point one six b when it cited to that regulation following its conclusion that there was no evidence that his condition presents an exceptional or to ordinary impact on his employment that is the legal standard under the  regulation at three point three two one b and is not the legal standard under four point one six b the reason that this interpretation is important is that below the v a conceded in its briefs that  this matter needed to go back for consideration of the question of his inability to work due to his service connected disability the veterans court in reviewing the briefs decided that the error  of failing to discuss that evidence of records that implicated that consideration was not necessary because there was no evidence that the conditions presented such an exceptional question given is the criteria under which mr o k did establish his in heilman to consideration under this court's decision in comber he had presented the record before the agency and the v a below agreed  indicated that there was evidence of his unemployability while he was seeking a higher rating for his service connected disability there by implicating his in title meant to an extra schedule or criteria the v a regulations at three point three two one b do not provide for a total rating they do provide for consideration beyond that which is provided by the scheduler criteria in some circumstances three point three two one the three point three two b one can provide for a total rating but it uses an entirely different criteria for that determination and that was the criteria that was relied upon by the veterans court well  your to consider this evidence but that prejudicial error analysis is incorrect because it used the wrong legal standard the correct legal standard had to do with whether or not he was or was not able to secure a follow substantial that there's nothing wrong with that statement that was the those that stop the opinion right there ever been enough right that would be correct your honor so what you're saying is by adding this other sentence where they refer to an incorrect standard that they somehow compromised what they said earlier well because it does create a conflict as they were explaining the reason why they were rejecting the concession made by the v a in their brief that this matter needed to go back to this is a question of whether or not the board should or should not have considered this evidence that was reasonably raised by the record of his inability to work not whether or not he met that standard and i think what the court did was to confuse the  or that the court below made the mistaken assumption that the board had made a factual determination under four point one six the as it correctly described the legal criteria and then it said in i'm trying to read this paragraph that we're focusing on which starts on the bottom of page five of the court's opinion and that's where we're required to look at it closely because of the nature of the issue on appeal it seems to me that starting right at the beginning of the paragraph that the court talks about the standard that i think everyone agrees is correct right this week there's no evidence of record that the appellant is and here's the language you're on page  a couple of sentences for their discussing the the evidence and then the sentence that judge dyke read the evidence of record does not indicate that he is currently unemployed let alone unable to secure or follow substantially currently rated ten percent he would have to establish t d i you on an extra schedule basis correct and there is no evidence that his condition presents such an exceptional or extraordinary impact on employment why should we not read the reference to such an exceptional extraordinary impact of employment as referring back to the inability to secure  substantially gainful occupation because of the reference to four point one six b well you use the term shut church exceptional or extraordinary impact is designed to be a way of characterizing the correct standard that was set up maybe it's a loose characterization but nonetheless if that was intended simply to say such tendered then citing four proper right i don't think so you are because that particular phraseology comes out of a different regulation that not only sets a different legal standard but does not provide the benefit only under four point one six a if you meet the schedule or parade here and if you don't meet the scheduler criteria under four point one six b the criteria the phraseology that is used there and about is is that they used a incorrect legal standard to decide the question of prejudice the court willow was confronted with briefing by the appellant and a response by the government that conceded that this matter needed to go back that the evidence of record had reasonably raised the question of his inability to secure a follow the court then make factual findings that the board never made everything that you talk about that describes the correct standard was not discussed or considered by the board let alone the evidence that that conclusion was made by the veterans court in the first instance the veterans court was exceeding its jurisdiction by going outside of  there aren't and that i have no excuse for that your honor i have no idea why that by my office that was not the way in which it was prepared but obviously there are relevant portions of that missing and that or maybe that's what the person or type that that reference would say to well except out of the depth of the difference is is that in the first the case that was presented below the government had agreed that mr roquet was entitle to have his case reconsidered based upon their reading of the record below that the board had not considered the matter for entitlement to individual unemployability it was when it was submitted to chambers and chambers rejected that based upon making a factual determination that was never made by the  make a typographical i omitted statements here but that was not the same as the circumstances that were presented in this case in this case the government had agreed that this case should go back and the court below prevented it from going back based upon an analysis of extra scheduler and factual determinations that ultimately relied upon the wrong legal standard that you characterize what the court did as making  an armless error analysis and a fact finding mission where they they describe what the evidence was alone as know that evidence had been discussed by the board well but but the whole point saying well i'm not sure that's correct your honor because it seems to me that what the court was doing was making a factual determination about what the evidence should my view