Good morning, Mr. Carpenter. Good morning, Mr. Carpenter. May I please report William Smith, appears by Kenneth Carpenter this morning to appeal a decision from the United States Court of Appeals for Veterans Claims and presents two issues. The first issue deals with the standard of review for compliance of a remand order from the Board of Veterans Appeals to the regional office. Mr. Governor, Mr. Swift is arguing that the veterans court aired by not applying the denoblest standard of review
. Correct. Below Mr. Swift contended to the veterans court that the Board decision was clearly erroneous and must be set aside as I'm walking along quoting the brief below. That's the argument before the veterans court at that time. That's standard review, isn't it? The standard of review you're arguing for, it's an oval, wasn't raised, wasn't? Well, it was intended to be raised your honor. If it was not perceived by your honor as being raised, that is inconsistent with the intent below. What we asked the court to do in the record is that denoblest standard raised below. I'm sorry, I didn't get it
. I'm not sure if that's the case, but I'm sure that the veterans court was the one that was raised by the veterans court. The standard that was relied upon, which you're challenging, was what was argued by Mr. Swift below. Is that not correct? What Mr. Swift argued, he argued clearly erroneous and must be set aside as I'm walking along. Right, but as it related to the issues that were presented below, which were that the evidence was inadequate to support the rating and that the board failed to provide an adequate statement of reasons and bases for why it did not assign a 70% rating. That was the clearly erroneous standard. What the veterans court did was to go beyond that and address the question of the enforcement of the remand order and said in its decision that the veterans court agreed with the secretary that the remand was to be reviewed under the clearly erroneous standard
. Where did it say that? Go page. I believe it's page four, Your Honor. I see a saying that the board's determination to be satisfied to do you assist is reviewed under the clearly erroneous standard. I don't, there's some place there where they say the compliance with the remand order is reviewed under a clearly erroneous standard. Maybe I missed a foul. Your Honor, that's correct. That's my error. I just need to meet this no basis for your erroneous decision
. I apologize, Your Honor. That's my error. The alternative argument then addresses the interpretation of 503A, which deals with the VA's duty to assist. In this context, the lower court interpreted the duty to assist under 503-capital A. To be satisfied if the medical opinion simply said that the examiner could not provide an opinion without resort to speculation and that nothing more is required. For this interpretation, they rely upon their decision in Cho-to. To the extent that Cho-to interpreted 503 to limit the retrospective medical opinion as being satisfied for nothing more than a declaration that an opinion could not be required. The return without resorting to speculation is a misinterpretation of 503-capital A
. The provisions of 503-capital A have been interpreted by this court in wood in which this court said that the duty to assist the claimant in obtaining a medical opinion whenever such opinion is necessary to substantiate the claim. The board found in 2010 that it was necessary to substantiate Mr. Schwiss's claim for erating more than 50% that he'd be given a retrospective medical opinion. He was not given a retrospective medical opinion because the examiner came back and said, I can't give you that opinion without resorting to speculation. The veteran's court determines the board didn't violate its previous remand order and it didn't err in its review of the duty to assist. Yes. Intent like factual. No, Your Honor, I do not believe so because the examination in this case expressly said that we're giving you a non-apingant
. We are not giving you the opinion that was necessary to substantiate the claim to accept that and to say as the veteran's court did that nothing further is required when that is the response by the VA's examiner is inconsistent with the VA's duty to assist as a matter of law. I don't understand. One of the examiner did wrong. He said he looked at the hospital records, medical records and said that he couldn't find that the claim was established based on those records. No, Your Honor, what she said was is that she could not provide a retrospective medical opinion without resorting to speculation. That's essentially saying that the medical records don't show what the veteran claims they did not. I beg to differ, Your Honor, because the specific remand was to do a retrospective medical opinion to look back at those records and offer an opinion as to the severity of this condition. She did not do that
. She said that determining what that condition was and when she did it, she limited it to the question of a total rating at 100%. There is an interim rating of 70%, which was not considered at different point. What you're saying is that she didn't consider the 70% rating as opposed to the 100% rating. That's correct. That's not an argument that you raised below either, right? Yes, Your Honor, I believe it is the precise argument that we raised below. Tell me where you raised it. In the.
