made is that it sound that it had no legal authority even if it had jurisdiction to waive the late subject of appeal because the veteran  three is not a jurisdictional statute it's a claims processing rule that can be waived at any time whether or not there's a in person person you know these two acorn is the only good cause for missing the deadline was recurring elements and if we determine that isn't legitimate good cause then there's no prejudice and this is harmless or no i take issue with the lower court's attempts to decide this case on the harmless error analysis i think that the these factual determination need to be made by the board in the first instance we have to have a record as to why they was there any allegation made for missing the deadline be on recurring illness and hospitalization no you say for instance a veteran is comatose in ospital during the sixty day period can't file an extension request can't file subs the video allegation of that nature may know or you're out in there his client offer an opportunity to supply that kind of  yes he were your client didn't do here's the thing you are this is this is why i believe equitable tolling applies in this case if you look at the initial letter that the aros sent veteran it said you same a case you have sixty days to file an appeal if you need an expense and an extension you should not must you should file an extension within the sixty day period so my brief for enfant review in the record but you can you can tell i a great made those arguments by reading judge castle dissents and the denial of on bond review because everything he says in that sense is what i argue and that and that will tell you request for the when but when the board when the aros when the board sent the veteran of the letter saying you can request a hearing here's the regulation you're getting sixty no it wasn't that he was told to file the wrong place he was told that the filing was mandatory within a certain period of time one of what's up and i just didn't see that issue framed anywhere in the deliberations well it certainly was i argued below that equitable that the board never considered equitable tolling and under bailey you have three or four factors to consider in equitable tolling analysis one of them being that there was a right but it it simply did not address other evidence of record that the board had an obligation to address this you're a credible polling argument that the government misrepresented the law of the time period those epica the fact that the board did one request additional evidence or argument support what these please notify mr bowman that it was not going to consider his substantive appeal timely and that it was not going to consider it and then asked him to provide baughman indicated just a vague and ambiguous statement about his recurring illness and hospitalization that he was represented by a service organization that had perfected his claims and in other instances and clearly knew how to do that or would they have needed to ask for additional evidence or argument it would have just scored a veterans claims then perceiving in these statements from the board that it has made findings on that call yes your hon but we don't have any record that they actually addressed the cause they made the statements in other contexts didn't they correct but if the explain why you can file not only for the sixty's for one hundred two days and particular when he had a representative it's not only that he didn't file but his representative didn't file and there's no explanation if we were allow the excuse that illness is a reason to extend the deadline that can basically be employed in every case within this within the veterans framework so for these reasons we respectfully request that the court affirm the effectively takes out the good cause extensions under this federal statute seventy one zero five d three whenever a timely extension is not also requested that requirement is nowhere in this in the statute control over the regulation with respect to this hearing nonsense mr bahman was told the issue was jurisdiction and the it to issues was did you file of the appeal timely and did you file a timely extension request his service organization had already offered all of the argument on jurisdiction that was necessary he had already requested a hearing there was nothing more f you know we got we got to tell him that what the regulations are to do we didn't tell me or we didn't tell him this is a mandatory requirement of a timely extension and now we've got to tell him the regs let him figure it out for himself and then see if he submits any arguments against it that's a cia by the board so i would respectfully request that this court overturned roy strike twenty