are i believe what i was attempting to say was is that the loesch implicates the legal right not to be subjected to a remap not that it excludes remained as a possibility that obviously the assessment and it said go back and provide more explanation and then it also seemed to open the door to further development of the evidence these are two completely different concepts in my mind one of which is fully supported by adams and other cases and that's namely that the c b c can say i can't were you this because you didn't explain to me why mr don lee's testimony ought to carry the day i mean she's only a nurse practitioner she's not even a doctor why is her testimony standing alone so persuasive it's somewhat superficial in nature of what what really is going on here that to me seems like a legitimate exercise for a court any time appeal as to a question fact i believe that that is correct you are wrong i waver in the context of the statutory presumption in which that presumption has attached they stood upon the plain language as this court interpreted the statute that the presumption attaches when there is no notation at the entrance to servers as a result mr morley had the benefit of that presumption until that presumption was rebut we were in the stage if you will of whether or not that presumption would continue and in this context well i'm sorry i thought this was a question about whether or not the migraine disorder was aggravated distinction that this court made in wagner was that the presumption issue is the second prong of the presumption of sounds so this is a presumption of sound this question it has it goes things one whether he really did have preexisting and i don't think you're challenging that anymore although that was the subject of a lot of ink spill a lot and a lot of time because your client was playing it yes but you're not you're challenging that there's enough evidence to support the conclusion there's not enough evidence to support the conclusion that if you i don't like it was correct i'm saying i'm conceding that for the purposes of this ar saying that they didn't do that well and that's my question i'm sorry you need it but she hit the nail on the head and articulated obviously better than i apparently had but mr donnell existed prior to service and were not aggravate and were not aggravated beyond their natural progression due to service so that is this nurse practitioner and that to me is i thought what i understood you mainly to be appealing and am i wrong i mean it's i believe i hesitate to say this but i believe that you are not correctly interpreting our position our position is that the second prong of the presumption of sound the question of whether or not the government met by clear and unmistakable evidence showing that the that's conclusory granted it's a nurse practitioner it's not even a doctor i need more explanation i need you to go back it may well be that the state of the evidence of record doesn't support what they did i guess where i was hoping you and are going to go in this discussion i'll just lay it all out for you is that i don't see any problem with the remained and i think any time reviewing court feels like it can't understand a decision in part because the decision isn't adequate leagues planed so you don't have reasons and bases in order to review that there isn't a problem with the remit for that purpose here i'll tell you i think the board went too far i think they also opened the door to the introduction of new evidence and i don't think the v a gets a do over on its program if the a below wants to say nurse don't leave testimony alone was enough because here's why that's five of what they don't get to do a supplement the record so i actually think there's a mistake here that has occurred and maybe a modification to the reading and order is so i guess i'm a little concerned the reference court went too far to the extent so has the war for the v a to start a whole new building a case against your client but i don't see any problem however adams with everyone from war the nation and we are certainly concerned but your honor however our primary concern is the nature of the legal benefit that accrue to my client when he received the benefit of the presumption of sound that presumption at law needs to be taken away from him and the only way that that presumption can be taken away from him is if there is clear and unmistakable evidence and a conclusory statement even by a v a examiner that there was clear unmistakable evidence does not meet that legal standard as a matter of law that's a question of application a lot of fact and i can't i can't read the previous if the fact the veterans court said this this statement isn't there maybe it is based on record evidence it's not for me to sort through that record evidence and try to figure that out that's something the board the veterans portion even the doing at the board is the institution that ought to be doing that first not in the context of the  presumption you're on the veterans court has held in the miller case that a statement even by a medical professional that there is clear and unmistakable evidence is not enough to meet the legal standard that was based upon factual medical evidence that is in the record that supports the conclusion that the condition was not aggravated beyond its normal progression the issue that's being presented in this appeal is a question of whether or not the v a gets to have another opportunity to rebut the presumption the veterans court order the cuts off the veterans of the secretary's responsibility under law to rebut the second prong of the presumption by saying i can't understand what you said in your decision made when you have it sorry so maybe you did so maybe i maybe you did read but can't understand it so maybe it is except that maybe you did is not sufficient to meet the requirement to rebut in other words the secretary gets one opportunity and one opportunity only to rebut and it is binary they either did or they didn't and when the court reviews de