we have three cases on for argument because morning and the first one is number two thousand and eight seven zero four seven rockwell against the department of veterans affairs mr parmenter when you're ready thirty eight c f r three point three zero four f by requiring more evidence to a staff mr olson tied to a finding of service connection for his post traumatic stress disorder and that was that which is required by  regulation specifically ms rockwell contends that the board mistakenly increase the burden of proof that is stressing event occurred during mr earles period of military service by requiring a preponderance of event instead of corroboration the regulation game is rockwell's view only requires some credible supporting evidence and the burden of proof if you will should be the burden of proof is stablished for all matters issue with veterans claims which is that we've been found to be resolved in favor of the veteran but then applies as i understand it the benefit of the doubt rule applies only if there is essential  points is it your argument that something less than say a fifty percent proof of the source of the of the in service source of the stress or is sufficient to justify an award likely than not credible supporting evidence for in our view the test should be just the opposite that it is a question that it is at least as likely as not that the credible supporting evidence stress or we believe that there is no such thing under the regulations a qualifying system stressor and then what happened in this case is that the board commingled is new to the in the veterans area put aside the various no burden a status it talks in terms of the responsibility there is a responsibility of the veteran to assist the v a in its efforts to develop evidence in support of the plan when we talk in terms the veteran is required to present a claim and then support that claim if he or she is asked for evidence from the b s a so this argument is not peculiar to subsection your son goes across the floor it does go across the board rather although it peculiar to this regulation because of the way in which the board in its findings of fact used the term per ponderous of credible evidence because it imposed for the first time a requirement that there be a preponderance of credible support let me ask you about the head you can pin well i was going to say if the v a had wanted to use that standard then the v a would have written that into the regulation and said that what is required is a pr e of credible support but when i take the board to have found in this case and applying what they deem to be the right wrinkle standard to say page fifty seven of the record if you have the the last paragraph carrying over on to the next page after viewing the evidence of record the board finds that the preponderance of the evidence is against a finding that the veteran engaged in conduct that was the tracked and then they also find that the veteran was not credible with respect to the evidence that he submitted as to his traveling with a medivac so i took it they had to bullard understood that the fifty one zero seven and that's that's the benefit of the doubt statute right if you want to say i want to seventy years is it be ok i took from this that the board understood the benefit of the doubt rule but nonetheless was making findings that the preponderance was the other way you read there are you there is treating the combat rule as different from the rules that apply in the case of the source of the in service stress or yes your honor and if i could direct the court's attention to the finding of fact number four it paid forty two of the board's deci d which could be associated with his military service or with a verified stressor event in service which could support the diagnosis what we have here is a unique regulation three point three zero four f that talks to the only identified disability a post traumatic stress disorder as opposed to every other conceivable disability which would require is additional evidence and in this particular regulation it is to support a diagnosis because of the fact that there is no actual evidence of what happened in service without actual evidence there must be some credible supporting evidence to support what the veteran says occur not when you talk in terms of the proponents of creditable and probative evidence then you're putting your shifting met burden in appropriately to the better and there's nothing in the it is regulation that suggests or think when we start talking in terms of you wouldn't praise it that way but but i do agree that it is required in order to grant service connection that the records contain credible supporting evidence that the accurate how does the  board know whether the supporting evidence is credible or not is isn't there so this isn't the term credible suggests there's some threshold you can have supporting it and you could have evidence get there well i don't think it's a question of waiting or i think it's a question of what is the calculus what is the bird calculus suggest adding and subtracting with it and that's right and you add or subtract away from the evidence of the evidence relied upon by ms rockwell in this case was the report from the s g which talked about what his unit did and the amount of combat related activities that is unit was it let me interrupt you just a second there help me understand something that i'm not clear at i got the sense from this rather elaborate setup that there is a distinction made between bad and none  to the dresser that's correct under the regulations about you were in actual combat is present it's presumed correct in the butler says as a matter of fact he was not in actual combat and did not engage supporting have orders evidence that that the events that you say caused you problems actually occur actually occur right and the question is is that a report about his unit and what his unit did is that that it could be understood that way the problem is that's not the way in which the v a is regulations which it doesn't talk in terms of a qualified suppressor and in fact by using the term qualifying stressors it suggests that you have a list of qualif stressors well imo it might suggest that i think a supporting evidence it's not credible if we qualified that's right but hugh are the only one who knows what that is and the problem here is is that all that this would up and do all that mr olcott had done during his life was to go to the military and ask for confirmation of what his unit did and that's what he did there isn't any other way with the possible exception record to see whether it's credible that he suffered this presser or not i mean normally when you talk about the credibility of the witnesses testimony it's considered in the light of the whole record and i'm not sure that there's really a difference in there between saying that not have to be credible on the record as a whole and saying that there has to be credible supporting evidence