the claimant so look at all the evidence of record and make its decision based on the entire record before but didn't you know three opportunities to raise and they don't lose them the argument regardless of the arguments raised at the veterans court this evidence the two thousand and five the examination was before the board at the time it made its decision therefore contrary to the veterans course perpetration of the law the florida veterans appeals had a full and fair opportunity to consider the in virtual v a in the two thousand and five exam was part of that firm but the board never never made any explanation as as to why it found that two thousand to v a examinations financed more probative  the two thousand and five is your problem here the way the veterans court rejected this argument not just because because it seems to me that if the veterans corded you know the word said that thing that my colleague just quoted and they considered all the evidence we have to presume that they consider the two thousand five things a two thousand five doctors report that's correct and said we'll presume that they considered it and rejected it and relied on the two thousand and two you wouldn't be here would you because that would be the poor the veterans court saying that there was an adequate reason some bases and we can't review that that would be correct your honor that would be an entirely different situation what we have here is the veterans court not reaching the merits of the board of veterans appeals  rule erroneous fleet but i'm i'm wondering whether that's actually true or it's just a misapplication of the issue preclusion rule which even if we disagreed with would still be an application of what the fact that we can't reveal w the reason that the reason it's not an application of logic fact is that here we have seventy one to four and which directs the board to look at the seven s regardless of what arguments are raised issue preclusion cannot apply to something that the board was supposed to address whether or not the veteran whether or not the veteran raised in the first place since precludes all but that don't like to get away from talking about the viability of the issue preclusion rule altogether when i know you disagree with that and think it's contrary but let's assume that it's a it's a good rule i'm worried that they articulate all legal theories the issue preclusion could still preclude it or a legal theory that was never raced until the better part but here the legal theory is in the legal argument is all about an earlier effective date right and so you've raised this all throughout and all use said to the veteran score was they didn't consider this piece of evidence and that's on a new legal argument is it no that's that's correct your honor it's not a new legal argument it seems to me that that's an improper use of issue preclusion but at what does it go beyond the line of it improper application to an improper or legal interpretation i think that this court  recent case of scott that when it comes to the the bird study to consider evidence an argument based on a failure to comply with that duty issue preclusion can not apply to that situation  exactly correct your honor there is no means just to pick up so what you're saying is what you're saying that that seventy one of four prevents the exhaustion rule from the news when evidence is involved  is that it that's right because because the board needed to do this whether or not the veteran raised the argument to the board about there a bit about the evidence because the bird needed to consider that evidence and as part of that the separation determining its relevance and how that would affect its ultimate decision there there is no question of exhaustion in this case because the issue was before the board at the time it made its decision in light of the in that case in that case we had not a question of looking at evidence but two legal issues that were raised well first of all about that that case came i think scott here is instructive because scott looks at a narrow exception to the rule and sentence where you know if if there is a procedural issue something that would have been on the better and to raise in the first place  here talking about a direct appeal of the day where the ca d c said no you did raise this before the yes we're looking at this in the setting of a situation where there was a joint motion for  specifically pointing the the the board to two issues one of which the t d i who is in full force anymore but isn't that a different situation here i mean dry motion for remained in this case expressly left open the court's duty to look at all of the evidence of record conduct a critical examination of the justification for its prior decision and address issues  presented on the record so the board was actually expressly directed to comply with all of those statutory duties while remember and there's really nothing additional that could have been done to trigger the board's duties to to comply with the statutes that are already on the blog if we apply this exhaustion rule here isn't it going to eat or require that turns when they agree to join remain in motion to lisp pacifically every single piece of evidence they want reconsider or when it goes back to the board and other brief to the extent they have an opportunity saying every single piece of evidence or just say look at everything that's that's right here on it it's i mean the thing that difficult for me about this case is that it's it seems like it's hard to tell one way or another because the board didn't specifically say it but they had the record before it so we would normally i think presume that they did look at this and just didn't find the two thousand and five report persuasive and it seems like the veterans court should have said that on the if that's what they thought rather than use this this loophole to duck the merits art of it and i you know i think that's correct your honor we are not we're not we don't know exactly what the veterans court may have found they may have found that the board's failure to discuss this two thousand five examination was prejudicial because and remained the board might find that the two thousand five examination was more probative you know but that's not before the court of course because the veterans court picks went around this issue entirely using this exhaustion rule and the fact of the matter is your honour's there's only one statute that gives the board jurisdiction to make a decision on a claim and that seventy one of four and congress could have if they wish to when they passed the v j ira put a second statute right beside that saying for case coming back from the veterans court the board studios are narrowed they only need to address what the veterans court did but congress chose not to do so recording say that you know i am sure you listen to the questions it seems to me a little troubling that they're extending this issue preclusion war which you know i think for being called on to a role altogether and i'm not sure that that's correct but they're extending it to an to a pretty far extreme that's going to in essence require veterans to do some kind of specific pleading on answer and the like about every single specific piece of evidence they want to the board to look at in terms of their argument and that seems to me to be an awful burden to impose on that hard if you clear lot of them that are under our senate why isn't this issue preclusion rule confined only to legal arguments that were raised in times instead of the dictionary argument in support of a legal argument that has been so well decision here could have been better in sense in the sense that it could describe specifically what had already been done by the board in this case when you look at the