good morning and may it please the court my name is alexandros geyser and i represent the u s army veteran james abel the two core issues in this case by the veterans court misinterpretation of the word relevant and misinterpretation of the phrase reasonable possibility of helping to substantiate the claim and the statutory duty to assess this court in more versus shinseki says that these records are relevant on their face because they relate to the those records that relate to the injury for which the claimant is seeking benefits not your argument and have a reasonable possibility of helping to substantiate the veteran's claim that sounds like a two part test not the one part test for which you view you clear that if records relate to the benefits being claimed then they have a reasonable possibility of helping to substantiate that claim in goltz the problem was that the records he wanted to obtain were of social secur records related to back pain from a car accident which has the court determined has no reasonable possibility of helping the substantiate his claim for p t s d before the v a so here mr abels private honor in the sullivan case and this court determined that the duty to assist applied for v a examination that determined there was no current injury so as a practical matter it was unlikely that those records were going to help to substantiate the claim but because they related to the injury being claimed there was at least a reasonable possibility that they would help to substantiate the claim so i agree that as a legal matter it's been set forth as a two part test which i think makes sense based on the way that the statute is written and it distinguishes a little bit between the general the need to assess which is very got the reasonable possibility language so the court errors on both prongs of what we're arguing so the first error is determining that the records weren't relevant even though they relate to the benefits being claimed but then the second its records that seem irrelevant so don't relate to the claim may in fact have a reasonable possibility of helping to substantiate the claim to your question judge bryson and the veterans court made veterans court without examining the records can have any idea as to whether they would or would not on the merits support the claim so this was error because not only was it an improper initial factual finding fired to me and medical judgments and so here what the court did is it took the veterans statement discussing the contents of the records and made an ultimate factual determination on the merits even though the board could never weighed whether or not these private medical records were relevant so this court said and sullivan per the second part of sullivan that that  circumstances can make an initial factual well let me ask you about that because the their banners on the question i guess ultimately of harmless error i mean if the and here are the veterans court did make a finding of an appendix ph twelve and so i think that there are a couple of different ways to purse that legal error initially and getting it wrong that the duty to assist wasn't triggered is certainly a cre error because it means that the veteran is not going to get his private medical records which we've been able to obtain and would be happy to send to the veterans court three mand and he won't even have those records were viewed so the reasonable possibility that they could substantiate his claim doesn't get that certainly prejudicial i think second though and maybe the more legal question is whether there's a harmless error satisfy the duty of sis by not obtaining his military medical records but as i understand it the holding below is basically you didn't give sufficient information for the government to identify anything else where is it that you think the veteran at some point alerted the government to the presence of other records that they didn't obtain sure identified a location and it seems to me the government went to each of those locations and searched for medical records and could find none and otherwise it seems to me all the veterans said as well my records could be  been sent to a court martial proceeding he alerted the government to no information about the court martial proceeding would have been of order it seems specifically exactly where the court martial even took place or the exact date that the court mar it i feel as though your creed if we were to agree with you would be creating and really overwhelming burden and placing it upon the government that if the veteran alleges that his military records could have been moved to europe go find them you know i don't see any specificity unfortunately the veteran cannot recall the name of the court martialled individuals or the precise location of the dates or anything and so it just seems way too ambiguous to suggest potential witness and what he said is and i think sergeant brewer either retired somewhere in germany or somewhere in california there were two different people one he said i think they retired to germany the other said i think they retired to california and that was not the person who who  he believes was being court martialed it was rather another witness to the records would have been associated with sergeant gruber so now are you suggesting that if a veteran identifies a person who might know something about where records could possibly be located that the military has an obligation to go find that retired person and question them in order to satisfy its burden you know your honor what i'm suggesting is that when the veteran identifies categories of records all the word all in the statute requires that the government look at each type of category and its formal finding about it they'll ability if the government only looked at clinical treatment records it did not even make a cursory attempt to look at courts martial records but i'm suggesting that you didn't identify them a specific city even veteran says go find my medical records the government does not have an obligation to go to every possible v a clinic in the world to client not alleged to be the person who's being court martialed your client suggested that his medical files could be with the court martial files those would not be files in sergeant brewer possession or in the name of surgeon byrd they'd be in the name of whoever the court martial proceedings are about presumably but we don't know that mystery bones has asked his congressman for help he's tried to separately identify and locate mr brewer but he has and an uphill battle in the way he doesn't have any more the the way the case has been presented to them and you say that if there was an issue that wasn't presented to them as to which you think there was a legal error then their adoption and  there what you're saying so yes seventy to ninety two and more again would indicate that this court can fix legal error wherever it exists we would argue the main legal layer occurred with looking at the crux of an argument what is the argument actually saying not how it's frames so certainly anyone can frame any argument to be a legal question but we need to look at what actually is being argued here and what's being armed here argued here little surprised at the intelligence position with respect to goals this morning because i had thought that their position was that more established that there is really only one test which is is the injury the if the allegation was that are wrong test was used but there was a different legal test that should have been used yes right i agree with you that there should be jurisdiction it's not how i read the briefing i read i sort of agreement that they skipped goals in the opening brief but two more and you're right i did you know and i prefer this argument i immediately regretted that your honor because i should have addressed it more to come first goals came after and we do believe that goals is the correct standard my research has shown is that the case what they're looking at in cola more was very different than what they were looking at and goals and the reason why first was that there was a misinterpretation of a regulation and more there was an issue about mental illness  my understanding is that your opponent is arguing there's a misinterpretation of the definition of relevant well that a legal question is what's the meaning of the word relevant as it appears in the legal text it seems to me is certainly a legal question and so she's suggesting that under more the case law indicates that you meet you satisfy the test for relevant if it is a medical record related to the exact same injury for which you are seeking compensation full stop goal went