.. Second argument, pages 11 to 15, is whether or not the board failed to provide... What is your recurring? J85, Your Honor, I'm sorry. The appellans brief below. Whether the board failed to provide an adequate statement of reasons or bases for why the July 2002 examination Mr. Swift that assigned a 45, a gas of 45 would not warrant a rating of 70% and extra schedule a rating from the effective date of March of 2004
. So the rating does not say that the medical is being failed to consider a 70% rating. I thought your argument was that the medical of the family is an adequate because it failed to consider 70% as opposed to 100% rating. What we're relying on is what the veterans court said in terms of the adequacy of that examination. The veterans court relied upon an interpretation of the statute for the VA's duty to assist that nothing more is required when the examiner says I cannot arrive at a opinion without resorting to speculation. And is such a declaration consistent with... I'm confused
. It seems to me there are two separate arguments. I understand one of the arguments. And that is that the medical examiner considered only the possibility of 100% rating, instead of medical records, to support 100% rating. You're saying the medical examiner should have considered 70% rate in addition to 100% rate. And that was an error. But what I'm asking you is that latter argument, where was it raised below? It was raised implicitly below and seek it. Where was it raised explicit? Well, that argument was not, but the decision by the veterans court, which is what we are on appeal today for, said that the examination that was provided was adequate and didn't require more. Once the examiner simply declared that she was unable to provide an opinion without resorting to speculation, the VA's duty to assist requires that the VA at least make an attempt to get an additional opinion to confirm whether or not that does in fact exhaust the reasonable expectation that assistance will be of help. If that's the interpretation of the VA's duty to assist, then the VA simply has to have an examiner say I can do nothing and therefore there is no assistance that can be provided. And that's not so contemplated by the duty to assist. See that I'm into my rebuttal time. I'd like to reserve your balance. We will do that, Mr. Governor. Please hold on. Good morning, Your Honours
. If that's the interpretation of the VA's duty to assist, then the VA simply has to have an examiner say I can do nothing and therefore there is no assistance that can be provided. And that's not so contemplated by the duty to assist. See that I'm into my rebuttal time. I'd like to reserve your balance. We will do that, Mr. Governor. Please hold on. Good morning, Your Honours. May it please the court? This appeal should either be dismissed or the decision of the veterans court should be affirmed because Mr. Swift does not identify any legal error in that opinion. There is a potential legal error and the examiner appeared not to consider the 70% rate, man. That would require an interpretation of the medical opinion which the board did and the veterans court reviewed under a clearly aronial standard and that would require the application of a lot of facts which this court is precluded from doing. I don't understand that the board and the veterans court said that the examiner considered a 70% rate. Why long about that? What's the board? Well, no, essentially what the board did was say that there was nothing more than a 50% rating that was warranted based upon the evidence in the record. The court was not warranted and that implicitly would suggest that a 70% rating or a total rating are not warranted for the particular time period that we're talking about. We do articulate a little bit further in our briefs to why the court could read the medical opinion to include a consideration of whether 70% was warranted
. May it please the court? This appeal should either be dismissed or the decision of the veterans court should be affirmed because Mr. Swift does not identify any legal error in that opinion. There is a potential legal error and the examiner appeared not to consider the 70% rate, man. That would require an interpretation of the medical opinion which the board did and the veterans court reviewed under a clearly aronial standard and that would require the application of a lot of facts which this court is precluded from doing. I don't understand that the board and the veterans court said that the examiner considered a 70% rate. Why long about that? What's the board? Well, no, essentially what the board did was say that there was nothing more than a 50% rating that was warranted based upon the evidence in the record. The court was not warranted and that implicitly would suggest that a 70% rating or a total rating are not warranted for the particular time period that we're talking about. We do articulate a little bit further in our briefs to why the court could read the medical opinion to include a consideration of whether 70% was warranted. But I think the court's concerns are correct that that was not an argument that was made below and there was not an interpretation of 501.03A by the veterans court below. It was simply an examination of the error that was raised by Mr. Swift before the veterans court and that error which is on page 90 of the joint appendix. Mr. Swift's veterans court brief simply said was this medical examination adequate and the board found that the duty to assist was complied with and that there was substantial compliance with the remand order. And those factual conclusions were reviewed by the veterans court under a clearly erroneous standard which is plainly the correct standard to apply in that situation. And beyond that there simply no legal issue that was raised by Mr
