first verification is not part of the criteria under three point three zero four is corroboration and the corroborate in this case is provided by the v a medical opinion we believe that the board likewise fail correctly apply the regulation which is what we argued to the court well they considered everything in this case but the board weight clearly it was a matter of weighing the evidence and you know it was wrong and i believe that that's where the question of how to interpret this regulation and what the intent of the regulation is the intent as expressed in the public statements by the v a is that a b a medical opinion shall provide the prove necessary for the occurrence of the event it's been a rubber writes the word it's used in the reg isn't it yes you are and the word may along with it yes your honor it does that how do you corroborate this particular instance when the facts which were not reviewing and can't review way so heavily against her she's citing is evidence that this occurred iscar which it turns out was there long before any sexual assault could have occurred we're talking about a psychiatrically disabled person we're talking about a psychiatric disability what is unique about this regulation is that the v a has delegated all of the responsibility to mental health professionals the v a cannot then come back and say we're going to take that back from you and make our own independent credibility determination they have created a regulatory structure they have to of determine whether this mental health event is service connected and they have to do that based on some kind of evidence and they go to the evidence and there are two or three things cited as evidence and none of them check out so why isn't the board yes the question is does the board have anything to corroborate at that point the board in this case previously for the person i say event of an examination under the a political provision of law they got that and then they ignored it they did not apply it they did talk about it they recognized that they didn't want  believed better yet the question is did the board apply the right standard and here as i understand what you're saying it's seventy eight seventy nine the board is say it doesn't make any difference that the mental health professional believed her corroboration that's correct and so the question is is that a correct construction of the regulation that's right and it's not because the because the regulation expression he provides that the opinion of a mental health expert can provide or establish proof of occurrence that's the language that they used when they describe what they were doing with this regulation it says it ma to make a determination as to whether or not it adequately cooperates you disagree with that but the fact finder has can make a determination whether or not it specially cooperate so not the problem i'm having this with the notion of sufficiency to me once the v a delegates this responsibility and where i believe this becomes clear when we referenced in our reply brief the further expansion of three point three or four f b i the interpretation or i didn't mean to suggest it was the only question but it strikes me that you've got a very hard road in contending that the regulations those that the board is bound by what the medical exam that strikes me as a very difficult argument on the other hand there's a question of whether the board can reject the examiner statements out of hand without weighing the credibility insufficiency of the corroboration which is what it used to have done here but without consideration of the counterbalancing opinion of the medical i'm not talking about evaluating the in my reading of the regulation the board can evaluate the examiners statements and say well we don't attribute much weight to that we don't find that sufficient corroboration ok yes i also don't think that's what they did here i think they said no it's not probative under any circumstances and that's the way i read their board decision and that was the argument that i attempted to make below that was rejected based upon the blanket conclusion that you can't do this is a company that you know if the medical professional here had access to all the facts that were before the board in the theory the the medical examiner have access to all the facts the scar testimony under the supposedly corroborating witness that couldn't corroborate a sarah under the presumption of regularity i presume that they that this examiner based upon the remain and had access to the claims filed with all of that information because that's inherent in the correct application of this regulation i believe that this regulation mandates that that the v a cannot have a role in this that is beyond this regulation this is the only regulation that applies to service connection for post traumatic stress disorder and therefore when the regulation says that this may do it may provide proof and establish occurrence then the board has but you know the response that is that they did argue that the board apply the warm standard that's the same argument you're making now right correct ok sorry i i think i unless there's any further comment i don't believe i have anything else that would be of benefit to carpenter to save your time mr austin eight seventy nine strikes me that they are dismissing the mental health professionals evidence as impossible providing rob aeration because it's based on what the veteran poll well can look at that's weighing the evidence that it is it doesn't read like that it sounds as though they're saying can never be corroborated well it says in this case that's what the board says on page the seventy nine it says the that the examiner other mental health professionals expertise in psychiatry psychology social worker sexual term on is not