here before this court by kenneth carpenter the issue in this case deals with the question that the legal standard relied upon by the veterans or for the substantial justification on the equal access to justice in this case the court below acknowledged that the remained in this case was required for consideration of the lay evidence of record that was the legal error in this case the veterans co relied upon a legal standard that allowed them to find substantial justification based upon a newly articulated will of law there is no question in this case that the veterans court articulated a new and expanded interpretation of the v a s duty to assist however that is not a bar to compensation under substantial justification and that is not the legal standard for substantial justification if in fact the  board had relied upon this heretofore unknown expanded duty to assist there would have been no error because there simply was no rule of law that required that expanded do the due assist to the contr had they relied upon that they would have given the medical examination of mr cho it was secret the fact was is that this border excuse me this board decision violated well established rules concerning the waiting and consideration of lay evidence that was the error in this case at the v a excuse me had the court not relied upon that and simply articulated an expanded duty to assist then mr trotter would not have been able to prevail under the standard for prevailing party but the veterans court in this case clearly said that it was undisputed that mr choate it was the prevailing party while it was undisputed that he was the prevailing party he prevailed on one issue only and that was that the board had failed to consider the late evidence now clearly the veterans court in this case look board considered the late evidence of the night towards determining whether a retrospective medical opinion be necessary just to test all you did differently and said his view dealing with the duty to sit but if the majority is correct in reading the early here merits and its decision then there isn't any basis for finding error under  the old rule is there are believe there is your honor because there was heretofore no correlation in the case law between the boards obligation to consider lay evidence as part of the entirety of the evidence to go towards what the appropriate rating should be the expansion in this case was the duty to assist to consider that lady evidence as a part over a preliminary or a threshold determination as to whether or not that late evidence alone would have support or a higher rate and if they found that it did not where they were unsure of the meeting of that then and only available under this expanded duty to assist does this decision or acquire begin to get a retrospective medical opinion so it is a predicate upon the consideration of lay evidence in the first instance which one is the error of wall made in this case and therefore the will power of the bar to compensation based upon substantial justification can't be utilized simply because the panel in this case decided to expand the duty to assist the duty to assist as a separate statutory basis and this case expanded the v a s duty to assist but independent of that it was a board error in failing to consider that l to assist as applied to actual seriousness and the legal question in this case is this case create a new duty to assist or skipping can you create a new rule of law that expands an existing rule of law consideration of lay evidence and then use the second prong the expanded prong to deny benefits under ija based upon substantial justification well but but if the second first pro didn't exist until the second prong was created i eat if the duty to consider labor studies of this is dependent on the creation of the expansion of the duty to a system of setting such as this then there the whole thing is wrapped up in a new rule and it strikes me is that this next sentence after the one that read the court says the read it to an end of the merits panel however was clearly conditioned upon the announcement in application the new law expressed in the underlying opinion which which pretty clearly seems to say the only reason this case was not affirmed i e it was remanded was cause of the new rule that's so where's the independent there the independent error is that that implicit assumption that it would not have been remanded is simply fundamentally flawed it's flawed under the jurisprudence of both the veterans court and this court that concerning the consideration of lay evidence that lay evidence was required to have been considered by the board in regards to the appropriate initial rating to be a sop and found that the board had not consider that lay evidence and once they made that finding that finding was the error that was committed i start to question where i was going to ask you if in that was made and if that was the case it would negate the previous finding that prevailing party was not in dispute because if this was a new law never previously articulated then he could not have been a prevailing party and could not have been entitled to go to the second step of it but they feel that he won on the fairly important legal issue that he presented which was whether this they'll come back and say i positions supported by eleven circuits but i've prevailed in under which it is no question i'm the prevailing part of the case law relied upon in this case says the opposite that the  decisions that are based upon a newly articulated or a change in the will most would clearly be a change in the law and that change in the law does not entitle you to prevailing part because you were not the prevailing party in quoting the government's position was not reliant upon that let's talk because it didn't exist but the law that did exist was the consideration of lay evidence and that's the part of this a rhodium not that can't be separated you know that was a fundamental error of law on the part of the boat or for failing to consider the lay all on the order will be no as it relates to consideration by the board of lay evidence over the law as it related to duty to assist and to me these are inexplicably intertwined and there is no basis under the standard to consider the layout and then they might the next step and said because we've conditioned this upon our new interpretation our expanded interpretation of the b h duty to assist you but the government the bread was substantially justified how could  substantially justified they didn't know little but this existed now clearly at the litigation side of the government may have been substantially justified but you certainly can't substantially justify the administrative position this didn't claims because such a challenge is a matter that necessarily involves questions of