. But I think the court's concerns are correct that that was not an argument that was made below and there was not an interpretation of 501.03A by the veterans court below. It was simply an examination of the error that was raised by Mr. Swift before the veterans court and that error which is on page 90 of the joint appendix. Mr. Swift's veterans court brief simply said was this medical examination adequate and the board found that the duty to assist was complied with and that there was substantial compliance with the remand order. And those factual conclusions were reviewed by the veterans court under a clearly erroneous standard which is plainly the correct standard to apply in that situation. And beyond that there simply no legal issue that was raised by Mr. Swift and Mr. Swift. One, apparently a ruled law that would require the veterans court or the VA to obtain multiple opinions to confirm the opinion that was required by the remand order. But the board found that simply saying the evidence that we have here simply does not substantiate I would be guessing if I were to say anything above the 50% that was already awarded that complied with the remand order that complied the duty to assist. And in particular Mr. Swift hasn't identified anything that a new medical opinion would accomplish. She hasn't identified. The government that the veterans should have been interviewed as part of the medical opinion
. Swift and Mr. Swift. One, apparently a ruled law that would require the veterans court or the VA to obtain multiple opinions to confirm the opinion that was required by the remand order. But the board found that simply saying the evidence that we have here simply does not substantiate I would be guessing if I were to say anything above the 50% that was already awarded that complied with the remand order that complied the duty to assist. And in particular Mr. Swift hasn't identified anything that a new medical opinion would accomplish. She hasn't identified. The government that the veterans should have been interviewed as part of the medical opinion. Well that's not, certainly that was not required by the terms of the remand order. And the 501-3A does require in certain circumstances a medical opinion but does it necessarily require an interview of the claimant. I think of note in the veteran court decision the veteran court does identify. I'm talking about somebody getting a medical opinion. You talked to the person whose condition was being evaluated. No the medical opinion was to review all of the evidence that was already in the electronics claim file in the veteran's medical records to obtain any records. I think it's what really hasn't been emphasized here which is perhaps one of the reasons why this remand was requested in the first place was because Mr. Swift had identified the potential workers compensation records
. Well that's not, certainly that was not required by the terms of the remand order. And the 501-3A does require in certain circumstances a medical opinion but does it necessarily require an interview of the claimant. I think of note in the veteran court decision the veteran court does identify. I'm talking about somebody getting a medical opinion. You talked to the person whose condition was being evaluated. No the medical opinion was to review all of the evidence that was already in the electronics claim file in the veteran's medical records to obtain any records. I think it's what really hasn't been emphasized here which is perhaps one of the reasons why this remand was requested in the first place was because Mr. Swift had identified the potential workers compensation records. Where does the remand order say that it's limited to reviewing the records? The remand order on page 51 and 52 asks please obtain a retrospective medical opinion after reviewing the claim file an appropriate examiner should describe the nature and severity of the TTSC for the time period. And in the earlier paragraph the RO is instructed to ask Mr. Swift to obtain any to identify any additional evidence that he may have and that evidence is to be considered by the psychologist in rendering that opinion. The remand to reviewing the records. Well that's the directions that we're given. I suppose there's certainly no prohibitions for for doing so but what is set out in the remand order is to ask Mr. Swift for any additional evidence that is not currently a record to assist him in obtaining those records and then to develop a to obtain a retrospective medical opinion. All those three things were done Mr
. Where does the remand order say that it's limited to reviewing the records? The remand order on page 51 and 52 asks please obtain a retrospective medical opinion after reviewing the claim file an appropriate examiner should describe the nature and severity of the TTSC for the time period. And in the earlier paragraph the RO is instructed to ask Mr. Swift to obtain any to identify any additional evidence that he may have and that evidence is to be considered by the psychologist in rendering that opinion. The remand to reviewing the records. Well that's the directions that we're given. I suppose there's certainly no prohibitions for for doing so but what is set out in the remand order is to ask Mr. Swift for any additional evidence that is not currently a record to assist him in obtaining those records and then to develop a to obtain a retrospective medical opinion. All those three things were done Mr. Swift did not identify any additional evidence that he wanted the VA to consider. And so the VA made its retrospective medical opinion based upon the evidence that was already in the claim file including three prior