please the court the secretary claimed the president issue on appeal involves a factual question removing federal circuit jurisdiction over this appeal however the question on appeal involves the interpretation of  statute and regulation namely thirty eight u s c two when i was seven b and thirty eight c f r three point one zero two the question for the court is do these provisions operate to place the burden of persuasion on the secretary to disprove veteran status this court has jurisdiction over issues involving interpretations statutes regulation the board in the veterans court erred by allocating the burden of persuasion have veteran status in tray and and then the question is ok once you've reached that level what point what happens when you near for the fifty percent  probability part yes you say that you know when you're near the fifty percent probability mark within some little range around it you get the benefit of that doubt and i'm not sure actually what the government is is on that but  you never said that to veterans court i think and tell me something i never said we're where we are in a situation where we have a situation in which the evidence is six appendix the discharge or actually found the nature of the charges indicates or suggest presidential intent against the appellant and the board failed to address that that the existence of that there's a reasonable doubt real please of the burden of persuasion on the secretary if there's a finding the preponderance of the evidence is against the claim the secretary method burnet persuasion if not the evidence is evenly balance reasonable doubt rule does not apply the argument is missing the point no matter how the judge with the evidence either for or against the claims the burden of persuasion still rests with the secretary the allocation of the burden of persuasion does not change based on preponderate against the claim if the board here had determined the preponderance of the evidence with against the veteran status we would not be appealing the case but that's not what happened the board and the veterans court ruled that the opponent before the burden of persuasion to prove the veteran status by a preponderance of the evidence that was clear error to be sure the board did not make a finding that the evidence was even research on which you rest for the assertion that the government should have a burden of persuasion by a preponderance is the benefit of the doubt which kicks in only after which would seem to me to be pretty consistent with at least the kind of elementary picture of what a preponderance is somewhere near fifty what are you do fifty percent probability what are you going to do with that case which is your there so why if it is right that there might be evidence here really isn't near what i guess i'm having trouble understanding in some sort of concrete way how those two things could be any different that is who has who wins when the evidence is cloak seems to me to be i don't understand why that is in any way different and maybe you can explain from deciding who has the burden of persuasion  all issue material to the determination of a claim the veteran status element is clearly material to the outcome of the claim there's a lot of cases the court has created an exception to the general  as placing the burden of production of veteran status under fifty one dollars of seventy eight dollars not the burden of persuasion yet the struck case cited aguilar for the larger proposition that the claimant also bore the burden of board in the veterans court had correctly allocated the burden of persuasion for the record here does not indisputably show that most conspicuously the board decision revealed the judge failed to review financial and critical part of the record in rejecting appell for action the board's finding of willful and persistent misconduct with based upon opponent conduct during his entire period of service the board's not rely upon a specific time frame or it's the  misconduct since the board did not specify which charges were the basis of his outburst finding the court here cannot make the necessary determinations of which and how many of the offenses were based let's turn to two issues that judge drano stressed the st was about our position regarding the benefit of the doubt rule generally the benefit of the don't rule applies to all elements of establishing a better claim to include the element of better stat in our opening or she's  that rule when it's appropriate it's not for application in all cases however trying to really do understand where the law has who are so this was what was that this was no no honorable discharge is that right turner is and within he was in this sort of middle ground with the v a did have to make that determination you know that centrally the policy choice that congress and the v a had made to save these certain categories offenses could lead you to lose your to sort of draw the line about where exactly mr turner loses everything works is he retained some benefits he was granted treatment benefits for his right finger injury injury in two thousand and nine where he was denied the negative comes into play here oh yes that's actually a part of it to get to with the judge to try to mention that where he had stated that's actually the proponents of the evidence doesn't matter in this particular situation because the evidence was not  there and i think here we let the kind of go back to mr turner's arguments where he seems to latch on to a single reference in the veterans court decision about the preponderance of the evidence and in some references in the court's  well as long as well as long as there's enough evidence in the record i guess i see your point going over there is some distaste for the burden of persuasion and i think that's what are t s try to explain where the risk of not persuasion is on the  the veterans production of getting some evidence about that or a status you know doesn't rise anywhere to near fifty percent but if you're in the fifty percent room he wins i think that moment to focus on the legal propositions and i think it seems to me it could just be me that i find it very confusing to say that there is a benefit of the doubt rule which means that if  you're in the equity boys area that the veteran wins and simultaneously say nevertheless the veteran has the burden of persuasion by a proponent i genuinely do not understand how those two sentences both could be true i don't think we're saying to the veteran has the burden of persuasion by a preponderance of the evidence i think in this particular case here i think the necessary confusion comes with the preponderance and the benefit of don't rule or not even implicated reconsideration that essentially that there was evidence and i propose and that i should get the benefit of doubt rule but that's not what the court actually found again ford found so what would you said that he did make a point he did make a point about that the board actually found the evidence  ponderate against the other against the claim and that's actually what ortiz explains that you only get the benefit of doubt when the evidence is poised on the evidence is against the claim you're necessarily precluding a finding at the evidence is board finds the evidence is against the claim then there's no application of the benefit of the doubt rule the rules seem to be advocating for here never had any application this particular case there was no court mar dishonorable or you're honorable where there is a definite terminations at least that element of veteran status then mr turner is in this middle category where the v a makes the determination on whether the particular facts  and to bring the court back to some understanding of what i think the veterans court recognizing the board recognized here about that there was no application of the benefit the doubt rule that mr turner seems to be pointing to in selecting the appropriate legal standard we determine which legal standard tribunal applied not which standard were cited and if you look at the veterans court decision quickly the discussion of proof the mcdonald's another veteran's court case  veterans court clearly understands how the benefit the doubt rule is supposed to operate the issue in bruce was about veteran status also in that case there was an approximate balance of positive and negative evidence on character service determination similar to dishonorable the veterans court below in turner's case recognize that the benefits of applied in bruce because there was a balance of evidence whether it was a general court martial or a special court martial one would bar him from benefits and one would allow him to what's sometimes called the single offense exception that if the veterans service is otherwise honest faithful meritorious you know we're not sort of getting punish you for having sort of a single infraction i could be wrote relatively minor but here in the board actually consider that and said his discharge was not because of a single minor offense and that the rest of his service history was not otherwise honest faithful meritorious when you look at the entirety of the service history from the time that he joined in the time he was discharged there was misconduct so that made it clear finding that he didn't be willfully persist in this context to me that be a part benefits or is a dishonorable discharge evidence was against the can't dance to claim again necessarily precluding a finding the evidence was an echo poisoned there was no application of the benefit the doubt will possible what is the statutory