good morning mr garden challenges the c a v sees indorsement of the board's misinterpretation of the governing statutes and regulations pertaining to the types of that it is that may support a veteran's claim benefits he also challenges of the rule of law that the board apply regarding certain items medical and like to start with my second argument first order that an appeals improperly discounted medical evidence in this regard had diabetes during service solely because the physician did not review the claims specifically the board discounted in may two thousand and four medical report stating that mr garn had diabetes that began think it's early twenty's while he was in the service basis for the nurses and the entire medical record i don't know why he would not look back or if he did if he did look back through other medical records but this isn't an insidious disease as the statutes to fourteen that they stay of the page to fourteen report does not suggest that actual service medical records were reviewed in determining that diabetes was present during service that is the only statement the board made with regard to that particular report and at eight to the at the very top of the graph further the board discounted another medical report because the medical examiner did not review the claims file when reaching that determination that mr gardner had had diabetes during service ward had had the same sentence that they have in the final two paragraphs of eight to thirteen in particular the two sentences that analyzed each of the other reports say it's presumed  the information was provided by the veteran if that sentence had likewise appeared in the paragraph that you're referring to would you still be arguing this would be in there i'd have to find another argument i certainly wouldn't be arguing obviously and well i think there is in there if you go back to his medical records but i want to take you back to the original court decision where the board actually found mr carton's testimony competent of symptoms the second full paragraph in this regard the veterans lay testimony no symptoms he experienced in service such as the cravings of sweets and excessive thirst and the role three point three zero seven  says that the there had been no diagnosis during service or during the presumptive period but only that there were acceptable medical or lay evidence of character manifestations of the disease so i believe that if we go back on remand to the board mr gardner can point out to the board that the board already found certain testimony of his symptoms credible and there and i believe that he will also be able to make note with his in service medical records of things that the board neglected to look at me when they made their determination other character meant characteristic manifestations of the onset of his disease as th statutes know this is a chronic disease and the onset isn't always well documented and it's insidious and sometimes simple you know show up and then disappear for example the only latest mo passed it was characteristic of an insidious disease when they do test positive when do you test negative so i honestly believe that on and remand to the board mr garden will be able to show that he had characters the manifestations of the disease and that a later medical they were called while he was in service that he had diabetes he had to watch what he ate or drank and then there's also the previous forms finding that his only testimony was competent to note symptoms that he experienced including the craving of sweets and excessive  discharge or between you know between his discharge and is one hundred sixty six sixty seven medical exam and there isn't and there is no requirement that you have medical records to show  that he had the disease that's what lay  and moreover you know in the time frame that the recollections of the latest money of his brothers and his friends they don't contradict any medical testimony there was no medical testimony to contradict general the latest money because it was inconsistent overall that mr garden's own testimony was sometimes it was that started the state sometimes it was it started this other day and that he was it almost would have been better if you don't for no testimony then the latest to me standing on its own of the other people would have been more compelling but given that he might be in the position to have the best recollection and yet his own recollection arguably is quite c have difficulty understanding or appreciating the second where you say that they rejected it solely because of the lack of medical cooperation because i really interpreted their opinion that's rejecting it because it was inconsistent overall they found it not to be compelling well the statement and then to fifteen at the very top of the page where he says the other way statements obviously referring to his brothers and his friends not the gentleman from g e they state the other way statements are not credible because they are in direct contradiction to the medical that well the medical evidence they are in direct contradiction to is the medical evidence that they discussed previously and below but there was no medical evidence at the time  the place statements were recalling well i understood well wait the lay statements some of them indicate that he started taking insulin and an earl his own among others that he started taking insulin as of a certain date well then there are other medical evidence there is in fact a medical record that indicates when he was first diagnosed with diabetes i don't later date he was resistant to taking insulin and that's actually in the medical records that doesn't necessarily mean to take it out so he's saying i started taking it earlier and i thought there was an actual medical document that says he was refusing to take it at even a later period particularly maybe refusing to take it at that time we have to consider the time frame when mr gordon was saying these people this is before the americans with disabilities act as you saw g e he was not able to start work at g e because he failed that test be possibly did not want to be on insulin because that would be in his medical records and maybe affect his ability to find a decent job but we can't make any of those you know i cannot appeal your arm but as i did or i'm sorry i'm sorry i'm not i'm not i don't necessarily believe that the lay testimony that he was on insulin in six sixty one sixty two whatever the year would be sixty three is inconsistent with telling of physicians at a later time i really don't want to start insulin but you're we don't get to make that fact i just your board made it to the contrary not really much we can do about it your argument as i understood it know appropriately rejected late testimony because it was not robbery the medical evidence and so let me return you to the opinion because you were going to show me where in the opinion it says where were the rejection seems to occur on the basis of a lack of medical