mr had to thank you judge newman and may have please the court my name is carl hennessy and i represent the opponent howard l padlocked jr the review process that congress created for veterans benefit claims is supposed to place a thumb on the scale in favor of veterans like mr padlock but two errors by the divided veterans court below turned that uniquely pro better and process on its head and made it harder for mr ted like to receive the disability benefits he is serves st the veterans court exceeded its authority by making a factual finding the board had not made and by affirming the board's decision based on that entirely new ground that can the veterans court refuse to invalidate the regulation covering medically unexplained chronic multi symptom illnesses which directly conflicts with it statute i'd like to begin with the st air which requires this court to vacate the veterans court's decision with instructions to remand mr padlocks case to the board counsel as you know by statute the veterans court is required to consider the rule of prejudicial air when evaluating board decisions and and so therefore there are times where the veterans court permissibly may  you explain to me how under what circumstances is it appropriate to apply that in a way that doesn't violate the chen or a doctrine absolutely judge in this court's decisions in new house and let check which the government principally relies on this court is held that when the board decides an issue and the veterans court find that the board aired then the veterans court is in position to consider whether that area is harmless on that point the veterans court has to kind of be driving in the same lane that the board is driving and so to speak but by contrast this court's decision in hensley mayfield in the winters as savage that when the veterans court finds that the board erred in deciding one issue the veterans court cannot use harmless air to find facts and affirm the board on an entirely different ground that the board had not considered and therein lies the rub can you put a little more detail in your answer when you say things like the veterans court need to be in the same lane as the board decision and the veterans court can't go to a different ground in the board's decision if you can imagine that kind of terminology is a little vague and i think we need a little more precision in terms of understanding how these two principles coexist sure so i think that as far as when it's permissible a good example is this court's decision in lso affirmed on a harmless error based on whether the veteran had received proper notice and in that situation harmless it's no surprise the veteran has fair notice of what is going to  medical finding the board had not made on an issue the parties had not briefed so whatever the line is this case falls far outside the line  to come up with to reject their claim i think i agree with you instinctively that there's something strange in the veterans court independently canvassing the record and and then interpret ing the record and drawing inferences from it to arrive at a particular fact finding that there were no overlapping overlapping symptoms or signs in this case but what if the board in making its various findings in this particular case and found that and interpret all the medical evidence in the record aborted found that that his benefits claim should be denied but nevertheless very clearly undisputedly made that very fact finding and then we had a veteran's court that said well as it did here we don't like the fact that the board made a ruling that was based at least in part on a conclusion that was that mr ted lost diagnosis was not an undiagnosed diagnosis doesn't have to be an undiagnosed doses diagnosis but nevertheless the board made a very clear fact finding here that there's only a single symptom in the record and so therefore that for that reason alone the denial of benefits should be  think that it would depend on the circumstances to be honest in which the board made that finding in that instance circumstance where that would be ok and then a circumstance where that would not be ok of one symptom without this particular overlapping signs and symptoms also wasn't at issue before the board no one had really raised it in this kind of please stick with the hypothetical absolutely in this case i mean if the board just made an offhanded comment about a symptom without showing that it had necessarily focused on that particular issue and that particular issue was not before the board in that instance i think that affirming on that ground would not be proper and would be proper to send back to the board to make the relevant fact finding in the st issue in the st instance and that  coming back to your original question really where the line is between when can the veterans court affirm on harmless error and when can it not the government know case from this court allowing the veterans court to use harmless air weighing medical evidence and that's even further because that is within the board and the regional office i mean that's within their expertise to weigh that medical evidence in the st instance i understand everything you just said and it may well be that in this particular instance the veterans court went too far on these facts but what i'm asking you to help the court try to devise a line of up to what point the veterans court use this statutory authority of considering prejudicial air and i have to i'm asking you to perhaps advancing and we think is reflected in this court decisions and pengelly mayfield and winters is that the veterans court cannot use harmless air to reach an entirely different ground that the board had not considered well i guess  wondering is why wouldn't that be affirming on a different ground if the ground that the board ultimately settled on was the fact that in its view this was not an undiagnosed illness and you need to be an undiagnosed illness to qualify and the veterans court said well that's not a right understanding of you has a regulation of the statute but nevertheless i see that the board also in its considered judgment made a very real fact finding and interpret ing the medical record evidence that there was only a single symptom here so the error legal error of the board in its understanding  statute and regulation is immaterial because veteran doesn't qualify for these benefits for based on this other fact finding wouldn't that be a separate ground as you say and so therefore that in your view based on your lead argument as i understand it would be in permissible application of this prejudicial air it would be a different ground around a bit would not be on the ground that the board had not considered if the board has brought its judgment to bear on an issue and provided the complete factual predicate then we don't have a chance or a problem so you can do the prejudicial air analysis on a separate ground when that separate ground has all of the factual predicate developed in the record below is that the rule that's right your honor when the board has actually addressed that issue you can do it and here we just don't have that and in fact we don't even have briefing in the veterans court addressing congress delegations of power to vacate the veterans court's decision and three men and to allow the board to find medical facts in the st instance and i just briefly want to touch on point two and the veterans apply so there's certainly some tension and having two conflicting provisions of a regulation and relying on one you have to implicitly rely on the other and i didn't quite understand that validity of the piece of the regulation you want to attack i think by finding that the board clearly erred that the veterans court accepted the valid portion of the regulation and that's three point three  think it's appropriate for a resolution here but at the very least since the parties seem to be in some agreement a clear statement from this court that a diagnosis of medically