honors the veteran court reversed simply erred in two ways thus requiring every man in order to create a factually sufficient record for it and to apply diagnostic code seventy eight zero six under its proper interpretation no your honor and yes you should not be making a factual finding and you're correct that the factual finding should have made it should have been made below should have been made by the board in the first instance however in this case the board didn't look at the requisite factual findings at the time the veterans court never had the dispositive factual question at issue in this case what johnson is saying that the board should have looked at that or in the record the board should have looked at whether his topical treatment courtroom is all one percent affected his body as a whole johnson is crystal clear on that and so is burton burton is a controlling presidential case for the veterans court where the court did consider that argument if you look at the next to last paragraph of its opinion it's  opinion which admittedly it could have been better more clearly written talking about how he did it hit a court of steroids because that was the argument that was presented to the veteran squared that he was getting of course you're right and the veterans is somehow systemic in the that french court said you can even make an argument on that point to them in the first place multiple points i'd like to address them all to start with the waiver argument the veterans court found that the argument was waived because i found that the arguments were undeveloped well of course the arguments were developed because mr tropinin never had an opportunity to put on the requisite factual findings under the appropriate interpretation of diagnostic zero seven zero six that's because when the board reviewed his case it was pre honor certainly i'm not sure that that's still a question within our jurisdiction about whether that's i mean the veterans court gets to decide whether the factual record is sufficient or not that's a reasons and bases remain and we don't have jurisdiction over those kind of arguments so what if you had presented that argument squarely to the veterans court and said the record below is insufficient and the veterans court it's so small that argument would be within our jurisdiction either and that seems to me like the argument you're making today even though it's not what i thought was the argument you're making in your brief your honor if you look at joint appendix page twenty one fifty it's very clear that the veteran in this case raised this issue to basis yes i mean it sounds to me that that's exactly what you're arguing that the veterans court should have read the remainder of this to the board to expand the record and take another look at it your honor is that what you're arguing that the veterans court shouldn't remanded this to the board to allow additional evidence and take another look that's one argument but we have multiple arguments and one one that seems more likely within our jurisdiction i would that sounds great so diagnostic could seventy to six  ain changed the evidentiary standards under which mr drew had an opportunity to put his case on into show that his case met the requisite legal standards and factual standards change between the board decision and the veterans court decision such that the veterans court had a duty to look at the board's decision and interpret the diagnostic code correctly ok cliff i'm still not saying anything within our jurisdiction because it sounds to me like you're saying well the legal standard changed and the board should the court should either remitted it to the board to apply it again or should have itself applied it differently again all application of all the fact there is no  what the legal standard is right i don't know that that's necessarily the case because in this case your honor the secretary has argued that the factual record is complete and it's sufficient for this court and the veterans court to pass judgment on whether or not mr tropi acts topic treatment affected his whole body that factual findings nowhere in the board's decision below and the secretary has since conceded that that factual circumstance that factual finding essentially the air you think that the veterans work may the veteran court made that air after having misinterpreted the diagnostic code seventy six in light of johnson and miss and it also made an error in its application to warrant in this case the joint appendix and pitch three of the decision it's clear at the top of the last paragraph in that page that what the court did was apply a per se rule and it looked to see whether or not his top of treatment contained a critical stairway that is the because that's the per se rule no but that they're saying the federal circuit reversed that rule that's what the court recognizes that rule is no longer good but that doesn't mean that supplying the rule correctly and i'm not saying applying to the of your legal argument without using the word apply because you're going to lose one jurisdiction if you talk about applying you know i don't understand how reading this paragraph it's not clear that they understand what the new the identical opposite tact and what it did was they remained it on the specific drug issue here but that's the decision of the transports it's made here i mean you go on to read the rest of this and it is true that they're only talking about whether his treatment had of course steroids but that's because that's what he argued to them that his only met was the steroids your honor the vet or the board has a duty to assist the veteran and in this case the makes it even more apparent that the evidentiary standards have changed such that the veterans court should review this decision seen that the legal status changes seen that the evidence your standards have changed and realize that the record was insufficient for  topical topical treatment can in certain search factual circumstances be systemic therapy and the example they use is a large scale application of the body i mean the veterans court decision here isn't as clear as it could be because it does wrong standard the veterans court in order to understand the veterans court it's helpful to look at the arguments that mr toby i made to it with his previous counsel and all the arguments before the board because of the johnson v mcdonald situation where about whether his topical treatment contained a torture started or not so then when we get to the veterans court decision by the by the time the veterans court briefing was happening johnson v shelton had come out so mr free to make to the veterans court and the arguments that he had that he felt were opened by johnson the showdown to the extent that he felt his topical treatment affected his body as a whole and he argued at that time that there should be removed and we were further development of the record by the work for john mr tropi i did ask for the man he did not ask for in the town tax i believe that the board had made a factual error or did not have sufficient fast before they needed to further develop the effect of the treatment has now taken a certain interpretation of johnson v shelton or told the board that the board now needs to make more sorts of factual development does not mean there was a legal error in this veterans court case the veterans court considered the fact that the board had simply rejecting the idea that he was actually using according to steroids is not a broad scale rejection of johnson v shilton or warranty macdonald there's also other factual issues in this case adds arguments about d c seventy eight zero six necessarily impinge on the board's factual finding that d c seventy eight zero four best fits his disability picture veterans can't have two ratings for the same disability so in order to get something higher under do you see seventy eight zero six there would need to be a fact finding that the board has already decided d c seventy eight zero six doesn't best fit what he has because they gave him something under d seventy zero for so because the c seventy eight thirteen which covers this entire realm of skin infections states that it should be rated based on the predominant disability and they decided that seven the boar decided that seventy eight zero four s fit his predominant disability so that's another issue a factual challenge that that mr tropi i'm just making in this case so there's been no statutory or regulatory interpretation of here neither addressed a pill that was conceded to have systemic in fact and the veterans court simply found here that that was not the factual situation that was addressed by this case therefore it was tort also does not have jurisdiction to the extent he's raising new antibiotic related arguments that was never presented to the veterans court and there's also no reason for an e mail and there's been no change to the law that affects mr tropi acts treatment that he actually uses throughout the entire different set of facts he could rely on that and yet that's rance correct and that is a dandy application of a lot of facts so there's no basis here for the idea that if there's a factual dispute or the veteran would have liked to present different factual arguments this case should be banned into the veteran the wrong factor didn't use the right facts and the veterans court should have affirmed that that necessarily ask this court to decide that the facts were insufficient and this court does not have jurisdiction to do that so therefore it is appeal should be dismissed thank you thank you very much court essentially stated that it was a change of law by by specifying the plain language of what systemic therapy was topical therapy and specifically defining therapy as treatment therefore topical treatment warranted your honor and hindley vs west this court has stated that recognizing an error and part of the board the proper course for the court of appeals of of veterans claims would have been to remain on the case to the board for development and application of the correct law since the ground given by the board first decision led to an array erroneous conclusion and consequently to an insufficient factual development of the record its decision cannot be affirmed that's exactly what has happened in this case based on the