regular the statute requires that the veteran court shall hold on lawful and set aside decisions of the board which are found to be not in accordance with law in accordance with the holding of the veterans court in marianna the lower court held that it would be impermissible for the v a to undertake additional development if the purpose was to obtain evidence against the pellets case before the veterans court misadventure specifically argue that the v a had done just that the veterans court we believe committed clear error by failing to undertake a deferential to novo review of the question of law presented by his betters appeal let me let me address that question first  supposed to are not privy to that differentially because that finding doesn't have anything to do with whether or not the evidence which was developed by the v a was evidence developed for the sole purpose of defeating the claim it's so is it your position that if if the record is essentially almost devoid of evidence except one little piece that might support the claim the net has to be the end of it well i'm not trying to characterize it quite that way your honor in this case we have a veteran who explains the injury and service we then during the course of the litigation present a v a doctor statement that connects for current disability to what she described as happened in service that's fully substantiates the client in this case it was six years after that before the board of veterans appeals in two thousand and eight ordered additional develop that additional development was not successful if they ordered a second opinion and that additional development simply offered an opposite  with no suggestion that the claims for there was revered or anything like that then under the v a or the case law below then the obligation of the v a or the board is to seek clarification and this is from their own case for further as it relates to clarification of the opinion that was offered not as they did in this case to develop their own evidence and to seek their own opinion about whether or not under the circumstances no it's not but the question is what is that additional develop is that additional development to seek clarification from the author of the opinion that they think doesn't provide an adequate rationale or is it to develop evidence from their own examiner to the ultimate question and we believe that marianna creates a rule of law that expressly says you don't do the last and that the case law before the veterans court is clear will that will destroy the veterans case your honor that kind of what your case is predicated on bass assumption no frankly on or it's not it's predicated on the fact that in two thousand and three evidence substantiated the claim that ms vendors service for the current disability was related to the injury during service so that that underlying predicate is important you're saying evidence to substantiate the claim but you don't  explanation for it but with respect your honor that was a fact finding made in the finals board's decision not fact finding that was made in the two thousand and eight decision ms bender was put in the circumstance where she could not appeal the two thousand and eight decision she was not able to appeal that remit and say timeout what do you remain doing this for for another examination she had to go with that until there was ultimately a final decision before she could challenge what happened in two thousand and eight the question presented by this appeal is not for this court to resolve the question of whether or not the be a treated her correctly but merely whether or not the veterans court created her fairly if the veterans court den of law however this court's jurisdiction could be implicated because it's the application of a rule of law but that basis of this appeal is about what the veterans court did she asked for review by the veterans court of the proposition of whether or not the rule of law created marianna was or wasn't violated by the board in two thousand and eight when it sought additional evidence and that rule either has meaning or it doesn't have meaning the lower court quite candidly ducked it and this appeal was about whether or not that was consistent with the obligations imposed by congress under seventy one sixty seventy two sixty one a three capital it would we action would be to send this back since it's their rule for them to address it in the first instance i'm sorry i can't remember the name of the case but there is a case from this court that says if the issues presented and the lower court fails to address it then this service connection in this case there was a two thousand and three progress now it was inconclusive in october of two and there was also a march two thousand five doctors report which are said mr carpenter to be arguing that the error of wall with the wrong standard of review being applied that feels very much like a legal question so what why do we have the story how is that not something that we ought to think your honor there was no incorrect standard veterans court did everything that is required to do under both thirty eight fourth thirty eight c f r three point three zero four as well as the marianna decision both the veterans court decision and the board state the reason why under mariano it was appropriate to obtain additional evidence in this case the regulation provides that additional evidence can be developed when deems necessary but should not be undertaken when the evidence present it sufficient having a hard time understanding that concept because of the it would seem that under your theory the v a could always just say well if there's just not enough here and then they could just get around the rule that says you don't go out and seek evidence that that would actually be opposing the veterans played so how how does a variant of rule fly if the v a always can just say well it's necessary so i've got to go down this should have been sufficient for the stablished service connection and here we simply don't have that as the board and the veterans court explained the two thousand and three doctor's note did not go through her medical history it did not explain the rationale for information to establish service connection and the board appropriately as it possesses the discretion to do develop that evidence really weird though that the v a didn't go back to their own doctor and say you reach this conclusion that would be favorable to the veterans and we think you didn't justify it enough in your report so once you give us more information why wasn't that the starting point of that ishall investigation i don't know why they didn't go back to the initial doctor your honor however they did consult several additional doctors and there was never anything that was particularly conclusive for example in march two thousand and five there was a different line exam and it said objective findings were not consistent with her subjective complaints however it didn't address the progress note then after the remained in march fifth two thousand and nine acts of you didn't like what the first doctor said so instead of going back to that doctor you go to another one and so you get the one i met with seem to be exactly what the regulations the exception in the regulations trying to avoid i don't think so your honor i think we had in this case a day no says that was plainly insufficient that it didn't meet the standards at the v a that for establishing service connection so the veterans court was appropriately giving th veteran the benefit of the doubt by seeking additional information the problem with the board that with the march twenty fifth exam was the fact that it didn't address the two thousand and three progress note the next exam in march two thousand and nine the doctor concluded that it couldn't state precise onset without resorting to pure speculation again after that the board concluded that another medical opinion was necessary so i think this was dealing with a plainly insufficient to establish service connection january two thousand and three doctor notes and trying to find additional evidence that in fact help the better end because each time there was not sufficient evidence would you think that the veterans court actually did apply the marianna rule and reach the legal conclusion that that there was requires that if the board is going to undertake medical evidence it has to state why did that and here's a board very clearly did that in its april fourth its two thousand and ten opinion it also explain the evidence in the record and whether it's sufficient that is an application of lot of fact and not a legal issue appropriate befor we believe that the question of law presented by this appeal is the standard of review and has been or did not receive the standard of review to which she was entitled based upon the question that she presented blup we do not believe that the veterans court did apply the rule in morrow the v a suggests that judge lance did in his decision however the way in which the facts in this case were developed and the significant length of time between the two thousand and three v a doctor's report and the two thousand and eight re man decision leaves a considerable length of time in which the v a could have had the opportunity to explore with their own doctor to clarify these questions about his opinion and if that that clarification resulted in providing an appropriate rationale then this case would have been disposed  this case is about mr renders opportunity before the veterans court to raise a legitimate question of law about of rule of law that was created by the veterans or what i'm sorry necessity is the rule of law what exactly is questionable talking about where they should have given to an overview ms venner presented the question of law as to whether or not the board in two thousand and eight when it re her case for further development was remanding consistently with the rule in marianna that presents a question of law to the veterans court about the rule of law which they created and marian about whether or not the v a was doing precisely what the veterans court found in marianna was not permissible the legal question in this case is whether or not under the statute this banner was entitled to a deferential the novo review based upon those undisputed facts to answer that question of what answer the question of what i mean marianna said you've got to explain yourself you're saying that there's an overview of whether the explanation was adequate not did they explain themselves but did they act in accordance with and one response would be that they did so because they provided an adequate explanation but that's not what the veterans court said in this case the veterans court said that ms better at not presented but believe the court's language was does not offer any legal or evidentiary support for her contention but her contention was about precisely what the record reveals habit and whether or not what the record below reveals happened once or was not consistent with the rule that was created by the veterans court mario