two of the regulations and furthermore let me interrupt you just because time is short this is judge approached it would really help i'm i know this is predominantly all the focus is on the language in the statute in the reg and how it's been interpreted by various judicial opinions but what would help me understand what's going on here is what are you saying about this case for example i mean this person i think i got my  a decided to weigh it and then you also made an argument about how it's luck of the draw and do you think this could have come out differently if you had another person at the board so what would happen in this case what priest what would you apply in this case i assume you're seeking a favorable outcome what would you say to get over what the fact finding was that the board here ok just one thing clear i did not represent  it's far as saying harmless error i'm not sure if that's where you're going know it but i'm like you think that the board if your view of the statute is correct you're an alternative to or ts how would that be applied in this circumstance do you think under the facts here your client should necessarily get what he was seeking which is an increased p t s d then if it i mean you've a you've got to you've got to examiners on one side two physicians two on the other and the two v a physicians or at least one of them critiqued and said here's why you shouldn't pay attention you shouldn't rely on the other stuff or what w under your view of how ortiz should have come out what would the rule be that you're applying to this case and how would it be applied the rule i would say is that if there is credible evidence  here i know you don't do a fact finding and neither do we have here but applying it here you had to psychiatry just saying yes this is serious but they're there notes in the reliance on it the board concluded really didn't support what they were say and then you had to be a examiners coming out differently so on that record you say no there's no way because it's two to two the veteran should win or i'm just saying how you would apply what test you would use and how it would be applied in the circumstance well articulated the test and i do believe that there is credible evidence on both sides of the scale now i think you're referring to the one that attempted to discredit one of our  think i believe that consistent with the text and more importantly with the legislative and regulatory history the rules should be that if there is credible evidence on both sides then unless the evidence fairly obviously weighs in favor of the government the better it should win under the reasonable doubt rule i don't understand how you get that out of the spent you then seems to me a reinterpretation of the statute to make it say something which it doesn't say i mean there's there's been a lot of discussion about this in the cases in the briefs in this case but why isn't the the simple past the one it's saying if there's an approximate balance the veteran when so why why we making it so complicated insert reinterpreting it trying to redefine the statue why isn't that a sufficient test and then of itself approximate bounce it is your honor and i apologize if that if i articulate i was just looking at it from both sides in other words yes approximate balance is the test the burden of proof for claimants and that's not equitable ways and that's clear from the text i was just looking at from the side of the government i mean i think pretty clear that the test is approximate balance and apply that test and stop worrying about the notion which has crept into the law or why isn't that satisfactory to you it would be satisfactory as long as the court got rid of the preponderance of the evidence standard for the government that's the problem what you mean i that comes out of the legislative and regulatory history and i'd be happy to refer you to the joint appendix if that if that's relevant to the way i look at it is approximate is a somewhat ambiguous term it definitely mean less than even or balancing act with boys but just how much less is unclear and i think it is on clear and the more we try to define it the more trouble we create it seems to me and the standard ought to be approximate balanced the veteran has the burden of a stablished saying his or her claims and he or she can meet that burden by are in approximate brown why isn't that simple and that's what it is and that's what the board are and the veterans court ought to be again that  is acceptable to the appellate with the one copy that you have to get rid of them in this analytical framework you would have to get rid of the preponderance of the evidence language that applies to isn't a numbers game i mean you started off by saying if the veteran puts forth credible evidence and the government puts forth credible evidence i don't know what that meat on and off to the evidence would be equal somewhat equal really not equal i mean fact finders do weighing the evidence all the time the weighing of the evidence is a critical part of their fact finding so i don't know why you don't need i mean it doesn't the doesn't even it helps you to say ok the government has some a for have to make some affirmative showing that stronger than the veterans in order that's another way of looking of how you get an approximate balance because we all agree not equal and equal balance so that they have to show something more in the absence of that than to know i mean i don't know how you would apply approximate balance what do you suggest  terminology for defining the veterans of burden of proof and then i said that we feel strongly that the looking at the flip side of a scale that on the government side that we that the proponents of the evidence standard has to go now you may not want to articulate a standard maybe it's confusing it's more it does more confusion than clarification that may well be but definitely the preponderance of  not in the statute to me it makes no sense i couldn't i couldn't agree more and it just it can't and just to add from an analytical point of view it just doesn't make sense because if you have it where you have something less than poise of the evidence and i don't know how you further define the process but it's less you can't have proponents of no you can't have two standards on each side that both can be satisfied at the same time once one party status by burden of persuasion that's it the the the the other side necessarily cannot satisfy his or hers that's the only way that  and it can work so when