expertise in determining the credibility of a historical account based simply on the report of an alleged victim of the personal assault that doesn't sound like a specific to me well it is saying that in our view the medical examiner simply basing the opinion solely upon what miss mina gacy said does not involve any expertise it's weighing the evidence and saying it has no probative value but that's an incorrect interpretation of the regulation to say that there's no expertise there because the regulation says we will look to the mental health professional for expertise well it says that if you actually look at the regulation iran if you look at it carefully sentence cited in their opening brief in our brief there's there's no dispute about it but it's referring to the previous sentence which talks about the type of evidence that may corroborate and it's saying that a has an issue as to whether or not the medical health care examiner can be helpful in determining whether that type of evidence is supportive of the statement at the bottom of page seven if you look at the complete regulation i'm not sure the complete regulation is quoted you don't have the i don't understand why you wouldn't put the complete regulation in your brief when your purpose centerpiece of your argument you know it's not helpful on page ten of our brief your honor it's quote thanks to the v a may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal song  or that's the sentence that those briefs are focused on and what i'm saying is that the evidence that's referred to there that a lot that the evidence is that the regulation is directed to is corroborating evidence that occurs out or about the time of the of the event and issue that is what the regulation saying that if there is that what you're saying is that the board was right it's ok to dismiss as irrelevant a medical opinion that relies on the veterans current description the board is to weigh the evidence and can weigh the evidence in that manner yes it can it's say it's irrelevant overboard and say it was irrelevant can't that's not my question my question is can the board say it's irrelevant we're not going to consider it because it's simply based on current statements by the veteran i would say no i would say the board cannot take the medical opinion and not consider it were asked to consider what happened here is the board it consider the well it depends on how you read the board and the board's opinion is a weighing of the evidence and finding that the evidence was not probative on the one on the one far side you have the veterans court veterans court said that you cannot consider the opinion of the medical examiner for purposes of determining whether the occurrence occurred the other hand you have miss mina gosse's position which is that you are bound by the opinion of the medical examiner as to whether or not see her is with her and that's clearly wrong in the middle you have what is the correct standard which i think the court agrees with the government on one and that is that the board is to weigh the evidence and to determine its probative value but here's the prop look at the sentence on page seventy nine judged by its director and this is the last sentence in the paragraph that says expertise in psychiatry is not expertise in determining the credibility they simply on a report of the electorate you can't possibly agree with that is the standard setting i mean isn't psychiatry persuasively the kind of expertise i mean wouldn't can't there possibly be circumstances where psychiatry is to examined and he says you know that's my profession that's what i do for a living and this person is law there's no way that she's telling the truth about this assault but government w say well we don't consider that because they have no expertise because they're just medical examiners rather than you know lawyers or judges right that can't possibly iraq well the final rating would suggest that it is if you look at the language in the final rule making which de both parties briefed where they say and there were slow on this i'm sorry veterans court case law which says that merely stating merely the claimant standing in front of the medical examiner that the occurrence occurred is not within their expertise that's weighing it without considering if we read that sentence the judge approached us read you is dismissing an entirely that's an error correct if it's dismissed as a matter of law and not considering it would be in there i think it's considering the court may disagree with that statement as in but that's weighing the evidence and that's part of being the evidence to determine whether or not they have that x well tell me about what i'm not something for just that it's not a blanket rule you and this application it has no value it has no expertise if there's anything else there anything on the facts it will vary or if for example there was a scar or if for example there weren't inconsistent statements where we're not sleepy the meaning of corroborate in the context of a letter written seventeen years after the suppose stressor it has to be corroborated has to be something of of and beyond does it  link somehow deserve to be some linking argument made by the the medical expert or not that is certainly have the word applied facts in this case and the regulation itself says supporting credible evidence and what the board is concluded is this isn't supported credible evidence it's not credible because  not believe mismeasure just corroborate and well it's funny in the in the insert in the beginning of section three point three zero four and it's a very long regulation the regulation uses the words credible supporting evidence and it's not until you get into section chronic where you actually see the word robbery i'm not sure there is a