it is here the v a failed to afford mr simmons the benefit of either the presumption of soundness or the presumption of service connection the burden of proof remained with mr simmons during that adjudication when the presumptions had been rebutted by the v a thus the failure to afford statutory presumptions is prejudicial as a matter of law because such errors affect the essential fairness of the of the statutory presumptions which were denied when a statutory presumption is not afforded a veteran and in adjudication the essential fairness of the  considered indisputable this is true because of the nature of the non adversarial adjudication scheme that was created by congress that story presumptions relieve veterans from having to of those statutory presumptions must be prejudicial as a matter of law here the veterans court found clear error in the board's analysis of both statutory presumptions at appendix pages seven and eight the veterans court further found that the board failed to address the manifestly different component at appendix eleven the veterans court made a clear error when it undertook to take due account of the rule of prejudicial error by performing its analysis of the manifestly different outcome on behalf of the board which the court had found mr carpenter this particular case when the error was found for the failure to afford the benefit of two statutory presumptions that analysis  made with that find in other words that the inherent error may be inherent prejudice that derives from being deprived of those statutory presumptions  if you will the prejudicial error analysis and the need to take any further carpenter this is judge moore again the problem i'm having with your argument is that there are three separate problems that the veteran is required to prove and that the error the board committed not applying the presumptions goes to the nd of the three problems but as the government has very effectively such as this where you have three independent issues that must be proven a failure by the board below to afford a presumption which might establish one of them doesn't help if there are separate findings that the others are likewise not established we are i think theoretically that is an accurate statement i think the practical or the essential fairness upon the v a to afford those for those elements and then make their adjudication as to the final element the final element was in fact contestable on the clevenger i was indicating that i heard your entire description and i agree that that correctly states accurately states mr simmons position in this appeal prong that judge moore was referring to before which is the veteran's requirement to prove some kind of causal nexus between the current disability and the in service injury and in that instance prong of a causal nexus between the current injury and in service and drink and then my nd question is the supreme court's opinion sanders i'd like you to respond to the other so i don't see anything in sanders that helps you so if you could speak to what we've already said in houlton which seems pretty close to the facts of your case and then comment on sanders which in my reading seems to box all of us in and militates against these sort of bright line rules you're urging in this case with whole and the issue in houlton had to do with whether or not there was a misinterpretation of those statutory presumptions to the stent that they included the issue  as part of that statutory presumption in that case there was not a finding as there was in this case that there was a failure by the the a in the  instance to have afforded those presumptions so the question in houlton was being addressed in terms of the statutory give me the interpretation of the scope of the presumption in this case i believe it is distinguishable because in this case we have a finding by the veterans court that both the board in the st instance and the original adjud and seventy four had failed to properly consider and apply both of those presumptions that error is in my view an error that is essential to the adjudication of the claim because as i described earlier the advantages that are formed by a presumption specifically in reference to shifting the burd in the holding case this court was asked to address the scope of the presumption in this case the court is being asked to address the  question of whether or not a failure a specific finding of a failure to afford those presumptions should be treated as a error that is prejudicial as a matter of  moving then to the question in sanders i believe the question in sanders was presented in the context of what the supreme court referred to as a framework for deciding the question of prejudicial error and did i agree decide that it should be made on a case by case basis i am suggesting that one of those case by case basis should be a rule that addresses what happens when as in this case there is a finding by the reviewing court that there was an error made that in the failure to afford the benefit of two different statutory presumptions and that in that limited case that the prejudice should be deemed to be inherent with the honor i'm sorry i omitted that from my response to judge trend i apologize i do believe that the holding in sanders was only about the question of notice errors and the error in this case is about the failure to afford presumptions and now i certainly see that the government has a legitimate position that sounders can be read broadly to include the treatment of all questions of prejudicial error however it seems to me that sounders can't sanders accuse me can also be read to concede that the question of prejudicial error needs to be addressed on a case by case basis and i'm suggesting that this is a special category if you will of cases in which this court should adopt the rule that is being proffered by mr mr simmons is proposed rule does not consider whether they had an effect on the outcome of his case as is required under a harmless error and nor does his rule take into account the specific facts or the circumstances of his case and n sanders the supreme court warned against applying this rigid mandatory type of rule that doesn't take into account to specific facts of the case a not only as mr simmons has proposed rule the type of rigid mandatory role that the supreme court has already rejected and sanders but the proposed rule would result in few tile reading because that would require the veterans case find any error whether or not that error affected the outcome and when there is no reason to believe that the result would be any different now mr simmons argues today and in his brief that the error deprived him of the meeting full opportunity to participate in his in the processing of his claim but as the veteran ok mr carpenter you have some of idle time thank you on may please the court it seems to me that the rigidity that is being attributed to the rule proposed by mr simmons is a function of the rigidity of the statutory presumption specifically i would suggest that the rigidity is that the application of a statutory presumption is a binary error if either was afforded and therefore there was no error or it was not forward afforded and therefore there was an error since there was a finding by the veterans court that there was an error i submit to th honor i am suggesting that it is a special by an airy error because it is a thumb on the scale in favor of the veteran that is provided by congress to be  intent of congress in creating a non adversarial system must insist upon the secretary applying the presumptions that are directed by the congress to be afforded and that when the the am fix adjudication process is not for them that that has to be viewed as an adverse prejudicial effect to the essential fairness process specifically because of the nature of presumptions is the shifting of the burden of proof of less there's further questions from the panel i'm i'm happy to submit the matter at this time ok we thank the council for their argument and this concludes our hearing for today thank you the honorable