standard to determine whether or not a plane has been reasonable rate in a proceedings of the for the department of veterans affairs in this case the board used the wrong legal standard based upon an are it's a question because there's excuse me because this court in a series of cases determine what the legal standard is for determining whether or not a claim has  has not been illegally raised that is not a factual matter that well that the proper legal standard for determining whether climate generates clearly a legal question yes but whether a claim is actually been raised it's a fact question i understand your argument is that they apply the wrong legal standard and determining that back question isn't that your argument yes but but with respect i'm not sure how you make that distinction well if they determine if they use the right legal standard in determining whether a claim and been filed and they had determined under the right legal standard that a claim had not been filed then that would be a factual question we can review but in your view they apply the wrong legal center i think you have a pretty good  here in the language they are using this but it's a different question than whether a claim had actually been filed but clearly no claim had been filed on the mental condition in this case in this case informal claim and i think this is where the lower court got into difficulties because it used the definition of informal claim as defined by the v a in its regulations this is a claim that is raised by the veteran and by the evidence by his actions before the agency and his and the medical evidence and those are to be liberally read not to be determined whether or not they are a claim be in writing whether a formal claim are an important claim doesn't apply no your honor they apply but they apply in this case with the original application it's about everything that happens after that original claim has been file and it's demonstrated in this case when we look at the nine hundred seventy three decision on july twelfth one thousand nine hundred seventy three if you look at the record at page fifty three let me let me see i think i see where you're going then let me are you saying that it can once he files a claim on any condition the v a has the obligation to see whether he has or whether the evidence or any of his statements suggests that there is a basis in your honor it's the legal standard that was used to determine whether or not that factually exist the distinction i was trying to make with judge hughes is is that in reviewing the decision the decision itself in  does not identify any specific claims when it and what it says is the service connected conditions shown below and that it describes those based upon the medical record then the finding is that there isn't title into service connection for his need for a scar and a fractured toe neither the scar nor the fractured toe were part of the original application were sure but they were reasonably raised by the evidence of record of the i can always go beyond the claim and grant additional service condition connection but it seems like you still have to if they to not to you still have to raise the claim with  are you i think it seems to me like you're taking moody and roberson in those cases a little further than even those cases go because those cases suggest that the claim itself reasonably raise the service connection that's assuming that that claim can be construed to actually raise that and it seems like you're saying the seventy three claim doesn't raise the middle condition but subsequent events not connected to anything in writing can reasonably raise a claim for middle condition is that your that is correct your honor whatever support for that supported more support in the record support in law i mean because i think  and the requirement that claim top to be in writing no and that's the difference between a informal claim under three point one five five which is putting the v a on notice of a desire to file a claim and in that case there must be a clear expression of a desire here we're talking about once the process has begun then the v a is supposed to be the veterans advocate they are supposed to be fully developing the record and if one reads the one thousand and seventy three decision there is more discussion about the mental condition than any of the physical conditions and yet on its face we do not see a definitive decision one way or the other and then when we look at the notice there is notice to the veteran of the awards but no mention whatsoever of the decision that we have to look back at the record the record then demonstrates that in the one nine hundred seventy three exam the patient talked about his emotional illness there's a v a record it may have seventy three that gives a provisional diagnosis of paranoid schizophrenia and then the may seventy three discharge summary describes i understand what you're saying but isn't that a little problematic in terms of the way the the timing works for benefits because it simply because everything is timed off either the client the date of the claim or the date the condition arose any condition whatsoever in the course of treatment of this veteran when something becomes apparent we should consider that a claim too but that makes it very amorphous as to when the effect is a with respect i think it's the fact that so far we are using imprecise descriptions what we have is not a claim no claim is made what is made is an application for compensation when the veteran fills out the five to six he asked the v a tool reward compensation based upon his or her service connected disability so you're asking us to go on robertson and basically say that with any time a claim it's fallen apart in any condition the v a obligated to consider that as a claim for service connection for any possible to these are injuries that may become apparent during the course of treatment what i am asking this court to do is to affirm the decision in those lines of cases that the v a has an affirmative obligation to liberally read the record but but i don't think that's what those cases say they say you have the liberal you've read the claim filed that's right and  about the issue in rovers and it was about the additional issue of extra schedule work that had to be considered and was not considered as part of a holding and so over one was that the reason that had to be considered was because of the claim that was filed no that these conditions noted permanent that it was completely negated the veterans ability to seek employment and so that claim itself even though it may not have said it in terms of t i you reasonably raise t d i you and that's what we're looking on that the claim right and in the way that we have the issue of whether or not there is a service connected disability from a a mental condition in the one year window following discharge from service for a chronic mental illness and i see i'm getting into my rebuttal time but i'd like to direct the court's attention to the august one thousand nine hundred rating decision which is in the record at sixty because i think it's very important for this court to read that decision in context that decision relies exclusively on the nine hundred seventy three medical evidence before you go away can i ask you just one more question if you agree that the seventy three claim doesn't ra commission claim the application the application has been seventy three is there any other document in writing you can point to that the veteran raised this mental condition claim in the that i have an emotional problem and then when you read through that and if i can just finish my thought about nine hundred ninety and nine hundred ninety