point three and four point seven these provisions are part of a congressional mandate in accordance with thirty eight u s c eleven fifty five in which congress required the secretary to create a schedule of because your honor the court below expressly relied upon an interpretation that permitted the board to evade the responsibility of seventy one zero four a seventy one zero for a mandates that the board shall consider all potentially provisions of law or isn't that an application of law to facts no it's not true that it's a question of whether or not we presented below the question of whether or not the board did or did not correctly apply these two pr the court below said that they didn't need to because there was a finding of a preponderance of evidence against the client such an interpreter such a finding is an interpretation of the regulation that permits the tell the board that the board may not make a decision on a rating without consideration of the specific regulatory provisions that the da itself created for the purpose of evaluating or or because of specifically and four point seven four point seven has a working predicate that requires the v a to determine what the disability picture is in this case we're dealing with a veteran who was assigned  seventy percent rate there were only there scuse me there is only one other rating of a level for his service connected psychiatric disability that's one hundred percent really there for four point seven was clearly implicated and for seven talks in terms of if the disability picture more nearly approximates the court below acknowledged that that was not the standard that was applied and said that they could  break you say this legal determination by the veterans court relied upon a misinterpretation of four point three if nothing in the plain language of four three references an evidentiary test or threshold for its application that seems to me approximate balance of positive and negative evidence which does not satisfactorily prove or disprove a claim that a waiting provision with an equal with analysis how can we ignore that definition in the interpretation of four point trees requirements i don't believe you should ignore that definition ok i think you should say to the court below that definition is a process and it requires specific consideration that weighing by the board in its determination and that weighing is guided by four point seven you cannot read this regulatory scheme out of the existence by simply saying that we went to the end and we decided there was a preponderance of evidence against the claim in the context of evaluating a raid and in particular in the context of this case where there's only one other raid there's only one other thing to compare it to what the warrior did not do under four point seven is to tell us what his disability picture was and whether or not that did or did not more nearly approximate the rating criteria for one hundred percent it doesn't have to actually meet up line for line but merely more nearly approximate it than it did the rating that was assigned at seventy percent you don't get to that point because of the weight of the evidence and you have to get to the way that the evidence by considering all of the evidence that goes to the question of whether or not there are skinny what was the disability picture absent from the board's discussion is any description of what they would characterize based upon the evidence as mr get past his disability picture what was his disability picture if you look at the rating criteria for seventy percent for psychiatric disability and one hundred percent disability they are very difficult to objectively distinguish between the closest is that they use the words total social and industrial impairment in the one hundred percent right period that nuanced difference between the seventy percent and a one hundred percent rating requires some discussion and that discussion is focused by the terms of the v a s own regulations what was the disability picture if the disability picture more nearly approximates and we do not know and the court below did not know what mr get good ashes disability picture was only that the board decided that there was a preponderance of evidence against his claim morning may please the court the decision and misguide ashes appeal should be dismissed for lack of jurisdiction or in the alternative the veterans court decision should be affirmed because four point three and four point simply that the board did not specifically cite either section four point three or section four point seven however the board did make detailed factual determination and did ultimately conclude that a preponderance of the evidence weighed against your claim under this court's decision in ortiz there are four sections were point three did not apply that was an application of a lot of facts by the board  in determining that a preponderance of the evidence weighed against the claim in then when it was appealed to the veterans court the veterans were in fact is say that four point three and four point seven does not apply because a preponderance of the evidence weighed look at the merits of this argument misses the veterans court decision should be affirmed as this court held in or ts section four point three does not a plaque whereupon durance of the evidence the statute of fifty one of seven was enacted in order to codified the is the reasonable doubt test in three point one two that that legislative history makes clear that as date in our apply one thing to know is that in mrs ashes brief in footnote wine she discusses the legislative history of these regulations and we just want to point out that three point one zero two contrary to what was stated in the brief was not amended after the enactment of fifty one of seven as it relates to the definition of reasonable doubt in what what in fact happen stated in the legislative history that it was caught a fine three point one or two so when fifty one of seven was an acted there was a full understanding by congress of what the reasonable doubt definition was and three point one zero two and in addition four point seven would not apply when a preponderance of the evidence weighs against the claimant claim four point seven specifically state that only applies when there's a that there was no question whether seventy percent or hundred percent applied it looked at the facts it determined that in fact mrs good ash had had mr good ashit had a job for a period of time and looking at all the evidence and determined that she was not totally disabled as required by the hundred percent rating but that a preponderance of the evidence weighed in favor finding a seventy percent disability therefore there was no legitimate question and the board there's no legitimate question what's what simply just require a cite to regulations that do not apply by their very plain language if there are no further questions we respectfully request that this case be dismissed for lack of jurisdiction been researched to the footnote what i was attempting to identify there was the additions to three point one and two of the statutory language about approximate balance of positive and negative  language did not fix exist in the prior version of one of two and as discord interpreted fifty one zero seven b in ortiz this court concluded that the preponderance of evidence would preclude consideration of the reasonable doubt based upon having not been reached that level of equity was but that concept of equitable knows did not exist in the prior versions of three point one zero two so when the v a painted with a broad brush about how congress was adopting three point one zero two and vying it it kind of hide it with more language then existed then created a standard which this court as interpret now the government toll this panel that under ortiz four point three does not apply and four point three was not discussed was not before the court in order to use all that was before the court in or z was fifty one zero seven b i submit that the rating scheme for the consideration of the rating or evaluation of service connected disabilit by the v a in part four of chapter thirty eight of the code of federal regulations and therefore it must be considered and the plot the v a says that four point seven also does not  four point seven does apply because that is precisely the circumstance in this case because we only have two disabilities available so four point one seven by its very terms must be a d and the term of art that was created by the regulatory terms created by the v a and four point seven of consideration of the veterans disability picture was not you to lots there is no discussion of four point seven there is no discussion of the veterans disability picture and there is no discussion of how it does or does not more nearly approximate in fact what the court said was that here the board did not find that the veterans p t s d more nearly approximated the criteria for the rating higher than seventy percent but rather found that his symptoms were more analogous to a seventy percent rating that's a page three of the court's decision below the government suggests that this is a reasons for bases argument it is not the reasons or bases of argument it is a question of statutory excuse me regulatory interpretation the court below relied upon interpretation of these regulations that said in its holding that it was not necessary to apply them that's in direct