that's good morning you may proceed thank you good morning your honor still joining me this morning is my colleague mr aaron harper and may please the court the court of appeals for veterans claims misinterpreted thirty eight us c two three fifty three and reaching the decision now on appeal the full text of that statute is cited on pag of the blue bridge there's no dispute between the pardons that mr ruiz was entitled and isn't title to the presumption of soundness under section one of one one one which is is neither incident two nor aggravated by my military service he signed a statement and which i believe it says i have been informed that not that he made it mission and in any in any event the v a regulations at the time provided that such a signed statement by a veteran could not be used against him the problem with the court of appeals for veterans claims decision is that the statute sets out a two part test for rebutting the presumption with respect to aggravation first the government has the opportunity to show that there was no increase in disability during service if they meet that standard the case is over if they fail to show that there was no increase in disability during service they get a second opportunity and that is to show that the increase was due to the natural progress of what the law always held and therefore applies even in this case exactly you're on a relatively red well we're we're not necessarily i mean we can certainly make an argument at least we have that wagner does apply retroactive i'm aware of the jordan decision obviously and we filed the supplemental up forty's letter yesterday with respect to patrick but our argument is simply that the statute we're challenging the statute and it's up the interpretation of the statute as it because it was correctly but it aggravation was reported because there was a medical opinion saying that there was no aggravation we don't dispute that what we're saying is that for legal purposes of  claim aggravation is only rebut i'm to rebut it if the tos part standard is met a there must have been no increase in disability during service or if there was an increase there is medical evidence that there was no that the increase was due to the natural progress of the disease so when the court of appeals for veterans claims after by the way citing that while and acknowledging that standard it did then said no the medical opinion alone without making the subsidiary findings a sufficient you're out of here that essentially reads the statute out of the law you don't have to meet either of those standards all you have to do is have a medical opinion saying no aggravation now we don't know what medically the doctors met they may have for all we know that there was no incident not is a fact question you're correct and you do not have jurisdiction over that but you do have jurisdiction to look at the statute and see that neither of the subsidiary findings was ever made aggravation exist as a matter of will or i'm sorry the rebuttal of aggravation has been satisfied the government has met its burden show there was no aggravation if and only if it can show there was no increase in disability if they fail that at any increase was due to natural progress even even in one nine hundred eighty s how that checking of the no aggravation box was interpreted is it's t we say that in any case where including this one where the only evidence to rebut the presumption of aggravation it's a medical statement that does not include evidence supporting one or both of has to be in the fact that the the medical opinion doesn't actually discuss both of those no i don't think you can have a clear and unmistakable error with respect to how factual way to evaluate the clear and unmistakable error should have done was look to see whether the standards were met based on the evidence that existed in one thousand and eight and i'd like to say that i've asked for some aggressive relief at the conclusion of my brief i'd like to whether the presumption of aggravation was rebutted based on the clear terms of section three fifty three as adopted by this court in wagga are you arguing that the the the ford's rating decision and particularly the language on page eighteen zero four the appendix that says the medical evidence of record reflects that the that's condition existed prior to military service and fails to show that the vets condition was aggravated by military service is an indication that the wrong standard was applied yes your honor we've made that argument around the corner and i think that's right because the burden as this court is held as always on the government to rebut the presumption there's no obligation on mr reese parks to submit evidence of aggravation the presumption fills with factual the eviden but the court of appeals for veterans claims didn't reach and decide that that's not for the court at this time and we are not going so far as to say that torture rule and that all the court of appeals for veterans claims did was say that absent these findings required by the statute nonetheless the government satisfied its burden to prove there was no aggravation we say that cannot be correct if this statute has meaning as interpreted by this court in otherwise not in accordance with law then after it was all retroactively well your honor that's of course and issue we don't think the court has to reach but but probably yes i mean o argument or contingency argument in our brief was based in large part upon patrick being incorrectly decided given that it was a federal circuit decision we can only make such an argument if it was an unpublished  brief but after that we realize that we had erred in late of jordan and did contest the issue and but obviously somebody reading way here at least made the informed decision or the intellectual decision that that appeared to be retroactive that's why i think it was more a decision  any tension between jordan and accurate we would contend that job it has to govern because it was the first decided decision but if the court feels that you know that it's bound by what patrick said certainly the panel cannot reverse that would have to be something solicitor general gives us permission and we decide to and the v a want to do that we would take them but why and what doesn't have to reach that here you know what what is your position assuming that the wagner applies assuming of this court concerning c really that that decision is the spy's of obviously we can't get into an assessment of the facts but that's right we can certainly address the question of whether there was a total absence absolute evidence or a