may please the court i represent the veteran richard haass and the issue here is whether the veterans court properly interpreted the v a s duty to assist under section fifty one for three a or question whether these notes were material and that's a fact well it's not a question of materiality in this case that that would go to the specific issue of did the veterans submit new and material evidence to reopen his claim here what we're talking about did v a have to try to get the v a medical records which appear to be missing from the case before they made a decision that it's an interpretation of the law because the veterans court if you look at their opinion adequately identify and and then furnish information sufficient to locate right well now the adequately identify language does not appear such a statute specifically referring better call records if you look at fifty one of the three a c which is where we talk about obtaining records and compensation disability claims which this is section two is the section which refers to v a medical treatment records and the government has argued that sufficient to locate is actually a lesser burn than adequately identifies that right i don't believe the government has well they say they do that distinction i think because they think thought they were operating under a different section of the statute right well perhaps but at any rate in this case we're talking about v a medical records so we definitely are talking about is there information sufficient to locate the records and with these records about i mean we can't get around this there are always going to be facts but this court has said on a number of occasions that if as applied to the same facts if in fact the the the court's interpretation of the law or the way they specify that what's the error in the in the law here that you see that the veterans court said the veteran had the duty apparently because they said no do you need to get records because he didn't prove that there were records now there is nothing in this statute requiring that what we do have a strong evidence that there are  read the veterans court as required putting a burden on the veteran to a well there's no duty that the veteran somehow in advance that there are records how could he prove that in this case we know there's no question that there were that were not part of the original record he submitted a record from nine hundred eighty one which the board b a everybody acknowledged was new that wasn't in the records they got the first so right there we have established that they don't they didn't get all the records first time around now when you put together the records they do have we show early june record saying we're going to start physical therapy the record that the veteran submitted showed a late june statement we've decided to discontinue physical therapy because it wasn't very effective nothing in the middle there are no physical therapy records whatsoever that or has stated to  a that he underwent physical therapy the veterans court says from the record it appears that the v a has made reasonable efforts to assist mr high how do we get around that that's kind of a finding of requests for any records so by saying that the v a has made an adequate efforts the court is the veterans going to saying there wasn't a duty to get any records now why is there no duty to get any records apparently according to the veterans court decision because he didn't prove ahead of time that there absolutely were records so yourself your argument is that soon based on your brief that moore says that our decision and more says  that the obligation goes beyond that that that he doesn't have to say record x exists and it's dated y and you have to go get this all has to do is identify the fact of the treatment the location of the treatment anough to look at the doc yesterday because otherwise if you said he has to somehow conclusively prove it then he's going to have to have those records to submit and if you think that he asked for records he point it he he he did not says this is a loan does not establish the existence of additional missing medical records that's correct but the if you look at the entire record we know that there were missing records what the veterans court has to be saying is he knows that how do we know that because everyone acknowledged that the regional office the board they all acknowledge that this record he submitted was new it was not in the record previously and it related to prior treatment records from the first time around you know there are records missing now how can the veteran know that as a practical matter in the veterans system a veteran doesn't know what's in this file until it gets to the court v a does not ring to unless he's savvy enough to go in there and say give me a copy of my claims file so i can go through it this is never provided to the veteran without a considerable amount of effort on his part the first time enough sir we know about this is when there is an appeal to the veterans court because at that point you get a complete copy of the record so as a veteran operating in the system he didn't necessarily know he had to go on their statement well we've got no records right and the government doesn't really make a relevance argument here or do they i mean i'm like the circumstances in a cold case where you're talking about a physical problem versus a mental problem i mean there's no question that these records relate to the very problem that will they make they make passing reference to it because they say this doesn't deal with the nexus of his hip or sides but if you look back at the original decision to nine compensation that's one in which the board said yes there's an opinion from the chief of rehab medicine the v a establishing taxes or saying that the two are related there was no no question that he had a service connected childer disability if it was so obvious that the medical records dealing with therapy on his right shoulder were going to produce evidence about his left hip why would the veteran have asked for those records because he didn't necessarily know that they were not in the files v a had said previously we got all your records of treatment and the government sent him a notice saying we're going to get all your records right yet they always say that they'll get the records but in terms of relevance here you have to  existence a new material evidence case and whether or not there is new material evidence to reopen you have to look back to the reason that it was originally denied in this case it was denied because the board said we don't think the shoulder disability was serious enough to cause any other effects so from that perspective physical therapy records of the treatment on his right shoulder would be very real to him because i believe don't know what's in him but more  can't just you know make a guess that there won't be anything helpful and realistically physical therapy records are likely to contain evidence about range of motion you know body movements and so forth you know it's highly likely that it would contain it certainly it enough to meet the standard to simply ask me to write to the medical center or send an email to them and simply say do you have any records of mr himes treatment in june one thousand one hundred so they've got the date they've