proposition that issue of an initial rating to be assigned and the issue of entitlement to an extra schedule or rating based upon unemployability were part and parcel of the same cla dunlap has not initiated a second later geisha and in order to circumvent the determination that was previously made by the board in this case as it related to the schedule a rating assigned rice applies because it in establishes the proposition that there was only one claim here and that that one claim has multiple issues the issues of the scheduler rating to be a signed and the issue of whether an extra scheduler rating should be aside what has been wound or separating those two issues once stood well in fact what happened here was that the board in fact separated from the board when this case came before the board for the first time addressed only the scheduler consideration and remain and did for consideration of the extra schedule or it is our position that under the rule in rice the board should have deferred consideration of the scheduler and awaited the determination below on the question of extra schedule rice doesn't tell them how to do their job does no it does not tell them how to believe but we question we tell them you have to do your job this way because that's consistent with the rule stablished in rice there is  there were in fact two claims in play here and that claim one was decided and then the recluse reconsideration based upon the determination that was later made based upon the issue of that was on appeal to the court below address only the issue of extra scheduler and failed to reconsider the question based upon all of the evidence that had been related during the period of the appeal which is what is implicated by this court's recent decision in bon aren't i'm having trouble with the policies of the we're trying to add that to help the veteran and yet you're telling that you're telling us well let's force the board to withhold their benefits and wait and so the whole claim is done lengthy reconsideration question why not do with the board did to help the veterans because it didn't help the veteran here are in fact it harmed the veteran because it precluded consideration of all of the evidence that went to the degree of disability based upon the information that was submitted as part of his notice of disagreement may have be true in this case and you may be quite right that in this case  but the only way we can correct this case is we can reapply the facts to the law the only way we could correct this case would be to enunciate a new rule of law that law and needs to be that when there are issues that involve both scheduler and extra scheduler those issues must be addressed as part of a single play in do you take the position that that role always benefits of that hearing yes your honor and it will always benefit the veteran because the extra scheduler criteria allows for consideration beyond the schedule or criteria had followed the law correctly in the first instance based upon this court's recent decision in bonn then when they got mister dunlap's notice of disagreement w that he had been unemployed due to his service connected psychiatric disability even prior to the time that he made his claim they would have been required to consider all of that habitants from the date of the original claim to  years you're making you sad the argument i say what they're going to have to do is go back and have psychiatric green just wants to see if you really can work you're going to have investigations to see if you ever did work during the last three year period they're going to have to then check those through v a sources and how many years i have no idea why not go forward with his scheduler adjustment getting these benefits now and will do the psychiatric adjustment with his two or three years a lame as the board sees is beneficial to the to the vet for your honor that that is distorting both what remand for psychiatric analysis and you want to hold the whole thing up for the next two years while that goes on no your honor i'm sorry but you have mis perceive what happened here the know it what happened here we're talking about what will happen is substantiated by those facts but your honor with all due respect the v a is obligated to consider and wired at least by the case law below to presume that a veteran seeks the maximum benefit available under law and the maximum benefit is both scheduler and extra scheduler and by proceeding on a schedule or track alone and ignoring the extra schedule or ends up ten years twelve years later with an appeal that could have considered it and they did not consider the scheduler raby it's all part and parcel of one claim if it had been considered in the first instance by the v a on a schedule or basis what and extra schedule or basis then that will benefit every veteran the current case law is that the veteran much put that issue most veterans do not understand the relationship between the scheduler rating and their entitle me to an extra schedule you know and trust the board to do what's best for the veterans what you're saying i do not good morning to may freeze the court the court should affirm the decision of the veterans court because rice does not require the secretary to simultaneously adjudicate the issue of t d i you initial schedule raising mr  and ok to that point i would say that that is going to create the types of problems that i was sensing from the court about adjudications actually taking one and this  rule may well be good for mr dunlap i'm not actually so sure about that but the rule that mr dunlap is advocating to the court will be bad for the vast majority of afghans because there will be some sort of delay the secretary need the flexibility to be able to adjudicate issues pieces of claims whatever you want to call them at different times this court recognized that in elkins the word said clearly recognize that that is  important tool for the secretary to have the ability to take a look at a piece of a claim adjudicate that get benefits flowing quickly to veterans and if necessary separate a piece off of what adjudicated once it will as a practical matter i think that the court just needs to be aware of how things come to the secretary oftentimes the evidence is presented initially a claim is for is fraud and  it's very common to have evidence that comes in later in the game records are discovered the facts been submitted ishall materials what would the rule do in that situation that would it would be a really a procedural have oc for the rule i think with the court has to look at is what it's doing here and under the rules rules law jurisdiction that mr dunlap raises the issue is not sort of a i dunno about what the law should be the issue is did the did the secretary misinterpret divest in sports vision and rights and the rule of rights if there is such a thing is only that she v i i you can be considered as part of an initial claim on the one hand or as part of national results for veterans and i think that the answer is no that the court should be reviewing wise and reviewing what happened in this case and ensuring that the secretary in this case christ right that's where the court's focus should be and i think that even if the courts focus was elsewhere that it wouldn't necessarily be true that by hamstringing the secretary by limiting what the secretary can do by creating a blanket rule it really is our job to decide with the board is pursuing the best policy or not is it we're not an executive oversight agency we are a legal body trying to see what the law requires i would agree with four actually many finding sort of in the belt and suspenders ilk and the veterans court said that even if there was a problem with bifurcating that there was no prejudice as a result of  in this case mr dunlap can't get around that finding so he's asking for a second we asking the court to revisit that issue and even if the court were to conduct some sort of a do novo independent prejudice analysis thank terms of the prejudiced mr dunlap mr dunlap was prejudice because the board in the decision that was on appeal to the veterans court did not consider the claim that has been pending from the beginning the initial rating to be assigned both on a schedule or and on an extra schedule or bases in this case the v a initially assigned a scheduler rating of thirty percent that thirty percent rating was affirmed and yet later in the proceedings they assigned a one hundred percent boy i take offense in the i don't think you can your honor frankly now that i have had a moment to reflect i think the that that would unless somehow there would be some undisputed facts and i think that the whole essence of this case is the disputed fact about what it would have occurred had there been a simultaneous consideration of both scheduler this extra scheduler in the window from nine hundred ninety seven to two thousand and two and that was the original date of this claim mr dunlap has been trying since one thousand nine hundred seven to get national rating more than the thirty percent that was assigned and that the government's point that extra scheduler and schedule were are not the same that is simply in the finds of the mandate of eleven fifty five congress to hold the v a in its schedule or rating to determine the impact upon the earning capacity of the veteran based upon disability that would be service connected the ultimate earning capacity impairment is an extra scheduler rating based upon an employee ability so to say that these two are not inextricably intertwined is simply inconsistent with what congress told the v a to do when it set up its schedule or the criteria but i urge the court to look at this court's recent decision in bonn because this case a rose in the context of mr dunn labs are original notice of disagreement with the original rating aside and that's where with all due respect judge rader your point is incorrect in the context of business or dunlap and in the context of veterans generally because he put an issue the fact that he was receiving social security for is now service connected disability for ninety nine before and that fact should have been considered in the initial assignment of the scheduler rating from one thousand nine hundred seven in addition to whether that entitle him to an extra schedule rate and what was precluded by the board in the decision that was out of peeled for the veterans court was consideration of that window on both a scheduler and an extra scheduled basis yes or