meaningful distinction there but supporting credible supporting evidence means something above and beyond the veteran simply saying i had this personal attack and what the words are saying and weighing evidence as we don't have anything else or the medical examiner here had nothing beyond this many gosney statement that the personal attack used the word corroborate run the verification but i do not think that there's anything meaningful in the distinction use of the word robbery is used on page seventy seven of the words opinion where's the medical expert that says i've been doing this for twenty five years i was on her for six hours and i believe that she would it be permissible impermissible what would the board have to do with that well the first question would be after and say is this credible supporting evidence and if the word concludes that the only evidence is what the medical examiner is relying upon is what the claimant said and we find that evidence not to be credible which is the case here then i think it would have to weigh the evidence but have to say in its view upon weighing the evidence that's not credible support but they could throw it out and saying we don't care they're not experts at determining credibility we are so we're not even going to consider what if that's right well that's the problem with that sentence because the sentence don't complain could be fairly rare as saying that they just didn't consider i think if it's really just messing it is they don't i mean when we say here are opinions he didn't have any expertise that means we're not going to consider ones that it's not that we're going to put it in the mix and that's why i think we're struggling with that what that something is the sentence has to be read in the context of the entire in the second sentence there's an indication there that the word is waiting this medical evidence if you look at the first full sentence on the top of page seventy eight the board says the board recognizes that duty referring to the duty of weighing evidence and has evaluated all evidence of record yeah but the problem is what the board seems to be saying is maybe sometimes will consider what the medical examiner said but not when what the medical examiner said is based on the veterans current statements your honor i would agree with you that if that's what the board did ok that would not be consistent with the regulation which says you have to consider it i don't think looking at the we're position of the all that's what the i think the word said we do have to consider and weigh the evidence that's of the medical examiner however in this case we're not going to give it weight because it's based upon nothing other than what miss mina gussy said there was nothing to robbery there were no and this is a statement was made seventeen years after the fact it was no current events there was nothing else also if you look on page seventy eight the may submit any evidence it receives to an appropriate mental health professional for an opinion as to whether such evidence indicates that a personal assault herb so clearly it knew would have to consider it just  this case which is the language that the poor uses on page seventy nine this case deserve no weight in the next paragraph on page seventy nine it says here so i think it's a unique case where there to assume that the board is following the court of appeals for veterans claims the law reflected in how one versus round which the court of appeals quoted in its opinion which says you cannot consider because your honor the first of all the board did not cite coming with the word did cite them wrote case on page seventy seven of its opinion which is a very similar and said that that's the general rule in the road if you don't do it and then went on to list several cases which said that's not the job that you have to look at all the evidence the board then went on to say in those two occasions that i read that the board did consider the evidence and and found that in this case it had no value what did the board mean and seventy eight when it said in this case mental health professionals including the two thousand and seven letter had no evidence no such evidence before them to interpret there's no evidence to submit to them for interpretation what it's referring to your honor is the same type of evidence that i was referring to earlier that's referred to in section three point three zero four f five  and that is the type of contemporaneous evidence the evidence that the claimant asked to transfer her position the evidence that she went to the clinic and was depressed the evidence that people noticed a contemporaneous change in her behavior that's the type of evidence that the regulation visions that the board will refer the case to a mental health professional to say is this significant is this the type of information that suggests contemporaneous d was a result of a personal assault during service based on his belief as to her credibility the next sentence says the examiner or other mental health professionals believe the veteran is insufficient to find that his nexus verifies the occurrence of the in service stress or in this case and that's simply not what their regulations said the regulation says is that it can and they simply arbitrarily rejected it they didn't use it as part of the mix the other thing is is that in the v a s regulation that the counsel for the government was focusing on it sa submit any evidence we have to presume that this examiner had all of the evidence in the claims file for this examination that's what the direction was by this same board in the previous remain and to obtain a medical opinion under this regulation they solicited it they got it and then they simply didn't apply the regulation which as any other questions thank you very much