i said clear and obvious i thought that was a way to sort of balance it to make it to the equivalent or reciprocal to approximate balance but if the court feels that it's not helpful that's  signify that the government has to do something affirmatively more i don't think it i don't see how that hurts you just say that it's the government needs to come if not the veteran whe don't think you would disagree that you know it's hard to place numbers on this and i never that jerry said a thing it's not like how many pieces of paper how many doctors on your side how many doctors on the other side it's quality and not quantity often it's the persuasive value of certain people and certain things it's not and it's really hard to put this in a numbers game is it not true enough but the reason i use the numbers game just to illustrate the point that there are direct reciprocals you can't put a you know when we're dealing with language you can't define it in precise mathematical terms but you still have  right thank you the there's an approximate balance of positive and negative evidence the math would be sufficient to them is does that satisfy you to it does your honor and that is consistent with the statutory language i think if i understand some of the questioning from the st round of argument here the issue comes into play of of how that gets put into practice particularly with the standard that your t s court adopted in evaluating this preponderance of the evidence two terms approximate and balance and notes that the balance portion is where the employees standard could come into play that balance in the court's construction means this equal footing this ethically standard but that the approximate language is the adjective there modifies and so the ortiz court expressly rejected this idea that the benefit of the doubt rule only applies in this context that so what are we arguing about if you both agree that the standard ought to be the doubt never can go the better i think mr levin could not have been more clear he's telling the panel that he hopes we will recommend to the in back court that we completely get rid of the  for the eko points plus peppercorn i believe that that is not exactly how the ortiz court construed the language and that is where there is perhaps some tension between how  approximately in balance and evidence that preponderance in favor of one party or the other that under the plain language construction of the statute which is what we're teasing gauged in that whatever meaning congress could have a tent intended under the phrase approximate balance it's simply illogical to say that if that's a given set of evidence can be both in approximate balance while also proposing a rating in favor of one party or the other those are two distinct legal concepts and that congress could not have intended that conceptual overlap with the plain language it chose by offering approximate balance and in terms of the statutory interpretation that's further supported by the preceding subsection a fi a which still states clearly that the claimant has the responsibility to present and support a claim for benefits of any kind and so it would be very odd for congress to have on the  subsection affirmed that the claimant has the responsibility to present and support a claim for benefits and in the nd subsection create without any sort of clear textual indication that that responsibility in essence is satisfied by a set of evidence where the evidence the weight of the evidence and the persuasive value of the evidence against the claim those are two distinct legal concepts particularly in the veterans benefit context you're evaluating medical information you're about when credibility of the witnesses there is not a strict mathematical formula here and this approximate balance may allow for a certain zone where there is evidence in favor of one party or the other but with the repeat court said quite reasonably is that you don't need to make a very fine grained distinction of the evidence within its approximate balance framework that would be extremely difficult it would make the administration of these claims much more difficult what you can say very clearly is that if the fact finder is persuaded after a review of all the evidence that the evidence weighs in favor clearly by one party or the other by preponderance of the evidence standard then the evidence by definition is not an approximate balance under any construction of that term and therefore it is a clear bright line standard that's easy to adjudicate that sets out the standard  for all of the boards regional offices and veterans court to apply and use the word let me just clarify because there are a lot of words being thrown around here i mean i was following you you somehow he was saying of putting the standard into effect the general practice is that if there is some ambiguity or relatively equal weighting of the evidence that is when the benefit of the doubt rule applies that in practice it is incumbent upon the government and as this goes in court recognize to to shift the burden of persuasion such that the government does have to provide some sort of gap in that evidentiary balance to meet the proponents of the evidence standard under this statute and to to basically preempt the application of the doubt sufficient evidence to establish entitlement to the benefit and so it is incumbent upon the veteran to provide all of the evidence necessary for the fact finder to determine that the benefit may be granted and that  of the elements have at least some evidence submitted to support their existence then of course it's up to the to consider that evidence as well as to consider any contrary evidence that may be evident in the record as well and that's where you get this weighing of the evidence such that if the v a determines that even after the veteran has produced sufficient evidence to establish a prima facia in title meant such that all of the elements are checked off and there is at least some elements relevant some evidence relevant to each of those elements if not unless there is contrary evidence in the record the i can't simply ignore that and that's where the preponderance of the evidence on the government can come into on that and that and that the various refinements of the regulatory standard and of the statements in congress was that they weren't intending to change the basic  rule that is correct and we didn't engage at length on the legislative and regulatory history that mr once provided in his opening brief because the the