the court counsel this case raises issues of compliance and interpretation and connection with the procedures followed by the board of veterans appeals and the veterans court has an overview of my text ten minutes central to the case where the board of veterans appeals had not decided it so i notice that for example the absence of a jury box in this courtroom there also isn't one of them that are into court the proper place for fact finding that in the scenario of veterans claims is before the board of veterans appeals the jurisdiction of the veterans court is limited to reviewing decisions of the board and the veterans court cannot find facts in the first instance adverse to the claim this court is under seventy two ninety two that where there is an excess of statutory jurisdiction and also where the ruling is in violation of a statutory right with respect to the second issue first because of death the second is but what was the claim of the claim itself cancer should be read literally with the words mean what they mean or will the veterans court is free and veterans administration to basically to interpret a direct claim into oblivion the veterans court construed at this court's decision in muti in a way that this country not only to the holding of movie itself but also contrary to supreme court precedent that the words the interpretation put on the movie by the veterans court would have moody  decision that be contrary to decisions of the supreme court with respect to the interpretation of words with respect to the second of it also ask this court to clarify its holding in a movie to reaffirm it says what it says  absolute explicit definition to the country words will be interpreted as taking their ordinary contemporary common meanings was no discussion at all of this fine present the supreme court by the veterans court or by the board of  free to say well the evidence didn't support that claim therefore we're going to deny it that's not what they did they backed up a said the claim to begin with wasn't for cancer it was only for non hodgkin's lymphoma that's a violation of law not entitle to do that so so they're willing to select one but not the other that they can't do what they claim for cancers a claim for cancer period and they're required to deal with it if they want to narrow it they can ask the widow if they want to subject her to a wrong it seemed to me that the way the case had developed was that there had it was discovered that there was an error in the original autopsy and that their original autopsy which said which said that the where causation with service connection doesn't have to be proven it's presumed because they swore the because it is is that what is your position then therefore that the thousand sixty four and the cases of it's relevant which is this court's case and also pelligrini which is the killing me too which is the veterans court case i say that if we ever do get back here we get to get a new hearing the best that the case is presented here the error that we're alleging here is that the board of veterans appeals in twenty one was required to decide whether or not this  we're not asking this court other than our constitutional argument later on but for the purposes of this part of the argument absolutely not we're not asking you to decide which of these two decisions the and i actually will but at the center of the n e h is correct what we are complaining decision finding cause of death behind it it's totally beyond the jurisdiction of the court of veterans appeals to find facts adverse to the claimant where the board has been found and furthe without deciding they're there the fact finding body and they didn't do it they should have done i didn't give us the decision just to cite when i ask you to decide what the facts actually are what we're complaining about is a process here an excess of jurors is the j must have looked at it considered it ruled on it no what they said is we're assuming this without deciding so that's a that's the issue of respect to the excess of the jurisdiction where we're asking for is somewhere along the line in the place of action occurs before the fact finding body  alice in wonderland to this words have got to mean something and when a supreme court has told us how to construe words so this law has to be applied was not applied in the default in finding applying applicable law is a issue within the jurisdiction of this court right as a matter of fact that this court has jurisdiction under seventy two ninety two to terminate whether the veterans court missed a target of the court's only rulings and this movie itself and also failing to consider applicable law is a decision by the court on a rule of law over question of at least appellate review of how the statutes are viewed i don't believe it does your honor there were three factual determinations with respect because of death available that claim could not have been adjudicated it could not have been adjudicated because there was not then nor is there now any presumption that cancer is caused by either exposure to dioxin or to radiation so there had to be a specific form of cancer diagnosed and then there had to be a pos connection could have been proved directly or it could have been through a presumption but a claim for cancer in another itself is legally and factually insufficient to support an no presumption at that time that hodgkin's disease was caused by either radiation or exposure to dioxin i gather that the government was not disputing that the second autopsy was correct the secretary found as a matter of fact that hodgkin's disease was the cause of death when i was in what i asked about i'm sorry i thought they were not disputing that the the secretary evaluated the body of evidence including the nine hundred ninety five evidence in can clue did still that the cause of death was hodgkin's disease the when it's very interesting contrary say the second autopsy was incorrect i don't understand i think you're answering the question really trying to understand how the government treated these two conflicting results they looked  secretary looked at it from both perspectives your honor they said ok what do you mean by both what i buy whether it is hodgkin's or not how to conserve boma and that is the alternative or the hypothetical that are in con so one of the other isn't correct and i don't recall the secretary saying that the second one was incorrect i thought it was accepted that the second one was the correct one you know it was a factual finding that the cause of death hodgkin's disease practical finding by who by the secretary it was indorsed by the secretary you mean by the board yes and by the board also the boards did not i don't recall that the secretary made any seventy five but what the secretary did and what the board did was look at the alternative hypothetically what if mr bonner had died from nineteen ninety five or one thousand nine hundred six when the decision was made they still were faced with the issue does is it retroactive to nine hundred seventy five and they  and she failed to demonstrate that she was otherwise eligible for the d i c benefits because at that time the there was no evidence that hodgson's opponent was the cause of her  husband's death so they construed this in a way that was most beneficial to mrs bronner it's hardly an adverse decision by finding hodgkin's disease that she well i think there's there's two problems one is this the secretary found as a factual matter after weighing all of the medical evidence generated in one nine hundred seventy five and also generated by and i h later in of course connection with an award of compensation to mrs boehner for exposure to radiation and so in order to be awarded the compensation under based on the later and i h evidence the outcome would have been the same i e she would not have been awarded benefits retroactive to seventy five in fact she wouldn't have had that one year chickens know your honor i'm saying that with a diagnosis of hodgkin's disease she's getting benefits from one year prior to the date of her application because that decision was based on intervening liberaliz and she would she would just get it from the date of the claim in lest she could meet the two prong test so for example if a nine hundred seventy five an application was made for death due to  it would have been denied because there was no direct evidence of causation and there was no presumption i have how do you know there was no direct evidence we now have least on the face clear evidence of the first you don't just get benefits based on that you have to demonstrate either through direct medical evidence epidemiological evidence there is causation or i thought the search or presumed conservation service connection for non ho there's a claim for a psychiatric disorder in that case it was depressive neurosis and it was denied some time past and now there is a diagnosis of post traumatic syndrome and this court found th post traumatic syndrome yes it is a psychiatric disorder yes it's closely connected to this depressive neurosis but it's a separate diagnosis and therefore it's a new cause of action based on new material evidence it is real winning a claim and there is no retroactive effect to it cancer would be the same thing if there had been no evidence of the specific form of cancer in one thousand seventy five just trauma with respect to cancer that is a specific disease and other subsets of it but no one has ever ever ruled that is not a a precise enough claim number two is the veterans administration denied this claim as here's the point the government has just told you that in one thousand nine hundred seventy was the last you know determination that hodgkins disease was the cause of death that the secretary done so yes the secretary of the regional office level below the board of veterans appeals and our complaint is that the that the board of veterans appeals should have reviewed the one nine hundred ninety seven we asked them to we complain about the following if you look at the last sentence of the first paragraph your honour's there is a letter from the department of justice to the veterans administration tell we appeal to the board saying this is terrible this is just shoddy work it's unfair to the veterans memory it's unfair to the veterans will you've got a statutory requirement to do better job a judge you were entitled to appeal and what we got out of the board was we're going to assume that without assigning it