carpenter appearing on behalf of mr edward andrews at issue in this case is whether or not the implicit denial which is a rule that was created by this court in the show case and be used as a defense or a  there's an implicit denial there's been a decision here on the t d i you claim and then the question when you challenge that is q is whether the evidence of a record that was fee for the board the board here didn't seem to address that question directly they seem to say well there was no q because there was a decision which doesn't make much sense on the other hand it strikes me that you didn't really argue the evidence to the board here and that's the problem i'm having so help me with that when you say i didn't argue the evidence you didn't argue that the evidence original ratings decisions failure to consider and apply the provisions of four point one six b and i don't understand that that's the error the error if there was one was in not finding that there was t v are you based on the evidence that was in the record correct your honor and you have to use that regulation as the mechanism to make that analysis ok so show me where that was are you because that's not i look at the arguments that you made before the board and before the the argument before the that went to court was whether or not the board had correctly applied four point one six b which is the same allegation of error in the ratings decision in  three and it wasn't decided and i understood that to be part of your q claim and although you didn't exactly phrase it this way on appeal one of the things that is bothering me and i'm wondering if you can speak to it if you can't speak to it but if there was it was equally implicitly decided and i almost felt like it was somewhat tongue in cheek and what bothers me about it is how can the board say it implicitly decided something that it says in the same breath was never argued or raise them and so i don't know if judicial stoppel is the right rubric but what's bothering me about this case is the board's internally contradictory statements an implicit denial requires a predicate someone to have looked at and adjudicated the issue and if the board me the fact finding that the issue wasn't presented i don't know how they could then say it was implicitly denial of silence but so i guess my question to you is you didn't exactly frame it this way in your briefs but can you talk to me about whether or not you think that there ought to be some sort of general stop of the right word because this is an administrative agency but whether there is some  problem with the board's ability to do that and whether or not that is what you would think of as part of your call well i believe it is inherently part of this appeal because it goes to the question of how the implicit denial rule is use it is my understanding as you just articulated that the implicit denial rule is the predicate for determining that finality exists and war did make somewhat inconsistent terminations and i think the distinction they were trying to make as there was no explicit adjudication of t d i you but there was an implicit denials now may have some giving the board more credit than they deserve but it seemed to me that that was the that the evidence of record at the time of the eighty three reading decision should have been interpreted as an implicit t d i you claim ok so is it not a fact finding by the board that there was a factual matters they do not interpret this record as raising an implicit claim because if that's what that such finding is which is the way i interpret it i find it really troubling that they can later claim that something that was never presented to them was nonetheless in silence implicitly denied my opinion there and i believe that that is a correct statement but it is so well concealed your honor in the decision we normally look to the findings of fact which are in a ga forty eight and the those findings of fact are simply that the reading decision granted a ten percent rating and then that it implicitly denied the entitlement to a rating of ten percent for p t s d including argument that you believe that you are fairly raising i mean you're out of honestly your interest me right now almost suggest that you don't think i'm reading the board opinion properly and if that's so i'm really glad to hear you tell me so because i don't want to go off a crazy tangent all by myself no your honor the difficulty with this decision is that under the richardson case below the veterans court has said that the determination of finality has to be made aspect and it was reasonably raised by the evidence that existed at the time and you should have adjudicated it they made a determination that as you just quoted in the decision that they concluded that it had not been raised and or decided and yet they made a finding of fact that it was implicitly the not our entire argument both to the don't but i guess tell me how i get at this because i can't do a fact finding get that i don't like it but i get it so the question to me is how in what way does my court have the ability to give the relief that you're seeking is it that there is some sort of legal doctrine is maybe should i be looking at implicit denial as a legal issue i mean it seems factual like a fact finding to me so tell help me figure out a way to i believe the writing about this is is this court both they can't use the implicit denial rule as a basis to deny that you claim which is what we presented below that they misused that and what we're presenting in this appeal that they misused the implicit denial  as a mechanism to deny a request for review but that see i but see i'm not with you on that i'm just going to be honest with you i'm not with you on the idea that implicit denial can never be used to reject a request for  as a matter of law the problem i'm having though which is i think nonetheless helpful to your cause is that implicit denial can't be used in the face of their own fact findings to the contrary their own  would make the notion of implicit nille inherently as a matter of law wrong and so that's a problem having so that's why i said i realize it's it's near the are that you're making but not necessarily squarely on point with that and so i'm trying to figure out court has the authority and the jurisdiction to review its own judicially created rule of law and determine whether or not both the veterans court in affirming the board and the board in its action correctly utilize that