arguing in this case that it's different because there's nothing on point for thailand veterans and because this is b s stated policy not only on the m twenty one but in the other places cited in our pleadings that this is b s policy on the matter and because it in your and your brief that it doesn't buy aboard the m twenty one rich large does not bind the board of veterans appeals but a but a substantive rule can still be found  none of the relevant chemicals were ever present at this base at the time your client was assigned there your honor is referencing the archivists report from two thousand and fourteen and that that was the number of the argu puts it puts thailand veterans into a bit of a bit of a bind because the only place that v a has announced a policy of how they're going to really deal with thailand veterans is in this m twenty one provision on its website the consistent with  report and because that's the only place it because it does again your honor as as we say in our briefs satisfy the test laid out for what constitutes the substance of role it should bind the board and just put consequence a substantive role because it's affects to your honor's point it all stems from that from the fact that this is the only place where it is announced but it does bind in the fact that step one is of no it is irrelevant because it's not published in the federal register but that's not fatal to the test the end of the matter there shouldn't be there should not have been this further development once he met the m twenty one's requirements which he does when he credibly place himself in thailand during the during the relevant time period that should have been the end of the matter that's our contention yes that well it's essentially a factual shortcut for the initial agency decision makers it's informal guidance to those decision makers were in there getting claims in that they can look at this manual provision challenge it you can't challenge but the rule out of space and said but it's ok because if there's any concerns about the whole or the application of the role that can be addressed and it individual case the manual is actually applied to an individual so that's what we have now sure sure your honor where you can make a seventy to ninety to challenge to a particular portion of the manual but here the petitioner is not saying that we should strike this rule as being contrary to law this provision in fact that would not help mister nick in this case what he's saying is that world ok with the manual better version of the manual he's saying i want the manual correct which involves the way in which goes back to that involves the weighing of evidence as as we lay down our brief i didn't argue that he didn't fit within the bounds of the manual we did in fact argue that we've we argued that the v a followed the manual even though it's non binding the v a followed the manual provisions and it found that he didn't hold the positions of looked at and found that actually when you weighed all of the evidence the evidence the way evidence was outweighed by other evidence including the records finding that missed mr who dick did did not have his duties regularly served on the base perimeter as well as the factual finding concerning herbicide exposure that there was no spraying a foam that resides on its face is inconsistent with the manual right well correct i mean it is manual says nine hundred sixty one to nine hundred seventy four but but it's not inconsistent in that there was uncertainty as to whether throughout all of those bases there was spraying on a particular base and so when you go through the manual but that is still what the whole purpose of a presumption as right well that is correct if there was a statutory presumption or a presumption based upon a regulation that's now at this is this is based on direct service connection is trying to get to the point of whether or not a veteran was exposed to herbicides and the manual provisions while they that we can debate whether the manuals by what i'm having a problem with is what is when you tell me that nine hundred sixty one to nine hundred seventy four is presumed covered and now you say but you know what we only have to start of it sixty nine and that that somehow consistent with the manual that's that's my problem i think we can debate whether the man was binding but the manual embraced if you follow through the manual questions if you don't hold these certain positions and if the evidence demonstrates that you didn't have regular duty on the perimeter you then go to dish no questions which which is what actually happened here there was there were you know they reached out to the records center in the record center provided records regarding these issues if you look at for example the joint appendix  one hundred in one to one the joint record center provided facts and that's based upon the fact that while the manual was not binding on the board the v a still followed the provisions of the manual and the board in analysis in its opinion still went through the analysis there so even if for some reason the court were to find that the provision is binding which there's a regulation saying these m service near the perimeter to be credible cracked it is correct correct right and the manual says if credible evidence establish this service near the perimeter during this entire type frame then we presume exposure play but it's a why are we going to these other sources of data if the manual says don't do it well because i don't think the manual says as long as you have one credible piece of evidence you automatically stopped there be in the record the show the aura around the b v a properly applying the regulation came to the conclusion well because they went back and the joint records office looked at it and inquiry so what if we conclude that that going to step two was was neither appropriate nor necessary so that the manual says what it says he falls within the bounds of the manual and relying on evidence to undercut the manual itself doesn't isn't consistent with the manual something where you well even if there is an error there i mean this is the v a this is the board who is looking at it to novo and even if there was an error there it would be in error in applying a non binding provision so the senate does that but does that manual buying it by the regional adjudicators well i think they are supposed to follow the manual provisions factual shortcut to see whether or not the veteran has demonstrated exposure to herbicides but it was never the v a has never meant these provisions to bind the board or bind any tribunals i mean that came up in gray i believe as well there was it's never meant to to find a v a when it goes forward in anything in any sort of i guess what i'm having trouble with rules they were free i mean those were those are sent to the holdings in those cases and part of the rationale was it was only supposed to be guidance for the informal decision makers and if there is an error there if the in itial agency decision maker reach the wrong conclusion if you go to the board here and there is and if there's a bill pending in congress that would say that the v a going to give presumptions to to anybody actually i have heard of the bill i'm not i don't have knowledge whether or not v a has opposed that or not i would say that part of v a s policies on both both  a is saying we're not going to work choir all of that we're not going to look into it we're not going to require that the better to do it but now the v a has changed its mind and wants to be stricter i mean why not pull the manual why don't we write the manual rather than just say we don't