ect this qualifies and i'm blessed if i'm serving in the military in this case the service department the united states army ignore the fact that its own regulation specified that mr newdow thing was disqualified from service due to a macular hole in his right rather which was discovered two days after he entered the military court the issue of whether or not this regulation was on the books in nineteen seventy two when he had listed  that is a separate issue that i am not arguing i'm not part of the factual issue i'm arguing that there was a regulation in effect and that regulation if you look at the parameters of present at that time were not followed in this case the board of veterans appeals in one nine hundred seventy seven at that time there was a u s army regulation and they totally ignore the fact that this particular serviceman was allowed to serve well and his service was putting his right eye vision at great risk and this was acknowledged by the united states arm in their own regulations they chose to ignore that regulation to allow this individual to continue to serve for three years when he came out of the military he was given a separation exam on that separation exam the examiner rove there were no problems with this robot even though when he had enlisted they found that to be some implication when the service department ignores its our regulations and that is a lot that was in effect in one nine hundred seventy seven and that was not reagan recognized but wasn't that subject to appeal at that time no sir was not there was no veterans court at that time the veteran was severely disadvantaged  regional office decision now for the first time congress and the congressman who introduced this legislation on the floor of the house congressman late entrance from indiana specifically said what a very and has provided first class service to this country is the title or she is entitled to a first class trust the v a had this saying that because they allowed him to serve with a preexisting condition the government became responsible that condition yeah but i thank you for giving me an opportunity to clarify something that might have been not totally clear and like proof i'm arguing that statutory provision in one nine hundred seventy seven when the board of veterans appealed to died his appeal that the relevant statute was out what was then codified at three fifty three united states code that was what's called the presumption of aggravation ok he went into the military and on his a listening to exam the examiner did note of the problem with this right  the examiner who had no tools to really big day refind informed diagnosis i saw that he had this problem with his distance vision in the r to fort knox kentucky and when he got off of the trade boarded a bus to go from the train station to the base he arrived at the base he stepped down the steps of that bus and when he hit the ground there was a sergeant with a clipboard and the sergeant or someone else who did the intake at fort knox said to him before you do anything before he got your bus cut be free get your uniform unfortunate that isn't the issue before us whether the court of appeals for veteran's affairs correctly decided that the boy had previously decided that there was no q in the address the arguments that were made in there in the brief so that those arguments involved whether or not the board had any responsibility to acknowledge and consider the consequences of the military ignoring in some regulation so that was a legal issue secondly the court of appeals for veterans claims did not consider it the second part of our legal argument which is whether or not the congress of the v a s regulations implementing that nine hundred ninety seven change in the statute which allow veterans to go to the board and say respectfully gentlemen you may or ladies you made a mistake twenty years ago and i like you to correct that mistake i like  and does q should and should the q parameters preclude a vet or from looking back at that the v a decision and say that board introduced out of thin air a fact and put it into the into the equation that determine the outcome of that claim the board in one thousand and seventy seven looked at this claim they in in a single sentence they mentioned the fact that he had been diagnosed with macular hole but then they ignored that fact for the rest of their decision and they said the the claim before us involves aggravation of amblyopia that was totally wrong there are now says was totally wrong the claim was i was ignored in the decision that were seeking revision of the regulation had to do with what evidence should the v a look at to determine whether or not a preexisting condition had been aggravated because you can be service connected on the basis of aberration and the regulations said that you had to look at the evidence of the condition prior to service you had to look at the evidence when he entered the military now that was false the veteran had an eye condition which was diagnosed as a b of the other and two days later someone with the proper equipment corrected that diagnosis and said the state of north carolina said sarsour no driver's license for either that motivated him to go to so you know ophthalmologist the ophthalmologist said upon looking at his eye under a scope sir i can't do surgery right here and now in my office i'm directing you to go immediately to the v a medical to the v a hospital down the road where he went and he was admitted in the very next day he had surgery for it attached retina so what i'm contending with the veterans contending is that the board did not look at the a regulation that said you have to look at the condition before during and subsequent to service they nor are the subsequent a service part to a large extent and they yes it did it had the surface record so it did consider the macular hole there are what's a ford said was when he came into the military whole