there are times when it's a very proud think the federal circuit to convene and this is one of those days i have great honor of welcoming for the first time on the federal circuit bench circuit judge evan wallach we are proud to have him as a member of our court we're equally proud to welcome back judge jeremy focal who is one of the finest district judges in the country from the northern district of california he's so talented that they have put him in charge of educating the rest of the judges as the director of the federal  freestanding claim that concept was expanded by the veterans court in a case called rights it was decided in two thousand and nine in the rice case the court below determined that a claim for initial rating which is the circumstance here or a claim for increase rating had as part and parcel of that claim a claim for a total rating based upon unemployability but in the calmer and roberson in addition to the implied  claim they did present ample evidence of unemployment below which is absent here how do we deal with that mr carpenter that is by operation of the v a s own regulations that is the difference in locations of the chemical burns that were suffered by mr sturtevant and those separate ratings eventual it triggered in november of two thousand and seven the scheduler requirements for what four one six and that fact triggered the obligation of the board in its two thousand and eight decision to consider the question of extra schedule or rating based upon these disabilities alone the board in two thousand and eight did not do we deal with that what may happen i didn't make myself clear that something that evidence is the increase in the scheduler ratings assigned to the individual disability for the chemical the other way to the contrary your honor under the v a s own regulation that is precisely what raises the issue of unemployability that he meets the scheduler threshold under the plain language of the v a s regulation  made a big point of saying in addition to meeting the schedule he showed affirmative evidence of an employee ability that is are you saying that's not a necessary an additional requirement that was the requirement under the holding in the rovers and coma in this case we have a circumstance in which the veteran actually placed at issue the question of his entitle it to a total rating based upon unemployed ability in two thousand and three that issue was denied in two thousand and four on the specific grounds that he did not meet the schedule or requirement when he met the scheduler requirement the v a did not address it in in the record beyond the numbers themselves the supports on playability it's the consideration by the board and the error of the board in this case with the failure of the board to consider that as part and parcel of his claims in a way i mean  rating no consideration was made by the board under four one six say that was the error that was alleged below by mr start of the court below said he didn't have to give me the board didn't have to address that issue evidence which i'll concede there was not then the board's responsibility was to send it back to the v a for further development of that question as they had done in two thousand and seven give me two thousand and six when they sent it back for a a review of his total disability main based on everything not only the specific impairments but the all of the other evidence he was able to present in the review that's now in the second review of the twenty levi review that you're saying the words were carried out and didn't carry out where you admit the evidence in the record was insufficient was based on a narrower standard demo so how is your client harmed if not getting a narrower review than he's was entitled to the v a s duty to assist in an examination on the question of whether or not his skin condition of a loan based on having met that schedule or threshold did or did not result in his ability the in the twenty a level review the one that's working its way through the system now includes the skin condition and an additional evidence that would not have been permissible under the rules of the review that you're talking about so so how was complaint is he was entitled once he met the schedule requirements for this set of disability for consideration of unemployed beliefs based upon those limitations along with that just trying to understand how he is harmed assuming that there was an error how he was harmed by the year because in consideration of that if he were to prevail the effective date would go back to the year two thousand the date of of his claim that that's what i of priority and a second term that would be correct because the consideration of what's pending before the two thousand and eleven process as you describe it is part and parcel of what the v a is considering a new claim based an open question there claiming there that we don't have jurisdiction and that's because they're trying to make this into a single claim for t d i you this question of extra scheduler is based upon his skin condition alone and the triggering provisions of the v a s own regulation that says once he gets the scheduler requirements for a single condition at sixty or more which he did in two thousand and seven then he was entitled to consideration for that condition alone based upon unemployability what the v a s trying to say is that no we're considering it as part of the bigger picture and we're giving more consideration because we're considering these other things but that is playing it fast and loose with the v a s own regulations the regulations provided and in two thousand and seven they didn't apply and they didn't apply again in two thousand and eight and then the veterans court refused us the opportunity to art for scrutiny denied us the right to require the board of address to tell me again and how he's being because he is the ninth first the duty to assist for consideration of these chemical burns alone as the basis for his unemployment the second he is denied the benefit of the earliest possible effective date of two thousand because this is a continuously prosecuted claim based upon the initial rating to be assigned he has now met the schedule requirements under four one six a and once he did so he was entitled to expert's schedule or consideration and didn't get it for these disabilities alone and that's how he talked supposing we pretend that this is still working its way through the system and the government may determine that given all the evidence that he can you good then go back and ask for an earlier date or no what i can assure you i will i'm not sure that it would be granted because but they will consider that to have been a new claim based upon consideration of value for all of the conditions as opposed to the claim which is the singular claim for both scheduler and actual extra scheduler which began in two thousand thank you m failed to remain the issue of t d r you to the agency original jurisdiction in the regional office as i see there are a couple of keys to understanding this case first section four point sixteen a has multiple requirements that must be satisfied to obtain a rating of p d i you as supported recognized