got the doctor they've got the hospital they've got what kind of treatment it is i can't imagine what else they would need to i just want to start by making a clarification on the adequately identified point adequately identified that term actually does apply to the s c to subsection because five one of the three a c begins the assistant provided by the secretary under subsection be shallow and detaining the following records if relevant to the claim and then five one of three a b says the secretary shall make reasonable efforts to attain relevant records to case it was a see one case i'm assuming that your very argument you're making right now would have would have to apply to see one to yes that's correct ok so the grounds that you used to distinguish more are no longer appropriate but you're saying that that you you think that that this is all wrapped up and maybe more got it wrong no no you're honest i see one requires getting service medical records without any further discussion about sufficient located or having to give particular evidence about where those records are because they're all in one central location and the only point there is that too requires some sort of identification earlier saying that the record the new records do not establish that there are other records that haven't been recently obtained that is the veterans court of flying the clearly erroneous standard to the application of fact a law that's a distinction that we've looked at these facts there's nothing here that says that v a obviously had to go find records that were obviously missing that these these  doctor he had treatment where and what he had treatment for right and you think that in those circumstances that's not enough information to say that to be a has to fulfill exactly what clear that there would actually be documents of those that the time in june between when the so you're saying that that she's right that your the the the v a s view is that  veteran has to tell them exactly what document might be their no no your honor it the veteran does not have to identify a particular progress known or a particular item that has to be there but when the when the veteran doesn't make this particular identification then when all that has before is will there are there records here do we think that there is going to be other evidence that would be relevant to the claim and relevance in this case because we are talking about reopening a case it would have to be on the issue of nexus because that's the only with what about the argument that the original denial because there was clearly a nexus letter or that was the but the original denials that there wasn't enough evidence of the severity of the shoulder injury to accept that nexus to turn that wasn't the only reason it didn't except in excess it also original determination also said because the bursitis had had a common tool several years after he'd already been with this right shoulder injury and in particular the the determination at that point of whether or not more evidence about the right shoulder condition by itself would be adequate to to develop nexus that factual determination about the particular facts of this case even if you look at polls the case that you rely upon and yes where there clearly was a dramatic difference in relevance because we're talking about mental versus physical even and there that judge moore opinion says in closer uncertain cases the v a should be guided by the principles underlying this uniquely proclaim and system and should should in those cases go entertain the records and judge mayor and his decision and norm was pretty pretty pointed with respect to the fact that if you got enough information and here you had all those things that identified before that you need to just go get him if i mean put another section of goals the there  how do we get around those that's that's exactly it your honor and what i was about to quote from goals is that goal than everything right or actually things that the statute requires and seem to have done even more on the factual determination of the relevance of other records had before the records from that the a medical center and it had the board determined that it had to satisfy the duty to assist and that's a factual determination and in applying the clearly  first of all the fact that the court was applying a clue or said there applying a clearly erroneous standard is not dispositive because in that case we could never look at anything question is did they apply the right standard of law to these facts if they had not required the better to make a preliminary proof apparently that records existed with the result of been the same you know a good way of looking at this suppose the statute did in fact say you have to first prove conclusively that there are records then it would be a question about the facts if we were trying to decide if the veteran evidence was enough here we're not saying that there were saying th doesn't have this bird that is not part of the statute they all say it's not clear that there would be additional records well we know there was additional treatment now there are some things that are done in the normal course of business and i think it is fair for everyone to assume that if there is treatment there are likely to be records of that treatment now granted perhaps the hospital just doesn't bother to keep any records but that's not very likely also ms gerber was saying that the other reason was that the hip problem didn't manifest earlier that's really not at issue here because we're not arguing that the hip problem occurred during service they were just trying to cover the question of direct service connection i believe as opposed to secondary service connection from the shoulder so that's not really even pertinent to the arguments that we're making in this case one other thing that should be noted in just clarifying the record is the board says that mr howard was represented by counsel at this point that's not accurate this case came up before the law was changed to allow representation at earlier stage v a tends to get a little confused when a veteran is being represented on some claims and not others our firm who was representing him on a claim he had diabetes for agent orange as opposed to or as related agent orange exposure and towards the end of the joint appendix i did add the letter from the file that we sent to be a telling them what issues we represented him on and they didn't quite get this straight but that's just important to realize he did not have the assistance of counsel nor was he working with the service representative when this was done so he was acting as a completely  veterans has interpreted this would result in there being no duty to assist in getting medical records unless the better already have the records to give them to say so if they aren't really the legally or here that think they identif to find adequate identification as required something more than that then the date place and nature of the treatment well yes that they were guard him to prove that there were records and weeks simply cannot that would make five one of three a meetings if you had to provide him the records before they had a duty to get the records there would never be a duty to assist in any case where it was needed and can people are there any further