that allows for consideration of an earlier effective date when the v a has either received or associated service department records that were not considered at the time as actual records language we don't associate things retroactive retroactive it never apply and says i'm not sure i understood kline to say that i understood kline to say that you did not apply  the exclusionary portion of the regulation that put an additional burden on the veteran to cooperate with the submission of that evidence and that was the part of the regulation that was not retroactive i did not reply and to apply the association portion of the regulation retroactively and i don't believe that that was a position that was relied upon by either the board in this case or the veterans court in its decision in relying upon an interpretation about the notion of newly submitted evidence at issue in this case is whether or not the notion of newly submitted evidence is consistent with that provision in the alternative of receipt to or associated and newly submitted evidence is a expression that does not exist in the phrase that does not exist within the was the argument in this case was the veteran in fact arguing that you have the documents have been received by the cia but they were not assessed and with my medical file was that the basis for that's essentially the argument but i think more fundamentally what the veteran was arguing is that in the original decision there was no reference to this multitude of service department records that dealt with a condition which was compensable and when that those records were considered by the  examiner's in two thousand and seven they were found to be both relevant and pertinent to the disposition of whether or not his post service psychiatric disability was related to what was described in those service record that's the problem i was at a fourteen fifteen sixteen seven we have a presumption which applies to consider those items which were part of the record at the time of the nine hundred eighty nine decision as having van park of that decision a presumption of good faith and proper dealing that's correct but i don't believe that that applies in this case because what we're talking about is a decision when writ makes clear that there were no other psychiatric disability other than the personality disorder that they relied upon to deny the claim i mean i'm still i guess a little unclear on what  saying that back in eighty nine these medical documents were not the stuff skated with his medical file in other words they were not i mean what is your i guess as to what you view is associated with that nobody ever looked at them and therefore they constitute not a set of the problem here is is that the v a record keeping is such from nine hundred eighty nine to the present in which there is no docket control in which you know what items of evidence were in fact in the claims file and the only way you can look or determine what was in the claims file is look at the decision to determine what evidence they cited to or relied upon they made a declaration hundred eighty nine decision that in reviewing the met service medical records the only personality disorder was diagnosed during his period of active  veterans court conclude here which is not reviewable pyaasa that the two thousand and six decision was based on quote documents that are already of record and in the veteran service treatment medical file that was in the claims folder in context your honor because this case presents the question of what is meant by the v a as we were medial regulation when it says either received or associated with that it is a  permissible interpretation of this regulation under the words or associated that it is possible that those records were in the claims file but simply had not been associated with the  by the problems of this year that's the problem i have here is that before we can even get to what's at the sophia with me in the regulation we have to first get to the predicate premise here that in fact there were of three point one five sixty is this notion of new lease submitted which suggests that there is a submission process that is incumbent upon the veteran to submit those new records to  a and there is no such language within the regulations so we have to look at what the circle again that gets to what is the right interpretation of the rule and what factually can you really point to to persuade someone else that in fact that there was a document in there a key document that was not considered one thousand and nine based upon the reading of the nine hundred eighty nine decision versus the reading of both two thousand and seven examination and what evidence it relied upon and the two thousand and seven married with the two thousand and seven decision seemed to rely on extra things that were never part of the claims filed pointed out there were diagnoses back in the two thousand during the intervening time period of bipolar disorder right and then also pointed out that in modern day a lot of these exact same symptoms that were recorded back in the seventy's and eighty's are now regarded today regarded as bipolar disorder whereas back then it would not have been understood that way there seems to be an evolution in the  record that kind of cuts against your view that the exact same record but with there all along but just the one nine hundred eighty nine i didn't consider something except you correctly recognize that it is acknowledge in that examination that they are looking at records that were not previously considered and effect from for this regulation is records that were associated that were not previously considered in the original decision and that that moment i don't know what that means well the the language of the regulations was the i know the language of the regulation but now you're trying to translate it in a way that helps you that's where i'm lost because the there are two pieces to the regulation receiver associated and then what is received or associated is with the claims filed when the v first decided the claim and your honor correctly acknowledged that the two thousand and seven examiner relied upon evidence that clearly existed because they were service medical records records that were created at the time in which this that was on active duty that determined that the there was a condition other than personality disorder that was present when he was evaluated and the two thousand diagnosed in the early two thousand and having bipolar disorder at that time to two thousand and then extended backwards in time and tried to find identified some that were recorded back in the eighty's and concluded after there is a determination that there is a relationship between the current disability and what happened in service at three point one five six c allows for a remedial to look back to determine what the conditions after the claim was first decide it is most of the arguments you raise below yes this is i guess i have read the record too to see that the veteran was raising a little question about new records not a associating old records with the new malady at the very least you have to admit that ninety percent of the briefing below was for that yes rather because the veteran considered those to be new records the when the veteran reviewed the claims filed and determined that the nine hundred eighty nine decision was limited to at personality disorder which is an automatic exclusion to entitlement to compensation he had to assume that those records thereafter were new he didn't submit them and he's never made any allegation that he submitted them but they ended in this court case the veterans court and the board to not misinterpret three point one five sixty five to forty made knowing the fact that the association of the relevant ask in addition to the receipt of around the nastyass could trigger three point one five sixty one is that i mean yes the first thought is that they got some new information how was he supposed to make the distinction our know whether or not they got new information or whether or not this information was lying in some backroom interpretation associates with does it encompass records that were always all along in the claim filed but the happen to be overlooked in the first instance and now on second review they are considered in the results doesn't encompass documents that were not that were in the filed but has not been previously considered but it's it's not it refers to the value language it was added to the current version to address the situation where the service departments had provided the records to the v a of the v a never put those documents into the claims file and so they were concerned that in that case the v a hadn't received new documents because they were in the v hadn't put them in the claims filed so they are going to they want to bend it for the obvious so that's why that language was there with these regulations are concerned with is making sure that at the time of the initial decision all of the service department records are in the cl one one funds or through the remedial nature of this legislation is to correct an administrative deficiency when there are service records that were not considered in the first analysis that's clearly what happened here and the interpretation relied upon below impermissibly shifts a burden to the bet for him to have some prior knowledge or to make some submission of these and make the needed they don't have to be new under the terms of this regulation they have to be an administrative this deficiency and that's what occurred here we cited in our breed at  twelve to thirteen the v a s rulemaking which talks about the reason for this regulation in terms of curing and administrative deficiency this is a circumstance in w this administrative deficiency should have been cured under the provisions of this regulation thank you us thank you