congress didn't give us that jurisdiction wrong or think that with even without those those kind of hypotheticals leave seem factual determinations that pretty obviously were wrong and there was nothing we could do well what we're asking this court to do is to say to prevent crimes court should have done something about it we're asking this court to look at what the board used in the way of reasoning so i guess the court would have to look at the reasoning that were talked about what it says in decision but it doesn't have to second guess the reasoning it has simply has to look at when the veterans court should have done so and our contention is that we presented all these instances of arbitrary decision making which the  review facts but they didn't yet so i don't understand how your argument makes of is a legal wall that was incorrectly used here well run of there's a distinction between making a finding  fact and reasoning to get there and maybe i can illustrate it this way if if in this case mr schumer says i was not told about this risk the surgeon who was involved in the process had come in and said i remember telling you about this i always told patients about this then the board would have had the classic weighing of evidence and still has to have good reasons now if your are to pick up on your exam don't get judged the rece even if we think it's clearly erroneous how do we as a matter of law get to that actual fighting i think it has to be the distinction between the review the veterans court business for clearly erroneous versus reviewing the when we keep trying i mean well let me try to you because you're not going to win that what you're asking for right now because you're asking us to do something we simply don't have the authority to do but one of the things we do have the authority to do which i think you preserved in your brief is to consider rules of law for example with regard to evidence did the lower tribunals  adopt a different rule of law regarding what is necessary to establish routine or habit or something like that maybe maybe there's something there you have it going to get us to look at it i don't know but we can't look at quite clearly i mean i don't mean to shut you down if you want to keep arguing it but i have to tell you it's a lost cause but you know we really just we don't have the ability to review fact findings without transport we don't have that authority but but we can review rules of are absolutely we did make those arguments and the arguments are that the board necessarily relied on this statement but the doctor which was sort of necessarily that means the board had to treat that as a report a fact that is it's not an expert opinion it's a report of what the doctor believed happened in one thousand nine hundred seventy and i contention was that the board used  and the veterans court permitted a use which in this which this court has held in the guardian case and others is established as a rule of law by the court if it permits the board to use reasoning in a certain way here or use that reasoning  to allow this testimony to come in with out any indication that the doctor had any knowledge of what went on in one thousand nice i mean that he had any knowledge of the routine practice of the surgeons it was completely it was just a figure making a foundational argument absolutely or out of the veterans court allowed this evidence to be treated as evidence of what happened as a matter of fact when there was no foundation for that testimony being reliable on that point and this comes back to the to the integrity of the system we've got a jury involved judges exercise that role of saying we're not going to allow you to consider evidence of that sort without the proper foundation because we don't want you to misinterpret it probably  like and on paper there's no hearing and we didn't have any idea that the board was going to rely on this evidence in this fashion until the board issues its decision and by then all we can do is go to the veterans court and say this is not proper reasoning this is not proper evidence to be considered for this purpose and the best you can say it in in your written submissions though we did argue it several times actually at the in the panel motion and in the recon motion particularly at the veterans court we didn't argue the whole issue of how that evidence and how this was no foundation and the veterans court response was simply well there's no indication that the war treated that way and our contention is the board had to tre objection to this kind of evidence altogether or is it just in this case you think the poor improperly accepted it in the veterans court improperly approve think as in the other the other non veteran litigation system it is evidence that can be used and relied on properly when the foundation of your not taking the position that as a matter of law you can't use this kind of i mean you  want to call it expert testimony but it seems like it's pretty it can't be expert testimony because he certainly didn't have firsthand knowledge of the facts he was he was submitting a statement about what he thought would have a right and so you're not advocating for a legal the v a system so that part with the we are so we did say however that this is not really an expert testimony the way we think of classic expert testimony in medical malpractise cases i don't want to get caught up in terminology here i mean i don't think the rules of evidence apply to the board in the same way they do to civil litigation so i don't think we have to talk about qualifying this person as an expert in the light so no no all i'm saying your honor is that that classically expert testimony  i tell you what i hear is is what all doctors generally do this is what's accepted this is the norm and it's used to establish a standard of care and we know what the doctor in the case actually did and then his and you gave you that measure against that do you think that kind of evidence is ok to could be in that case but that's not what it was used for but that's the problem if you think that that kind of evidence is ok then we're back into a dispute about whether this particular evidence meets that particular standard which is at would have been routine to do this there has to be some foundation he can't you can't just have testimony from someone who has no factual foundation in this case say well it would have been routine without establishing that in fact it would be routine to inform someone of this particular possible side effect of hijack the jack and so you're saying that you and if the board isn't that own by the normal rules of evidence nonetheless that's one that ought to unearth the benefit of the veteran if the government is going to introduce habit or routine as a basis for substantiating notice then they have to actually show that there