thousand benefit or believes he's raised a claim for t b i you and receives a decision less than one hundred percent is on notice that he did not get to you because to you as of course one hundred percent rating at that point in two creature of judicial creation to me it doesn't exist in a statute or rights by the secretary that's correct so as such wouldn't be perfectly reasonable for us to say when the government argues in this would be quite narrow holding and i'm not sure it's is a creation judicial manufacture where that limit to be placed upon that rule of judicial creation i believe the reason it wouldn't be pretty appropriate is because this court's presidential holdings decision so you can't challenge the v a s adjudication of something through to you unless we first start from the point as this court has has explained that she is a collateral attack on a final judgment so that assumes that there has been a judgement and when you get to that framework combined with the court's holding that the failure to raise a hue theory before the board of the  it's fatal to the to the attempt to raise that before the veterans court and that the current court in fact does not have jurisdiction over such claims the only issue here is why mr andrew decision which says the record in eighty three was unequivocally stronger for the spectrum and of an employee ability than the record in ninety one the government granted the government never explicitly at any point in the idea you and when they actually considered it under that standard isn't it fair to say the government hasn't disputed that the facts in eighty three were stronger than the facts in the one i don't think that is fair and i think in part you can look back to our two thousand and three meetings the border the road but these factual matters are out there there's there is dispute and of course if alcohol and substance abuse is not a secondary to to a service connected condition and here there's been no finding it that it is then that cannot contribute to the basis of compensation and that's under thirty eight u s c and eleven ten and also this post decision allen and and the question about these determination at issue in a q motion and once he does that that will be decided at that point the veteran at the v a in its proper role at the fact finder your honour's i believe we have just witness why the doctrine of law the case is necessary for the government did not ask for a rehearing of the two thousand and fourteen decision it didn't ask for re consideration of the determination that was made by this court that we've just spent twenty minutes really litigators the issue and part of the problem here is that the government since this court issued the roberson decision has done everything possible to create impediments to the implementation of that decision and this panel i urge to write a presidential opinion that clarif the holding and robers as i understand the holding in roberson as i believe judge war articulated to the government the holding and roberson is is that if there is a pending claim and there is found to be a pending claim then the veteran is intitled to have that pending claim adjudicated the v a and this case is a perfect example of it has used the implicit denial rule to undermine their holding in roe vs to use the implicit denial rule as a device because they read i believe very narrowly the decision in roberson to mean that only can you pursue the theory in roberson based upon an allegation of clear and unmistakable error and therefore the burden is higher i do not believe that that is the intent of roberson in the case that was referred to by the government that was argued yesterday in evans the government put forth an argument that this court somehow overruled roberson in cook i do not believe that this court when it went in bonn overruled this court's lose or all of the legal points that it might acquiesce in the factual and that we can't assign facts in the first instance and if if she's going to stand up here and dispute what the record in eighty three would have established or not hell how can we do that if i say  started thought i thought you were saying you want to give him a present oh i thought you met none of it i was kind of hoping the government might sort of acquiesce in the facts since the facts of record are just so clear and that might we could you know maybe say it's undisputed that sort of thing but it doesn't seem that they're willing to do that and more than a decade of the most you seem to be able to get here if you get anything at all is to go back and have the aged yes your honor because i believe that's what we're entitle to underwrote person but as i think the argument here today has demonstrated there is a clear misunderstanding on the part of the government and to this extent on the part of judge castle and the lower court as to the meaning of this court's decision in roberson and that is what benefit is derived from the veteran who is in fact able to demonstrate that the issue was presented and not adjudicated it was reasonably raised either the veteran or by a liberal reading of the evidence and that determination was made i believe as a matter of law that mr romer's and raised the issue that legal determination was resolved by this court last time what this court needs to do this time is to clarify the difference between the holding roberson and the judicially created holding of implicit do not let's reach for the question