novo whether in the veterans court reviews the no vote whether or not i can't determine based upon a concession from the government that they couldn't determine is as a matter of law a failure to rebut i think they understand your argument where i like not my intention to suss that out my intention as i was just discussing with judge walling was to make clear that the burden when shifted by statute is a burden that must really be resolved and the failure to resolve by any reasons or bases determination by the court and the concession by the government is a tacit admission that the burden was not met and if the burden was think that argument i understand whether i agree with it or not if not i certainly understand your argument so i don't mean to cut you off but just going back to the issue we were discussing with judge moore about the owner of the ability of the c constantly so is there something about is there are you and i think the government kind of alludes to this that when you go back for more information you have to be looking for information that only helps the veterans not for just make this argument but it goes back to the court we're trying to figure out whether your client merits this or not and usually as i said in veterans cases we're looking for more information and that information is under the to make his case but in this instance if the it goes back to the board and the board says i'm happiest two opinions and this one is pretty conclusive this what isn't the right thing to do was to really hire an expert  the problem with that i mean i guess i'm a little nervous about cutting off the ability to allow the board in the v a to develop the record more because that's what we do all the time to help that and this appeal does not seek that limitation this appeal seeks the limitation soley in the context of when a statutory presumption in this case the presumption of soundness has attached and it is the development of evidence that is only negative to the veteran that would rebut that presumption he got the presumption as soon as his medical fit physical failed to note that he had a  preexisting condition of migraine headaches which at best circles back to when he was age seven but in this case your honor the record before the board and the record before the veterans court was two previous conclude that service did not aggravate his migraine condition or first off there's no doubt his migrant condition worsened there's no doubt about that in the record the question is was this even the nurse the only admitted that she just said it's part of the normal progression of the disease maybe to get worse over time and it might just be the normal progression of disease and not the fact that he was subject to stress in the military during a service you know so so  natural progression is not as the law requires clear and unmistakable evidence well tell it to go back just first clear i understand the preexisting in whether or not you have people but if i don't the service f me and i have something that was wrong with me before he left but what is the presumption i mean and then i'm in the service for two years and then twenty years later i come back and i make that claim and my condition has gotten really real so it's preserved presume that even though i had it before during the two years that i was in service it's presumed that that made it worse the history the legislative history of the presumptions that took different forms up until the form of three eleven and now eleven eleven and the conclusion in wagner was is that the turning point or the triggering point for the establishment of the presumption is whether or not a condition is or is not noted on the entrance exam that is on the government if the government even though you may have had a preexisting condition does not note that condition because you present without any appearance of having a preexisting condition fails to make the adequate inquiry and note that you have a preexisting condition than that's failure affords the veteran the benefit of the presumption that when he were she entered service they were of sound condition i guess soon you know whole hell of a lot more about this than i do so do you migraines in the past and if it is and that's where it does not check that box or says no does that still mean that it's the burden is on the government to establish that i'm just warning you die terrified yes i believe it does in terms of the form itself obviously that form over time has changed composition but  believe that this is a report in which the medical examiner is supposed to enquire of preexisting condition mr carr have another question teachers pros asked a question posing as a hypothetical suggesting that if twenty years later you know somebody expresses but in this case just to make sure i understand the facts he served on active duty on multiple occasions through january of two thousand and five and he started seeking treatment prior to two thousand during two thousand and eight for these migraines and fell his claim in two thousand and nine so we're talking about at most four years between the end of his service and his application for benefits not even when he started seeking treatment but is application for benefits in this case and i guess part of what made me think about that was i could see and couldn't you it being a factual question that we would have no authority over alternately but let me give you a for example a veteran served in the military in the  forty s and in the year two thousand in the year two thousand he's developed hearing loss wouldn't you imagine that the passage of time a doctor could say given the passage of time when the first symptoms there's no evidence that this was aggravated during service stops so so i guess what i'm suggesting is couldn't what judge posts is pointing out in a hypothetical be factored in by the doctor to a conclusion he may or may not about the natural progression of the human body or a disease and into therefore his reason his or her recent analysis about whether