further is my understanding of her argument and elaborating on the test in a scenario where the person is seeking medical records mr veteran mork suffered from a mental illness and the way that he was rated was based upon a single action demonstrating that mental illness but when rating mental illness one must look at the entire history of the individual to determine whether or not it was an isolated incident of demonstrate a mental illness or prolonged incidents over time indian say that is the pinion saying that in order to assess a mental illness as opposed to a physical disability you have to look at this entire history that seems that your at if not you know if i'm remembering correctly i think the words i remember were abating recur your honor i hopefully have highlighted the correct words here because the position that the united states took in more you see that the writers court took in more was that records that predate it could not be relevant to the mental illness and that was a misinterpretation right there your honour's certainly there's there was jurisdiction and more right there we have a misinterpretation misunderstanding on how to rate individual mental illness goals was  course is talking about two different guess i still don't understand i really need to understand the government's impression the rule of law that comes from the presidential decision of more and i   trip players records are relevant on their face because moore is seeking a disability compensation for the same disability so that's that's that too to me at least that's the crux of distinction be between goals is that it's very explicit where what moore is talking about is sort of its goals a specific in the sense that it considers harmless error explicitly in announcing the two part test is it relevant is it related to the injury will it help substantiate the claim looking at what morse that worse is basically the same thing without announcing a two part test it certainly says that on its face it's irrelevant because it's related but then it goes on a guess as given that moore was hospitalized after apparent suicide attempt and was there after deemed unfit retention military the records of his hospitalization may well contain evidence that he suffers from a serious and perhaps chronic psychiatric just order so they're saying right there that these records could help substantiate his claim because just his disagreement with the v a was that he had a chronic problem not a one episode issue so more while not announcing a two part test takes one through the same analysis that gold was very explicit about afterwards so that's how those two cases work together so if the v a found a problem with this claim and the records  third sentence from the bottom of that rationale paragraph with the evidence available there is a lack of information about his original injury and the disagree of disability that exists today right so the original injury right now he's pertaining to the degree of disability that exists today how can you possibly tell me that documents from a private physician that he's consulting with in the last couple of years related to this exact disability are not relevant to the degree of disability that exists today well because they were not they would be if that was a question still open honor this is the quiet on the board i completely agree but let's recall that the veterans court found that the board did error in not asking for these documents but one through this analysis and found no prejudicial the reason why specifically for the question of the current condition that mr able to currently suffering is because the v a acknowledged his current condition so that elements of service connection the v a conceded and that i could quote the the in service incident it was nexus that's the problem the court and that of course says therefore the records are free since treatment of appellants left me would be irrelevant current conditions so what the veterans court is saying is the current condition of mr able to have been conceded by v a it is not an element of service connection that needs to be proved we need to be proved his service connection i'm sorry but i fail to understand how essential says the v a knowledge is current condition response to the concerns of the medical doctor had the board regarding the degree of disability that exists today sentence you just read it doesn't seem to be well i'll keep reading because the next census helps a lot as well your honor the element of service connection that appellant has yet to establish is not presence of current disability but rather causal nexus and goes on to quote this court as to about cause and that's just a question i have about two grades comments and i don't know that you'll be able to answer it because it's really a question for dr gr mr able to receiving service connection was the lack of causal nexus not this current condition so and you know as we discussed every front page for the reason why the  and now what what page twenty three is your honor is a submission by mr abel from february of two thousand and thirteen so i guess a month after his meeting with the doctor and he says quote page this is page twenty three evidence of broken bones and tissues as cartilage and tendons are difficult to effect at time of damage however dr kay did say that a baby more than coincidental that i suffer such a large number of painful orthopedic issues and a common or those private military or private records written by doctor can actually say on this point so we would know in your honor i just found out today that they are in possession of mr abels from my colleague and i would have loved to have seen these during the litigation it we could have informed my decision on this case but i did not receive and i don't know what we say what we do know what they say from don't we but we don't know what the sucked him and say but we know this is the exact same injury as he seeking a disability for why if there's a private medical record which has been reported to the government to say something about the likelihood something that is not totally clear based on the person's lay testimony why wouldn't it be relevant because this is the issue that's at the heart of all of this according to you write this nexus so dr kay said something about nexus we're not certain what he said it tends against a veteran but we're not certain what he said he said something why isn't that rather than i would i would disagree with  medical records issue it is it do you read what the court has done to be addressed to me also with respect to the issue of the board is the body that should have initially determined whether or not the western or the p d f documents met the goal standard right and ok having failed to do so that sort of sets up right the argument that the court error was only in vote with respect to the reasons issue but what is the second part of the gold standard it is harmless error whether or not these documents could help substantiate the claim i don't think of that it's  others what we've just been discussing is the prong to error out of court that there was no way without viewing the records based on the can on a laced summary statement of a discussion with a doctor not medical records more said it doesn't understand how the veterans court could know those records were not relevant or specifically quote had no possibility of substantiating the claim and so i think the case was specific and as far back as mickey which i believe is the first duty to assist case out of this court and claim was for records that the court said very specifically may expertise required by regulation three point one five nine to review could not substantiate the claim it is i would argue it's impossible for any medical professional know whether something absolutely could not but certainly it's impossible for an appellate court in the first instance to make a factual finding of impossibility on the merits that is legal error as this cr which your honor it couldn't i agree with you it couldn't be viewed as a harmless error situation that makes sense for the reasons and bases on the fifty one and three eighty issue you either their duty to assist the veteran attaches or it does not if it attaches then the failure to retrieve relevant records and to precede with the adjudication of the claim on the merits without all of the in from all the relevant information is of course prejudicial error one of your legal arguments that you think would be responsive to judge raisman potentially the definition of relevant and this decision by the veterans court on its face would fly in direct contrast with the definition of relevant that was