our next case is holloway versus number thirteen dash seventy eighty not the veterans court failed to consider the controlling rule of law established by this court in robinson beach and city in reaching its decision not to consider the arguments in the first instance that were raised before the veterans how are they buying robins they didn't fail to consider well you know i don't believe a generalized statement that the record was reviewed covers the intent of robinson robinson's intent the rule of law created robinson which differs from measure which is a general proposition is the specific proposition that if the issue that is presented for the first time is recently raised by the record now that requires an analysis as to whether or not it was reasonably race there is no discussion in this decision about whether or not the issue was reasonably raised by the evidence of record the lower court also relied on the fact  that mr holloway was represented by other counsel before the agency that specifically addressed in robinson those that is not a consideration the consideration is whether or not the issue is reasonably raised by the evidence in this case we're dealing with an initial rating assigned for a condition that does not have a diagnostic code to evaluate that condition that implicates the provisions of four point two zero because you cannot rate this condition under the rating schedule of the v a because there is no available diagnostic code to rate this particular type of disability therefore you have to look to whether or not the rating initial rating assigned in this case was properly aside and an analogous rating hope that issue was not raised before the agency it was raised by mr holloway before the veterans for that is clearly within the expectation of robinson and indicates that a direct appeal should be liberally constructed or given liberally are based on the literal construction of the record regardless of whether or not the  and not of the evidence but of the arguments made by it's in that seems to me it's really one thing as a practical matter to say i read a brief call and i need to indulge all liberal interpretations of what may in law or what might be being argued and it's another thing to say here's the record your court it's your job to scour the record and think of issues that aren't even hinted at in the argument that seems that quite different thing and i'm not sure we've ever said that we were but i think there's also a distinction here your honor as to who's doing the reviewing the reviewing under robinson needs to be done by the pool the board needs to review all of the evidence of record for all of the issues that are reasonably raised by that record in this case as opposed to robinson which is a service connection issue we're dealing with the rating assigned therefore we have to be dealing with the diagnostic code that is used to evaluate that service connected disability so the examination by the board in the first instance has to through whether or not the evidence reasonably raises an issue about how this matter should be of value weighted under what diagnostic code we pointed in the record in our brief here and then our record is good in our briefs below  the extensive list of references to mr holloway is documented symptoms of pain numbness and tingling and weakness in his lower extremities those are the significant that were suffered by mr holloway that needed to be evaluated the question then becomes was it correctly evaluated under the diagnostic code selected or did in fact under four point two zero the board have an obligation to explain why they selected that diagnostic code over a diagnostic code that is based on injury as opposed to a diagnostic code that is based upon the residuals of a disease which is a diagnostic of that was used in this case so it i don't believe it's a question of the veterans court having to scour the record because that was the issue that was presented by holloway mr holloway presented to the court and the issue of whether or not that was reasonably raised beloved by the evidence the court chose not to do that because the court relying on its discretion not and then that was the court's point below that he relied upon his assertion that he was entitled to a higher rating based upon the diagnostic so that had been used by the v a in its original assignment and then relied upon by the board in the diagnosis diagnostic code itself new york he was not the there's no question it's not that we do not attempt to assert that below before the agency that mr holloway and his counsel presented the issue that was presented to the veterans court about the selection of the diagnostic code which diagnostic coach should have been used we argued that that was an issue that was reasonably raised by the evidence of record and based upon the a click of a law and the applica law is four point two zero which says that they should choose a analogous diagnostic we challenge whether or not the diagnostic code relied upon was in fact analogous to because it flows from the residuals of  in this non adversarial system that's correct your honor that it is not an issue of the way in which the matter is framed by the veterans because the board has an independent obligation under seventy one for a consider and apply all relevant evidence and all of likable professions as long as what language that's evidence and i think you're you're you're you're you're extending that to include legal argument or or legal strategy zero that they used without applying four point two up and four point two zero under the veterans law veterans court case law requires that a statement be made as to the reasons for the selection of that particular diagnostic code and that was absent from the board's decision that was the issue that was attempted to be presented by mr holloway to the that french court in the first instance if i can turn quickly to the an error because it imposed a boston requirement upon mr holloway that he presented all of his arguments below we believe that consistent with the plurality decision of the supreme court in sims that he decision implicitly overruled that portion of this court's decision in manage a which suggests that it is a matter of discretion we read the plurality decision in sins to be a decision that does not render it as a question of discretion but more a question of being obligated to follow the rule applied and see this court as yet has not extended the rules in sims which applied in the social security apply that rule as even even if we were to to look at that question aren't the regulations at issue here about what you have to present to the board pretty dramatically different from the regulations if you can call them that really this this form with that two inch box in the appeals council context sims where it was pretty darn reasonable to expect anybody to think that they had having raised an issue before the l j had to specify that issue in their little appeal form to the appeals cancer well there are two responses that first is that under twenty point two zero two we believe that that is the comparable regulation to the social security regulation referred judge justice o'connor in her concurring opinion to the regulation that she found was inadequate and that regulation is only suggested it simply says that the substandard appeal should set out the specific arguments there is nothing mandatory in that regulation there is no mandatory requirement in any v a regulation that the veteran must set out all of his or her arguments and more importantly there is a provision for the board if they are uncertain to make inquiries of the appellant as to the nature of their arguments so again in the nature of this type of the judy kotori process determination that it was entitled the benefits under diagnostic code a five to the veterans court properly rejected this argument let's in court decision contains two basic holdings neither of which are in error and neither of which is dimensions court help which is not required to address this argument and second the veterans court declined exercise discretion otherwise consider mr holloway's argument presented in the first instance as this court has held in for some seconds the board must literally construe a veterans pleading on a direct appeal whether the veterans represented