her dementia due to ionizing radiation and this appeal directly raises the question about the scope of the legal obligation imposed on the v a the statute statutory duty t duty to exist ignores the bulk of cases that in which the federal circuit exercises jurisdiction where the court of veterans appeals resolution of the duty to assist turn directly on interpretation of specific statutory language as it does here now here the duty to assessed the main statute five one zero three a a one imposes a duty to assist a claimant in obtaining evidence necessary to  strict than that they impose a requirement that it must be reasonably helpful as we lay out in our in our brief how reasonable possibility that something might substantiate a claim and requiring that something might be reasonably helpful substantiated that claim are two different things here's an ism this represents in your view a misinterpretation of the statute exactly and as as to elaborate a little bit on the distinction between those two things  i think it it might be helpful to analogize to an evidentiary rule of discoverability versus admissibility if no there's no reasonable possibility that something exists that's more like an akin to a discovery standard something might be discoverable but you don't know whether there will be a reasonable possibility you don't know whether it's going to be admissible and you don't know whether that discovery potentially discoverable information is going to be helpful for there will ultimately be admissible in court those things that's a legal error for the for the court to interpret those that construction to require a reasonably helpful standard now the court in subduing it was it was a short opinion the veterans appeal a four page opinion and in that case it relied on one case no less than five times and particularly cited that case for this interpretation now that case was hurt there's no where in that case that uses the reasonably helpful language and it and i think part of the part of the error here might have come from the fact that that case was interpreted at a time where there is the requirement that a veteran have a well plated claim and as we know that's no longer the law so it's not the case you the veteran has to show that certain evidence would be reasonably healthy on substantiating a claim such that the claim needs to be well created any case law between radiation and to mention you think the duty to assist with chickens and the v a would have to try to sort through p b s as files on the internet for trying to find that would necessarily raise that requirement and that sort of goes to what i think is a little bit of a red herring that happily makes the argument in their brief that we're arguing that this the medical evidence the medical documents should have been looked  by the v a and should have been considered in there due to assists only because the veteran put them forward and that's not the argument here we explain that the veteran did put them forward put abstracts of the articles for it and made it clear that they would have been adequately available but in fact it was the v a itself that put the issue before the court and that was when the v a examiner did examine the patient and exam and explained that there may have there is a correlation in the scientific literature between dementia and and and exposure to radiation but the medical literature is uncertain enough that one cannot be absolutely clear on made that finding i'm not saying that that actually is reality but the board made that find is that right well what actually the board said and i think this is a little bit confused by the briefing the board made the finding that  i can look at the exact language the board made a finding that it wasn't he wasn't directly exposed and i believe he says to stage a one seventy four of the appendix at best he had indirect contact with nuclear material and what apple has done here i think is slated the word direct with a direct to a crime meant for having a direct service connection and i'm looking at a one seventy four to one seventy five pretty definitive so to the extent that you're saying that's a factual finding that you don't have jurisdiction her view i would argue that earlier on as part of this actually finding he explains at best what indirect contact with nuclear material this this finding is predicated on a misinterpretation of what the do to assist requires and if you say that this comprises an evaluation of whether the do to assist was fulfilled and that's a factual determination then i think every statutory misinterpretation of the duty would be on her viewable before this cart because ultimately by the time you get to interpret in the statute there will have been factual findings below we're not arguing this factual finding on on this record we're arguing that the duty to assist was not interpret it correctly i guess i'm just trying to understand what can be done for your client if in fact we have an  finding that kind of breaks the chain of service connection when there's a finding that there is there's not been any kind of exposure to radiation so whether or not there is some kind of medical connection between cause when we have a fact finding that there's been no exposure to i think they i think they say the explosion was interactive fast and if what under correct you need to assess if they examine the evidence that they should have examined in the first instance and that changes anything and that changes anything but wow it's where the claimant is acting only in a passive role and thus explaining the duty to assist does not encompass a duty to prove a claim for such a passive claimant happily spends a great number of pages citing the types of cases that i'm sure you're aware of would records that may prove few tile if if the evidence is not relevant i don't think any of those cases need to be considered here and i don't think they're relevant here at all because this is absolutely not that situation there is this is not in a one way street this is not a claimant upon a basic review of the record this court issued the the court below sorry issued a supplemental statement of the case describing what the veterans examiner had done and in direct response to that mr soviets went out and and obtain what he thought they were explicitly asking him to obtain and submitted to that to the v a the v a then didn't do any of the things that they're required under the statute to inform the veteran  reasonable possibility and it is correct that the veterans cordons decision referred to reasonably helpful now what whatever you say about the strength or the weakness or in important language here there's a distinction between a claim and all of the underlying elements or factors that make up that claim and here mr so this is claim was for a claim for s connection for dimension a based on exposure to radiation and that type of claim a direct claim for a claim a drug claim is requires both first a finding that the veteran was exposed to radiation and then only second do you reach the question of whether or not there's a nexus between the found exposure to radiation and the underlying condition and so here where th no exposure to to radiation this goes to judge turns question about what then could be the a have really done to assist those claimant and the simple fact of the matter is that these articles know however i think this gets through and more fundamental issue relating to claims based on ionizing radiation because there is potential for exposure to radiation any time that you're and dealing with nuclear material examination to examine his claim and and do that scientific determination that the the the court is concerned about and specifically that the medical examiner in two thousand and twelve dead review the state of the of the scientific evidence and that can be found in the record at one thirty seven to one forty one after that examination had been performed mr so it was submitted these ads these additional abstracts but to be fair one abstract does on its face explain that the underlying study found that there was no direct correlation between exposure to radiation and development of dementia  exposed to radiation materials during service that second element of nexus really isn't reached the board did address the nexus element but in this decision and made it clear in that and that that to be something that can help substantiate the claim and where there is a factual finding that is not reviewable by this court on the first element that mr a so this was not exposed to radiation as a result of  second piece even even if there are what even if the state of the evidence the medical evidence showed definitively that there could be some connection between dimension and radiation exposure it would only come into play if there was a finding that mr soviets had been exposed to two radiation is what's the in your view what is the proper disposition of this case assume that the court were to find that a legal argument has been presented along the lines that the cell discussed in a brief in oral argument but that at the same time we're faced with the finding  that there was no exposure radiation both by the board and again that finding not disturbed got appeal to the veterans court what do we do in that circumstance if that's the situation we have a legal argument jurisdiction for that but if you are correct whether that argument stands or falls doesn't make any difference what do we do in that situation do we affirm or do we dismiss or what in your view if there is a legal argument because that assumes that there was an error but it would reflect the court's understanding that here the duty to assist does not require the v a to obtain documents where like here there's a claim that requires two elements and the point again to to the notion that if you cannot challenge  reviewing the evidence the conclusion was that there is probably no exposure to radiation here the statutory error is conflated with the fact that proper evidence wasn't presented so if you take this very narrow and which we believe is appropriate here to remain on the issue it's a very relatively late burden the v a would have to review the specific enumerated documents which no one has argued and there's no argument in the record here or below that those documents are somehow not attainable and that the old that any of the goals law or otherwise kicks in to say that this is you know would be a futile search or this would not be something that could be adequately found by the v a none of that applies here there's no dispute they could get these records if we couldn't remain on the case now only to look at that and i believe that it's an issue to be presented below on what the evidence and says under a proper interpretation of the statute and then if the if any finding doesn't change well