examinations by the VA of Mr. Swift from 2004 to 2002 and in another date. So there was and the veterans court does talk about this in its opinion there was there was already some ample evidence on the record that formed the basis of the 50% award and the medical medical examinations like concluded that beyond that would be speculative to to guess us to what the condition of his social and work impairment would be based on those records. Normally when you obtain a medical opinion you examine the better. No those are two different those are two different things so a medical opinion could be as here the psychologist is asked to render an opinion based upon the evidence of record on a specific issue in this case with a totally unemployed role during this time period or was the entitled anything more than a 50% rating. A medical examination might also be appropriate in some circumstances but in this case we were talking about a retrospective opinion about what his condition was during a prior time period and the there was a determination that that could be based upon the prior evidence and any other evidence in Mr. Swift wanted to obtain
. Swift did not identify any additional evidence that he wanted the VA to consider. And so the VA made its retrospective medical opinion based upon the evidence that was already in the claim file including three prior examinations by the VA of Mr. Swift from 2004 to 2002 and in another date. So there was and the veterans court does talk about this in its opinion there was there was already some ample evidence on the record that formed the basis of the 50% award and the medical medical examinations like concluded that beyond that would be speculative to to guess us to what the condition of his social and work impairment would be based on those records. Normally when you obtain a medical opinion you examine the better. No those are two different those are two different things so a medical opinion could be as here the psychologist is asked to render an opinion based upon the evidence of record on a specific issue in this case with a totally unemployed role during this time period or was the entitled anything more than a 50% rating. A medical examination might also be appropriate in some circumstances but in this case we were talking about a retrospective opinion about what his condition was during a prior time period and the there was a determination that that could be based upon the prior evidence and any other evidence in Mr. Swift wanted to obtain. And that the board found was sufficient to comply with the duty to assist as well as with the terms of the remand order. The court has no further questions we respectfully request that the court either dismiss or firmly appeal. Thank you Ms. Hogan Mr. Coffin to her head for the final time. May I please the court would direct this attention to the 2010 remand order at GA 50 at the bottom of that page continuing on to the top of the next page before the remand instructions are delivered by the board. The remand expressly relies upon the veterans decision in Chota and cite specifically the parenthetical from Chota that holding that the duty to assist may include the development of medical evidence through a retrospective medical opinion where there is a lack of medical evidence at the time being rated. That's all that the VA obtained from this medical opinion that there was a lack of evidence in that time frame and without resorting the speculation the examiner could not offer an opinion
. And that the board found was sufficient to comply with the duty to assist as well as with the terms of the remand order. The court has no further questions we respectfully request that the court either dismiss or firmly appeal. Thank you Ms. Hogan Mr. Coffin to her head for the final time. May I please the court would direct this attention to the 2010 remand order at GA 50 at the bottom of that page continuing on to the top of the next page before the remand instructions are delivered by the board. The remand expressly relies upon the veterans decision in Chota and cite specifically the parenthetical from Chota that holding that the duty to assist may include the development of medical evidence through a retrospective medical opinion where there is a lack of medical evidence at the time being rated. That's all that the VA obtained from this medical opinion that there was a lack of evidence in that time frame and without resorting the speculation the examiner could not offer an opinion. But that's precisely why the interview of the veteran was critical and that it was necessary and Chota is predicated on the fact that when the VA as in this case has six years worth of time in which there isn't a development of the record to show the severity of the condition that the VA will go back to the veteran as the primary source for the severity of the conditions and interview the veteran. Chota specifically talks about that process that was not the process that was involved in this remand or what the remand examiner did when she did her examination and simply concluded that she couldn't address total and social impairment without resorting to speculation. That's the only opinion that she offered. She did not address the severity she made no effort to interview the veteran and for the VA to suggest that there are two different types of medical opinions further demonstrates the error and interpretation of 5103, and that was a very capital A because it's about a necessary medical opinion and what was the necessary medical opinion in this case? It was the retrospective medical opinion for the time period from 1998 to 2004 and that was not an opinion that was obtained on remand. Plus there's further questions I think for your consideration.
