think russell's c u we test the third prong which requires a manifest change in the outcome what is that manifest change where the error under the first two problems of the russell test was simply the failure of the agency to recognize that the claim existed in the failure with the consequence that the agency did not make a marriage decision this is based on a theory that the v a r o did not  which the veterans court affirmed and you're not trial injuring i'm not sure you can challenge it so with an implicit denial that means that necessarily there was a finding that the v did do a ruling on the merits in denying the t d i you claim in one nine hundred eighty eight i would disagree with that your honor the regional office the rating decision which denied law or otherwise that finding was reversed by the board of veterans appeals in two thousand and eleven the board found that there was a t d i you claim presented on the record so at that point implicitly notified that for whatever reason has benefits have been disallowed but that and therefore finality attaches under rovers and under roberso equivalent of an express denial then what would be left of your appeal where the agency never reaches the merits because he didn't realise the claim was pending but the agency is deemed to realised it was pending via the fact of an implicit denial i mean case does arise by operation of law still it's there as a denial which means the i think the claim has been addressed and denied well it's been addressed  so i was focusing i guess a little bit on the the veterans court opinion of page six which says the board simply determined that the appearance argument that they are all committed c o c u e in failing to adjudicate the something more than implicit denial for finality purposes that the board of the veterans court is saying the board concluded that it was actually considered and denied without discussion but considered rather than some fictional legally it must be denied without even without consideration it's a stretch to then conclude that america's decision was made where the regional office to the state does not know that there was a claim but how do we say that as opposed to i mean maybe the veterans court which has a much broader reviewing authority than we do in particular on factual determinations an applications of lot of fact which we can't do in a case like this not providing constitutional claim how do we question what are owed whether the board was stopped because there is no adjudication in the record there is no trace of an adjudication on the merits in the record i believe the board could only have remembered the case back to the regional office we think of actually score fully explored the issue that was presented in this case as did the board and construed the claim of q as broadly as it could given in our could be a situation where the agency actually does consider and evaluate a particular claim but then denies it on the merits it just does it in implicitly not express that could be category one and then maybe category two is some kind of deemed a denial as a matter of law where almost as a matter of legal fiction the agency actually considered everything and denied it but it didn't actually do any evaluation is what i'm wondering is how do you understand what is what it is incompetent by the term implicit denial i holding that there with the claims pending subsequent to that pending claim theory that we argued no although there may have been a claim which was implied he raised or maybe even expressed the race but when you read this edition it's clear that although the original office didn't clearly reject it or expressly reject it only a reasonable person could come to any reasonable person reading the decision would come to the conclusion that it was rejected the example being an individual who was seeking one hundred percent rating for something and is awarded the thirty percent rate so that person is clearly i know that their argument about why they deserve one hundred percent was considered and rejected because they only received thirty percent the form for one hundred percent extra schedule or award for this ability that he was seeking but only received a thirty percent rating when the very scheduler reading itself is premised on the same concept in terms of the mental disability of ability to function in the world in the workplace and what not which is distinguished from other scheduler ratings which you know more physical elements are are determined the rating schedules determined by flexibility and this kind of things with the mental  to understand in one thousand nine hundred eighty that his request for extra scheduler relief in the form of one hundred percent rating would have been denied or was denied in fact was denied complicity in the decision below so on this record denied but it was just denied implicitly is that at best i think part one of what the board and doctors court did i think part two was that they went ahead and actually looked at the evidence and said it in any event in this case the evidence doesn't show total disability based on individual employability that's the board's part price that was the next part and that's the part where the veterans court in and bach was debating in order to secure you have to have two the finally decided denial yes so so it makes sense to do that second right but getting just so i understand roberson over source and roberts is the way we're going to call it does the hosh you know fully developed claim argument theory that v a s required to do and in hives it was expanded to articulating what the pro se plaintiff is trying to proceeding this court said no this court said not only to this court that you need to look back at those records to see if liberally construed there was such a claim raised and if there was a need to consider it so it's a little murky but but the idea is rover sent