there is a requirement that th demonstrate cause is unable to secure or follow a substantially game pulls up to patients as a result of service connected disability the other key to understanding this case is the proper procedure for making that determination that issue has to be decided first at the level of the regional office before it can be addressed by the board and then before it can be addressed by the court by the veterans court the march two thousand and six poor decision severed the issue of t d r you from the other various issues that the board that the veteran was raising including the issue of the scars of the march two thousand and six poor decisions sent back the issue of t d i you along with other issues the further factual development at the issue of the regional office this would include additional medical examinations which were not conducted and told december of two thousand i think it's december two thousand and nine and then in january of the issue first of all the march two thousand and six board decision severed the issue of t d i you what proceeded on up resulting in the may two thousand  decision is soley the issue of the quantitative rating for the scars that is the issue that there was a separate remand order in may of two thousand and seven that issue went back to the regional office that was more medical examinations then there was another statement of the case of a mental statement of the case and finally the may two thousand and four decision which is at issue here and is very very narrow it only addresses as as as a veteran is pointing out to the court that only addresses a quantitative rating it doesn't address t b i you know because where is he there you know at the time of the may when i'm pointing out is that the decision of the board that's at issue here is very very now he can't lose the effective date for t d i you because t d i you was not before the board in may of two thousand the ratings were correct and i hear you correctly that's right so the two what i'd call the two thousand and eleven claim is still in the pipeline that claim to be administrative level determined that he's not on horrible considering everything but he could win on t n a and so if he wins on the narrower claim that councils arguing here in the appeal of the two thousand and eleven ruling he would go back to the date that these benefits would also wanted to point out is that this two thousand what you're calling the two thousand and eleven appeal which actually goes much further back is if on route to the board of veterans appeals and this is pursuant to the regulations thirty eight c f r nineteen point thirty eight which states quote remanded cases will not be closed for failure to respond to a supplemental statement of the case and further quote the case will be returned to the board for further appellate processing so we even if the veteran does nothing in response to the supplemental statement of the case the matter automatically goes to the board for what would become the board's decision which is the final decision of the secretary further i think the other case the key to understanding this case in the complicated procedure procedural posture of the case this is court's opinion in the sables american veterans which is cited  jurisdiction which in this case would be the the a regional office here at the time of the may two thousand a board decision the regional office had not yet addressed the issue of t d you in fact that issue had not yet been fully developed with a factual record for the examinations and medical examinations had not yet been conducted they now have been conducted in the veteran has is granted will be decided correctly stated the holding in coma or in applied to the somewhat complicated factual situation here presented where the issue of t d i you was clearly raised and is now was at the of justice attorney that the effective date will be granted is of absolute no value to mr stern this individual not the assigning that affected date so quite frankly i don't think that that is a valid representation about his ability to get the relief aside but more important it is before it is a possibility based on that proceeding right i do not believe so we honor based upon my experience with the v a that in effect what you're saying is that a representation by the government to this court is not valid you know this is not binding your honor it's a gratuitous statement that supports the position of the government in which the individual making the representation is not in a position to make the statement or make the adjudication she is not the adjudicator when this matter goes before the board on the current pending appeal for what has been described as the two thousand and eleven process that will be a determination by a member of the board of veterans appeals by a veterans law judge he may or may not decide that he may grant the benefits but then send it back to the v a for a determination of the effective da simply trying to say to you that the characterization that he can receive that relief is illusory at best but the more important issue that has been overlooked by the government is there a void means of their duty to assist to at this direct issues that is of these disability alone where is the v a s emanation that addresses these disabilities along with follow your line of logic aren't we simply taking roberson and calmer and taking them to a point where you started out with someone and someone who was pro se and who needed assistance and were doing it to a point where there are all regional office always as consider t d i you no matter what what with respect you're under no that's not the circumstance here the government described it correctly what they are relying upon is this a loser than that they were are capable of sever ing the issue of t d i you under this court's holding in comber you cannot sever that issue that isn't a freestanding issue that may be severed it is part and parcel of the claim for the initial rating for the chemical burns and that severance is precisely the violation of komen because now the board is off the hook after they reminded it in two thousand and six for consideration of eye view without the scheduler requirements in two thousand and seven he's granted the scheduler requirements that puts a whole new issue on the table that should have been considered by the board when it got back to the board in two thousand and eight when it got back to the board in two thousand and eight it got institutional amnesia about the reman that it sent in two thousand and six that really man addressed i view global not specifically for one six deals with it specifically when you meet those scheduler requirements for a single set of disabilities a lot and that's where the error was made here by the board and the error made by the veterans court was in precluding consideration or allowing permitting the board not to have to consider the board had to consider it because that considered it in two thousand and six they can't wait for it to trickle back up to the board without the type of duty to assist that was required in two thousand and eight see that i'm out of my time listening for the questions