this case is controlled by this court's decision and o'bryant which affirmed the presidential opinion of the v a general counsel which correctly interpreted the meaning of the provisions of three point three four c as it relates to what is barred from entitlement the service connected compensation and what is not specifically that a congenital defect is not compensable because that the fent defect is static and does not change the general counsel also correctly distinguish that he'd congenital disease is distinguishable and is compensable because that disease is capable of improvement as well as worsening that's precisely what we have in this case and what was incorrectly construed and understood by the court to be a non valid allegation of clear and unmistakable error which comes within this court's rule of law jurisdiction because that was the rule of law that was set out by the veterans court in its decision in russell v principi mr cardini presented a prime a facial legal claim of clear and unmistakable error when he said as a pro se veteran that the condition that he was included to have had was misdiagnosed and we don't not mean or that term should not be understood in the clinical sense but mis understood to be a defect rather than a disease and what the v a did in its one nine hundred seventy one decision was to simply accept the fact that there was a reference to a nasal deformity counsel's opinion was binding upon the board at the time in which the board reviewed mr core dinis request for a revision of that one nine hundred seventy one decision can you define what the er here here is the error of law is finding that the as the veterans court said that this was a mere disagreement with the facts this was not a mere disagreement with facts this was a challenge to the legal question of whether or not what mr accordingly suffered from in terms of a nasal deformity was a congenital defect or a congenital disease and the board did not make the analysis that is required by its by the v a general counsel's opinion that they must determine whether or not that is a disease or a defect that has a congenital basis if it is a congenital disease then it is entitle to compensation is a congenital defect that it is not entitled to compensation under that regulation and this court in o'brian made that clear that the v a general counsel had correctly  regulation this v a regulation does not have a statutory predicate this is a regulation that was written by the secretary to exclude certain conditions which are identified in part as being  congenital defect and the congenital defect was distinguished by the v a general counsel from a congenital disease and as a matter of law mr or deni was entitle to challenge whether or not the v a and it think seventy one decision correctly determined that he was not entitle as a matter of law to compensation for his nasal deformity he was entitle to that compensation under this court's decision  the veterans court made a clear error of law when it concluded that mr or dini was merely expressing a disagreement with the way in which the evidence was weighed in one thousand nine hundred seventy one and that that may not as a matter of law constitute a clear and unmistakable error what mr cordingley presented was in fact a question of law whether or not his condition was a defect under law or a disease under law and that is controlled by this court's decision and o'brian and controlled by the v a general counsels in which the board was bound by statute to have followed and they chose not to the veterans court was incorrect when it made the determination that this matter could be affirmed on the basis that the allegation made by mr gore dini in his allegation of clear and unmistakable error was not they base a sufficient legal basis for although the court does have jurisdiction to consider whether russell was applied to the question of whether there is a cure the court made very clear that the that it does not have jurisdiction to consider whether the application of russell to the facts of the case was correct between what might be a question of law and what might be either a factual question or an application i think we ask the question is there some essentially intermediate interpretive principle that  really ought to have been paid attention to but wasn't really in the veterans court and something the that idea as applied here would be that something like a congenital defect is a change over time from conditions in the world but is there something like that going on here or not now it's so mr mr corey deni that the question he raises whether or not the counsel or something that said that requires consideration of whether this is the kind of condition that would change over time and i'm not saying if there had been something like that and then he could come in mr carpenter could come in and  y the veterans court never dealt with that question so it's not the wasn't in fact applying the correct legal standard is there something like that going on in this case or is there not as actually  progress so they can get better or they can get worse and o'brien stands for the proposition that the presumption of soundness can apply to congenital disease and that's this this court has not determine and analyzed the facts correctly and that's precisely what happened in this case if you look at the decision from one hundred seventy one there was a a doctor on the board there he looked at the evidence of record which noted that there is a congenital deformity that here there is no rule of law the court went through the steps and russell you noted that there was nowhere for law and apply the law to the facts as they exist at the time and i found that any error here would be harmless so unlike in wellsee  in order to revise on the basis of an allegation of clear and unmistakable error it is necessary to conform the true state of the facts or the law that existed at the time of the original adjudication that did not happen here contrary to what was just suggested by the government but there was no statement by a doctor on the rating board there was in fact only a statement that there was a nasal deformity there was no characterization that there was a congenital deformity and that is what was required by the law that existed at the time the law as existed at the time was interpreted by the v a general counsel what about the clinical record that was created by the medical board post surgery this was an analysis made this is going by the attending physician but it says at the bottom box forty feel for assuming that that is true your honor that determination is not a medical determination but a legal determination under the provisions of the v a general counsel's opinion that the characterization of something as being congenital requires a determination as to whether or not it is a congenital defect or it is a congenital deformity or disease if it is a congenital disease then it is entitle to compensation and that was the error of law that was made in the allegation that was made by mr cor dini in two thousand and ten when he made his but if i could continue in relationship to the assertion visa v this court's decision and natalie the circumstances here are not at all comparable to this court's decision in napoli mr not as mr natalie did in his case allege that the rating decision had not explained its reasons or basis that was the allegation made in that only that's not the allegation made here the allegation made here was he didn't have a defect he had a disease the disease was compensable and he was entitle as a matter of law to compensation because he did not have a demonstrated defect and that medical report referred to you by judge and is not dispositive of the issue under the v a general counsel's opinion and that the a general counsel's opinion is retroactive in applying to how the analysis should have been made in one thousand nine hundred seventy one and was not made the critical difference between what was presented by the government in its argument and what is presented by mr gore dini and was incorrectly understood by the veterans court is that there is a difference at law but when the allegation of clear and unmistakable error made in the first instance by mr corey deni and the vermin of error made by his counsel at the veterans court that government of error is to an clear error of law made by the bor and the clear error of law made by the board was the failure to consider whether the correct facts were before the v a in one nine hundred seventy one based upon the v a general counsel's opinion that the board was bound by what the veterans court did was to leap back to the underlying allegation rather than the look to the environment of error that was made in the board's decision the board excuse me the veterans court has clearly stated in a presidential  principi that the veterans court is not review the novo the underlying allegations of cute and that's precisely what the veterans court did in this case which is contrary to the rule of