when they grant the benefits there is no contemporaneous examination in fact they note that the veteran couldn't be examined because he was incarcerated at the top therefore there is no difference in the record in one thousand nine hundred than there was in the record in one thousand nine hundred seventy three and this court has adopted the implicit denial doctrine and clearly what we have here is an implicitly denied decision on mental condition that is fully laid out in the one nine hundred seventy three decision and then when they reopen the case and i'm not quite sure what the new immaterial evidence is because they don't identify any new and material evidence they grant the benefit to reserve the balance of my putting how do we know what standard they're applying because at various points throughout the opinion they either say the board the veteran had to clearly stablished that there was a error which seems to be referring to this clear and unmistakable standard really focuses on that opinion talks about the standard can't really be divorced from the context not only of that decision what the board actually did and if you look at it ford went through every piece of  different terminations the factual determination of whether an informal claim was in fact filed but was not a record and that is the reason but that's the problem with this i mean the board made a factual finding but it seems to have made it under evidence and it commented on the statements that were in in those records and it made a factual determination that even in due of all of those there could be other reasons why there's a suggestion that something might be there but there is no no evidence in the record to say that he had a mental disease that was the market record which said there was not enough information for it does not  grades in his conversation with the doctor that he had a middle condition that was service connected which was then noted in the doctor's report and then said to the r o does that reasonably raise a claim for service connection for a middle condition not under the or the other the regulations for an informal claim a three point one five five that those regulations require the communication to be in writing and different from the claimant or a limited  to have been executed at the time the writing was made so for practical purposes you typically would not see them or who would meet any of the all of those requirements of the regulation how do you respond to the of helen's argument that moody and roberson require the board to not just look at the original application but also look at leader record evidence to see whether a claim has wealth in order to raise claim they have to be  if the requirement of an informal claim can be avoided in that way and then the v a will not will have a very difficult time in actually trying to figure out what claims are there first has to be a claim sensually disputes with the factual determination of the board in the veterans court and for those reasons this court changed them and also when it comes to the second legal argument on  again how do we know that those factual resolutions by the board would have come out the same way under the correct legal standard to say the rest of the opinion makes that clear correct your honor that sounds to me an awful like determination already been made and because they've already been made that the ultimate outcome of this case would not be affected by this court addressing and even adopting the law that recognition of a veterans claim our veterans statement to a medical professional that's put into a medical report can be an informal claim then we have that document in the record and it seems like that would suggest to the extent the board applied the wrong legal standard that they should reconsider that so it seems to me we do have to decide whether a medical record can be an informal claim or not well i guess that depends upon the court's terminations of the first legal issue or the first issue on appeal well i think there's very little doubt that it's pretty close to legal error and the standard applied by the board and even applied by the veterans court but the the real question is whether there's anything in the record that even given that legal error you could tie a formal or informal claim to and i don't think the seventy three claim does that but requirements three point one i find it is not the written communication from the claimed from what is a written communication and communicating i mean read literally the claim and desire to seek not the folks who will be deciding these benefits a record was forwarded to the are of what's in it that's correct so what it seems to be splitting hairs i mean if the veteran had gotten a copy  that would be a communication from the claimant to the benefits and so the fact that it sent the veteran rather than the doctor is what makes all the difference and that makes sense administratively when you're looking at all these cases the v a has to have some way to to focus in on the exact claims for benefits that the claimant was looking for and that's what this regulation does that allows them to look to a before before they could come to a decision about whether or not he had a mental illness he walked away and so to the extent there is a duty to assist i mean that it's more than just a one way street  i think the v a was trying to do that here they just did not get to a point where you could make a decision where it could say like it did with the the scar and the fingers that there was there was a condition and there was no diagnosis before in any of the records before the one thousand nine hundred july ninety seventy three regional office decision and i see my my time is up there no more questions  please the court the the his attempt to use three point one five five is simply not appropriate three point one five five is intended to be beneficial regulation for a veteran trial is seeking to put the v a on notice that they want to file a claim before they've made that application that doesn't apply in this case there was an application in place and then that the a completely disregards the reality that they took an application on a need and granted it for two additional conditions for which there was no meeting of their three point one five five requirement not you can't have it both ways you can't adjudicate two claims and then the majority of your discussion in the rating decision is about the mental condition and say we didn't make a decision on the mental condition they most certainly did they made an implied denial of that condition and we know that because of the record in one nine hundred ninety they took up the exact same evidence with no diagnosis of schizophrenia in the record that they quoted as the v a would suggest i would suggest to you that the multiple references provisional diagnosis of schizophrenia and a diagnosis that was affirmed in may of one thousand nine hundred three by the v a medical record of schizophrenia is a distinction without a difference because we are dealing with legal service connected psychosis the criteria for a presumptively service connected psychosis that develops within the one year following discharge which is the time frame that we're in here requires only symptoms  manifestations to a degree of ten percent or more clearly the symptoms that were described of this mental illness of disturbing hopeless a nation's war at a level of ten percent or more there should have been an award in  seventy three so if you i think you've referenced that you think that they implicitly denied the mental condition claim that would be a decision that you'd have to attack hurts you which is precisely what and did and so you think that the