what the difference is between the prejudicial and error analysis and that's what this was about and i don't think there can be any dispute that that's what the court below was dealing with was document indicating that at one time or another individual is unemployed doesn't necessarily trigger the roberson comber requirement to consider t r u as as of course senate commerce has to be cogent evidence of unemployability and when you look at the entire record unable to obtain full time employment status was because he was seeking part time status given his full time student status and then six months later it's determined that he was able to secure a part time employment status so that at the time of the veterans course looking at his case the opposed to the or and i would agree your honor to the extent there was some conflict or some requirement to weigh evidence as there may have been in comber when this court sent the issue back finding that based on this court's review of the evidence there was evidence of an employe billeted which is what cogent evidence when employability which is what this court requires the practice court to search for when determining whether the board erred in considering t r u but in this case when the court below finds that there's absolutely no evidence there's not a question of weighing the facts in any way shape or form in this case of actions court was well within its responsibilities as well as i think the statute implies to consider the evidence to determine whether in the context of what really is a reason unemployability as part of a harmless error analysis direction score has to be able to go through it at least determine whether there's cogent evidence now i would agree with you just like at the time the victims court makes a finding that well there is evidence of one employee billeted then whether or so at that point i think anything that follows could be construed as dicta and frankly i think that actually is what happened here the quote what i believe the victim's course doing is trying to i just fully explain all the possibilities and  individual only have ten percent disability rating r o it's not in a position under the regulations to make that determination in the first instance must refer the matter to the director of competition eventually programs that office that has the authority to make a determination but the analysis that's performed by the regional office of the same under eight or b and that is to determine whether the individual has been keeping for substantial gainful occupation so frankly the last sentence in this case which simply distinguishes between the fact that individual my i don't mean to lay my answer my first response was i think that's a non issue given that i think this really is there but let's assume that it's not just that they were trying to construe to determine whether there was actually an interpretation they had and i would respond i think  all respect as the court sort of did and as we do in our brief that says doctor position of the you've used the term such and i would actually add the citation to see four point one six demonstrates that what the doctors courts trying to do here is just to refer to four point one be in error and a reason bases that the record indicates that it would be harmless and i would again submit that that is the kind of review under seventy two sixty one be fair to declare that has to be allowable  within the purview again your honor i would i would agree where they find quote in evidence the question of whether it adds up to the i used that's a different matter but here where there is a complete absence of cogent evidence under the commerce standard i think it the government has conceded that the standard a of four point one six and b are the same and that the analysis is the same and if that is correct then the evidence of record of mr roe case unemployability unemployment and his part time employment are cochon evidence because in a the v a expressly defiance unemployability as the inability to secure or follow and then described the secure follow up again full occupation and then defines game alok a patient as not being more than marginal employment and marginal employment is specified under the provisions of the v a s regulation as being able to earn more than the poverty level if he was unemployed and he was only working part time then that is cogent evidence of unemployability under that standard because there is no evidence that this veteran was able to secure or follow gainful occupation which resulted in him earning more than marginal employment and it's only the question of whether or not it's reasonably raise if it was reasonably raise them under calm or the board was obligated to have considered that evidence and they have have in fact obtained a medical opinion as to whether or not it was his service connected disability that prevented him from being able to be employed during the period in which he was unemployed you do anything else i'm sure you know that there isn't any evidence to that effect if there was evidence in the record that he could do something other than that and part of the criteria is to look at what he is bable of doing what his work history is what his educational capacity are what part of the criteria under four point one six b when you make the referral to the director of compensation is to give that employment history and background to the directory was one of three miles a day he hadn't lost any time from work he wasn't working your honor he was only working part time yes he was trying to go to school but the evidence was that he was unemployed for a period of time and that he was only working part time if you said you know you and your now making really sounds like an argument that would be equally applicable even if the offending senates were not in the opinion  you're you're saying now that they then shouldn't have made the harmless error determination without regard to the standard that they did or didn't apply apply and that if and since it's the whole harmless error analysis your honor and i'm not sure that the the court that they i believe that mr hockey is correct that the court could have made a generic analysis but the court didn't make a generic analysis they made the type of evidentiary analysis that the board should have made in the first instance and said what the evidence did or did not say about employer belanger stand that argument but that argument was equally applicable whether that sentence that we've been focusing on where in the opinion are not correct but if it were phrased in the last we're trying to get a quote legal issue in front of us by the erroneous statement in the opinion and then say that this issue