support so we are where is the evidence in the medical records absolutely underwater it's clear the court can entertain that inquiry the evidence is the board's finding that there's no aggravation well the evidence is not the board's finding of the medical to the question the question is what is it in that medical report the report of the medical board five different indications other than the box and i would also say with respect to the box when she questioned whether or not the box is enough to rebut the presumption you're going to whether or not that meets the clear and unmistakable standard which this  decision which mr aris doesn't cite in either his opening brief for his reply brief despite the fact that we rely upon it and what this court said in natalie is that prior to the veteran benefits amendments in nineteen eighty nine the oro was not required to make the specific findings that mr weise complains about here this court said in natalie that the r o didn't even of those things so they're trying to ask this court to basically look at this case as if it were on direct appeal and if it were a poor decision on direct appeal and the board had come down and issue  of no aggravation was based upon no increase in so very disease or if there was such an increase it was beyond the progression of the condition there might be a very good argument that mr ruiz could make that this court should remain in that case back to the board for those specific findings but that's not the case we have here we have a case of see which is simply not clear and unmistakable error for the board the u r l to rely upon a medical key seventy one i'm sorry that d e p t s which means existing prior service condition is not considered to be service aggravated and as your honor indicated in the earlier discussion they had cited to this evidence which is an eight hundred seventy three where it talks about the fact that of course he in the medical boards opinion he had this preexisting condition because it had been he had this condition in south america and it says he showed rapid resolution of the psychotic symptoms after being treated with individual therapy group therapy milieu therapy and neuroleptic medications that just indicates he responded to therapy  didn't that doesn't necessarily address it doesn't necessarily address it but other lebanese aggregate words aggravated well it supports it and there's no finding of this but it's evidence that supports it baseline condition it gets worse when he's not taking his medications he's put back on his medications and he goes back to the baseline condition right now that's an address the question of whether there was aggravation well it suggests again i'm not saying there's a conclusion it believe there was an increase in this very z's what other basis is there for its conclusion of no service aggravation other than it wasn't didn't proceed beyond the normal progression of the disease and there's no other basis for aggravation  fact that is precisely what the r o found the oral in fact midis per se signings because it found that the evidence fails to share of the veteran's condition which is aggravated by military service beyond the normal progression of disease that there was an increase and so there is ease but it was not the on the norm progression sees either one of which would be a basis for finding the aggravation and they are under the not only assertion doesn't have to articulate which of those two before nine hundred eighty nine the veterans benefits lem's didn't apply or you don't have to articulate that here unlike natalie the oral actually articulated the standard and that is that the condition was not aggravated by military service beyond the normal progression of disease after making a specific factual finding and this is earlier on the page one eighteen zero four where the our own state talking about the medical walter standard to articulate the basis for the no aggravation finding no words have to be based on one of two things there was no increase in severity of the condition during service poor there was such an increase it was based it was beyond the normal progression of the disease that is simply wrong as a matter of law under natalie the oro did not have to make that type of articulation prior to nine hundred eighty nine and again this were direct appeal they have a point they would have a point because the the board would be required to use the correct standard and apply it but it's not clear and unmistakable error for the our own to conclude based upon a medical board finding no service aggravation that the presumption was and it's interesting to contrast this with the situation in one thousand nine hundred two in which the board awarded service connection for schizophrenia and at that time based upon evidence that appeared after nine hundred eighty eight mr ruiz came to the board and said look this history i gave about having a preexisting condition in in columbia south america was wrong i didn't have a preexisting condition and here's my affidavit and my testimony where i said this is they produced a nine hundred eighty hospitalization which does not include that preexisting history and statements from neighbors and the board said you know what now the evidence is an equity post we've got the history very much smell as you have the last ford thank you thank you your honor if the nine hundred eighty regional office decision had included a statement that the veterans just ability not increase in severity during service i was no increase in disability or failing that stated that there was a specific finding that there had specific suspicious of specific findings that the increase was due to natural progress of the condition that would be the end of this case and that we would control because with the court would not look beyond that in order to rule in the way the government has asked this court to do you have to go beyond that way not only does the board at the board not have to explain the basis of its decision it didn't have to follow the law at all it did not have to make the findings that were required now only says the board doesn't have to go into detail and explain the basis for those findings it doesn't have to point t evidence it simply has to make a decision it didn't make a decision it reached a conclusion based on a conclusion and on the basis of that it said that satisfied that statutory obligation and was able to re the presumption of condition that's absolutely incorrect what the government has asked you to do is reach back into the statute tear three fifty three out and throw it away and i respectfully submit not