the next argument is an appeal number zero seven dash seven zero two nine general versus department of veterans affairs ok and seem to be the heart of your brief is in the middle of page fourteen referring to the blue brief where you say at the end of a paragraph that because of the loss of the record the result should be that quote the claimant's burden of proof is relax period in court as i understand it from the statute the plaintiffs the burden of proof is  us to get in the same game that congress and the secretary have been in on particular points by relaxing the burden of proof and i'm trying to understand exactly what do you mean by relaxing the burden of proof if it's a say burden of proof and and then when i pressed he said well maybe relax wasn't the perfect word but i'm still groping to understand what precisely what it is you think that the law should be what burden let me ask you there's a general rule of evidence that where one party has documents that are destroyed under some circumstances that can lead to an adverse inference that benefits the other party it seems to me which are readily discernible and reportable by a lay person such as a compound fracture i mean the bone was sticking through the skin and that's pretty good evidence of a compound fracture and it doesn't take  somebody who's said a residency in orthopedics to tell on the other hand gosh i felt ill in fact i felt that i had pancreatic cancer no we wouldn't hit by a big guy and you dislocated your shoulder and it turns out it's got a bruise you know it's the kind of thing that that is is in an extreme case it looks pretty clear to a reasonably well educated layperson that there's something seriously wrong maybe it's a dislocation but it's something that an orthopedist could identify when you watch the minute you walk in the article isn't necessarily something that a lay person can identify now does doesn't your his processing this claim any representation he made his conduct at any point from when he entered the service until today so all of what you say is true but that's not the basis on which the government is resisting your  i knew it but it does seem to me it's a fact question and that's not for us to decide whether lay evidence of a dislocation is sufficient or insufficient the the problem it strikes me and i hope the government addresses this is the the c b c decision here seems to be infected with this colusa standard which was disapproved by us and canada what's your view supposed to be mr cherry is perfectly capable of laying much deserved or from the compact fracture of looking at his shoulder and saying it's not supposed to be here so he's here is significant thing is that just like a child once you put it back in the socket stop hurting so you can argue from that someone would know that it was a bit sloppy rather than something so the only statement i cake it that we have in the record by mr chandra it is his statement on a one zero one that and the senate says while in basic training i dislocated my right shoulder at which time i was looking for and didn't find was something which he would've been fully capable of saying which is i dislocated my shoulder and the doctor said are you i injured my shoulder and the doctor said you dislocated your shoulders w consequence of the x ray what would seem to me that this is maybe quibbling over over words that are the a layperson isn't likely to put in a letter like this but still what's missing here is even the suggestion that a doctor somewhere described this is a dislocated shoulder we really have to trust and by there's that question now we really have to trust his word on this because we don't have except the perp perhaps the inference that the fact that well he's not arguing for an inference so he's not asking us to ignore cromer and find an adverse interest he's asking us to said it seems to rule that la don't discuss the canon case in your brief because it seems to me is pretty good argument that the decision of the court of appeals for vengeance claims here is not consistent with the camp because it's saying that in terms of a medical diagnos observation so then your ear saying that in every case under every factual circumstance a doctor's testimony would be needed doctor would have to say yes that's a compound fracture i thought judge bryson was suggesting that no no doctors testimony would be needed in that circumstance because it is so clear when the bone is sticking out of the skin that it is a compound a doctor's confirmation of the lay person's description is always required that is not directly times right about can where the holding of it for the stated quote the board cannot determine a layperson is never competent to diagnose a separated shoulder and what's your evidence for that well what medical records are you relying on in this case that that th dislocation of his shoulder or wires medical diagnosis that's the specific holding that is not holding as you stated establishment of the original injury i did i mean is that there was evidence from the doctor that this is the residual of a dislocated shoulder that was not ok so we already know he's had a dislocation at some point and the argument then is well was this the dislocation possibly that occurred in the service and as to that it seems to me as i read what the what the court said the judge with the section the judge diagrams the answer the court gave it to say well mr jan drew is not competent to testify as to whether he experienced a dislocation even though it is company to testify about his pain and well let me let me suppose that there had been a