the secretary that the conditions that mr sports tried to provide evidence about neck and back conditions were complex that finding does not exist what's missing  disability what what's missing it's the threshold determination that that condition and that the subject of his testimony was not simple was complex if you look at other cases that you can consider later evidence and for a diagnosis is just saying he can diagnose this particular condition what's wrong with that  exception to the general rule but the general rule is lay evidence is considered and if that's the case then it should be clear in the record that the secretary has assessed the specific evidence and provided some determination at step one a threshold analysis that it is a complex condition beyond the ken of a lay person in general footnote for this court gave an example that something like cancer might be beyond the ken of a lay person and could be zeroed out that evidence is not considered by the secretary competent competency basis contrast that with a broken leg that evidence could be amenable to a determination and to testimony and in this case there was no determination that these specific conditions are more like cancer or more like a broken leg i'm having a little bit of trouble with some of the terminology here what specifically is the evidence that reading the board i think the most well the evidence of the board ok she tried the veteran in reporting to his doctors and it's in the it in the medical records basically said my neck my back  pain existed from the very severe car accident i experience in service that evidence was evidence is his assertion about a causal connection correct that was the evidence that was excluded because he could testify my lower the testimony or the evidence that the assertion that this is attributable to my jumping out of a plane with eighty pound backpack and i forget whether he also is in the hearts and the correct correct yeah ok the only thing that was missing here was nexus evidence it was undisputed he was in a severe car accident service it is undisputed that he has serious fact and has undergone multiple surgeries because of it so the nexus evidence he was trying to provide that came in through  time proximity it's the time proximity yes he says i experienced that since nine hundred and seventy nine dollars and that evidence was the evidence that was erode out the secretary didn't put it on the scale at all didn't weigh it at all and i think that that comes to back to this court's precedents and in chases like gender alexandro said it's not sufficient for the secretary to simply say that medical evidence is required right and with the board mr sports say something enough that his degenerative disc disease that he's currently suffering from is competent to say that that was caused by that motor accident in diagnose this particular condition there to get to that step that one has to make a threshold determination that this is a complex condition beyond the ken of a lay person and that's what we're saying didn't happen here we want the secretary to have to if it's going to zero evidence the secretary should have to put in the record consistent with fifty four in this court's precedents a statement that these conditions are complex these conditions are in fact beyond the ken of a lay person that's n prejudicial era purposes and i'm now going to summarize given us any hint of how you could even possibly be competent and therefore you haven't met some threshold of establishing prejudicial error from the own mission that we will say is actually in the board decision because we do think there's an omission but you haven't given us a hint about why it could matter i think this gets to the prejudicial air  was erode out and the veterans court nonetheless concluded that because he hadn't met the underlying one thousand one hundred and fifty four standard apparently that was insufficient for purposes of showing harm look at the application or the interpretation of the prejudicial air standard and if you look at what the veterans court here did the veterans were didn't say well let's assume there was error with respect to this latest money but there was overwhelming evidence for example i'm just giving a hypothetical if there is overwhelming evidence that she didn't have this condition so here's the just and the veterans court had to say something more about prejudicial error and that was  prejudicial air analysis the veterans court said because mr is for it's across a veteran of the traumatic brain injury didn't at there are a level provide additional evidence that he was competent to testify  one the fact that the veteran wants to testify about my back has been hurting like the dickens since i got in that car accident and footnote to fact one i'm competent to testify about that because i'm a doctor i'm competent to testify about that because it's a simple condition that standard is totally inconsistent as it is the functional and practical effect of the secretary's ruling here in the secretary's position to this court and so we ask that the court take that into consideration it's not  because purposes of was that was in service connection axis well it was considered in the sense of can this evidence or should demonstrate the nexus a portion of it and it they made a determination that no it wasn't i don't understand what you are in for in the board the board basically said that he's not competent to testify about this particular condition and therefore we're not going to give any weight of the testimony that that's the proposition that you have to defend i don't  commission absolutely so it mr sports wasn't denied service connection because there was the absence of nexus evidence mr supports mr knight service connection because the record evidence demonstrate the absence of explanation as to why arthritis spinal right escape causation is a complicated medical condition that requires some sort of specialized knowledge and that's a factual question that's beyond is is what the board did here inconsistent with the non presidential opinion from this court called robinson