unexplained illness qualifies for compensation  thank you your honor may it please the court the veteran court here applied its harmless error statutory mandate consistent with the guidance provided by both this court and the supreme court  in recognizing that that mandate is very broad in that mandate requires the veteran court to look to the entirety of the record not simply the specific facts relied upon by different pieces of the record and then analyze the record and then draw inferences from the record in a way that the v a never had before and if it reaches a conclusion that the benefits ought to be denied for some completely unrelated reason and that the v a relied on that's ok under harmless error your honor i think they're absolutely bound to to a harmless that the the court veterans court is attempting to you know apply ross possibly contradictory medical data and you know  would have been affected i think in this instance your honor there is a clear application of facts that are obvious and uncontested from the record and frankly from the board's opinion itself to the exact same question that the board itself was considering and it was whether or not  that this court in its review of the board's decision concludes that there's just no question that the board turned a complete blind eye to this question of whether mr tad locke was suffering from overlapping symptoms and signs that that wasn't the focus at all of the v a and all of its instructions for a medical examination to be conducted and what the medical examiner is focused on and what the board's focus nobody was focusing on that everybody was else was focusing on whether this is a medically explained condition of pulmonary embolism and whether there was a specific at the ology related to mr locke's pulmonary embolism and nothing to do with this multi symptom question would it be ok under those circumstances in your view for the veterans court to say well i'm going to conduct my own review here and when i look at everything in this record as it stands as it's been developed really for other purposes so far i don't see anything here that clearly convinces me the veterans court that there was in fact a multi symptom situation here for mr ted locke so i'm going to affirm the denial for that particular reason would that be an appropriate use of the prejudicial  with an expansive harmless error doctrine is the problem of fair notice or you know the concern that the veteran is unaware of the elements that he isn't expected to address here it has been clear from the beginning that what mr tulloch is attempting to do is demonstrate that he is suffering from a mock me which is defined by this statute and all of the elements of the mock me are delineated in the statute he was aware the v a is aware of what that definition is and the various parts of it so i think you know the record necessarily would be developed with with the expectation that those are in mind and so to the extent that the board then reviews that record that was developed to demonstrate a mock me and can say look there is absolutely no evidence or frankly even geisha in here that there is some other symptoms that should be considered beyond the pulmonary embolism that clearly has that element of multiple signs and symptoms within the statute that everyone was was considering has not been met even though it wasn't at all the focus of the board's decision even though it wasn't the focus at all of all of those instructions to do multiple medical examination i feel ok for the veterans court to pull this trigger i extent that yes your honor frankly i think i think that that that in that situation where we are still to use mr henderson's phrase talking about a single issue which is whether or not the veteran has demonstrated a mock me and that there is a developed record to that question even if the board itself fails to address that question i think that at least potentially it is it is within the harmless error purview of the veterans court to look to see if if that question has an obvious answer extent to which the factual record is fully developed by the  board i think that's something sort of a way of looking at it your honor i think again the question has to be whether the veterans court upon review of the record can determine for itself that the outcome is essentially inevitable when folks in unison but let's let's be let's be precise we're talking about who is going to do the fact finding and whether it is appropriate for the veterans court to be doing fact finding and i think we would both readily agree that that's not appropriate so then the question is well when is it appropriate for the veterans court to use this prejudicial error analysis to perhaps conclude on a different basis that the same ruling would apply but without making up facts lying and i think we're both in agreement that it's basically turns on whether the the record has been fully developed and the fact finding has been done by the factual hole or some some some aspect of of the question that is disputed or that requires more more detail perhaps another medical opinion as i the problem as i see it is i don't think that this case because i think the best friends court found itself without a fully developed record and made some fact findings of its this is an unexplained illness is because there was never a conclusion as to where the blood clot that caused the pulmonary embolism originated and the medical council we're running out of time i tabb lock lacks a multi symptom situation with overlapping symptoms and signs why i think that the st part of that the multi symptoms situation is explicitly addressed to the board did ask the the examiners to consider whether or not there was an underlying unexplainable multi i sense an illness and the examiner did address that i agree and i think this is what's the right way or what's the right framework to articulate and understanding how the prejudicial air rule coexist with the chancery doctrine like what is the right scope of th does to some extent come down to this question of fact finding versus application of facts so i would agree that the veterans court sorry if i may finish the final thought  sure the better the veterans court is not the appropriate body to be making in the st instance determinations about medical conditions about whether or not you know a pulmonary embolism is diagnosed for example but to the extent that there is no identified hole for lack of a better way to put it in the factual record that  the the veterans court is within its harmless error purview to review the existing facts and to try to ascertain whether or not based on the existing facts within the entirety of the record it is clear you judge newman just a couple quick points i would st like to just start on the factual record neither before the board d nor in the medical opinion was this issue of overlapping signs and symptoms of focus in the factual record and even if there wasn't it still requires weighing the medical evidence to make a determination on this and the nd thing i want to say is that judge chen your questions record is not ripe for reaching this issue it needs to go to the original fact finder the board and i think we've we have said that under limited circumstances the veterans court may do some fact finding is that right board that it then has violated those limits and i think you know if you look at this court isn't that the very nature of fact finding it is but not when it's on an entirely different ground that the board hadn't considered so this is the same thing with you have to be the veterans court at least has to be driving within the same lane that the board decided the case but in this case the veterans court you know took an exit and one about one hundred miles down the road to reach a question kind of out of thin air that the parties hadn't briefed and was i don't know about lanes and exits and freeways i understand but i mean i think i mean this court you know