problem correct no i would say no to that question if they think you say no because the record is kind of silent as to that point that we don't know precisely whether to whether or not that his eye condition increased insert very their responses there in the fighting is a fact number two at appendix fifty five the board says there was no growth change in this visual of unity between entry into service and separation that is the telltale they were not looking at they were not asking whether hundred twenty slash four hundred vision your visual acuity is not going to get any worse ok but if you have a vacuum of hope what will happen under the rigors of military service is that macular hole well get worse and you will end up with a detached retina what the war concluded by focusing on the wrong consequence visual acuity as opposed to the integrity of this gentleman's retina they concluded that he had served for three years he had been incivility for twenty nine days and him gone to an eye doctor after being rejected for a driver's license and that eye doctor took a history directed him to go immediately to the v a to the v a hospital and in that history the doctor wrote no sudden  there was no event in those twenty nine days which indicated that anything had dramatically changed the integrity of his retina so the board was presented with a door and seven the seven the doctor after being denied a driver's license and the doctor said to him whoa you better get to the v a hospital today and the veteran of response to that said prior medical diagnosis cannot form the basis for to claim nor care and evaluation evidence claim or or disagreement with facts that then prior previously determined even  we don't know what you're arguing now we don't know that from the border but we do know that there wasn't any evidence of injury or trauma while he was in service while that you catch retina but that's not current service will they found out two before he entered the service or two days after he entered when there is this very close relationship of the detached retina which nobody seemed to say in the record say that it must have occurred more likely than not in those twenty nine days in order to avoid any connection with service and meanwhile there is the information of serious side diagnosed promptly after leaving service this isn't there some sort of common sense sense that something must have happened during service despite the presumption of connection is what i'm looking for i don't know of any such presumption that that is what the board chairman's is when you have a disability that other rises initially and then it gets worse we presume that connected this relatively complex case and some of the questions from the bench and some of the statements parts of complex case one have to consider the facts in this diagnosis and some of the questions from the bench i think also indicate that the situation including the legal analysis most importantly some of the legal analysis is not perfectly understood by  thousand seventy seven when they asked the question at amblyopia gotten worse had it been aggravated by service you cannot get worse than twenty four hundred in visual acuity what was really an issue was did a degenerative eye condition get worse that is not measured by visual acuity is measured by whether or not that retina is still attached to the position in the i word it means today and twenty nine days after the veteran left service we clearly know it was not there is another misunderstanding the progression is someone who has what is some kind of a terrible process of the rep then that person and that's why we have this question about should the v a be able to prohibit any new evidence when it comes to impune claim and ordinarily i would say yes when this court reviewed the regulations that the v a groan after congress amended the statute ninety seven so you can see provision of the b v a decision court did not have anything related to this question before ordinarily if you're very early and you're denied and that denial becomes final you should not be able to come forward with a medical opinion from twenty years down the road and say on this basis there was q in that decision i have no problem with that that medical opinion was not on the table but at that time the board was able to on the basis of its own medical opinion not an independent medical opinion the board was permitted to decide the claim contrary to the medical literature that prior to that four decision has been around for fifty years and i cited that in my q motion now out ordinarily you should not be able to go back and say well here's something that wasn't in the claims file but i want you to look at it in the context of the q motion but what if the board itself introduced a fact that was incorrect and can be shown irrefutably as being correct on the basis of the medical literature that was in place on that day i showed that  and what the v a is saying is and what the lower court didn't even address is why why should the rule this black and white rule for no new evidence why should that apply under those circumstances the veterans court itself said that q a q motion is seeking to show what the correct facts were on the data that decision what the correct law was on the day to that decision and based upon the correct facts and the correct law review review that decision and revise in this case the service plus twenty nine days in civilian life and here comes the board and into this equation they introduce what was clearly and unsound medical principle you do not get and they who are the presumption that you are searching for just human the presumption of aggravation which worse was to be determined by looking at all the evidence before during and after s they ignored the fact that on the twenty ninth day he goes to a doctor and he gives a medical history to the doctor well sarah what happened recently to cost us nothing i know of i