to tell us where things stand on the substitution issue hit and anything happened with respect to the substitution misreads not before the v a your honor  go before the agency there is no pending an agency action in which she can be substituted so what she would be required to do would be that which congress intended to prevent and that is to start all over again industries passing so high that well and that's the problem is that that's an accrued benefit claim that's not a substitution substitution is different then you either substitute in something that's pending respect your honor there's no difference between being substituted in this context and being substituted in any other context under this rule all this require is a representation that you are the legal representative under the rule was made to this court and i believe that this court ruled just like the veterans court rules and breedlove control that outcome and the court found that fifty one twenty one capital a didn't cover judicial substitution but that consistent with this court's decisions and consistent with their view of the intent of congress the intent of congress was to avoid making the widow in this case start all over again with an accrued benefit ok and there is no basis there is no procedure to be substituted in a judicial proceeding before the agency and so i not quite sure of what this court would do with a factual finding from them that would in any way affect proceeding with this appeal well if for example the agent well i don't own this is rees position is that the secretary's brief has not reported any of mrs rees's argument that the lower court misinterpreted three fifty four b the lower court explicitly held that mr reese's q claim eleven fifty four b under the correct interpretation there is no weighing of the facts rather the plain language of the statute requires that the secretary shall resolve every reasonable doubt in favor of the resolve reasonable doubt in favor of the veteran the un contradicted evidence before the board in one thousand nine hundred three both a lay as well as medical showed a linkage between the veterans hearing disability and service had the board properly interpreted three fifty four the board would have resolved any reasonable doubts about that evidence in favor of the veteran and granted mystery's requests for revision waiting issue once in current is established and i believe that there isn't any question that encourage was established factually undebatable ie at the time of the board's one hundred eighty three decision once that was established the subsequent directive of the statute to the secretary is you resolve reasonable doubt in favor of the veteran and that goes from not has  causation because you've already established in currents that reasonable doubt resolution passed to go to the remaining element because you have succeeded by showing that he was in combat that there was and  relationship between the in currents and the natural relationship between currents and the ultimate condition and let me give you a couple of examples need to be perhaps opposite interests of the spectrum if you lose a hand in the service and it's not going to grow back so if your ultimate condition down the line is it you're missing a hand we know there isn't a nexus that's that doesn't have to be inquired into on the other hand if you have pneumonia in the service and thirty years later you have a long condition and you say that one condition is tied to my noon you can prove absolutely that you have a lung condition that you had pneumonia in the service but it's quite a bit more then the incident that occurred in the service is connected to his condition as of one thousand nine hundred eighty three yes and you do have that burn absolutely right  and it operates under the parameters of the statute the statute a stablish is in currents and then it directs in the plain language of the statute that the secretary  wise to the evidence that you have submitted in relationship the back steps and what was missing in davidson was evidence of nexus what is present in this case was evidence of a causal missing if you will and has continuously been either impaired or missing as with the absence of the ham but we still have them problem of whether your contention is that the st that in this case there was evidence of nexus which under the terms of three fifty four b once in currents was required that the late testimony of mr reeves was required to be accepted and resolved favorably that him unless there was a clear and convincing evidence to the contrary that was inconsistent with the nature of his service and as judge moore points out that just the opposite of the factual circumstance here it's not a question of does that give him the nexus requirement it doesn't he has to present something this court has held that his late testimony about being a combat veteran can't trigger the presumption the presumption have been triggered here there can be no debate that this man was in combat as a result of that the rest of his late testimony under the plain language of three fifty four three not eleven fifty four b requires the secretary to resolve reasonable doubt and favor the better that is not a fact  process and that's where the error was by the veterans court that is a following of the direction based upon the shifting of the burden to the v a to rebut the presumption that the lay evidence that supported it is sufficient to establish in title that the compensation but that presumption you say flowing from eleven to fifty four years applies to the next stage when there is evidence to support it not just to the next as evidence as though it were in the ether this is not this was a claim of clear and unmistakable error in which there was clear evidence both from the veteran and from other service members about the nature circumstances and hardships of his service i the war there loud noises that cause the acoustic trauma that impaired his hearing that lay evidence in combination with the statute the statute sets it up for the and current it gives him the occurrence you know that the prove the inner majors moved out on that score but what congress said they're after was then the elements are that he's a veteran that he has a current disability and that their disability was incurred during service the in current element is created by the first part of three fifty four b b put on the difference in the presumption under one hundred five eighty four in kearns versus the type of emphasis that could be equally applied to under three fifty four b when the only thing  court has interpreted repeatedly this statute as being not necessarily a presumption but a lessening of the standard and that standard is not for the in currency in currency is established by the nature of the fact that he was in combat and if he says he was in combat or excuse me if he says he was injured in combat then the stance you were choir's the secretary to accept that and that that further the statute requires him then or scrutiny the secretary then to accept his statement that my current disability is related and has been ongoing since i just had that acoustic problem let's let's assume for a moment that we don't accept your legal contention that the nexus is a relationship is