follow them well i mean if to for example this was found to be a substantive rule i guess there's an argument that the manual provision did not go through notice and comment rule making and then you know the provision would i would think b p struck but again that would not help mr hudak in this case because then you would just go back to whether or not he can demonstrate exposure to not cover individuals who serve in thailand a man wouldn't veterans feel that they could rely on a manual that on its face covers their circumstances well i mean part of it could be  if to the extent veterans have representation or you know there's been several cases that have said that these are really it was never supposed to be have the binding effect of law on it so  you take a vacation which there is no question about the veterans satisfying the precise requirements of the men and it would seem to me that in the past the veteran who showed up at there are all in so i was a his application would have been to know there's a general category so he clearly doesn't meet the positions but there's a general category if he can show that he was regularly on his duty was regularly on the perimeter of this air force base which is i think what a lot of the the other evidence you're going to talk about is the world there were no chemicals there until sixteen or my take that totally out of the equation what i want to know is whether there's any other factual data point you know undamaged a veteran of the fact that he didn't have the satisfied sure the other factual data point was that was not specifically on i guess they think they looked at the unit records to determine where sort of on the base these individuals were and they didn't find that they were regularly on the perimeter in his in his unit and they also found out i mean then what i'm going to come back to move this sort of begins to turn on the quality of the weight that's given by the don't think that this court under seven tonight you can really go back through and reweigh the evidence as is found by the board let me let me ask you something that does whether the policy was formal or informal or binding or not process purposes i would i would think it would matter i'm not sure how any agency not following a nonbinding provision could be a due process violation add i you know as as we lay down our priest i mean we do think that they actually the v a actually went through and followed the policy but you have the board as well as the veterans court who can who can look at these issues and into process implication of the v a s position on it being non binding was other than for bat purpose sure and i think in the us and i think in those cases as well there has been left open the possibility of individual seventy two ninety two challenges to a particular manual provision and you know to the extent that the v a is has implemented a manual provision and refuses in refuses to follow in for example that violates a statue say for example it actually violated the dioxin act i mean there could be a seventy two ninety two challenge and essentially striking that manual provision as violating the constitution or violating another statute but that's not again that's not what we have here but the v a is not going to challenge its own manual so you're saying is if the manual really saying that in those cases there is no way to say that the v a should actually even as a matter of procedural fairness follow its own policy well again because at least for these men this in the ones in d a p and gray i mean they are non binding i mean there's ways to get at a thailand presumption for veterans congress can for example implement great one you don't apply again i think we'd be disputed if it was not apply in this case but it was created because there were they were receiving many applications from veterans who served in thailand and so you know they implemented this manual provision as informal guidance for the initial decision makers because they were receiving so many applications in for benefits and you know so so that's i think and they were trying to get out with a manual provisions where you know dioxin in agent and those chemicals are sprayed we want to line occasions i who know that say that a misapplication actually looking at this to just whether or not there was satisfaction of the manuals requirements and we concluded that there was a misapplication of that rule by the c was looking at this decision he did begin to look like there was a question of trying to decide whether this better had satisfied the requirements of the man who correctly had he would win and it seemed to me that as a result of our discussion here today if the fact that the chemicals were put on the ground until sixty nine or whatever well after the date the man  that fact comes off the record all that's left seem to be whether or not this matter was at the premiere and if he was at the perimeter he would whip well that i mean that under under under the under the manual which what he lied the question the difficult question for us as to whether or not this manual is binding the the all of the decision makers here treated the manual as something under which this voter would prevail had he satisfied binding regulation and by that whole question that we've been deciding here is in the ether as we look at the problem i'm looking at what was actually happened in this case matter went to the they appointed wrong wrong wrong wrong then there was a mishap location of the prevailing regulations would be an era was we could review that but with all due respect what  is even if you get into the manual provision it's really a way of it's a weighing of the evidence it's the board in its decision said that these facts were established that he did not have regular service on the perimeter i mean i take it that but there's a disagreement with that but i'm not sure how the court gets around that fact as well as the fact of when the entire when this entire for vision is trying to get at who is exposed which veterans were exposed to herbicides and research was done finding that they were not used on these bases until one thousand nine hundred sixty nine i mean what may be coming out is th manual pervade the manual provisions are over inclusive and maybe providing benefits to more veterans then perhaps the science shows but that doesn't that doesn't really change that the veteran served in the air force in thailand during the vietnam era yes he did did he serve one of the following royal air force bases on the list as you know and he did as an air force security policeman no with your dog handler no w a member of police roger no he was not those are things that the board i believe did take into consideration but otherwise near the base perimeter as shown by evidence of daily work duties performance evaluation reports or other credible evidence he credib yes and so in this particular case there were no specific assignments and he had to go to them or yes but that says it is his border presence can be shown by a b c because the fact that there was no record of a b or c is irrelevant if you're satisfied or then there has been a misapplication my we are all in the b v a of the law they chose to strap on themselves the purpose wrong and if we if we see the case in that perspective as served up which seems to be the way the b b a in the c b c and the government are treating it he lied because i find that a very difficult issue and that's a potential problem for example if the only thing i'm you ever heard something said was by the assistant secretary a speech in california when he was trying to visit the veterans there that automatically become a