quirk but hopefully not really because the heart of our family and the courts family it's just been a pleasure and honor to have nelson in our chambers for a year he's made a major contribution and we have enormous the idea of so he's just seeking the back part of what well not exactly he's seeking the front part of it well because this is part of his original claim and what the veterans court did and the mistake that they for what you are specifically seeking for your client is t d i you from two thousand to two thousand and nine is that correct that is correct but anything else no idea in the context of the right or excuse me the error made below where the court below said that he had to file a notice of disagreement in order to get that in title but he did not have to file a notice of disagreement because in two thousand and eight he had filed a notice of disagreement with the initial reading assignment so what are you saying that there are there messed up here was because they should've combined his filing in two thousand and nine with two thousand and eight because i thought it was a little different i thought you were saying that forget about the two thousand and nine twenty if you look at the two thousand a claim and then form nine whatever it is we're talking about it was part and parcel of that what the claim originated in two thousand and two unfortunately in this area we tend to imprecisely use terms like claim this matter began with the filing of a claim in two thousand and two seeking service connected compensation for his back it was originally denied he succeeded in that appeal and then in two thousand and eight he was granted that was the first time he was granted service connected compensation he filed a notice of disagreement with the initial rating assigned for the scheduler rating for his back then during the pendency of that appeal he initiated a claim or raised the issue of his entitlement to an extra schedule rate under this court's case i want to say that i do say in that issue now he had in fact raised it earlier when he was an even service connected and tired of the same forms but the fact is is that at that point under the case law he raised the issue he presented to the eligibility on you is that some critics not one hundred percent is that seventy percent but no actually there is no threshold under v a regulations four point one six there are schedule requirements that you can meet th trigger it but then they have a separate regulation a four one six b that says whether you have a schedule or a threshold or not if you're on able to work due to your service connected disability then you're entitled to that extra schedule or tol to two thousand and nine what happened is that actually it because the board didn't consider it ok we believe that the correct remedy is for you to direct the veterans court to direct the board that that is the inquiry whether or not his lower that fertility for that period precluded him from gainful employment absolutely and that's the only issue and that was the issue that was never adjudicated because they treated it as a separate claim when it came in in two thousand and nine rather than recognising it as an issue in the appeal that was already pending and i think that the question is that was that really an issue and here peel when you peel specific the call for was i believe filed by counsel as a protective move to ensure that the effective date portion might be protected but that frankly is a distraction in this case that the initiation of the appeal in two thousand and eight is what put this case in appeal status when they granted service connection for the back at the board and then they implemented it and assigned a rating that the veteran was dissatisfied with the veteran had the opportunity to disagree  that and he did so once he did so that claim continued and it continued all the way up to the board decision that was the subject matter in this case and the complaint of mr upon the tear was is you only looked at the schedule or side you this court's case law and under the case law below it is part and parcel of the original claim in the rice decision below of the veterans court dealt with this issue specifically that t d i you is not a from forty percent to something higher than forty percent for my service connected back injury ok now the board knows what it needs to do but are you saying that no the board needs to do more than that the board needs to look through the entire fi entire record and search for any place in that file where the veteran may have suggested that if it is unable he is on her she is unable to work due to some kind of service related injury i bet and then the board is obligated after that complete review of the entire file to to consider t d i i believe that that is this court case law income or that that is the very least here we have a signal from the veteran to the board that he had to retire due to back problems with her service related ok that sounds like the board now ar injury what you're proposing sounds much more dramatic but there's there's no actual signal that the veteran needs to submit to the for the border to scour the entire file with all due respect i think it's not about scouring the file it's about recognition that when you get a v a form eighty nine forty which is curiously framed you don't please don't a v a form  application your honor i'm sorry that when you get that t b i you application when the v a gets it that puts them on notice that the issue has been raised and then they have to simply look at it is there a pending claim for rated either increased rating or in this case initial rating and there was but that was taking care of i mean that's what the government is saying that it almost because he filed that separate filing in two thousand nine percent the form you're talking about yes ok then ok everybody know he seeking p d i get and he got t b i he got a place and what happened what happened in the normal course he would say wait a minute thanks for giving me the prospect going but i want it retroactive to two thousand and two and i think the government's position is he had a question he knew you have this claim for t v you and it was a common upon him to pursue it and in the absence of pursuing it we thought he dropped but that analysis is flawed because when you ask for an earlier effective date you mark capitated by the date of the application and can only by statute go back one year where he couldn't go all the way back to two thousand and rightly so that's why he had to bring it up to the two thousand and eight file so that he could get the yes and what what must be understood here is that this is part of an ongoing planning if there was no ongoing claim here th writings that required the v a to consider the raised issue of extra schedule or rating as part and parcel of that original two thousand and two clients so what will work you have