dictated by eleven fifty four plus some incident to be causal the established because it related now one may be very skeptical about whether that's right or not and in fact he's later he was later awarded a service connection so so seemingly the v decided they were wrong at harvard least the new evidence persuaded them to take another view but under cuticle how would you characterize how would you challenge that factual finding which was if we were luke luke let it conclude let's say that the statute has nothing to do with next i know that's not your position but suppose we were to say can you win this case on the ground that know because this case is predicated upon the interpretation made of three fifty four b c by the veterans court that interpretation if rejected by this court as you have suggested that they talk about whether the correct facts as known in the war before the board so i believe that this court under your rule of law jurisdiction could go in that direction is that if i'm responding survivors of substitution instead the court analyzed the standing of the person seeking to substitute and then what and the manner in which you do that it to determine whether the applicable substance of law a lousy action to survive the party that the standing determination still needs to be made but there are other weaknesses well but it's not contested in this case in this case it's not contest right so so the judge moore's question is applicable to this case and not to a case involving a state or a great grandchild or third nephew twice removed why shouldn't we simply say under the authority of our rule that she substituted end of discussion the survivor is required by the fifty one twenty one if you want twenty one or fifty one twenty one day to file a claim with degree eight there's been no claim filed with the v a here as the court indicated earlier i know this is an easy beneficiary then there'd be no right to appeal is a big if if the decision but let's just say that there were two mrs reeves and they came in and they both wanted to substitute the court decided well mrs reeves number one is  more raise the question of whether there is any room challenging the factual or and confined to the record at that time looking for a few different that the only difference was that the use the term administrator versus secretary so it was virtually identical and at the time under section provides a relaxed standard was not necessary what was the injury that lay testimony of mr reeve and his wife as well as the medical testimony that mr reeve had submitted and decided that the injury that the disability was too remote from the injury and they are separate when we were doing the disability much are we really asking the question of whether this was a temporary hearing loss or permanent periods and if that was permanent hearing loss then he sees like the fellow's missing the hand it's not coming back and therefore nexuses you're done nexus is finished it's temporary hearing loss i mean i'm i i understand that there could be people who recover from rock concerts as they sat through when they were teenagers and they get some considerable degree of the that must show a causal connection between the disability and the injury and didn't you didn't you any other case that said that if there are similar type afflictions that you automatically i'd like to address the substitution question first you know it relation to the substitution question and it's very frustrating for advocates to hear the v a come before this court and talk about if the veteran would far survive or would have only filed an accrued benefit application when congress enacted fifty one twenty one capital a it directed the secretary to promulgated regulations we still don't have those regulations the national organization of veterans advocates filed suit in this court to compel them to do it they said they do it we still don't have those regulations but notice but the problem is your honor  is that what fifty one twenty one capital a said and is not what the government said or is insisting upon as a prerequisite to substitution fifty one twenty one capital a says that the representation that the claim dies with the veteran no longer exists they get up here and tell you with a straight face that that's the case congress did away with  and this chorded phillips will recognize that that the appeal no longer dies with the veteran and as a consequence substitution is available so that a qualified survivor will receive i recall correctly and i'm sure you've read it said that if mr misreads represents the court that she has filed or intends to timely file an application recruit benefits we would withdraw our argument that the case should be dismissed i would have thought say but your honor i'm sorry that is an administrative proceeding that has nothing whatsoever to do with this judicial proceeding and what the what the v a is trying to do is to control this court's docket by then and then the second mrs reeves can come in and file a contest a motion and in the chorus and at the end that the court does sides that you can't make that determination then then one or the other of them or both of them are going to have to go back to the v a and file a claim but that was not the intent of congress and recognized by this court and phillips this chorded phillips said there is no longer a problem substitution will or that's just not an issue for this court the issue for this court is the hash miseries complied with forty three day and mrs riis hangs and she should be substituted if the government's come forward no reason why she shouldn't be substitute this court has said it is not a relaxation so that the veterans lay testimony can be used to establish whether they are not in combat so it can't be used to prove combat so what can it be used for that's the question in this case is limited to encourage only or is it limited to proof of that necessary nexus between the injury and the resulting disability and i disagree respectfully your honor with the notion that this is permanent versus temporary this is a matter of same versus different is it the same injury and the same resulting disability that happened during service as is the same disability that is post service and there is no other resulting disability from acoustic from a then hearing loss well that means you can have the same type of disability which his in the same disability and that's my point that the distinction between the permanent and temporary i mean i could have hearing loss when i was a teenager from the rock concert and i think that hearing loss now by virtue of the progression of age and they would be the same in the sense that they are of the same condition but they would have no necessary relationship but there are that there are two problems with that analysis first this is the statute we are taught about what this statute buchanan and in jan drove has specifically said that late evidence is competent evidence unless there is evidence including evidence of a causal relationship unless this is something beyond the experience to be able to be observed by the veteran the veteran observer loud noise that the veteran then observed he had a decrease in hearing those were all observable events and as judge more correctly