medical diagnosis of separated shoulder back and insert then there is an unimpeachable diagnosed separated dislocated sho and we have all the same evidence i mean this case would not certainly wouldn't have been disposed of in the same fashion may have come out the same way that you you wouldn't argue that that the problem with his expertise his but there was no real proof of nexus well if you had the fact result of the of the dislocation that be pretty much it would in service and that would pretty much it would make it take him a very long way towards getting spent then the only argument be well maybe there was a different dislocation later or earlier that was really the causation for his current problem but but that that's not as i understand it what the court was saying the court was saying you haven't shown that you had a dislocation in service you were right and the reason you haven't show question is does the law require you can in the current state of the law require that the ca b c say that he is if i understood the question correctly require that the c b c say that he is competent to give late evidence as to the diagnosis of shoulder dislocation right and i think the government's position the question is and that's a fact question as to whether this testimony should be credited the question of whether there was a dislocation but as i read the court of appeals from adam's point it doesn't cite the canon it seems w it was not a hypothetical because because the phraseology is a judge think burley or read from the final paragraph at the bottom of page four of judge green opinion seems quite unequivocal when it says quote whether meaning a veteran experienced a dislocation of his shoulder requires a medical diagnosis and it's clear from the context that judge green is saying unless a physician says so there is no except legally acceptable legally adequate proof and i'm saying what's the basis of judge green saying that the only basis he seems to cite are two veterans court cases les know and the spirit to which i cake to say something quite different so where is he getting worse judge green getting the foundations to say that the shoulder dislocation can never be self diagnosed  only a highly specialized physicians not even an ordinary position would have any chance of diagnosing it so the issue always is where on the spectrum does it fall so when judge greene cites two cases that fall on a different part of the spectrum to say veteran to say i dislocated my shoulder and went to the base hospital orthopedist said you have a dislocated shoulder and did x rays which can which the orthopedist told me confirms that period indistinct sufficient  or wait a minute is it we're talking to two different things the credibility incompetence i thought that if you're saying well you know the board could conclude that he's a he's a liar sure the board could always make that conclusion but there's no suggestion here that the boy thinks the man is lying the it's not competent to make that judgment my my hypothetical is he comes in with evidence reported albeit not on a piece of paper and it's signed by the physician but he says this is what the physician told me no evidence of that much longer after the fact the conclusion drawn by a doctor based on his report and his recollection of symptoms would be better evidence than his own report of what the doctor who had him with his shoulder hanging out and looked at it and said that's just look at joe you think it's better evidence while setting aside credibility assume we assume that the board looks at this guy said we have never seen a more truthful person now this guy is absolute telling the truth and it's the gold standard of credibility but in terms of competence you think that that evidence is not as good why or not but i'm troubled by your you're digging in your heels on on my example what it is about my example that's bothering you that there is is absence of paper and we're talking about a carrier escape or in cases in which by definition we don't have a paper the a report of what the diagnosing physician said would be a substitute and i'm not getting you saying sure and i well that is the answer i suppose would be if in a spirit to end rayno the veterans court has misstated the law it's our job to correct veterans court misstatements of law they're going to do with whether congress alternatively could have come up with a solution or the secretary alternatively could have come up with a solution if the law in jeopardy green's opinion is misstated it's manifestly our job to correct th are directed to the general run of cases and don't really depend on the existence of the fire i don't think we're suggesting to you different rule for fire situations i think judge bryson's question would be just as meaningful if there had been no fire in the veteran we're coming in and saying i was told that i had a dislocated shoulder by a physician at the back so the question is but everything everything you just said seems to bear quite heavily on credibility and it might provide a basis for the board to say we just don't believe him we think he actually totally fabricated the story he never went to the base hospital ie never had a dislocated shoulder force not credibility contradicts what you seem to be arguing for is a rule of law that a veteran can cover without a medical diagnosis and as i read it can we explicitly diagnosis it can be and that physicians own tests or observations where it can be on what the veteran told the physician but the physician has to write a report making a diagnosis or the veteran always lose yes or no