less construct in this case would it be any time the so veteran in a different perceiving under a different rule greg raises something even if he feels to pursue it and feels to request to active payment in that case they should still consider it in any other proceeding he's got i'm worried about what the rule is coming out of this case if you prevail that the rule already exists in the home or this court comber when the issue of extra scheduler is raise then that issue has to be considered with what's going on all the time in which it was raised by a kid not file the in for increase i you until december of two thousand and nine would you still be here contending that they should have considered it and as part of the two thousand a case i would because he filed the same v a form prior to the time that he had been granted service connection which put them on the same notice that they got in two thousand and nine that he was unable to work out what's going on we talking about here the v a form eighty nine and or and when was that fin which the decision was made below what judge hegel did below was to say that a new appeal was required when i think i think he or justice department are pointing out that when the only option that was available under fifty one ten thirty eight u s c fifty one ten was the one year look back window from two thousand and nine so you're saying this pursuing whatever the the t d m a you claim then filed into december twenty two is not a claim it's an issue within the issue of the original claim for service connected compensation which has been pending since two thousand and two kit it's all in one place i mean you know we've got a little chart here and it's got so many may please the court the court should dismiss mr polman tears appeal because the board's conclusion that his appeal concerned only the effective date for the forty percent rating for a fact is a finding of fact and that is not to be it is that cannot and i want to get it retroactively and the only way i can do that is have the board consider it as part of the other claim right now well your honor we would disagree with that statement and mr palmer to are actually had a number of options available to him at the point  carpenter mentioned com where i think roe versus out roberts one of the rovers in case is another one that really i think state clearly that it's it's not incumbent on the veteran to use magic words for to at this point in the education of his claim he his attorney specifically stated that he was only seeking the effective date for the forty percent rating for his back and here mr pollock year had the his claim was developed that those claims they ca and i do disagree with the through that mr carpenter gave me to my question that there's no magic number that he could i mean the t d i you it's a predicated necessarily on one hundred percent disability rating the ten to forty percent he says and as for him he puts the v a on notice that i haven't been able work because of my back problems since ninety nine to what more under our caseload does he have to do in order to if your answer is otherwise they would have considered that enough to bring this to their attention but because he had a separate claim it wasn't enough it's a doesn't feel right to me so the the fact is that mr under ty ruse the board can actually bifurcate planes here mr palmer tear bifurcated his own plane he filed a separate claim instead of keeping them together he removed it from the claims that are younger and claims i think that's undisputed the separate claim does not get him would simply didn't do he could have filed an appeal of the two thousand and nine plan and said i want to stay it pending the resolution resolution of my two thousand and eight backplane then he would be making the same types of argument had to be basically saying i've had this he's basically claiming that he had an informal claim put differently if he had in his two thousand and eight notice a disagreement says i'm entitled to t d i you the board had ultimately given him t d i you effective two thousand and eight you were dealing with that kind of appeal he would still be arguing that as had informal plane pending back to two thousand and two so i think the arguments are exactly the same the difference is here he took t d i you out of the claims train had an opportunity to have it adjudicated or join it back or do something to preserve these issues and he didn't and you know in this court when people file appeals and they don't identify as obviously a different system than the v affirmatively filed that claim and affirmatively took it out of it i mean there's nothing in the file that they didn't take it out of because the then you're criticizing him saying he took it out of the appeal stream but then he never pursued it or maybe he didn't pursue it because he wanted to put it back in the other box but he never put anyone even i mean one would think if that was a strategy that does look far more like you trying to bootstrap it to his lower back claim because he failed to appeal the  the claimant in that in that three would have been really up and going back to two thousand and nine but not going back to two thousand and two if that was the case then there's we're believe relief in another context isn't that kind of reasonable well at that point he should have done something at that point tyrion says that if you you need to protect your right here he was it by and by an attorney t d i you had been identified we're supposed to read veteran's briefings and arguments generously sympathetically sympathetically but the cases that we've talked about here your honor roberson and palmer were cases where you had the veteran proceeding pro se here we did have a better and under the advice in the attorney who was not seeking a higher rating he merely said i want to appeal the forty percent effective date for my back and he would separately ask that the a they consider the t d i you claimed so i think that we're in a different context where there is always a exception under fifty one and b that allows they look back for only one year or so from two thousand and eight two thousand and nine and that's the entire limitation and it's clear from this record that mr obama care has been seeking law this is supposed to be in an adversarial system this is supposed to be a system in which the v a is the veterans advocate in the administrative process and is to be looking for these things to look to see whether or not there is a continuous claim for the initial rating to be assigned to the place that it is to following the original rating assigned for his back he disagreed with the initial rating that issue has never not in those words your honor but in the in the sense of what you would talk about with the government in terms of the board's obligation and the b a s obligation is to read his pleadings sympathetically to read them with an eye