statutory language has previously been found to be unambiguous but that is the correct reading that there has been a consistent application of this rule for nearly one hundred years and that there are only been sort of minor tweaks at the margin to ensure that minister ability is continued to be viable and on that point as my time is getting well i do want to make court were to entertain the standard that mr lynch is proposing here which would be that the government has some burden or obligation to establish by as i believe i understood the rule being proposed some sort of  clear and credible evidence that the benefits should not be granted that would essentially make that the presumption that any veteran who can provide any evidence of any credibility level is entitled to benefits and then the government would be obligated in every instance to then undertake some sort of more affirmative investigation and evaluation of evidence in an attempt to disprove that entitlement and that is not only inconsistent with the overall statutory framework it's inconsistent with prior presidents which say that the a should be a fair a neutral arbiter in these application process is that it is not the v a s job to attempt to disprove entitlement benefits the a should be fairly weighing the evidence as an impartial government agency it would also make for a much more difficult standard of review and application by the fact finder and while mr lynch if i may just complete care and while mr lynch may suggest that there is some difficulty in evaluating this proponents of the evidence standard in light of the approximate balance that that difficulty would only be worse by imposing yet a different clear and credible evidence standard and then requiring the fact finder to make what would be additional sort of eviden to try to apply this particular statutory provision that if nothing else what is your response to i think mr lippman and he can correct me if i'm misstating his position by i think in response to a dialogue he was having with judge dayak said he'd be perfectly happy that one of the star decisis elements is evaluating the workability an existing doctrine and also comparing it to the work ability of the alternative proposed and that comes from the lighting balance control case and there this court did in fact examined the proposed alternative and found it to be less workable and our position is that the exact same situation here while it may be more faithful to the plaintext of the statute to simply say the rule is approximate balance it would not provide a more workable solution because these issues would still come up the same thing that ortiz decided came up a couple years later in the face of an opinion that this court decided you would still have these questions of well when does the satisfied with that i want to be clear that there is is there is there's a problem about what's the problem what you think this that story language your honor what but that when you put that into practice you still have to weigh essentially what instances of evidence are not in approximate balance and to go back to the point mr lippman was raising there is this idea of reciprocal consideration balance how do you want to interpret either clarify that or and to what do you want here on our position is that there is no better way and no more reasonable way to interpret  statutes in the way or ts did and that is simply to say that approximate balance means that there is relative equality of the evidence that is not amenable to a strict mathematical formula but that if the evidence wins in favor of either party by a preponderance of the evidence that by just pure logic and legal definition is not in approximate balance and therefore the benefit that upholds does not apply that is the standard the latter that latter part seems to be completely inconsistent with notion that an approximate balance is better and because if it well it does is put the burden on the government to show equality plus the peppercorn that's not consistent with the stench isn't well it is your honor because the benefit of the doubt rule as it states is to provide the benefit of the doubt to the veteran when there is an approximate balance of positive and negative evidence ordinarily when you have that approximate balance of positive and negative evidence the veteran would not win because ordinarily the veteran would have that burden of proof and persuasion and as this goes in court recognized what the statute does remove it leaves the burden of persuasion from the veteran there so saying that the benefit of the doubt rule applies when the evidence in approximate balance that previously clear and i would refer specifically to your t's opinion for that as well because he's opinion also grappled with this idea of how strict the standard is for proponents of the evidence and and the ortiz opinion itself disclaimed this notion that it is sort of a mere feather on the balance of the scales or mere peppercorn that that that it does require some more substantial evidence that persuades the fact finder that the particular evidence is more interpretation of the benefit of the doubt reasonable doubt rules were at the time of the better the judicial review act of nine hundred and eighty eight dollars which is the the touchstone for determining  it's called the public law ninety eight thousand five hundred and forty two dollars and i'm looking at it that subdivision to thirteen and it says it has always been the policy of the better in the administration and is the policy of the united states and then i jumped ahead when there went after consideration of all evidence and maternal record there is an approximate balance of positive and negative evidence to trigger that so i don't think that there was some preexisting rule that was different then the proximate balance of language at the time of the be the enactment of the b j r a i didn't understand judge comment or to say that he can obviously speak for himself say this is a very interesting situation because the statute follows the regulation by some seventy or eighty years where you have a long long practice i think it's also helpful to look at i think some some of the judges were asking where i got the clearly proponents are credible evidence and and so i think you might for those that are then with the back of your say oh you can keep make it clearly for the proponents plus or whatever i would have thought you had an obligation to help us know exactly what you were talking about what they should have engaged