that under the case both under this court's case law this you review the question of prevailing party to know and you determine whether or not the legal determination as to whether or not mr jermyn are was or was not a prevailing learn mr  of what was the proper legal standard was a state yes right so the question was what constitutes a prevailing pervy can someone who earns a remit ever be the prevailing party and there w heated discussion still there several heated discussions and so the legal issue in that case was exactly what's the shape of the law and one can look at kelly as having raised a similar question now i think kelly is says well yes indeed there was agreement here but we don't think the reman was speaking in any way shape or form is for showing that there had been a flaw committed by the agency that wasn't being remanded for ages year when they said that purpose of the riemann was to find effect to determine whether there had been a shia that's correct your honor and we believe that that is using it as a question of law yes and that question of law is presented by the legal determination that it was a centrally a non judicial function to approve a joint remand that required the board to follow the applicable law that was an administrative  question here as to whether or not there was a question presented to the c d c that you know over the i'm not sure i understand about the record there was a record of proceedings that was filed with the court in the matter up to the time that the joint motion was submitted to a joint motion if you will circumvented the ultimate consideration of that record by the court the court accepted the joint motion of the parties and in that joint motion the government agreed that the board had not addressed a specific v a examination so i'm trying to get at is a sentence in the decision of the c b c unfortunately appellant overlooks a federal problem starting with there is no record before the know well and i'm i'm you're asking me what was the court referring to by no record in every proceeding the v a by rule is required to submit a record matters before the veterans court are to attempt to resolve an appeal by way of a negotiated settlement if you will by the submission of a joint motion for a man in that case the record as it were is not considered by the court but the motion is and so what was before the court was the joint motion and in the joint motion that was prepared by the v a the v a specifically referred to a v a examination that implicated the entitlement to an extra schedule or rating based upon the v a examiners observation about his inability to continue working based upon his service connected disability this court's decision in romer to give me home or explained any lab aerated that a specific claim is not required for consideration of a total rating based upon unemployability based upon this court's holding in roberts as a consequence of what was before the court was the joint motion which  referred to the record that was before the board and that knowledge to a specific portion of that record and said to the court on the basis of this we believe that this matter has to go back for reconsideration in the implicit yes this court's gave shawn and davis said that it was a question of whether or not what was before the court in the form of that joint remained was an implicit concession of error and i'm suggesting that what was before the veterans court in the form of the joint motion now we're back to judge rayna's question to assess whether something is implicit don't we have to get into the facts as they were undisputed before the veterans court and all that was before the veterans court was a single motion and that motion was ruled on by the court that vacated the board's decision i'm suggesting to you that as a matter of law it is not reasonable for any court to the vacate a board decision an agency decision for whims it or because the agency  asked them to in this case the agency said the board fail to address the it underlying issue of entitlement to extra schedule or rating based upon specific evidence which the da pointed out to the court below that was before the war and therefore those are undisputed facts your honor and they either raise the question of roberson and c for a claim that was reasonably raised by the evidence and to me that is clearly what was conceded by the government and this court must simply pass judgment on that as the court below did the court below  did and said no we don't think that that entitles you to prevailing part in the davis case essential of the same facts were presented the only difference in davis was is that the issue of t v i you had already been decided by the board and this court reasoned in davis well we're not going to just give you prevailing party because you get another opportunity to look in this case there was no look in the first instance i think you have a stronger case if it was a remember this was a joint  are identified within the terms of the document that was relied upon by the court to make its determination both to vacate the board decision based on the joint motion of the parties and to make its determination on whether or not mr jermyn are was  in this case it materially alter the relationship of the parties because mr jermyn aros consideration of the raising of his service connected disability was final based upon this joint motion and based upon the imprimatur of the court that board action has been vacated and they have been directed to reissue tecate it with consideration of extra schedule or rating under four point one six eight that materially alters the legal relationship between the board  veterans court is part of the v a sent the record of the proceedings for the board to the veteran but veterans representative and at that point the parties have to agree on what's in the record and then they formally submit something to the possibility the veterans courts can't review the record to see whether something's been reasonably raised by it because that report simply didn't have a wrecker short of a catch twenty two for people who agre it is it the procedure posture is important because what it shows here is that mr jermyn going to do about the cast twenty two hours a week we have policy that we want to promote a settlement we want to have harmony and so they say we're enjoying motion together let's have a reman and then it comes up to whether or not there was a question it was a probably raised by the record below and there's no record looking at it points out that what mr chairman are seeking here is really reinvigorat the catalyst eerie because what he did is he went to the veterans court and he said there's been an error there's nothing people look at to decide there's been an error but you can tell there's been an error because i'll come to the veterans court and as a result of that the v a has agree transport to address this question let's send it back and let the board address in the first place and at the board i point out mr chairman are often raised additional argument can present additional material new evidence so he's really getting another bite at the apple so it's it's not just mr jermyn r earlier this case is an application of lot of it's clear from both of his briefs that what mr chairman are asking the court to do is to say in his individual case he's a prevailing party because you take the established law apply it underlying dispute about the shape of the law because there was a vigorous or some dissent in that case that was raising the legal the court was careful in cali to characterize what it sounded being on the eagle error and not an application of law to back if the court had of course gone beyond its jurisdiction and kelly that would be no reason for the court to continue to do so referred to when it was speaking that is prepared and shared with the appellant there are one two three four five different specific records citations that are made there now those are the records that the government conceded raise the question of whether or not there was under rovers an and homer a duty for the board to have considered that in addition to that it is noted in the first sentence at the end that from january one two thousand and eight mr jermyn aros post traumatic stress disorder rating was seventy percent that fact alone triggers the application of the of likeable regulation four point one six a because he meets the scheduler requirements for entitlement to extra schedule or consideration now if the court were to adopt the view taken by the veterans court that these records were not before them and therefore they couldn't make the determination that underlines the policy of the court below to have joint resolution we are required by rule to have a central legal staff and conference based upon a memorandum that of law that is prepared by the appellant about the issues which are to be raised in order to achieve settlement and so if you get the result which is precisely what happened here then you're excluded from consideration of equal access to justice axes because the records not in front of the court the question here is whether the record as conceded by the government constituted error it constituted error under this court's case law in rome or as clarified and explain