doesn't roberson doesn't mean a failure to consider equals q roxanne means that that in reviewing the case for q the board and our decision in cook what were they thoroughly analyzed what's required for q that roberson didn't change the requirements for to him that there has to be outcome determinative error based upon the evidence of record at the time so if you look back at this wrong that we don't see any problem with the board's having said that a t d i you claim was in fact considered and denied and then part b says well even if it hadn't being satisfied and a claim was not a t d i you claim was not addressed you have to address it is that second part immaterial to the outcome as court was faced with i think a characterization of what you are which was somewhat limited in the sense that the argument seems to have been it was  enough to deserve an award of q if i can demonstrate that roberson wasn't followed him that i can demonstrate that the regional office should have considered t d i you not was part of the veterans court decision just to say we think the board got it right in saying there was no such failure it was considered and it was denied out why is there a second part of the decision because arguably can i just interject my theory on why they kept going is that they said now that we are satisfied that the board is correct that there are zero in fact did deny the t d i your claim we still think there could be something left in this appeal that says now that in is there a q claim for  here on the denial that earlier denial of the t d i you buy the r o n one nine hundred eighty eight and now we've got to figure out what's the standard for that ok tell me why i'm wrong i don't think you are but out but i would add it was raised and we don't have unlike this case an analysis in which for record upon which we could say no they actually did implicitly deny that should get you q because you haven't necessarily changed the legal relationship from the case if one accepts part a that says the error alleged was failure to consider and employ deliberate there was no such failure it was considered i would agree that some things that i don't think and any issue has been presented to the score about parte time which this court could apply if that's what that's what they're there are questions that we were talking about about implicit deny which i think are all you know they're all correct then if that is true about part day then there's nothing left for us to do with respect to anything that was said on part b i don't think you need to go there as we indicate their papers if you do we know what it would be would be dicta it would be recreational would be extracurricular yes although it would clarify the point we would like made which is you can't have  point about not having to get to the second point where the board said in the court affirmed the board that even if you look at the evidence below there was not enough evidence to establish a clear not mistaken   the board has starting with the regional office the regional office the bulk of the limited analysis that's contained in that decision appears to focus on the part a but the last line which talks about the evidence doesn't establish anything that there should be no change of benefits supports apart the conclusion so an argument can be made that the board or the aro itself recognized that perhaps although not required under andrew's giving deliberate construction to the pleading so ok here we're going to look at the more narrowly focused you claim but the relevant analysis should be can this individual establish that he was entitle to t d i you at the time and so had jurisdiction because they would have think you could look at it two different ways either they interpret it hurt you claim to include part b or you could argue under fifty one zero nine a or three point one zero five regulations which provides  secretary with the option to raise you know the argument on its own motion that that's what happened here the ideal would be that this issue both a and b have been so thoroughly addressed by both the board and the  don't feel there be any need for mr hockey i know we're at a time when i'm sorry but i just want to follow up on your conception of progress and i'll be honest right now i thought when i read that opinion i thought well maybe there's so i would respond to your honor by saying no i think the court in issuing its good decisions fully aware of its prior decision and cook i mean rover's and felt no reason at that time to read a third exception to finality requires the agency to tell the veteran not only what the decision was but also to explain the reasons for it so that clearly would suggest to me that a silent decision known only to the v a is not as finding that the t d i your claim was in fact considered and evaluated and denied i'll be implicitly nevertheless evaluated in denying a well i think as a matter of law that would this is and this is a case i don't remember the details but i think mr cockey made reference to how in this case the disability was a mental disability that from which maybe not a logical implication but a reasonably strong factual implication would be if you're only thirty percent mentally disabled to use a shorthand then there's basically no way we're going to find unemployability whereas some other schedule or disability thirty percent ratings might still leave you more plausibly unemployable but not this one i would disagree with they are just great mr hockey because scheduler rating right but i guess i took his point to be at least jesting maybe even expressed lee indicating that not all scheduler ratings have the same implications or lack of implications for think it would require a factual assessment case as to whether or not the veteran psychiatric symptoms themselves prevented him from obtaining every substantially gainful employment but that's not a scheduler