service could have aggravated the condition or whether the condition was really and truly is the next the result of normal aging or something like that couldn't that be something that a doctor could factor in if you his opinion it certainly is the legal question is whether or not that factor are rises to the formidable level analysis of whatever condition it is and the effect the passage of time would have been in fact the amount of the passage of time to all of that it seems factual to me and it seems like the doctor could take i don't think there's any question about that your honor however it is the uniqueness of the context in which this veteran was in in which the failure to note the migraines and entrance of the service gave him the benefit of the presumption until doctor and this was hearing loss and if that your nose and throat doctor said well this person had such and such a condition and hearing loss is expected to deteriorate by you know five percent annually four years of passage actually generated by three percent this person beat the odds i think the doctor could thus conclude that there is no evidence to support the idea it was aggravated by service if anything they seem to have ended off better off than they should have under the natural progression of the disease and therefore i concluded that this was not aggravated by service i feel like that's also thing that can happen regardless of whether it's noted on the form if you are accepting which you did for purposes of this appeal that the condition preexist per year is five percent and you've had less than that therefore there's no doubt in his mind it is clear that this is the normal progression of your disease and not something that was aggravated and you're absolutely right your honor and in the first instan good morning ours may please a court i'd like to start by just discussing the record briefly because i think there were a few statements made in the colloquy with my colleague that sort of the record a little bit the c a v see here did not did not  that the board's failure to discuss dr hughes his inability to offer an opinion was at least contradictory evidence that the board needed to address acknowledge and explain how it reached its conclusion despite the existence of that inconclusive is there a difference between inadequate reasoning and factual fire cation no i think there i think they're part and parcel of the same in this instance i don't think that's necessarily true across the board but in this instance the views she said as i understand it she's unable to say they weren't aggravated because this record doesn't contain sufficient medical evidence for which someone can make that conclusion right and so so her we  apply and i just want to make sure that you're not being a little bit misleading with the evidence because she says she's unable to apply because this ever that this record would not allow a medical practitioner to apply so i think the board it seems fair then doesn't it for the c b c to say ok well when a doctor says on the evidence medical evidence presented you can't reach this conclusion she can't reach this conclusion because she doesn't have the heavens and then some nurse comes along later and s necessary to understand if the board determines that if you can't understand the basis for either dr use opinion that the medical records that she reviewed was inadequate or they can't understand nurse donnelly's views as to why the medical record presented to her was adequate then i think the c of e c was suggesting that the duty to assist would require the board to seek additional evidence see clarification we're not assisting at that point because there's a presumption that he get he wins if the record is an echo poise as you just suggested because you suggested if neither opinion conclusively carries water based on the state of the record then he wins so you're not assisting him by getting more did the board actually conclude this is sufficient to establish clear and unmistakable or clear and convincing evidence that the presumption has been with rebut it yes your honor it concluded that the progression of mr migraines was due to the natural progression based on nurse donnelly's pain to that effect and they didn't but the embassy a b c said we can't accept that because you haven't told us why that stands along right appendix seven and eight the veterans court explains that it agrees simply with the secretary's concession that the board's failure to address dr hughes opinion and reconcile the two renders the decision inadequate under some new one i understand why they would want an analysis of the two opinions but what i don't get is how seeking new evidence outside of those opinions  s the better well i think i think we're speculating about what the board could do under the statute or regulation when it when it reviews the evidence if the board failed to recognize dr hughes or speculating we're deciding well the the court the veterans court opinion i think recognizes that quite frequently the reason why things are remembered is because there needs to be additional evidence i think what that but they've been saying that well i  think what they said it is is not it's not tied to a statue regulation i think it was somewhat just reflective of the fact remains almost always include the possibility that the evidence what from here is not a problem with this argument this argument would then allow the secretary or the government to appear in front of us in every case or to go to the c b c on every case to say we think the board had adequate evidence to reach its conclusions if you disagree remey and so we can put more it that's what you're asking  that is the rule that you're asking for if you don't agree we made our case we have the burden to prove that we had a high presumption we had to meet to satisfy and if you don't think we satisfied it based on the record remain to give us another chance to do so and i respectfully disagree your honor the v a is not going so now you know that not the result the