medical opinions rendered by competent medical examiner the board here and the veterans court relied on two medical opinions that stated that mr williams has congenital back disability was not aggravated by his service in the marine corps but they dismissed without looking at any of the facts taking the facts just as undisputed as recited by the veterans court you have a situation where the record contains two opinions that the veterans court said pointed one way against mr williams and one that it said pointed  unmistakable evidence standard is very high or supposed to be a high burden for the government to meet and it requires that there be no debate about the evidence reasonable minds cannot differ and so here where you have doctors who are competent subsequent medical review however the conflict here is between post entrance medical examinations that have been found to be competent and credible and our position is that that is the prototypical situation where reasonable minds have differed no it isn't there i mean when you say competent incredible credible these are two different things i mean isn't the point that even if the doctors are competent to render an opinion that the board was unpersuaded by the opinion  because ultimately the opinion didn't even identify the date of injury or the circumstances the injuries so we don't even know what they're pointing to yes roger the fact is though that the board still considered the opinion in other cases the board would say that something like this opinion is entitle to no probative value or that the doctor was not competent to render the opinion and as just a couple examples of where that could happen because i'd like to make clear we're not saying that the board is not allowed to assess the evidence that's not or are given the board asked to assess the evidence and determine if each piece is competent and credible and science some degree of weight our position is that once the board does that and find he the doctor describes that there is degenerative disc disease and states that mr williams his condition is the leg pain for example as a result of his riginal back injury this is a doctor who at this time and already examined mr williams on ten separate congenital we're not disputing that the condition was pretty existing and that the government has rebutted that first prong of the presumption of some condition what we're looking at is the issue of aggravation and as to what happened how do i know whether and how do i know whether an opinion that aggravation occurred is a credible opinion if i don't know if that opinion doesn't even disclose when or how occurred it just states today original injury what we know well what we know from looking at the medical records is that there was a june twenty twenty ten medical opinion if we go back to february of two thousand and nine when the private doctor began examining mr williams he recount the full history and he says that he had the chief complaint of low back pain which originally began in one nine hundred seventy five he was previously in the military at that time the board is critiqued the doctor for not having access to certain records although there's no indication of that in the record but he was clearly aware of mr williams of full history were merely speculated that perhaps he could have been referring to some other injury but the records make pretty clear that he knew that one hundred seventy five was the onset of this  mind you as well this doctor was necessarily making a medical diagnosis his current condition is due to some injury that occurred thirty years prior your honor i think that that would be to some extent and a better way to look at a dissolute what the veterans court said and the record that we have done to speed record is that the opinion is competent and that that's right rather and i was mentioning before the board is very good at sussing out opinions that are not credible and not competent and has done so in a variety of cases some things that could happen for example we've got cases where they're looking the veteran did not have these problems when he entered into the service now it's up to the governor to leave but that that's right and what i was going to says they were to do with that and with regard to for example preponderance standard we're certainly you can weigh the evidence and sing as a higher standard including a mistake people is a higher standard still and what this court has said with regard to clear understandable error in the q context is that it is not a balance of the evidence situation once you have a piece of evidence that goes on the in this critical instance i guess what you're saying is that if the manifestation of this so it's not great aggravation as much as manifestation never maybe never would have occurred but for the  booking i think that's possible that the veteran himself was a high school graduate twenty years old he had been an active athlete already wrestling football basketball he entered the service in the records under speed at that he had no evidence of a condition he never had any pain  affidavits to that effect from his ex wife for example and within nine months he was discharged as unfit for full duty during that time they gave him his entrance exam to detect any condition and he then was within a few months noted for a lumbar strain which they described as a possibly worsening condition and just nine months later he's out of the service the undisputed record shows unequivocally that there was an increase in his symptoms and severity and so the conclusion in the medical board report that there was no aggravation on those facts is completely