decision of the united states court of appeals for veterans court concerning the question of the interpretation of thirty eight c f r three point three one of a this provision of the a regulations provides for additional compensation for service connected disability which are shown to have additional disabilities that are approximately due to or the result of those service connected disability we believe that the veterans court misinterpreted the legal standard of those five thirty  direct relationship to the service connected condition we believe that that is a higher standard than the standard that is provided for by the regulation a direct relationship has a higher standard  to or the result of what the standard used by the v a examiner was that the there was a need that it was at least scuse me it was less likely than not that his depression was directly related to his service connected frostbite wasn't that the case the fact question no your honor i believe that what the question that answered by the examiner was a fact question the question that was presented to the veterans court was a legal question as to whether or not the opinion that was relied upon was consistent with the legal standard that was provided for by the regulation and were presenting to this court a question of regulatory interpretation as to what the meaning of the phrase proximately due to or the result of means as used in the v a s regulation it is clear from both the v a s brief and from the court's decision below that there is a belief on the part of the court below in this case and by the v a and its brief that the standard is one of causation and that it is one of the proximate cause ation we believe the proximate cause asian is a concept from port law that does not have any business in the veterans arena and the veterans arena is defined by the v a s own regulation at three point three one of the a and that to impose  i believe they mean the same thing as read the resulting disability as you don't understand i'm looking for that definition of the regulatory tariff that there is a relationship between that is temporal in nature as is the same requirement for the establishment of service connected compensation in the first instance the congress had the opportunity to adopt the higher if we adopted that you would win here because there were eleven point three one zero zero has to do with whether today there is an additional disability that is temporarily related to the existing service connected disability doesn't make sense so if i lost my footing in the war on the rest of my life and you're going to claim at any point in my life i sneeze i come down with the flu i come down with anything else it's temporally related to the fact i have a loss but because i've continued to have a life if you present medical evidence that says that you're wrong and don't i think that that's not a fair characterization of mr can present position here but in the context of if you present affirmative evidence that there is a existing relationship between your depression and your service connected disability then under the language of the v a s own regulation approximately due to or the result of you should be entitled to additional compensation for shedden expressly rejected the notion of direct causation for the establishment of the service connected relationship and indicated that they would it doesn't have to be directly related to a specific event that definition is substantially higher than the definition that is required to get the service connected condition in the first instance this court in ellington said that three point three one zero as a was about service connection it was about the staff wishing the link between the service connected disability and the additional disability even assist standard is higher for showing a secondary disability in i retire the standards in the regulation what can we do i am sympathetic to your argument there shouldn't be a different application i'm sympathetic to your notion that at the regulation was inactive for a particular reason that the regulation speaks with this language they're the ones that are applying the regulation is a good b s when you're saying their definition is wrong and in the absence of an alternative definition their definition looks quite reasonable to me i am saying that the standard that was used in this case that was relied upon by the board and accepted the bedroom score is inconsistent with the language provided for in the regulation and what the v a does is that it points to a dictionary definition that deals with the concept approximate causation proximate cause ation is a tort concept that is related to direct relationships proximately due to means approximately it doesn't mean directly it says proximately and it uses in addition or as a result of this is a lesser standard than the higher standard of direct causation and mr control had the right to have his evidence tested against the same standard instead the v a obtains a examination that uses direct causation as the legal basis we believe that that is inconsistent with the plain language of the d a s regulation and that it cannot be interpreted to mean proximate cause or it does as you correctly observed raise that and make it more difficult to get secondary compensation than it was to get compensation in the first instance and that simply simply is an anathema to the whole notion that this is a non adversarial system in which the v a is the help the veteran get all of the  entitle to this regulation provides for the opportunity for veterans to get additional compensation when there is evidence that relates the existing disability to an additional disability to require direct causation is a substantially higher standard and that's the evidence that they relied upon to deny this flight and that should not have been permitted by the veterans court and the interpretation that's offered by the government is directly relation so i'm trying to figure out whether the secretary's mission is that that's the correct century interpretation i think you just said it is not no your honor we believe that the medical examiner was apply the legal standard to the medical examiners choice of words because of because again the medical examiners applying to medical causation whereas it is the board's duty to then find said directly related honor we believe they are the same because both speak to a causation requirement in other words there has to be a connection between the veterans injury and the disability which he's claimed i don't get to say or why parks like ip law or you wanted to finish the answer so  a three point three time as a proximate cause standard and in the case of mcphee versus nicholson four fifty nine after thirteen twenty three from two thousand and six this court stated that under section three point three times a condition that is approximately caused by a service connected condition is considered a part of the original condition under the regulation proximate cause ition must be established and we know that this is we also know that the that it was not directly your honor as a process as an experiment as a practical matter we believe that the direct conservation language that is used by them that was used by the medical examiner in this case is as big as a practical matter the sections of one one one zero and one one three one of title of creative the us code and the regulation cannot change the standard that set forth in the statute that that e he states that that case only required a temple connection because the issue in shedden was whether there was a presumption of service connected injury but the court still explained that even with a presumption of service to the terms etiology i mean essentially what the board was is using correlation with the board was looking at whether the medical opinions in the record and not just leave in the two connected injury and the disability for which he was claiming service connection and our position is that as a practical matter as a legal standard whether we use the terms direct causation whether saying that now all that has to shown is that there's there's a temporal connection between the two that that the onset that at some point a veteran suffers an injury and later on he suffers a disability that it's a question of fact outside this court's jurisdiction because the finding the board's finding that it could rely on this medical opinion was but was premised on its finding the net opinion was probative on the issue of proximate cause ition it did not the board not just adopt the language of the medical examiner it looked to see whether that report and whether all the other reports in the record all the evidence in the record spoke to whether there was a relationship a causal relationship between mr to trolls injury and his disability  jurisdiction that we believe the court does have jurisdiction to examine whether proximately due to or the result of the language of the regulation means the same thing as proximate cause of action but as i then please court the government has conceded that the regulation at three point three one a comes from the statutory interpretation of thirty eight u s c eleven ten and eleven thirty one in both of those statutes they congress use the phrase that compensation will be paid for a disability resulting from service didn't use the word a disability caused because causation is a higher standard your honor causation is a standard that comes out of our tort law which is clearly an adversarial concept that is not a concept that congress wanted in this system what congress wanted in this system was a lesser standard in which there could be room for some ambiguity and that that ambiguity would be resolved in favor of the veteran and that we wouldn't have the tort standard of causation this is not workman's compensation we don't need to show the direct relationship but that's precisely the evidence that was relied upon by her school in precisely the standard that was applied by the be a examiner in this case and it seems to me your honor that that the v a wishes to have it both ways they say that it is a proximate cause standard and yet nowhere in the statute nor in the regulation are the words proximate and cause together it's approximately due to or the result of result is similar to the resulting language in the statute approximately due to is simply not the five but it cannot and should not be defined in this context as being direct causation a causal connection because those get into areas in which you're asking for a straight medical determination as the government indicated the board talked in terms of the the ology etiology is a medical concept about the direct relationship between one incident and another or the relationship of a disease the etiology is a much higher much more sophisticated standard than what congress had in mind for setting the standard for and in compensation and if this is all about granting compensation then that's the definition a lower standard that should be used than the standard that is being offered up by the government