one five cash and seven one one one kellogg's versus mcdonald the legal standard for reversal is where there was a clearly erroneous judgment in this case there was based upon proper faculty fighters what is our standard of review in that issue upon what standard in other words how do we assess whether there was only one result compelled by the evidence which is what you're saying yes  don't not sure that i know the answer to that question to be candid with the court i'm not sure that i have seen this court articulate the standard upon which it does this case is obviously dependent upon a lot of the lotion and the low simply the record that was before the veterans court at likewise the same record that was before the board requires only one result when we had them in the best i could come up with mr carver's that we before the board well i'm not sure that's the proper analysis of this case structure because it seems to me that the court below the veterans court really relied upon the fact that it was necessary for the board to take another look at this cases that were in the low because in the two cases in the lower there were competing evidence to be considered in this case we have a board decision in two thousand and eleven that failed to consider the correct regulation it was remained for them to do that the same in evidence the two thousand and six and the two thousand and nine medical opinions that were the evaluation of mr kellogg disability that said that that disability went back to the date of this original claim that's the only evidence in this record it was the only evidence in two thousand and eleven it was the only eleven inches in two thousand and thirteen and it's the only evidence that was in the record that was being reviewed by the court based upon what the board did and what the board did was to say no you're not entitle to an effective date back to the date based upon the evidence that supports it because there was no diagnosis i'm sure so if i understand what you're saying is you're saying that ok and the last we had competing evidence and and the board only consider them the one that was most unfavorable to the pattern here we've got evidence that somewhat favorable to the pattern the board says it's not enough and now the question is there's additional evidence that's also favorable to the bathroom it could it still be that even with the additional evidence the board would find it not to be enough retroactive evaluation of the disability that's what these two medical records did they reviewed that disability the disability that he was granted service connection for and the question is under this regulation did that upon reconsideration and consideration of all of the evidence then call for an effective date based upon the date of the claim there is no con evidence in the record there never was any concrete evidence in the record therefore it is simply exercise in futility to go back and reexamine the evidence that you can only draw on realistic about what the standard is under the regulation the standard is is there adequate evidence to support a conclusion that this disability existed thirty years prior to the current effective day and the only evidence of record says yes but that the problem is is that it's this is really a who decides question i guess i mean is there adequate evidence to support that conclusion and that's what the regulation sets in there so there would never was a determination by the board that there was that the evidence as it relates to the sword testimony was not adequate right that's  so you would be asking that the court of veterans claims to to make that determination the first instance which it was uncomfortable making now it's possible that after remained if the board still says that in adequate testimony better claim could disagree with that and say that that's not a reasonable conclusion even under the most deferential standard review but shouldn't the board be allowed to make that decision in the first instance no you only should because this would give them a third by the apple they had the opportunity to do it correctly in twenty eleven they did they have the option to do it correctly in twenty thirty and they did now it's not a question of frankly reconsidering of opinion it's whether the doctor mcnamara's opinion all by itself is sufficient adequate evidence under the standard provided by the regulation and i believe that what is contemplated by the statute what congressman ended was when there is no contrary evidence that's why that portion that is discussed in the ocean about the you know relationship of the legal standard in seventy two sixty one relates to the better for the deaf hear there is no opposing evidence without any opposing evidence they're considering a fact that has no other conclusion so your do you think that the veterans court should have based its determination solely on dr mcnamara's evidence and not even considered the fact that dr swartz evidence was not considered i'm saying that they could have and they should have in order to properly dispose of this case i believe they were entirely correct in their analysis of the board's error in failing to consider the three year earlier medical and that in fact was far more extensive than the i believe two page opinion from dr mcnamara as opposed to the fourteen page opinion from dr swore at the end of the day there isn't there never was any evidence that contradicted that when this case was remanded by the court based upon its twenty eleven decision being set aside to consider and apply if the v a had wanted to develop evidence so that out for another opinion to evaluate the opinions that were of record they could have done that but they didn't do that the same evidence was in the record twenty  suppose we don't agree that dr mcnamara's evidence standing alone would have been a not and that you would have to look at the sort happens even if we think in our guts that that the combination of the two should standard that i'm asserting here it would not be appropriate to consider a matter that was not considered by the board however they did acknowledge at least parent fedak leave that there was a prior statement however on the basis of the record that was before the veterans court which included non realistic consideration of dr schwartz