entire record it's clear that in two thousand and twelve the court looks at this found that he was summoned sent untile from february two thousand and three on to fifty percent prior wives whether he was entitled to seventy percent for the eighteen months prior to february two thousand and three that was the issue that was raised in the argument raised before the veterans court was that there was evidence on the record with respect to the two thousand and two medical opinion that suggested that perhaps he had the medicine was causing him problems but they couldn't tell what the medicine was that the board was referring to was it the medicine that he was taking for his p t s d which would seem to suggest perhaps maybe you deserve an increase or was a recreational drug use that was causing so that's the issue that's why as i understand all this if the veterans court had said you know the board looked at all this they even though they can specifically cite the two thousand five hundred they presumably looked at it and their understand the argument was presented to the veterans court it was that there was an error in not understanding that the two thousand and five document was a was an interpretation of the two thousand and two document but the issue before  well that's a new legal argument i think it's a new term can i just step back to the facts of this case do you agree that it's not appropriate to apply this issue exhaustion rule to evidentiary issues pieces of evidence that have maybe weren't specifically pointed out that were in the record of the borders required to look at i think that generally no but i could see possibly exceptions depending upon the nature of the argument well if the about eat you know if you just pointing to a new piece of evidence i'm not sure though frankly when you read entire briefing moves for this court there's suggestion that the argument really is turning into a secondary service connection argument that by reading two thousand and five opinion that's a suggestion that's not what the veterans court says that his court doesn't say that no the veterans cork just said that they were going to entertain this new argument but you're right they don't they know that would you think that's a correct reading if that's the reason i don't think that's it i don't think that's a correct reading but i don't think that's what happened i do think that what happened here is simply that the veterans court determined that the issue before them issue before the board at the whole the whole time was this eighteen month period about increased sort of connection and that was what the court of draft and up to two thousand and one in two thousand and two medical opinions were more probative of that period of time than was a two thousand and five medical opinion so therefore it's not an error on the part of the court to not parts of the board's not referenced two thousand and five so that would be great and you would definitely win if that's what the veterans court had set or at least i think we definitely let sorry but they didn't say that and they're using this procedural loophole in a way that to me if we continue to allow all of the veterans want to do this and allow the secretary to argue this issue preclusion rule in a broad way at the veterans or seems to burn veterans in a way that the system wasn't intended to do question but here's here's the problem and there's ways to deal with this without you anyway we you know we look at this case as one suggesting that a new issue was being raised consistent with what the facts are course that despite the fact that the argument is that evidence wasn't considered really what's being argued here  is basis for increase in the rating and to pertinent concepts rainiest medical i don't understand your point i just want to be very clear about it and make sure i know where you are on this point because i think you agree that if the veterans court interpretation of issue preclusion extends to a rule that would allow it to refuse to consider arguments about certain pieces of evidence and less they were could see a situation where the what you're suggesting is that without having statutes in the case law provide the claimant with the opportunity to identify the weaknesses in the court's decision and they go back and they have the opportunity under cave actions court precedent with respect to poetry manned mission evidence and argument to do that and they dumped and and i could whether you call occlusion or whether you call it you know finally deciding you know a final a waiver of an opportunity that a situation could arise in which the actions court would be within its discretion to say no this type of thing should have been raised before brought to its attention made some to the agents along the lines of even when the work already has an obligation to consider that i think you get i mean you get back to the question of how reasonable the the is raised with respect to the issue that's presented so i factor in that and the analysis would be well if it's really obvious that they should have picked this up and the borgia picked it up and the fact that the appellant didn't raise it to them doesn't matter the borgia picked it up if it's less obvious than the things we point out to our brief respect to mandate rule and i would things like that can factor into the back of course decision as to whether or not enough is  enough the re man processes shouldn't because everyone had an opportunity to make their arguments and they did and they didn't make that argument let's say hypothetically in this case the veterans court had found out of the word because i hartman our president in this court and the presumption is that it was considered especially when there's some suggestion by the board that they did consider than even though they didn't analyze it it makes perfect sense that it wasn't an ally seems like other than the better argument for the situation where the exhaustion doctrine could properly be applied to prevent a new issue from being raised for example say you had a  in that situation even you could not have exhaustion as a bar it would depend your honor on whether or not the prior board decision was vacated and its entirety and you know we've seen cases where and for example the veterans court will say we affirm or suspicion with regard to secondary service connection but where remaining strictly the issue of direct service connection that could be a case where the board only needs to address direct service connection on remand but if the veteran's corps and even if a joint motion for remember and vacate the entire board's decision and now we have no final board decision on the issue of service connection and seventy one of four if the only statute that describes what is supposed to happen in a final board session and the board's decision can't just be limited to certain pieces about evidence because the board also needs to look at how those avid those pieces of evidence  because it seems to me that if if if it's a if it's a narrow order what they're going to do is not a case they're going to say you maybe didn't consider these five pieces of evidence properly look at them again if it's not they kate it it it's hard to imagine however how the veterans court could send in issue back without vacating the board's decision because seventy two sixty one eight says they can set aside findings and decisions right sending it back only to look at specific pieces of evidence without vacating the board's decision if they're doing that then they're leaving the board's prior a final denial of the claim in pla that and basically i think what we're getting at is is a veteran's quirk directs a specific limited remit and the board complies with the veteran doesn't raise any new argument or evidence or anything else at the