unsupported that kind of takes us to the next argument which is that the veterans court didn't do it in overview of this full factual record the not entitled to refine it factually with the way the facts as you know however they are required to look to know at the legal sufficiency of the evidence and here the undisputed legal record is completely asymptomatic he enter service nine months later his condition is progress to the point where he's discharged as unfit for duty and there's no explanation of the veterans court opinion about those facts you don't address those facts and don't address how that could be consistent legally with conclusion of  well that's your kind of that's a fine line between a legal sufficiency of the evidence summary weighing of the evidence isn't there i agree and i think that we have an argument on the legal side of the line because we can take the undisputed facts undisputed facts show  asymptomatic discharge and nine months undisputed facts say that the both nine hundred seventy six medical board report and the two thousand and eleven medical opinion from the v a examiner both concede that the onset of any symptoms or severity was during service we would seek to make the presumption or bottle that's not the case intent the only evidence that you had favoring the veteran was the clean entrance exam that had specifically tested for the condition the veteran had admitted that at the age of fourteen before entry into service he had had some hearing loss and that was the condition being tested for so here we have the post mentions medical exam that the veterans court has stated supports mr windus case you also have mr williams is testimony that he never had your  your statement in kent where the court said clear and unmistakable evidence that standard does not require the absence of conflicting evidence yes and no i mean i think what how do we say that to the contrary and in this scenario i think if you go to the next sentence of can't try to find a few it makes clear that it's actually referring to the conflict between instance examination and subsequent evidence so the next sentence of can says rebuttable even in the face of entrance examination affirmatively indicating that the condition in question was tested and found not to exist upon the service members entry in the service so can present a situation where the conflict  veterans family that you have the twenty ten report as well but even if you discount the twenty ten report we believe it should go back for the do over review of the full undisputed factual re please the court i'd like to start by tuning in on the precise legal argument that's being raised by the three millions in his opening brief it appeared that as we see it in the issue statement for example that it relied solely on competency that whenever there is a competent medical opinion favoring the presumption then all other evidence becomes essentially irrelevant and the presumption cannot be rebutted now in the reply brief and now at argument it appears  there's a couple problems with this in addition to the ones we don't cite or brief for that general competency standard by adding credibility it is added asking the court to read weigh the evidence to say whether something is entitled to at least some weight manifestation of this this condition until he was that until his service right we can see did not have symptoms of his ok general and so you're supposed to progression of the disease and my understanding is that this natural progression in doesn't necessarily include symptoms that many people spend their whole lives with both of these congenital problems and never have back pain well what the one nine hundred seventy six medical examination and the board evaluation found is that he did experience symptoms but merely an increase in symptoms does not mean there's been an increase in the disability itself it simply means he's experiencing symptoms and indeed after the after service he went on to work in a steel foundry doing a lot of labor's job  o if the fact that he experienced an increase in symptoms during service does not mean he experienced aggravation of his congenital condition even there the symptoms are not a necessary progression of the condition analyzing the medical opinions it's found that despite his increase in sentence he did not experience an increase in his disease as a factual finding by the board and to the extent that mr williams is saying the board actually found the twenty ten opinion credible the board did not find the twenty ten opinion credible it to the contrary it found the other two opinions credible and as mr williams own position that those opinions conflict with the twenty ten opinion and the board goes on to say that the says nothing about aggravation first of all it says nothing about service it is only about when it was incurred it doesn't acknowledge that there was a postal service injury in september of one nine hundred eighty one and despite the fact that the twenty ten report at thirteen forty for example says that mr william quote specifically denies any back injury prior to or since enlisted so it's certainly not clear looking at the nine hundred seventy six evaluations which are the most contemporaneous that we had in this record that he had any back injury in that page three seventy three of the board hearing he said that he was asked whether he had a specific injury and service he said no that that carrying the that then it's ok to disregard that type of evidence but here the board said there is no basis for the twenty ten medical opinion so if if mr williams is asking the court to  found it's because she was in