was the veterans court determined that the board did not view this particular two thousand and seven opinion as having evidence and certainly you know if you read that the doctor's no the court did was say we are looking at the contemporaneous evidence that there was some sort of informed consent discussion we know this from the the generic consent form so we're looking at the form as well saying given that and given that is a common complication we we think there was some discussion and it and i said what we think that he was a form of this why the doctor said because it would have been a have a normal routine to inform someone of this likely complication that does go to the heart of habit and routine i don't know how else you let that evidence in other why that is is it part of the analysis of what the of continued pain would have been discussed but but all of that predicates only idea that this is a common side effect that would have been discussed that's corrected it did it us have it in routine that it would have to be normal for a doctor to have discussed this complication to anyone having this surgery but that fact finding has no foundation and i can see any evidence of record here and in less you are saying that there ought to be no foundational requirement in veterans cases for habit forming habit over teen evidence your honor i would say that the our position is that the veterans core i'm sorry the board did not view this as sort of a heightened this route we have established that this is what doctors in one thousand nine hundred seven did but given that we know there was some conversation that it could look at the and so do we get to review whether a particular piece of evidence is probably worth it particular piece of evidence no your honor but as a category rate this court does have the but i think that's right you're right i thought that i understood that we have the authority to look at whether a type of evidence is admissible not this particular piece and the fact findings made on it but a type of evidence notes are right so would a type of evidence be a determination that testimony by a single doctor that has ties habit or routine that would be necessary to establish normal practice would that my concern is that the board has determined that this one doctor said i'm nor p would have this informed of this complication or risk without establishing that that was in fact the normal a bit you will of routine practice to and the board's weighing of the evidence and that evidence is the veterans lay testimony as well as the informed consent form that was signed as well as the treatment note that was sort of done in conjunction saying that do we know he was informed that studying is tell it was a possibility during surgery so the and harm if you understand my point yet says you're on a general in nature you can't rely on it alone to say that every possible complication discussed like the fact that somebody could have stubbed his toe in the emergency room when it was under anesthesia it's an absurd concept of course and it's meant to be because what i'm saying is the form just says he was informed of risks and complications now we have to figure out what are the types of risks and complications he would have been informed of and unless i'm mistaken the only piece of evidence that brings us to the conclusion the board reached is the two thousand and seven doctor's report the two thousand and seven doctor complication associated with the surgery is blank you didn't introduce into the record any piece of evidence that would have demonstrated that right can tell you ask you this how would you introduce evidence at  no you're off no your honor the informed consent form there is well there's there's basically three documents related to that that's already a lie on an absence that is they rely on the failure of the right the length of time and the passage of time was certainly part of its now says that the reliability of mr surance memory and his testimony was implicated by that length of time that at first he said he hadn't been informed of any anything at it and except for the death from anesthesia but then there was the forms that were found that showed that he signed a form in the end of the uniform in fact list multiple things other than death  relates to mr sure and he signed that document and then an additional harm the generic consent form is additional an additional form about the hernia procedure and then also there is a treatment note from the that again is not as as weighty as if it had listed out specific risks but it's not irrelevant to whether inform proper informed consent was given right that the  is discussed and is explicitly stated as a as a factual determine what it fair to characterize your argument as follows that even if we the court would find it probable that for the board to have made fact findings based on habit or routine based on the assertion of a single doctor as a category of evidence and a concern about evidence it's a question of wap you have to be certain predicates you have to establish foundation that's not really an issue in this case because that's not the way that the board relied on this evidence they've looked at this evidence as just one piece in conjunction with everything else and they've reached a very cute specific fact finding and this is not a case for then i just have a minute and i think that's all i need yes he had a discussion about risks and complications but we don't know what was discussed it was a generic form signed we've doesn't say anything about this rest but the only thing that indicates that it probably would have been discussed is this doctor statement which we  was improperly a lot of fun as your honor wrote in that in your concurrence in gambling more that the where these administrative processes are informal and congress clearly one of them to be informal you still have the use of evidence that has no foundation and and the metrics going allow that to be used to establish the crucial fact in the case which is he was told and if that's what is going to be permitted  board didn't for it sort of assumed that if there was a discussion really even though we don't like that and we think it's very sloppy reasoning if they have a factual basis for doing well they have a factual basis for assuming that multiple risks were discuss lack of informed consent so yes some risk for public and he admitted and he said in two thousand and five before this was never an issue in the case they asked him to remember being told about the risky say yes remember they told me i could die from the end of sleep and statement if it's read to be a statement by the way the board read it as a statement that it would have been disclosed and what the man said was it would have been disclosed only written form for the patient which of course it was not