fact and applications of law to fact in clemens vs west carpenter vs gober our versus west and still vs branagh this court affirmed that consideration accordingly in this case this court does not have jurisdiction to consider the petitioners allegations going to saying that we can't really weigh the facts in order to determine whether  case and that is a part of the determination but it necessarily again involves a question of fact or an application of broader are asked if you will position is that the entire issue notice since it require court previously held that the government's case was not substantially justified but perhaps there was no prevailing party ultimately as in barry versus west if there is no substantial just occasion determination because it different  threshold determinations had been made in the veterans court hasn't gotten to that issue the appropriate case of course would be to remain on the veterans court to ultimately determine the factual question of substantial justification can you help me with the discussion m always interested the country which you are understand your honor i have the pleasure of agree with you the question of prevailing party is different from the question of substantial just if you win your case you are generally a prevailing party are a couple of circumstances which you might not get prevailing party status for example you know only a tiny bit of your case as opposed to losing the great bulk of it it's there it's not a bit well go ahead when your examples i mean substantially justified in other words was the government reasonable in its argument work as the supreme court has put it justified in the main or justified to the grave that could satisfy a reasonable person in taking this position b at the administrative level and at the litigation level ok now what do you say you can't answer or you can then notwithstanding the new rule with respect to the duty to a six there was still even duty to assist as i'm sure you know in on page one thirty three that there's a passage that seems perhaps a little bit there's at least a little bit of in congruity in the passage that it evidence is not competent and then three lines later we are told that statement submitted by the veteran his and his family members qualify as competently evidence what do you make of what the board is saying in that he's incorrect because the board did weigh the lay evidence on page again one thirty three to one thirty six was incorrect as a matter of the board's decision he also makes an error in attempting to say that there were two reasons as though there are two ways to view substantial justification and and having the the best seating have an entrance court almost bifurcate the analysis on the supreme court is held in government is not substantially justified we've got and is not part of it substantially justified worth substantially justified on the one issue in that case it's one determination for a specific case i'm so to the extent that he seeks to have arguable and maybe even maybe even to have the better of the argument but what struck me is that one of the things that you give a court a great deal of legal weight on is its characterization of its own judgments but this is a case in which the court of appeals for the interns claims is being asked to say what its own judgment said and it would be strikes me as be a little bit aside the question of whether that's a factual determination or not that would be hard to do in anything less than that clear most clear cut case i would think when you hear i would agree that the veterans court is especially competent to determine the reasons that  and it specifically says that the late testimony in this case reveals that the public reported a history of domestic violence and strained relationship with this family the opponent also stated that he was forced to quit his job because of his quote nerves and that the quote stress and strains of his condition would actually make him physically ill the appellant sister also submitted statement reporting that after the appellant returned home from service he was on the able to sleep she stated that he would hear a train and run through the house screaming she also stated that after the appellant was married he was short tempered and continued to struggle with his mental condition the court made no determination about the significance of the significance of those statements but started it analysis with after consideration of the evidence gathered the bird must assess whether the claim can be rated on the available evidence and it indicates that however to the degree that lay evidence was competent to g testimony regarding the occupational and social impairment the burden should assess and weigh the credibility of such statements contained in the record the clear implication is that they didn't do that and the reason that the failed to satisfy his duty to assist in developing medical evidence the court was not persuaded that the board clearly air that nonetheless the bird failed to consider the late evidence of record regarding the appellant's observ justification determination must be based upon the evidence that existed at the time the decision was made but the argument you're making is essentially just castle's that's correct you're just reading the  of which is prefaced by a reference to the duty to assist statute so it's in the context of the duty to assist it so it's not at all clear to me at least that this is an independent free standing violation by the board but say what its judgment means and has said what its judgment is albeit by two to one vote we a different court are being asked to say conclusively that that court is wrong in its characterization ask this court to do is to look at the nature of substantial justification and to look at the expanded duty to assist and determine whether or not that newly created expansion can be a based upon substantial justification and i'm saying to your honor's that under both it that didn't exist and if it didn't exist at the time that the board took its administrative position and it's conceded that there was a  prevailing party by mister excuse me the chota in this case then it seems clear to me that the substantial justification has to be based upon the existing law at the time that the position was take and the position was taken that was taken by the board in this case was relevant to the relevance all over the lady abacus they clearly didn't use that lay not disputed there are no disputed facts in this case this core can't examine the undisputed facts which are the nature of the marriage decision and whether or not that merit decision based upon what the board did provides a basis for a finding at law a substantial justification based upon the expansion of the duty to assist and to me it simply can't because that