so it wasn't available doesn't that get your argument it i think not your honor because it there are a couple of things that we think that the bigger support missed is that some of you don't have you don't have brown in your camp actually the language of the regulations themselves so the veterans court took the position that because four point one four was considered to be ambiguous at the time that i am anti pervading rule out the agency to determine that a missile that passed through one section of the body in order to ultimately lodge in a different section the asians could rate just the final destination of that missile rather in this case to the muscle group of the chest cavity rather th impermissible conclusion now and it would have been permissible in eight hundred seventy one and against the canons of construction that existed then as they do now one of which we've addressed extensively with in the brief which is by taking this approach the age just just so i understand your point of view are you saying that the are on one nine hundred seventy one did not take into account mr fry scar when it was making an assessment about much benefits to give him for muscular skeletal information i think the answer to that question is is both yes and no your honor and they did do say scar the other things that i saw that were problematic that's correct and we we believe that  section four point five six of the code as it existed back then does direct them to take into account the scar but it's not for the purpose that the government has argued care if you look at the exact language of that provision there's general language about scars and we really can't tell from that whether the oral in one nine hundred seventy one fail to consider this painful scarring  really felt from the one nine hundred seventy one horo decision that they didn't do that i think there crux of the problem first let me answer that question i don't know that we can but i can positively and to that question i can't look to anything in the record and say that they took the scar into account with respect to rating under fifty three zero three and also took the star into account and decided not to rate under seventy eight zero four but what argument is judge is that even if they took it into account in both respects they are still prohibited by the plain language of the regulations from not providing the second rating to the second body system and the reason for that is because four point one four is it is a general regulation that is intended to provide guidance with respect to what the da and the rate rating ups are does in general it contains language within it that directs the rating officer to then it will go to the specific my system i will mention instructions excuse up the problem construction the was adopted leader on should have been adopted by the american understand the argument the problem is that i can't tell what the oro did and i can tell that they relied on the system you must rate at ten percent if these objective findings exist they know that the government has said that there's a question it of that and we pointed out in our reply brief to where they have made a concession at the lower level that those conditions do exist or did exist  it seventy one our position has been that the under the rules of construction the general provision that is provided in four point one four doesn't that it is trumped by the specific provision that exists looked at this gentleman who had a nine inch long one inch wide scar on his chest that everybody agrees was painful and they said even though the regulation says we must break this we're going to issue the specific playing and mandatory language in seventy eight zero four and we will defer to the to our interpretation of the more global broad language in four point one four and in our our argument is that the rules of construction don't allow the v a to do that now they did they would not have allowed the v a to reach that conclusion back in one nine hundred seventy one in the fact that it respects inclusion in this case despite the language and four point one for telling the v a to look at the specific instructions despite the mandatory language a claimant isn't titled a separate disability ratings were none of the symptomology for any of the conditions is duplicate of of or overlapping with the symptomology of the other two conditions where that test come from raising it under the highest possible rating score that they could for one disabling condition should not be the practicing and that to here is reflected in what the rating officer did in this case  i do want to address one point here about the scar and mr fry's claim that the he was entitled to receive a ten percent rating under that and so clarify your honour's that we do not concede that mr fry met the rating criteria for under seventy eight zero four then or now i'm sorry them or now well with the only important any objective findings with respect to the scar being painful and it to meet the rating criteria under seventy eight all for the scar has to be painful and tender want objective examination and there is no evidence here that it was painful so mr fry cannot demonstrate with any certainty that seem that the criteria for a ten percent are waiting for the scar under diagnostic code seventy eight zero four i find the government's cavalier attitude towards the veterans the agency is supposed to be  you're dealing with people who were torn to pieces in the service of their country and it just seems to say the waiting the maximum rating that was assigned the forty percent under fifty three zero three does reflect that the rating officer took into consideration many factors excuse me as you can as the rating decision itself reflects on joint appendix age thirty eight and thirty nine one of the first the first disabling i'm sorry the bottom of index page thirty eight at the the first disabling condition that the rating officer indicates a scar and then i think the helpful comparison really in comparing the medical evidence that we have here and the rating criteria a reasonable conclusion is that other factors were considered and it wasn't just the muscle injury know do we know that he received a forty percent rate under this brady provision or yes is there a possibility that they got to the forty percent by getting the full and tender scar diagnostic code that the rating officer assigned and then if you look at the text that's across from it lists the condition that disabling conditions that have fifty three was signed the most severe level of for this particular condition when mr fry's medical evidence although he doesn't support it he had limitation of motion with respect to the area and not the real answer if you don't the rating sheet that's no different that's quite the question i think the question is whether having mentioned a score which is not part of three o three whether there's a possibility that they were upping the rating there to take  diagnostic code if you turn to page two forty two within the section we were just looking at the very last sentence on the left hand column starts with this section is to be taken as establishing a title  rating of severe grade when there is a history of compound community in fact fracture and definite muscle or tendon damage from the missile we think that the record as established in this under that criteria under that guidance that's given in seven four point seven two also has it as i mentioned earlier believe that the v a was required to look at the scar whether they took it into account or not because the v a has to do it as the guidance is