which seems to suggest that there is some two step analytical framework that the it's to undertake with step one being make a determination initially  disease or injury versus a very you know self evident well the remand order and robinson was specific to that case and it wasn't a presidential decision i mean that the roberts case was in a unique procedural posture because the board considered that case before this court issued to chandra buchanan and davidson decisions so it didn't have the information from from the scored as to what is th in a distinction that i think exists and i think maybe we've been discussing that there are only three relevant sentences the board decision writer page appendix twenty eight i thought as i just preparing for this case there are two separate possible interpretations and i guess i wasn't weak persuaded myself nd one was not meaningfully available one interpretation is on the specific issue of causal connection mr right and does not refute suggests maybe the board was taking it into account weighing it against the medical evidence so not ruling it out as incompetent just weighing it and saying it's not enough the under the jan drove it cetera standards that view the opinion is perfectly fine yes but that's different from saying the board weighed the evidence and just found it insufficient  is changing here is what the what the board did is it considered the evidence it considered this late testimony and did made a determination as this lay testimony supports th nexus determination that mr sports needed just to that mr sports needed to do in order to demonstrate or to unite and demonstrate in order to you know get across the line to support a claim for service connection and it made that determination that he was not competent to meet that and because it wasn't competent and because there was also credibility issues that were mentioned later in the decision such information could not somehow supplant or overcome you know the actual medical evidence in the record and the actual medical examiner's opinion which took into account the possibility of you know misters sports as late testimony in explaining why such testimony wasn't going to get him across the proselyte so you know in a sense the medical examiner considered the lay testimony it took it at face value and gave an opinion explain why this testimony doesn't show causation or or why this testimony is inconsistent really with medical studies and why this is in why his testimony is inconsistent with the with the medical is based on an assumption that this court case law requires some kind of express separate finding initial findings as to whether or not the veteran is  competent to diagnose or or opine on nexus for a particular injury or disease that's not right there that are the veterans court decision does seem to suggest that  don't have a ruling from the veterans court that's consistent with what your current position is on appeal which is to say that your view is our case law doesn't require this extra procedural requirement fact the the parents position that there is that requirement is untrue and ultimately we believe that that case should be dismissed for lack of jurisdiction because these are all fact questions not the question is if the veterans are said were made illegal by not articulating the lack of competency more clearly or in greater detail that is so can you please repeat the question i want to make sure i answer correct we have a case here potentially during the veterans or as saying of the board made illegal arab or not providing them with detailed is a difference what can we decide question is it your view that although both the board and the veterans court talked about treating certain proffered evidence as incompetent in fact there was no evidence proffered that the board inclined to look at there was no evidence that the board said we're not going to look at it at all this i guess goes back to this so we were looking at two hundred and eighty one to eighty two where again is everybody seems to be assuming that mr sports proffered evidence in the form of his own assertion that the board said either whether or not it said it's too weak or it's incom that this was somehow that his current condition is related to a service in a serious injury so you know taking the veteran at his word and constrain the evidence in the light most favorable to the veteran ok it still doesn't even get him across the line hard thing to show and the secretary hasn't argued that there is some high hurdle for nexus nexus can be shown by late evidence and if the board said was eroding out his testimony which is i think the fairest reading of what the sufficient basis to reject someone's testimony of veterans testimony the face of one hundred and fifty four and going back to the court's question about the board's languages to join appendix twenty eight simply to say he lacks the medical training or qualification t diagnose a cervical or lumbar spine disability that fact may be true it may be not true but before you get to that point you have to make a determination that that those are complex conditions that those are something that are beyond the ken of a lay person and that's what we're saying is fundamentally missing here add an extra sentence at the top the parents say we find that when it comes to disease a degenerative that would have been enough that's all we're asking for here is that considered determination again in light of one thousand one hundred and fifty four in light of language in january that says the traditional standards for admissibility of evidence are relaxed in these cases and that's all we're asking plainest way and say one way to screw it up is to say lay testimony could never be considered just totally insufficient under any circumstance another instance would be jan growth footnote for a broken leg something that  of a requirement clarification that the court just described but you have to have this threshold sermon ation veterans deserve it if their evidence is going to be zeroed out the least the secretary can do is to say we considered it and you're not come see m