type of evidence that the agency must consider engine on a claim number two is if it is the type of evidence that must be considered did the veterans court misinterpret the five one o your fuel largely rest on on whether the manual contains evidence that the board failed to consider failed it's fair to say that yeah yeah ok in relevant part of the manual says in whole ation of asbestos fibers can produce among other diseases fibrosis the most commonly occurring of which is interstitial pulmonary fibrosis ptosis let's assume for a moment that meanings i think they do your honor which is why it is not does not create a presumption the secretary's manual is not suggesting that it is the only cause right but rather that the and not even that it's the most likely cause and does not indicate one way or the other that or whether it isn't or is not the most likely cause what i think the seminal point is that there is no evidence in the manual to support that this  we as an appellate court don't get to do that especially in veteran he says so even if i were sympathetic to the idea that a veteran who served in the military forty years ago then smoked for forty years then forty years after service came down with a lung condition if i was sympathetic to the idea that that could have been caused by his service it would still be something that would be outside the realm of my reach wouldn't it no i don't believe so your honor because the fact remains there is no evidence that smoking caused this veterans interstitial fibrous you're arguing over the weight of the evidence and what the facts were and the only thing we get to do in the veterans case is an appellate court is interpret statute and regulations and so i like to hear how you link that argument up with the interpretation of something because even if all the evidence is on your side and none of it is actually in support of the decision that's still an application of lot of facts and therefore outside my reach is an appeal court well the question is what there is a total absence of evidence to would not necessarily agree with that your honor i think the claimant under five one zero seven a has the burden of submitting presenting and supporting a claim for benefits the only son's future that she met every marker except and effect between inhalation of asbestos fibers which is conceded and the veterans interstitial fibrosis no matter how many years later that's where terry has found that is a cause there is no at that point under the court's interpretation of the allocation of the burden under five one of seven misses you know smet her burden of going forward you're saying would cause a big problem for the veteran however as the veterans court has construed the benefit of the doubt under the mit later case which just cited in both the principal and reply breaks if there are to cause for disability one service connected one not service connected the v a must attribute all of the residuals of the disability to the service connected cause unless it is able to prove to show through th that there was some other causation or that there was some particular medical issue in this veterans file a medical opinion that would show their particular clinical factors that would rule out  fibrosis as being asbestos based i don't know if that's true but i know that was never developed that's not in the file that was the secretary bergen under five one zero seven b his burden shifting where the burden got shifted to that to the secretary under or ts for the secretary to prove that the veteran was not entitled to benefits he could have done that medical evidence without identifying any options that would take this case outside of the causation the secretary him self recognizes and of course then when the secretary or is a veteran died within that one y how are you supposed to determine what the cause was you have a veteran manual that says it can be caused by exposure to asbestos it is established by the board opinion that he was a machinist who was reasonably believed to be not opine or offer a nexus opinion in mr you know says case it simply says that it can be related and then it instructs that you need to get a specific determination whether it's more likely than not that the illness for the veteran was caused by the  for its particular importance in a specifies or cases because the latency period is so long and there are other intervening factors over the decades the existence of the manual in this instance is evidence enough to get over the fact that in thirty four three point three zero three there is no specific provision for disability compensation from an exposure illness and so the manual provides instructions on how to address cases where there is no symptomatology and there was no service in currents of the illness i don't understand if i break my leg and i go to the doctor how is he supposed to pine on how i broke  well that's what you're asking for you want this doctor to a pine on how this man developed this one condition how is the doctor supposed to offer any first hand testimony as to the cause of his lung condition as opposed to the symptoms the state of that sort of thing how is the doctor supposed to do that why is that the missing piece why it's some random doctor came in and said well the manual says this therefore i think sounds good to me i mean what i don't understand the standard that you want well i mean the standard needs to be there is a pulmonologist has the ability to look at a c t scan and that's what happened here they looked at a c t scan to diagnose the onus where there are a it is my ms lee simplistic idea of medicine incorrect i mean aren't you saying the only thing missing here is the doctor saying this lung condition was caused by it how could the doctor possibly know that i i don't know much about this area of medicine but when you're looking at lung cancer or cysts or whatever on the longs do they really by looking at them tell you who ca predicts poser i don't see that in the literature so why is the doctor's random opinion about what caused it why is that so important it's like asking him what caused me to break my leg i just doesn't make sense to had actually answer that question and had addressed whether the manual was of the type of evidence that should or could be considered that would be a question that is a part of and if they should have but they assumed that it was they they don't they didn't say well this isn't evidence of that that could possibly be probative they simply said this was considered by the board explicitly we find no error in their consideration what mrs you know this and the reason jurisdiction was raised in this case doesn't even really go to the weights and not only does this court not have jurisdiction but party emissions just evidentiary question and it can be admitted it does not mean even if it was considered a party admission that it should be given greater weight the government's not arguing it's not evidence that when it's when it's too close to calls us just court and another decision referred characterized or compare it to the will in baseball about the tie goes to the run it's too close to call the tie goes to the runner and in this case the two goes to the nine it lists the medical evidence but it does not discuss the board's findings as medical evidence is not included in that list of what it has identified as and at page forty one it concludes that the evidence did not show that the veterans indicating in there that that it gave any consideration to the secretary's own findings and i would submit that it must because under seven one four o c which is the reasons are based the statute generally but on is a concept that is not just necessarily a foggy kind of amorphous field concept if the claimant has supported his claim and her or her claim and in this case everything's been supported and if we assume if i may assume for a moment that the manual is evidence then the final element of causation has also been supported five one zero seven v hold once the claimant has supported a then under five one zero seven b the burden of non persuasion has shifted the secretary and that's when the secretary would have been fre non service connected cause there is no such evidence in the file so when we talk about putting the evidence in a quick poised the scales kind of go like that in this case because there is no contrary else nothing rebuffed or contradicts the secretary's own findings about causal connection there is no evidence of what some other cause might be the secretary has never even claimed that there was another until this argument