it's warming up outside for everyone today we're very pleased to have with us judge moran who is a little district court judge from the northern district of illinois have five cases four of which will be heard and one submitted on the record the first case for the record is bob's versus d d a two thousand and seven seventy one thirty seven will be heard orally and for the record i'd like to submit the case johnson vs o p m two zero zero seven three two five two which will be heard submitted on the what's i spent a fair amount of time trying to figure out what the relationship between seventy one zero four b and fifty one zero three is the new and material evidence provision that's not much discussed in either of the briefs as best i can make out these two provisions have a perhaps a common origin and in regulations going back to the poor the second world war what do you understand the difference to be new and material evidence claim and the new claims theory that has the same factual basis i mean this seems very closely related if something is a new claim wouldn't it also be reopen a ball is a new and material evidence claim that's i guess question one question two is is there any practical consequence to treating a claim is a new and material evidence claim for a new claim i mean in either event they get the i'm having difficulty understanding how to draw the line because if there's a if there is a new interior why wouldn't you claim you know you could say well we now understand that this is an inner ear problem rather than a middle ear problem i could be new and material evidence to reopen the claim it could also be an argument for treating it as a different time what the wind between the two provisions how they relate to each other i think that line is actually this case that you take into account wash at one level of generality the other one would be if an injury to the middle ear or the inner ear i mean and you know how do we know which which of those levels of generality is the correct one to apply in term whether it's a different injury and that's a ashford in developing its legal holding here after it again said nothing about what happens in the case when your diagnosis is presented had one line that take you have contacted me it seems to present that issue but in no way nothing about that construction that would not apply here everything in there from talk about when you differentiate claims and none of it tied to that jurisdictional statute that was interpreted it merely discussed you know whether something you claim and again you argument at the bottom of page twenty three of his brief and from looking at the work manual material that he cited the distinction he's making these between a hearing for hearing loss clai cause they can be caused by a virus work hearing loss claim that can be caused by noise but either way it's still a hearing loss claim and that's all the v a regulations recognize so but reference in the regulations to an interview or a middle your client that's that's one of the differences yes compared to every where you have post traumatic stress disorder recognized as a basic compensable disability and the depression disorder to whether it's the same disability or a different disability and there's no reason for the court to impose some kind of test on the court to determine how to distinguish between  but the v a regulations don't make these distinctions and the regulations themselves are not being challenged in this case so that under the regulations there's just   circumstance we can see in which it wouldn't just simply be a factual would it were separate diagnoses or separate disabilities recognized in the veterans regulations or do you agree i mean  i think we would have yes and and what's the what's the relationship between the new in the terrible evidence provision and the same factual basis provisions what's the what's the line to be drawn regulations really don't draw the line between the two right between between new and material evidence and same factual basis no not that i'm aware and there's really no definition in the regulations secretary said this is about the facts and i believe in the briefing they did do but were moving on to regulations which i think is a key issue that was that was just discussed the regulations are used as a guard you know he's the guy that's in this and the secretary's own words of the regulations themselves building the notion that it's not going to account for every disease or disability and therefore again the rating system is one that is it's not the scorching pace it's it's it's holding the diagnosis makes the most sense