Good morning, Mr. Carpenter. Good morning, Mr. Carpenter. May I please report William Smith, appears by Kenneth Carpenter this morning to appeal a decision from the United States Court of Appeals for Veterans Claims and presents two issues. The first issue deals with the standard of review for compliance of a remand order from the Board of Veterans Appeals to the regional office. Mr. Governor, Mr. Swift is arguing that the veterans court aired by not applying the denoblest standard of review. Correct. Below Mr. Swift contended to the veterans court that the Board decision was clearly erroneous and must be set aside as I'm walking along quoting the brief below. That's the argument before the veterans court at that time. That's standard review, isn't it? The standard of review you're arguing for, it's an oval, wasn't raised, wasn't? Well, it was intended to be raised your honor. If it was not perceived by your honor as being raised, that is inconsistent with the intent below. What we asked the court to do in the record is that denoblest standard raised below. I'm sorry, I didn't get it. I'm not sure if that's the case, but I'm sure that the veterans court was the one that was raised by the veterans court. The standard that was relied upon, which you're challenging, was what was argued by Mr. Swift below. Is that not correct? What Mr. Swift argued, he argued clearly erroneous and must be set aside as I'm walking along. Right, but as it related to the issues that were presented below, which were that the evidence was inadequate to support the rating and that the board failed to provide an adequate statement of reasons and bases for why it did not assign a 70% rating. That was the clearly erroneous standard. What the veterans court did was to go beyond that and address the question of the enforcement of the remand order and said in its decision that the veterans court agreed with the secretary that the remand was to be reviewed under the clearly erroneous standard. Where did it say that? Go page. I believe it's page four, Your Honor. I see a saying that the board's determination to be satisfied to do you assist is reviewed under the clearly erroneous standard. I don't, there's some place there where they say the compliance with the remand order is reviewed under a clearly erroneous standard. Maybe I missed a foul. Your Honor, that's correct. That's my error. I just need to meet this no basis for your erroneous decision. I apologize, Your Honor. That's my error. The alternative argument then addresses the interpretation of 503A, which deals with the VA's duty to assist. In this context, the lower court interpreted the duty to assist under 503-capital A. To be satisfied if the medical opinion simply said that the examiner could not provide an opinion without resort to speculation and that nothing more is required. For this interpretation, they rely upon their decision in Cho-to. To the extent that Cho-to interpreted 503 to limit the retrospective medical opinion as being satisfied for nothing more than a declaration that an opinion could not be required. The return without resorting to speculation is a misinterpretation of 503-capital A. The provisions of 503-capital A have been interpreted by this court in wood in which this court said that the duty to assist the claimant in obtaining a medical opinion whenever such opinion is necessary to substantiate the claim. The board found in 2010 that it was necessary to substantiate Mr. Schwiss's claim for erating more than 50% that he'd be given a retrospective medical opinion. He was not given a retrospective medical opinion because the examiner came back and said, I can't give you that opinion without resorting to speculation. The veteran's court determines the board didn't violate its previous remand order and it didn't err in its review of the duty to assist. Yes. Intent like factual. No, Your Honor, I do not believe so because the examination in this case expressly said that we're giving you a non-apingant. We are not giving you the opinion that was necessary to substantiate the claim to accept that and to say as the veteran's court did that nothing further is required when that is the response by the VA's examiner is inconsistent with the VA's duty to assist as a matter of law. I don't understand. One of the examiner did wrong. He said he looked at the hospital records, medical records and said that he couldn't find that the claim was established based on those records. No, Your Honor, what she said was is that she could not provide a retrospective medical opinion without resorting to speculation. That's essentially saying that the medical records don't show what the veteran claims they did not. I beg to differ, Your Honor, because the specific remand was to do a retrospective medical opinion to look back at those records and offer an opinion as to the severity of this condition. She did not do that. She said that determining what that condition was and when she did it, she limited it to the question of a total rating at 100%. There is an interim rating of 70%, which was not considered at different point. What you're saying is that she didn't consider the 70% rating as opposed to the 100% rating. That's