rule of law over your argument is not that i'm bored should have looked at the evidence to see whether t d i you have been established a mistake yet and that i mean it's that simple and clearly based on the portions of the decisions that judge moore read you and also based on that here on page fifty four they didn't do that right now but the question i said and the problem is did you argue that they should well i believe that that that was what we were intending to do by indicating to the veterans court in our second argument that the board misused the implicit denial that they because the record established t d i but if as judge moore pointed out that decision was not final then under richardson you're dealing with a pending claim they didn't do they didn't do what they should have done which is to look at the evidence and see if  you're explaining it in a very confusing way let me see if you think that what i'm about to say is is something that you would agree with which is that if we were to conclude that they never implicitly denied it as a matter of law because you can't implicitly deny something when you state the contrary of it then it was never adjudicated this isn't it technically it's a q claim for failure to a not a q claim for adjudicating improperly i think that to be fair you may have raised both of those arguments is that the way you would try to claim you you said you failed to deny it and if you gosh for goodness sakes if you're going to say you did deny it you dyed it wasn't given the way it should have been given or whatever and he's entitled to you all he said was the regional office one hundred eighty three failed to consider it so the board addressing that specific you claim said yes it did it did consider it  and the word stop there because that's all he that the board was asked to do is to address at that specific you claim so the the problem here and the reason it's gotten so confusing is because the claim that was brought that you claim that was brought doesn't then let's look at page eight twenty seven which is his brief below and look at the last sentence on that page pursuant to either of these regulations a sympathetic reading of mr andrew claim for disability compensation and yet instead of record this is what they're characterizing his claim should have led to an extra scheduler rating based upon unemployability because the evidence showed his inability to work due to his service connected post trauma stress disorder how is this not him raising exactly what you said he never raised ervay them exactly most importantly because the board said the one and only allegation there was that was failed they failed to doesn't respond to the original the board's response is the part i read as a factual matter they find that he didn't implicitly create a claim for t d i you in one thousand eight hundred three and so they wouldn't have to decide why you have sign something that wasn't actually raised i mean that's the part that is they expressed we find he didn't make a claim and it's really hard to predicate an implicit nial on a factual statement that predicate that you didn't raise this claim the board did both we agree with mr carpenter here if you look to the board finding of fact on joining the next forty eight the board said the reading decision implicitly denied entitlement there is no fact finding here to say it wasn't raised yes the parameters not necessarily deprecation to an individual case that might be a lot of facts but as a legal matter is the board permitted to say one thing it wasn't raised and we didn't decide but if it was raised we implicitly the site has a factual matter here the board didn't make a finding of fact that it wasn't right sure if it did it under the kind of impact on page forty eight it doesn't say we are you telling me that the only thing i should ever look at in a board of pinion is two bullet  the board with making to find easier one that it wasn't right and one that it was implicitly doing this isn't it you say that as though it's my interpretation but let's look at the first sentence of the veterans court and that's exactly where i was inside let's go there first the board found that claim for benefits of an employee though did not constitute an implicit claim for t d r you so that the veterans court interpreted the board as not making just the specs i needed the beginning that you mentioned but also right i mean it's sort of but but i guess the heart of my problem isn't what basis to the veterans court affirm on it is this judicially created implicit denial rule which says veterans don't get a benefit that they  sought even though the board might not speak to it implicitly denied is that really something that ought to extend to a circumstance as a matter of wall where the board itself acknowledges the claim wasn't before the veterans agency i'm not sure as a matter of law the implicit denial which we created ought to extend to a circumstance where the board itself believes the claim wasn't made the problem with that we try to one that he didn't raise t d i you claim at all or two that the evidence didn't establish t r u if he did raise such a claim did the what has been the government's argument is the government argue that he didn't properly raise the t d i you claim in ninety three and therefore it was properly denied or was the government's argument based on the second that even if he raised the claim the evidence didn't support because of the nature of his claim the government didn't address that distinction the government said well you didn't make that claim that claim you're describing that you claimed it would have been viable he didn't race but now that's my that's not true any other way he the board found you know what to do or you blew up in june or you that he didn't raise a q client well there was no argument there was no argument to that at all before the veterans court because that wasn't that wasn't raised by raise that to challenge and you can still do that now you could have done anywhere along the way here as soon as the regional office that the only thing i see here is your saying we they fail to consider to you is that not that's not my that was what i was trying to say what i was which might or might have been attributed to this fall into the category of a situation is happens from time to time where the v a has taken the entire case  to ensure that every issue that affects a saturn is properly considered at the appropriate level so that we we can we