air must make a specific plead he made a specific pleading that specific pleading was ignored by the board the board simply may also depend on whether it was outcome determinative which was also fact that's a factor in determining whether or not there was or was not a clear and unmistakable erion what our position is is that you can't get to outcome determinative if you don't consider the specific allegation how do you make a determination that rating based upon unemployability but the issue under three point one five six be formally three point one five six a is whether or not a claim remains pending because of the v a s receipt of new material evidence within the appeal period and that's precisely what happened in this case the v a did receive new and material evidence within the appeal period and that case then the original claim in this matter from  sixty eight remains pending so you cannot do a two analysis unless you examined the provisions of three point one five six then a in order to determine whether or not the new in the terri eleventh's received did typically never considered and most importantly applied those provisions in its q analysis if they did not that's a violation of seventy one of the four a and if they treated as they did in this case for purposes of outcome determinative nurse the question of effective nate effectiveness for the award of a total rating based on an employee ability then that was a misinterpretation of the  regulation because the political regulation goes to the pending this of the original claim not to effective date under fifty one and or three point four double zero zero two the factually ascertainable criteria used by the board and relied upon by the veterans court now even mr carr carpenter even if the claim remains and ing if as a matter of fact is the board's as the medical evidence does not show that he was entitled to relief if as a matter of fact he's not entitled to relief how can it the cue to have misread the statute or the regulation because the question is whether or not under the proper interpretation of this court did in bonn of this per provision of law this regulation to determine whether or not the new and material evidence received related to the claim that was pending and the claim that was pending was the initial rating in sa the initial rating the sa assigned in this case was initially ten percent and then increased to thirty percent it remained at thirty percent until the time of this one thousand and seventy three decision agency of original jurisdiction should have determined in one thousand nine hundred seventy three whether there was a factual basis for a fifty percent rating or a seventy percent rating or a one hundred percent rating to include a total rating based upon  the ultimate determination here under the proper interpretation of this regulation is an examination as to whether or not the evidence of record indicated that this claim was or was not pending under this court's decision in i'm not sure you answered my question on a pond as well the boards said flat out the evidence shows only one outcome he is not entitled they're for isn't everything else kind of unnecessary at best no your honor because they examined this as is clear from the language of their decision in the narrow question of whether or not there was evidence in the one year look back window whether it was factually ascertainable in that one year period that his condition entitle him to not a rating based upon unemployability that's not the state legal standard under three point one five six formally a now three point one five six d and that's where the board made its mistake if that turns are imposed by statute and regulation to specifically plead an allegation of q two then they have to be entitled to consideration of that applicable provision of law that they are basing their pleadings where where in the record is it that they limited themselves to that one year look back to say the board earlier and all that saying is that he became unemployed when he went to the hospital he went to the hospital in june that's the time at which they made the s when he was under their care i'm not are you reading too much in the this and see or what i don't believe so your honor because in the decision that we're appealing as opposed to the board's decision the co relies upon the factually ascertainable language in terms of the effective date based upon when it was factually ascertainable that he qualified for the rating and the only seventy percent schedular rating and a one hundred percent schedular rating independent of whether he was entitled to the total rating based upon unemployability so that prince court relied upon a misinterpretation  the court your honor mr peterson alleges that the vengeance corps erred as a matter of law by failing to properly apply section three point one five six first we do not believe that there is any error of law on veterans court decision but even if this court were to find any error of law the decision of actions court should be affirmed because it sounds as a matter of fact that any error in the board's application of section three point one five six is harmless therefore any of the errors that mr peterson is pressing here in this court cannot change the outcome of the case below mr pearson argues that the veterans court or that the board cannot get to the outcome determined of question without first properly appliance three point one five six but as mr peterson mr peterson concedes three point one five six did not go to the effect of date of claim therefore by itself it application could not change the outcome of the case below rather the board had to look at the laws regarding effective dates and the board as court has noted did find that even claim for the initial rating assigned did or did not remain pending under the provisions of this regulation this was the first time that mr peterson had an opportunity to question whether or not that claim remains and that there is no current procedure available within the v a to argue that your claim remains pend that you have to do it when there is a failing your client if it remain then he makes an allegation that his original claim for the maximum rating available under law was pending under the apply couple provision of law three point one five six because the v a had in fact within the time period received new and material evidence it was up to the board based upon the specific allegation of q to test that question to examine the record to determine whether or not the evidence received did or did not render the because all that was resolved in one nine hundred seventy three was prospective slip there was no examination and no consideration of the provisions of three point one five sixty which were required by law to have been afforded to mr peterson lessers for the question from the bench thank you very much