correct. That's not an argument that you raised below either, right? Yes, Your Honor, I believe it is the precise argument that we raised below. Tell me where you raised it. In the... Second argument, pages 11 to 15, is whether or not the board failed to provide... What is your recurring? J85, Your Honor, I'm sorry. The appellans brief below. Whether the board failed to provide an adequate statement of reasons or bases for why the July 2002 examination Mr. Swift that assigned a 45, a gas of 45 would not warrant a rating of 70% and extra schedule a rating from the effective date of March of 2004. So the rating does not say that the medical is being failed to consider a 70% rating. I thought your argument was that the medical of the family is an adequate because it failed to consider 70% as opposed to 100% rating. What we're relying on is what the veterans court said in terms of the adequacy of that examination. The veterans court relied upon an interpretation of the statute for the VA's duty to assist that nothing more is required when the examiner says I cannot arrive at a opinion without resorting to speculation. And is such a declaration consistent with... I'm confused. It seems to me there are two separate arguments. I understand one of the arguments. And that is that the medical examiner considered only the possibility of 100% rating, instead of medical records, to support 100% rating. You're saying the medical examiner should have considered 70% rate in addition to 100% rate. And that was an error. But what I'm asking you is that latter argument, where was it raised below? It was raised implicitly below and seek it. Where was it raised explicit? Well, that argument was not, but the decision by the veterans court, which is what we are on appeal today for, said that the examination that was provided was adequate and didn't require more. Once the examiner simply declared that she was unable to provide an opinion without resorting to speculation, the VA's duty to assist requires that the VA at least make an attempt to get an additional opinion to confirm whether or not that does in fact exhaust the reasonable expectation that assistance will be of help. If that's the interpretation of the VA's duty to assist, then the VA simply has to have an examiner say I can do nothing and therefore there is no assistance that can be provided. And that's not so contemplated by the duty to assist. See that I'm into my rebuttal time. I'd like to reserve your balance. We will do that, Mr. Governor. Please hold on. Good morning, Your Honours. May it please the court? This appeal should either be dismissed or the decision of the veterans court should be affirmed because Mr. Swift does not identify any legal error in that opinion. There is a potential legal error and the examiner appeared not to consider the 70% rate, man. That would require an interpretation of the medical opinion which the board did and the veterans court reviewed under a clearly aronial standard and that would require the application of a lot of facts which this court is precluded from doing. I don't understand that the board and the veterans court said that the examiner considered a 70% rate. Why long about that? What's the board? Well, no, essentially what the board did was say that there was nothing more than a 50% rating that was warranted based upon the evidence in the record. The court was not warranted and that implicitly would suggest that a 70% rating or a total rating are not warranted for the particular time period that we're talking about. We do articulate a little bit further in our briefs to why the court could read the medical opinion to include a consideration of whether 70% was warranted. But I think the court's concerns are correct that that was not an argument that was made below and there was not an interpretation of 501.03A by the veterans court below. It was simply an examination of the error that was raised by Mr. Swift before the veterans court and that error which is on page 90 of the joint appendix. Mr. Swift's veterans court brief simply said was this medical examination adequate and the board found that the duty to assist was complied with and that there was substantial compliance with the remand order. And those factual conclusions were reviewed by the veterans court under a clearly erroneous standard which is plainly the correct standard to apply in that situation. And beyond that there simply no legal issue that was raised by Mr. Swift and Mr. Swift. One, apparently a ruled law that would require the veterans court or the VA to obtain multiple opinions to confirm the opinion that was required by the remand order. But the board found that simply saying the evidence that we have here simply does not substantiate I would be guessing if I were to say anything above the 50% that was already awarded that complied with the remand order that complied the duty to assist. And in particular Mr. Swift hasn't identified anything that a new medical opinion would accomplish. She hasn't identified. The government that the veterans should have been interviewed as part of the medical opinion. Well that's not, certainly that was not required by the terms of the remand order. And the 