well i'm not sure that that is what is communicated by this regulation i think that is one way to look at this assessment process but the question here is is that in the unique circumstance of signal out disability a post traumatic stress disorder how is the veteran or in this case is survivors communicated what it is that he or she has to support that claim what what would be credible supporting evidence and in that context and in the context of plague or was describing all of the information is with the if you get there needs to be an objective standard about what credible supporting evidence is to establish the underlying diagnosis and that's all that you do want to this regulation what you do by stablish incredible supporting evidence is established that the diagnosis is sufficient very rule that your argument which is to say that at the appellate arms of the evidence was an echo of poison where the prepared when it did not applied the benefit of the doubt rule but the board correctly weighed the evidence of record consistent with at least your view of what the preponderance rule should be in connection with the aqua place what is there per us to do given our limited jurisdiction in this case with respect to that since we don't read examined the court's assessment of the board's findings what is there for us to review if in fact this statement i'm a trainer stand by that statement isn't exactly what you've finding that his testimony was not credible is simply irrelevant all that then left in the record is this evidence from e s p n about what is unit did so what the board did was is they said that it wasn't credible that he said that he participated in this and then they said that the preponderance of the evidence of the providence of credible and probative evidence was against this client now the fact of the matter is is all the evidence was was for me s g which describes what his unit did and in other veterans cases the court will load has said that you don't have to show what the veteran actually did you simply have to show that it was at least as likely as not that based upon what his unit did that that that stress or in fact occur ok veterans claims mischaracterizes the standard being applied by the board we can look behind that and look to see what actual legal opinion to the board did apply were not found to accept the characterization of particularly the correct legal standard and nobody does disputes that and the dispute is over whether the court is right in character rising what the board did as so what you're saying i take it is that the board i pathetically said the burden on the veteran here is to prove beyond a reasonable doubt that this was an insert service stress or i think completely wrong the court sa the board applied the right standard and then articulate the standard that it articulated here which is that the preponderance must be against the claim  order for the claim to be denied and the court said that's what the boy did even though it's plainly not what the boy did we could not touch that question is that what you're saying we could not say standard and if that ivins court said they didn't really do that they did something entirely different you're suggesting that we would have to say to the veterans court  i mean it's done over review why can we say the veterans court mischaracterized what the board did and what the board did is the wrong legal standard we don't have the buddha to jurisdiction your honor is with respect to the veterans the veterans court has by hypothesis gotten it exactly right in terms of the statement of the law but the error is that the veterans court is simply completely mis characterizing again by have thought this is the what the actual rule that the board have packed and the question is can we drill down through the courts ruling which is completely correct legally and say notwithstanding the veterans court's conclusion that they lied that the board applied the correct rule we see that they did not and therefore that the veterans court was wrong in characterizing what the board did before it but again the discourse jurisdiction is not going back to telling them for itself that it concluded something wrong and that the other our problem in this case is that the board of veterans courts characterization in large part it's not just a characterization of law it's actually also a factual finding as move if we could to the question of whether in fact the predicate her questioning of you is is is accurate or whether the board did not make a legal error what's your position on that with respect right there in and of itself the war is sad complete evidentiary talent has failed to provide credible supporting evidence period if you have no credible supporting evidence and the question of how much additional evidence is required this is an on situation we run into something somewhat similar to this in the family area sometimes about requirements for corroborating evidence start from the be the only thing that would be necessary so how do you address that one when you have this regulation which says well late evidence will consider that but you've got to have something else in addition to that how do you what's the soldier or had gunfire you know hit their helicopter that may be an a credible supporting evidence for a member of that medivac unit however the records this case that wasn't mr earles job that he alleges he engaged in an activity but none of the unit records themselves suggest that mr oral ever engaged in this comes in a whole variety of flavors and newton's corroboration in the sense of mr erlich the most basic level that he was in vietnam that is makes it more likely that somebody who was never in vietnam mr  documentation if you had that kind of evidence would that be corroboration if not why not how do we know that's the problem that's the the problem with this corroboration requirements nice to just say corroboration but it doesn't tell us anything asking these questions is getting into or delving into the facts of this case and the factual findings of the board in the veterans court which is something that this court does not have to do and which is poor or the or misunderstanding it's your job your argument is that the word in applying the rule may have misapplied but if so that's not something we can reach is that your position that is if they applied the correct standard but applied it wrongly to the fact our review standards civic reprieve from reaching that  gesture and the only question in our minds has to be cruel or that they didn't even know what the rule was that is if the rules you have to have corroborating evidence understood it needed corroborating evidence they may have thought they didn't have enough room a group they would have enough but that not all i got is that your i guess very well thank you maclaurin has some specific questions i don't believe you think we understand because i think you have the grass frankly better than i did before i started