by counsel or not but the board is not obligated to consider all possible substantive theories of recovery in this particular case the that since court properly held that the board had considered the series of recovery before it and was not obligated to create other theories of recovery that were directly reading the pleadings whether or not he represented by counsel and had the veterans court done that that would be contrary to this court's error but it doesn't mean that councils are relevant to the process in particular the court did hold  counsel's representation was relevant to a doctor's exercise discretion and that's wholly appropriate and if we think about the situation being reversed we have a veteran he's appeared before the board and yarrow completely pro se wholly on represent g the victim may suffer from psychological or physical symptoms which might affect his ability to present his arguments before the board he may not have presenting our them in the first instance but the question comes as a matter of discretion should the veteran scored simply hold that argument wait and it is appropriate that case would be young question the appropriate one case for them to say well you were pro se you were represented by counsel in light of all other circumstances we wouldn't expect you to present that argument so at least for the closest it comes in the factual section the veterans court says this is a rating under diagnostic code eighty five to zero but to call this rating by analogy would be contrary to four point seven a and four point one two four which provides that you provide the rating based upon the nerve involved you put the code number under the diagnostics code for the nerve involved so just for the sake of clarification the government doesn't contend that this is a quote a question of reading by analogy it's true that before the veterans court the veteran ers this is that this is ratings by analogy but the government disagreed and continues to disagree that this is a case of great and finality is simply applying the appropriate diagnostic owed a five to work and implication of society here as found by his examinations at page forty six forty three forty seven and ninety three ninety one of the record so good let's suppose that the veteran the status of the veteran is such  that he's not able to lend effective assistance to its culture dish culture totally misses the boat and fails to raise a very clear cut applicable legal argument and let's say it has to do with made yes we would agree with that but that obligation the liberal construction does not extend to in this case the exact opposite of what a petition or raised again you know if there's something else implicit in the recor clearly clearly in place in the record then yes you know but that's a different situation that's not the facts of this but i return again at some point counter at least counsel has has some sort of right to to exclude or not raising they may not want to raise a diagnostic i mean i mean recently the court has held you know in some of these cases yes counsel do make informed choices and those choices are maybe something in a particular case or veteran may go back you know as a condition changes and go back to the to the v a and say well ok i was rated on this diagnostic oh based on more recent medical exams this is really my condition again saying you have to change conditions just you wouldn't get the effective date that goes all the way back to the initial decision granting the benefits so the facts are doesn't carry a hard time understanding why the existence of counsel makes a difference in this that that that the board are supposed to give a liberal interpretation yes with respect to legal arguments for example so if that's the case and that what's what why should having  make any difference well i mean what if the lawyer is had a bad day or is it himself incompetent mean who the regulations do require and put some onus upon the veteran to raise arguments in life it's not simply a system that says come in we'll try to do our best and and just simply no matter what you second what or what arguments when raised will simply go away we just look at the record all the evidence without any sort of guidance they this case you know the if the board had any family it was you know and i don't believe it actually did but it was actually listening to the arguments that were urged by the veterans and that's not an area that's that that is you know something that the  counsel are given are you arguing for that currency and i believe that is the standard under seventy one of four when the board reviews the no vote the decision of the secretary i believe that is absolutely the standard and that that the whole question of whether counsel did or didn't present an argument is not part of the equation there is an affirmative obligation on the board to consider and apply all the plates a potentially to a political provisions of law and regulation and the veterans corps why have counsel and all well for decades your honor that was the judgment of the congress that there would not be  counsel and in one nine hundred eighty eight they change that view and i will say to you in all candor it has been quite an educational process for lawyers coming into this system because this is a very complicated area and this case is a perfect example of the nuance of looking at what the agency did in the first instance and for my colleagues to suggest that there was never a question about this being an analogous rating is just simply inconsistent with the record my client was service connected for herniated disks there is no diagnostic code for a herniated disk he has very specific  ridiculously in his lower extremities that's where his disability comes from that's what is supposed to be evaluated and unfortunately counsel below focused only on the diagnostic oh that was supplied by the v a and that is i suppose both a natural thing to do but it is simply not the legally i don't want to say correct thing to do but the total view of the matter because the veterans court has held early in its case law on a case called a b vs derwent scheme that the v a must presume that a veteran seeks the maximum rating available under law and the maximum rating available under law is dependent upon the signing of the diagnostic and all we asked for in this deal is for the lower court to be ordered to look at our research if they did not look at our assertions they simply said represented by counsel below we are not going to consider this because it was just presented and that simply is not the rule under robinson and is not the correct way to address these claims and it is as if you didn't tell me if i'm wrong about this i can see that i guess at least your opening greeks didn't reliance seventy one was i don't know whether your reply brief no no i was simply responding to the question posed about the and in on the record that's up to it regardless of what the claim itself but that they may dismiss it but before they dismiss it they must solicit inquiry from the veteran to understand the issue that's being presented there's no question in this case that the board understood the issue the issue was what's the appropriate rating how should he be compensated for his and if you know when you think that it's with in the wherever this line is between liberally construing what's being argued and not having to scour the record to think of things yourself that you're on the you know the favorable to you side of that line even though you permanently urged use of the particular diagnostic code yes or no because as i was just talking with chris wallace about this system it is about presuming that the veteran seeks the maximum rating available and you get the maximum rating dependent upon which diagnostic code is utilized to evaluate the condition and that can be diagnostic code that was used did not evaluate the specific symptomatology that results from his ridiculous position and more importantly that diagnostic code selected is a diagnostic code that is predicated upon the residuals of the disease this injury or this condition this disability resulted from the residuals of an injury which is consistent with the diagnostic code that we believe that the board should have at least considered because it offered a greater rating opportunity o