501-3A does require in certain circumstances a medical opinion but does it necessarily require an interview of the claimant. I think of note in the veteran court decision the veteran court does identify. I'm talking about somebody getting a medical opinion. You talked to the person whose condition was being evaluated. No the medical opinion was to review all of the evidence that was already in the electronics claim file in the veteran's medical records to obtain any records. I think it's what really hasn't been emphasized here which is perhaps one of the reasons why this remand was requested in the first place was because Mr. Swift had identified the potential workers compensation records. Where does the remand order say that it's limited to reviewing the records? The remand order on page 51 and 52 asks please obtain a retrospective medical opinion after reviewing the claim file an appropriate examiner should describe the nature and severity of the TTSC for the time period. And in the earlier paragraph the RO is instructed to ask Mr. Swift to obtain any to identify any additional evidence that he may have and that evidence is to be considered by the psychologist in rendering that opinion. The remand to reviewing the records. Well that's the directions that we're given. I suppose there's certainly no prohibitions for for doing so but what is set out in the remand order is to ask Mr. Swift for any additional evidence that is not currently a record to assist him in obtaining those records and then to develop a to obtain a retrospective medical opinion. All those three things were done Mr. Swift did not identify any additional evidence that he wanted the VA to consider. And so the VA made its retrospective medical opinion based upon the evidence that was already in the claim file including three prior examinations by the VA of Mr. Swift from 2004 to 2002 and in another date. So there was and the veterans court does talk about this in its opinion there was there was already some ample evidence on the record that formed the basis of the 50% award and the medical medical examinations like concluded that beyond that would be speculative to to guess us to what the condition of his social and work impairment would be based on those records. Normally when you obtain a medical opinion you examine the better. No those are two different those are two different things so a medical opinion could be as here the psychologist is asked to render an opinion based upon the evidence of record on a specific issue in this case with a totally unemployed role during this time period or was the entitled anything more than a 50% rating. A medical examination might also be appropriate in some circumstances but in this case we were talking about a retrospective opinion about what his condition was during a prior time period and the there was a determination that that could be based upon the prior evidence and any other evidence in Mr. Swift wanted to obtain. And that the board found was sufficient to comply with the duty to assist as well as with the terms of the remand order. The court has no further questions we respectfully request that the court either dismiss or firmly appeal. Thank you Ms. Hogan Mr. Coffin to her head for the final time. May I please the court would direct this attention to the 2010 remand order at GA 50 at the bottom of that page continuing on to the top of the next page before the remand instructions are delivered by the board. The remand expressly relies upon the veterans decision in Chota and cite specifically the parenthetical from Chota that holding that the duty to assist may include the development of medical evidence through a retrospective medical opinion where there is a lack of medical evidence at the time being rated. That's all that the VA obtained from this medical opinion that there was a lack of evidence in that time frame and without resorting the speculation the examiner could not offer an opinion. But that's precisely why the interview of the veteran was critical and that it was necessary and Chota is predicated on the fact that when the VA as in this case has six years worth of time in which there isn't a development of the record to show the severity of the condition that the VA will go back to the veteran as the primary source for the severity of the conditions and interview the veteran. Chota specifically talks about that process that was not the process that was involved in this remand or what the remand examiner did when she did her examination and simply concluded that she couldn't address total and social impairment without resorting to speculation. That's the only opinion that she offered. She did not address the severity she made no effort to interview the veteran and for the VA to suggest that there are two different types of medical opinions further demonstrates the error and interpretation of 5103, and that was a very capital A because it's about a necessary medical opinion and what was the necessary medical opinion in this case? It was the retrospective medical opinion for the time period from 1998 to 2004 and that was not an opinion that was obtained on remand. Plus there's further questions I think for your consideration