v a doesn't seek evidence to the to adverse to veterans it seeks the evidence necessary to decide claims in simply the veterans court statement here that understand the statement that mr carpenter or dancing or somebody made the statement about adams which held deprives the mr adams of his claimed right to a decision in his paper on the record as it nods i think the problem is with that articulation of the williams test in these circumstances is that as the court was worried in eval that sort of articulation would swallow the the narrow rule and narrow exception to finale if d and so there was inadequate reasons and basis and so i think the problem is if if a veteran can show up with a remain in order and sit and articulate song some way in which his rights have been affected because he has a right to judgment on the record as it exists then he would always get this court's review the problem here is that mr morley is not entitled to judgment on the record as it exists now the board found that the aggravation problem had been rebutted the veterans court did not disagree with that it simply said we as a reviewing court cannot review your determination we need you to explain it to us better so that we can review it and so he would be asking and the voters were so they're asking for an explanation that's fine yes does it does that mean that the explanation is well we went out and got new experts and here is what we decide what i think the explanation would need to start with ok we're going to explain our view of answer they would need to go back to one of the tube or ask another medical examiner a specific question to develop the evidence necessary to reach the correct but look at it they look at the record as it stings and they say we might have to get an interpreter here to review the record here is kind of an expert to help us interpret this why would suggest that if the board and remain well the secretary has been rebutted on this record so we're going to go get another opinion that the liberation maybe result in a determination that a new medical opinion is warranted but doesn't explain for what that new medical opinion would be if there is something that they simply cannot reconcile between the two medically they can't real joy every man we prayed to remember why so in the where you have a presumption it the the way that the secretary explained it in this in the secretary's brief below and i would just point the courts of appendix one twenty eight because i think the secretary explained it better than i would if i didn't quote him was an opinion that the medical record is insufficient to opine on aggravation is effectively an opinion that a gap in the evidence exists and that's exactly the kind of gap presumption fills and so dr hughes opinion would appear to be evidence that supports mr worley's claim ok but the board didn't address the board didn't explain why it disagreed with that with that premise and it needs to do so maybe that it can't and if it can't then mr worley will get his benefits but the board in the first instance has to find facts with respect to dr hughes opinion and reconcile that with this one of those facts potentially a gap exist yes secretary disagreed with the notion that certainly we did in our brief that the secretary would go out over the sort of biased view towards developing whatever evidence necessary for about this presumption secretary doesn't develop evidence in order to deny claims but i don't think that there i would have to go back and look at the sector if you're going to know if there was a suggestion that based on the duty to assess or some other regulation the development of necessary evidence would would would be a possibility now at some point somebody suggested statutes or regulation that say this may be started off by alluding to that is there some regulatory statutory bas you know that's true i mean i think the rebutting the presumption is slightly different than other remains but i think that it's difficult to cut off the v a s ability to develop evidence that's necessary simply because we're dealing with a rebuttal of a presumption if the board can't understand something and this court says well you cannot ask for additional evidence and the board is left with the inability to to answer questions that may need to war i didn't say it couldn't the board said that mr dunne lease testimony conclusively clearly or whatever a stablished this so the board didn't didn't have an opinion that the standard had been met here it's that seems to me a very different case that if the board had said we can't make a decision based on that evidence of record here the board said it could i see no error in the c b c saying well then explain it and the rest explain it what i do see i have a problem with board saying yes we see the problem you're right we shouldn't have made that conclusion based on the record as it stood at that time so now let me get new evidence i agree i agree that that would be a certainly a good claim that mr rowley could bring a where you're saying it wasn't specific enough as if they were saying to the be a if you want to you can go out get more another medical opinion that's exactly what they said if it so you could permit the secretary to develop additional evidence to rebut the presumption even if that's our view nothing to happened yet so that he would be able i mean the final act and williams is whether or not this is moved out and it may  i don't think complain about that so if he loses and the board it's all speculative if the board goes for another opinion and if he loses based on that opinion and he comes up here well is there any doubt that mean it encourages it be judicially economy to let the process play out and have everything finally decided also as our conversation today shows there is some speculation in what the board could do if that were sort of assuming the board could take this statement and run with it in a problem when really i'm with you do your good pull it out for me i have the place it's under key no four where