opinion was dr mcnamara's opinion so efficient as a appellant was arguing essentially that the facts were not controversial and that they believed the facts had been properly considered they would have won and this court said it was not enough that only a few factual findings remain or that the applicant entirely both situations which are present here the case law from this court says that it is appropriate and require what about the will mr carver his argument that we don't even have to look at the the sort evidence that they didn't consider if we could look at mcnamara alone and conclude that the poor eric i think it sort of the road i mean one that's not the argument that he made to the court of veterans claims but i think it's somewhat irrelevant because whether the co findings and so it would be equally inappropriate for this corps or the court of veterans claims to step in and say well we can't really review what determination you made either because you didn't consider the evidence or because you haven't explained your review of it we're going to find it anyway when there's no opposing evidence and the evidence keep just keeps getting stronger for the better in me why do we have to keep creating these retrospective opinion at all it may be that we can read it and say well that's convincing to us but the board is tasked with making those determinations they have the expertise to do so and they need to be given the opportunity for isn't this the biggest complaint that patents have about this process and sound system is that they that at best they just keep getting remains and ray manson remains and remains because the board just doesn't do its job and then we keep giving them another chance to do it and it's fifteen years down the road before they can have a claim process but the evidence of record doesn't make it look very complicated all of the evidence of record indicates that as of the date of his discharge he was unable to maintain employment unable to deal with the same issues that you al so i may not have the authority to touch that with a ten foot pole but all of the evidence of records points to it and so it doesn't actually seem complicated at all if i had the authority to peel back findings which is not well and it may be that in fact m zionist stand mr kellogg is arguing that the c a b c should reverse instead of remand because based on the record that was developed before the board the only possible conclusion is that he showed p s g nine hundred seventy four that's his argument now how do we consistent with what we can and cannot do in a v a just how do what are we supposed to do now what are we supposed to look at in our analysis what are we supposed to try and determine i think i was getting is that a little bit with mr carter would you say i think the question certainly was a question raised in previous cases was under seventy two fifty two a the board because he saying that evidence compels only one conclusion the v a didn't come that way it said no we've got to send it back so what do we do i'm not sure this  was violated ok so far so good follow ok now how do we go about determining whether mr carpenter is correct in his contention i think a review of the veterans court decision shows that there is no uncontroverted view of the evidence he started the car to start his argument by saying that there was proper factual findings below this are we allowed to look at that whether or not there is a controverted view of the evidence court deciding to remain a sort of reverse was an interpretation seventy two fifty two which gives them the power to reverse or the and so to make it not a review of the specific facts here to make it legal question has to be in a circumstance properly exercised its review right we have i mean so you're saying i have to accept the very court's determination that there isn't an uncontroverted view of the facts and then once i accept that i don't know what there is left for me to do like why would does seem that within a certain narrow constraint you have to look at the things i mean if you if there's a proper issue of law enforcing there seems to be good and that you can look at the facts i think you can simply make sure the veterans court did the question point that and the rule that if the evidence compels one and only one result almost reverse i don't think in this case you can get to that question if that's what he says the issue of law is what that was and exactly interest of the issue of law from the briefing to be honest so i'm not sure that the court can reach that question where the facts are that there is a controversy of the evidence and there has not been a proper review or  diagnosis of p t s d could not be earlier than april the twenty eighty but that i think under thirty of our four point two zero there can't be an earlier rating by analogy i think it's a phrase that's used and so if the symptoms proceeding to determine what the appropriate rating is along the continuum in this case of thirty years now as it relates to the question of the legal issue in this case of how it should be resolved to respond to your question  believe that this court must determine if there is if we are to take away from the low that there are circumstances in which this court  determine that their reversal was the appropriate remedy that that determination must be made on the question of whether or not there is disputed evidence in the record and i do not believe that that is a pure factual question obviously you have to review the facts to determine that but i believe that that is a legal question because ers could be at least they come by question of fact of law in order to determine whether or not based upon this court's reading of the record there is any evidence that contradicts dr mcnamara's opinion and you're saying we're permitted to do that given this case of not understanding the normal constraints on our along with frankly the whole line of cases from this court that say if the facts are not in dispute then the matter is a question of law and so the matter before us is a question of law is reversal the appropriate remedy when as in this case there is no evidence to the contrary that the evidence that was brought forward in this case whether directly or indirectly by the veteran supports the conclusion that under