evidence because the sentence you pointed me to doesn't say that it just says that the medical evidence is directly contrary to lay statement doesn't say a failure to corroborate with your own medical evidence right it's to in direct contradiction to evidence medical evidence later down the road however he has laid testimony of symptoms not just being on insulin earlier and there is no medical evidence one way or the other  because it wasn't corroborated with medical records that's what you argued in your brief and i don't see how i can find that determination and legal error in this board pinion it's that i'm hoping if it really does exist because you certainly pointed me to the problem on page eight to fourteen with the not reviewing the actual medical records i mean that's clearly opinion that errors there so i'm looking for this other error that you says exists and i'm not finding it well i think it  said it wasn't corroborated by contemporary contemporaneous medical testimony but i essentially believe that's what they held there was no medical testimony or evidence at all during the time period to support the latest money and so then they said they were in it was inconsistent with later medical testimony i think you can make that leap of logic but let me get back to the what you just raised the issue of these two fourteen i don't want to point out that that is not harmless error and it's not harmless error because this is where increases the likelihood that mr garden was erroneous lead to that night his claim for benefits and in addition as i pointed out the previous was to not accept competent lay evidence because it is in conflict with medical evidence in the record that's a wing of the evidence that the board is hunted to do evidence is evidence that the board and the veterans court did not apply the rule of law that mr gordon claims that it did with respect to the second argument that mr gardner raises we agree that the statement in the veterans court's decision is is imprecise and where that the only statement in that opinion that might present a problem because clearly the the veterans court the board can't reject a medical evidence medical opinion sole because a claim file or service medical records haven't been reviewed but what that statement was getting at what it was a shorthand state and shorthand for was was there what was the factual basis for the after statement that mr barton incurred diabetes in service and was it mr barton's own statements to the doctor which the board had already included were not credible or was basis and not statement was a shorthand of describing what the board was trying to do to find any other factual basis upon which that statement might be made that the board and the better court could accept  during service but how do we know that the peer group doesn't say the only regret dealing with the rejection of this particular may two thousand and four document doesn't have anything at all like what you're telling us that you want to believe and insist that the board evidence from the early two thousand that variously described in the search garden had diabetes in his early twenty's where if you point me please to an exact sentence that you would like me to use as the basis for assuming that the board didn't reject it on the continues on the last sentence as the boy will not accept this evidence as credible because it's contradictory to the evidence the whole we have a before it gets to that point there were acknowledges there are medical records and it goes through several different things there's a physician thing dated two thousand and three it's going through additional things why in the world should i interpret this paragraph as summarizing everything that was addressed previously rather than interpret it as it exactly says which is the board of knowledge is there medical records then it goes through them  says we will not accept this evidence why why should i assume this paragraph is responding to the earlier things as opposed to the things actually discussed in the paragraph well i think that that paragraph summary i mean the earlier few pages describe all of the evidence presented in and in the case and then this is the summarizing paragraph of the bill later the latter medical evidence from the late in the two thousand are the two notes by treating physicians dated in two thousand and three discussed previously somewhere the would the more prudent thing for us to do would not be to try to massage something out of this opinion to make it legally correct but rather vacate for the board to do it legally correct in the first instance is this court can be convinced that the veteran court was not committing an error and that i would agree that the veterans court opinion is very brief and perhaps not as precisely written as it as a could have been but appoint the court again to what the veterans court cited to which is its own president and me testimony and that's exactly what the board did here was where it is a statement that mr gardner incurred diabetes and during service where does that come from does it come from his review of service saxon absolutely can rely on lance in this courtis has certainly helped that and that is part of certainly help that that medical history if it's if it's a credible medical history given by a lay person that that doesn't mean that  the doctor can't accept it the problem we have here is that the board has already determined that mr martin's own recitation of his medical history particularly after he began seeking veterans benefits has been inconsistent and the board is found in not credible so if that's the only basis for dr sexton statement that he incurred diabetes in service than that then the board is entitle to give that statement little weight but that's but that's not the board said i mean if the board had made the fact finding that you were describing actually opposing counsel that you wouldn't be here me in this argument the board didn't make that fact finding and were an appellate foreman especially in these veterans cases we don't get the luxury of doing that so shouldn't this be vacated that if if the court can't find that the  that the board the board statements in the veterans court statements were shorthand for what is the factual predicate for those statements by dr sacks and or that the larger holding of the board made prior to his seeking benefits better and court then then yes i think if this court that that statement standing by itself is is not correct but we think that the sections report for failure to review the claims while there is nothing else in that file we can't we cannot recreate the board's decision we can't recreate the a b c s decision merely because they said something with regard to other medical testimony it's clear they discounted this medical test solely on the basis that this position did not review the claims that is clearly the letter and because the legal arab was made at the board level mr garden is or has the opportunity to go back to the