may as has been mentioned put appreciated that in this particular case there were issues that might have been given more complete or more thorough a different treatment along the path that got us here to two point to them to tell us what they're saying well that's certainly true your honor but it's beyond this court's jurisdiction that like the second point i was going to raise it's certainly honest more serious diction to say what was raised in that you claim the board found in the bathrooms for the firm that like you to tell us what your views are on the board at any result of the decision that it's not reviewable because it's a fact terminations are right now you can see we're struggling trying to figure out what happened below here in these very confusing words in veterans court decisions it is incredibly confusing your honor but the reason it's incredibly confusing is because of that you claim that that's in fear the board looked at that you claim and said the only thing you seem to be raising despite that language that just more points to the only thing you seem to be raising is a failure to consider so yes we think it has been considered and that ends the matter and that's confusing because the q claim itself didn't say enough and that's a question of fact so it wouldn't be right to send it back through the process that ultimately wouldn't help the battery and what would help the veteran if there is q there actually is q here is to have a q claim file and i'm not trying to pin you down you know what i'm doing and i'm trying to figure this out so why why help me understand why because he alleged that the client was entitled to an employee ability benefit and there are a couple of places in this record where i guess what some of the physicians talked about him being an employee of all or something like that i mean there's a couple of instances in the record at that time too when the words unemployed bill are not able to hold a job or something came up that's clearly the evidence upon which everybody is talking about light so i guess are you saying that that evidence on its face isn't strong enough to establish entitlement to the benefit and that's why that's something i don't when was that decided or where was that decided that's what it w the issue the regional office was considering is whether a clear and unmistakable error was made in the ratings decision dated july twenty eighth one thousand eight hundred eighty over or failing to consider extra schedule r unemployability so the regional office like the board saw the only issue being raised here is did we fail to consider it that's the problem is looking at that you claim what did he actually raise in his cue card it's very confusing because the implicit denial rule says that it was  not right yet and i think what they should have done clearly is to say well let's first decide whether you raised a cue point where there was sufficient evidence there i would have thought that the evidence was enough to in the second question which nobody seems to have addressed so far as i can tell is whether the evidence of record at that time was sufficient to establish  peace i understand exactly where you are coming from and i agree what the q claim should have said is the record before for us to stablish is t d i you for these reasons the specific reasons and as of course that andre needs to be specific explain what the error is it and then ask for a decision on that but the neither the regional office nor the board's thought that's what he was asking for but what they may be they were confused but that's a question of fact not it's not a question of have to pick just one thing in that document there's no self doubt the thing that jumps out at me is failure to adjudicate no doubt it's over and over and over again in that you claim and all the briefing and everything else but didn't this isn't  enough isn't the fact that he did say he does have always got to that very document a statement saying the evidence the record showed his inability to work isn't that enough and there's to the veteran you know and couldn't hold him down i mean i think it's on the merits the president titled you're here arguing process and that's the hardest thing for me is i also think in the process how does the board stay well we didn't raise it so we didn't decide it that that he was entitled at that time to all of that and reasonable people within the v a throughout have looked at this evidence and they didn't see a problem now he didn't directly appeal that i'm glad you didn't get to  claim for benefits is a factual issue over which we do not have jurisdiction so this court can't say now there were two claims here raise we're going to remand it to consider that second claim what the court can say is we're affirming this decision because the consider t d i you because as discussed above any implicit claim was denied that seems to say there can't be q because there was an implicit denial that's ridiculous doesn't make any sense that is ridiculous and doesn't make any sense in  concept until you look at the specific you claim it was raised here which was an allegation the problem is that doesn't make any sense it says the coup is failure to consider to be a u and so there's responding to that and saying well that q isn't present here last question if i were to conclude as a matter of law that the implicit denial doesn't allow the board to say that implicitly denied something which it simultaneously claims wasn't raised as a matter of law that can't happen it's your cunt internally contradictory and tell me what happens in this case nothing would change here because the veterans were didn't affirm that other finding the veterans for a court affirmed on the basis that it was implicitly denied and that was the thing that was raised in the cuba but i find as a matter of law it was implicitly died as a matter of law because they misunderstood the implicit denials but as a matter of law just like at this point it had to have been denied to even raised you know but i just found it wasn't ok because if it was a matter law they misunderstand the it puts it no then what i mean that's still pending and that goes against what this court said in roberts and i think i will because the court said that in that in the circumstance when a claim is one claims the night and the other one's not it's it's not that it's still pending but it's that it was implicitly denied so if you if court were to find contrary to that then we'd be