the test is laid out then i'm going to be see you know see where i'm as it now stands so doesn't it seem like williams and the third factor and williams on it could still be appealed later that court can't find facts in the first instance and such reconcile the two opinions on aggravation the veterans court would have had to weigh the evidence to come to a determination that the aggravation prong of eleven eleven had not been rebutted and that sort of fact finding was not at issue in atoms and so there is no viable claim to benefits on the record as exists now the veterans court said we can't do our clear air analysis because you haven't done the necessary and so the veterans court couldn't find those facts in the first instance and this court also cannot find those facts in the first instance simply articulating claiming i am entitled to benefit sorry i certainly wasn't meaning to suggest by this that we would be deciding those facts in the same of the veterans court could i was going to your jurisdictional argument and trying to explain to you that williams itself in the very footnote attached to the third problem that dealt well only if there's a substantial risk the issue won't be appeal carved out adams and this whole record question as expressly one of the things that would warrant going ahead and exercising jurisdiction and so i kind of i was meaning only to address your question about whether this sick to far because the court simply saying i have a right to judgment on the record as it exists now if that's sufficient to get through the finale exception simply saying you simply saying i'm entitled to judgment on the record as it stands now even though the veterans court couldn't review that same record provides far too open a gateway whole lives i'm not suggesting there's a problem with rimi and i'm suggesting that the order that perhaps we should exercise jurisdiction to modify the order if it is clear to this panel that introducing a new expert to meet the standard of clear and unmistakable or whatever the standard is would be necessary for the board to reach that conclusion and if the veterans court has expressly invited them to do so it seems prudential considerations which you just mentioned would dictate that we say not ok to do so so that mr worley doesn't have to that and have that subsequent appeal i mean this is a factor in seeking a limited amount of benefits for us to set to not exercise jurisdiction therefore sending it back with something if we believe it's actually clearly wrong and suggesting that the board do something that we think would be legally and inaccurate later on it seems like we should exercise jurisdiction to correct that remained order where i think the key in this in this current article about the adams case is that he's not saying he has a right to a decision on the record saying he as a right to decision in his favor on the record i think that's a key distinction it's important because simply saying i have a right to record a decision on the record as it exists without additional evidence is i think what your honor is suggesting adam stands for but in adam's he was saying i have a right for this court to reverse because i should quit and that is reviewable in a remit order and i think to fit into that adams exception the court has to go too far with respect to finding that that is not simply claiming that he adams wasn't saying if you claim a right to a decision on the record without augmentation that's reviewable so i think that's that's a distinction i would draw between atoms in the situation thank mr worley appeal to veterans court to answer one question and one question on did the board correctly apply the presumption of sound and the answer is no they did not because the presumption of sound concession that the board had not provided an adequate statement of reasons or bases eg knowledge that there was not clear and unmistakable evidence in this record sufficient to rebut the presumption adequately explained how that could possibly be clear and unmistakable evidence in light of the existing record from dr hughes that said just the opposite they will comment who is that they were talking about now you yes and that the veterans court made the assumption that the it was not necessary to reach the ultimate question as to whether or not the board did or did not correctly apply based upon a concession of error that the board had inadequate lee it's one aim but the in and i mean the case law if somebody cited in their brief you can still find that there's no presumption even is in there said that it was not possible based upon the evidence in this record he offered that opinion now we amongst the v a s own experts and if the v a s expert this agree then you clearly cannot as the secretary find as a matter of law that the evidence a record was clear hughes i don't know any of that that's why that's why they say that when they send it back they say this contradiction has to be addressed if the board is that had the opportunity to properly assess the relative probative value of egypt along with respect to the aggravation  know you go back and figure it out look at the thorough look at them thoroughly figure figure out what they both got in front of them i don't know what but but respectfully honored if that was on a question that was of a finding of fa not a question of law whether or not there is clear and unmistakable evidence to rebut the presumption is a question of law you either meet that evidentiary burden or you do not if you do not meet it because there is conflicting evidence in the record of the board didn't say you don't need it because there's conflicting evidence they said go back and look great with the probative value suppose that the backgrounds of the parties conflict suppose that the evidence in favor of the veteran was  i don't think it's for this court to figure any of that out respectfully on i disagree because this is raised in the context of when congress consciously knowingly shifted the evidentiary burden from the veteran to the