for something else and they watch it because it's because something bad can happen so someone has that in their brain and then they enter the air force they jump out of an airplane and then jumping out of the airplane and that pressure causes death from this are you saying that's not an aggravation of this preexisting condition i don't know if i say that in the case and yours and i'm certainly not a medical expert and i'm not really able to articulate well the difference between an aneurism and a congenital bad condition but what the medical expert said here and what the board found is that simply because he experienced pain did not mean that the underlying condition of the back the areas in the spine where there was just degeneration that was not worst and it was merely he was experiencing pain because of the activities that he was engaging in when he stops doing those activities and he stopped carrying those backpacks and things like that there's the with the board found is that there was no permanent increase and his underlying disability and it is appropriate to consider the type of disease that he had here here the congenital disease and the regulation which mr williams  brief thirty eight c f r three point three or four b they are the better the v a lists in detail the types of evidence that should be considered in deciding whether the presumption has been re and the regulations specifically says that these types of in service records like that here the nine hundred seventy six opinion the twenty eleven pinioned must be considered together with quote all other lay and medical evidence and that all of  the regulation requiring consideration of all of the evidence so basically what you're saying is if the that turn has to establish a clear and unmistakable air of the birds a lot higher than if the government has case the court said this standard is not about the balancing of the evidence it has to be more than that and what in contrast in walter where the veteran allege that the veterans court failed to do an adequate sufficiency of the it went on to look at that look at all the evidence and said we find no error and it cited the arbitrary capricious violation of law standard and i'd like to reiterate again that should the exten williams is just arguing that the veterans court didn't do a sufficiency of the evidence review that's precisely what the court held in walter it did not possess jurisdiction to adjudicate in walter reed very briefly from the opinion walter of our views the veterans court erred by refusing to review the evidence de novo to determine whether the evidence was legally sufficient to rebut the presumption of soundness and that judgment in that case was dismissed so to the extent that mr williams is either raising a sufficiency challenge here that we win when mr williams introduced service he was sound he did not have the any back injury or any symptoms of a back injury well i think the concern opinion doesn't tie it to his big dating service it doesn't mention service at all so when when twenty ten opinion says you know this relates back to his original back injury as as the board explains there's no indication that that wasn't simply the september next an eighty one post service back injury if the twenty ten opinion is really has no analysis regarding aggravation and one last point is that mr williams concedes that he encouraged this pre service but applying his categorical rule there simply in future cases the categorical rule could apply to find that his congenital his conceivably congenital back condition this was the only is there a legal standard that that requires the twenty ten opinion to be determinative to the exclusion of all other evidence and our position is that no the proper the proper legal rule is found in the statute in the regulation and it does not in the nursery nicholson case a few years ago there is court said the presumption of sound this requires that v a resolve that don't favor a veteran when there are reasonable minds that differ that's typically how it's done it's not a balance of the edge of evidence situation it's a very high bar that doesn't allow for differences a point well it is a high bar but didn't weigh in watts or say that that you actually applying the facts to the to the that legal standard and that's what the evidence referenced means yes sure and that's why in this case we can get there without looking at any remaining of the evidence what we can do is we can look at the undisputed evidence which the veterans court did not do in full that's the basis of our request you have the veterans court to go back and look at the undisputed unequivocal manifestation of symptoms and severity that started after boot camp when there's clear evidence that's undisputed that there were no symptoms before entrance into the service and on that point of symptoms and severity i just want to note that under eleven fifty three aggravation is an increase in disability and increasing disability doesn't need to be necessarily worsening of some sort of structural aspect of the condition some aspects of disability to lead to an increased rating simply based on an increase in pain and with the legs for example i believe that the lowest rating is ten percent for mild like pain so there's no evidence in the record th mr williams is admitted like pain doesn't go from zero to at least by the old which would be an increase in disability and that's what we believe the veterans court should look at the blanket statement of aggravation on the one hand versus the unequivocal evidence that the onset of pain and symptoms including back and legs were during his service thank you