second case in which we'll hear oral arguments morning is number two zero zero eight seven one two nine cushman versus department of veterans affairs equipment this case raises an important question of constitutional law so i want to start there are constitutional claim is a claim under the due process clause the due process arbitrary axis and government power here in unknown government employee nearly thirty two years ago now altered mr cushman medical records in a way that understated the severity is service connected disability i appreciate that but let me get to the heart of what's troubling so maybe i'm just really missed the missing something you agree that there might be a difference and even if we recognize there might be some due process challenge that might be viable mcconnel tests of veteran benefits the difficulty i'm having in this case is that arises based on your say a c uniquely we're not talking about nine hundred eighty two there was some arguable problem with the hearing he thought and then demonstrate as a threshold matter that the result would have been different had it not been for the improper conduct or whatever and so don't you think even if the due process issues j our argument is that if the c e o he standard would allow a decision to stand where a veteran never received a fair hearing because of fraud by the government and he can prove that it's more likely than not that the outcome would have changed but for the fraud but he can't meet the series standard that it's undebatable or absolutely clear maybe it's eighty percent maybe it's ninety percent a very high likelihood that the fraud changed the outcome of the case if seery prevents any remedy in that situation it's unconstitutional due process requires that the veteran get at least one fair hearing where the incorrect facts ar before the board and hear the incorrect facts are very important to what the board decided because the document that was altered limits the present type of work that mr cushman was incapable of performing without aggravating his disability and that document stands alone in not listing sitting as among one of the activities that aggravated his injury that leads directly to the one nine hundred eighty two or its conclusion that she was not precluded from sat in terry employment citing terry it's just a fancy word for sitting and the record is still with evidence that he couldn't sit without aggravating is injury i might have thought you would answer judge want to keep those two ideas separate that's exactly right your honor and if the court disagrees with us on the regulatory claims that we make the issues of regulatory interpretation the court can't avoid the constitutional question demonstrate how perverse the situation would be if c is used as a bar to a claim because even if there was fraud and it's conceded by the government that there was fraud even if and you know  in a hypothetical situations the there was the what's there was a document that was right i'm not saying in this case that the government can see that there was fraud the government does concede that the documents altered but even in a situation hypothetical is that even if the frauds conceded and it's war likely than not but not quite under beta will you would lose the government says you would have no remedy whatsoever for that fraud because you couldn't quite meet the it seems to me one is that you've got to pass a threshold that it would have been up and determined and the other one is you back up against our standard of review which is extraordinarily limited or nonexistent really with respect to fats whereas you don't encounter that in the process thing i'm just wondering what you're really advocating though in the scene we context there's a lot of due process allegations that sort of don't have to me any of those other requirements that necessarily  i be having less problems if you would just come in in one nine hundred eighty seven or whenever it is that you found out that there were some alleged fraud or alteration of whatever it was and centered a constitutional claim on that what's giving me problems is that all of this comes up arises in the context of a c u we claim years i think after you discovered the prop so that's correct your honor from the very moment that he discovered proof that the processing nevertheless the cases before us in the setting of a c u weekly and she pointed out there's an exacting standard and very limited factual review for us in fact none and we have here a finding by the board and then affirmed by the court of veterans feels that this was not outcome determinative and there are other findings with respect to overreaction we can't look at those findings what do we do is that where you say i think i've correctly stated the law if i haven't but i mean is that where you say we run into this issue of the constitutionality of the scheme so if there is a constitutional claim this court can consider the facts and indeed should conduct a careful review of the record that's both the statute the jurisdictional statute seventy two ninety two and it's the in r bailey case where the court said we've conducted a careful review of the record and evaluated the facts and the law to rule on the constitutional question so as to the constitutional claims this court's not bound by any factual determination that the veterans or or that we're bringing a c reclaim is because it's the only path to a remedy other than the constitutional violation the period of time we're talking about here is from may of one nine hundred seventy seven until one nine hundred ninety four and the reason we have to bring a c reclaim is because it's the only type of claim that can give retroactive benefit back to but that decision would have been in one thousand nine hundred two if the correct facts had been before the board you that i said the constitutional claim also would give us that remedy we could only bring that constitutional claim after we discovered the facts of the alteration and mr cushman and all of his representatives consistently brought that claim through the path it's just taken a long time to get to this court today because of the procedural history of this case and the failure to consider the merits of claims and what it means for the failure arises i mean even if there is the due process problem here in the first the was that eighty or eighty two whatever but you did get a second here you got the second hearing in the context of this appeal two years ago or a year ago whatever liason even assuming there was a due process problem with the eighty two stuff why isn't that sufficiently to remedy with reese you know given that you did have a hearing years later so the procedural history that led to the hearing in this court in two thousand and three is that mr grossman raised both the due process and this you reclaimed in the board and the board failed to rule on those issues and he went to the veterans court and the veterans court said we don't have jurisdiction because the board failed to rule on the issue and he appealed to this court and the court affirmed the veterans court's decision that they did not have jurisdiction at oral argument the court question how can mr cushman get a remedy to end this thirty one year old case to get a hearing on the merits and both the corps and counsel for the government suggested that the appropriate path was to go back to the board present to see you reclaim and then he could pursue that path all the way through the courts further opportunity on these questions it's not sufficient because it's constrained by the cus standard because even if the fraud is conceded and it's more likely than not that the fraud changed the outcome the board would still rule against him constitutional claim what's troubling me about your constitutional claim is does this document really raise the author dr those the presence of the all document back in the eight constitutional violater yes it does because that record stands alone in feeling to list sitting as among the conditions that aggravated is injury and that failure its brief that led to the similar support for the sedentary issue right i'm happy you asked that that's exactly where i was going the document that the government sites in his brief is in the appendix as a ninety three it's cited on page three of the government's brief the only other citations they give are to the board into the veterans courts and if you look at it right in the middle of the page it says sitting in one position will lead to severe local back and leg pain moreover the government argues that this document somehow shows his back pain had recently eased but if you read the document no reasonable construction of the document could could lead to that it says he's on he's able to bend a little but it causes pain he has no range of motion he conducted tests for his flexibility but even though he was only asked to bend a little and hurt so much that the doctor made him stop demonstrating but didn't the government also really  a guess there's some statement by him about who he's through things are going to perk up and he's going to be able to do it i mean this is that document the statement by him is that he can't to his current job because it requires bending stooping and lifting that's the part that matches the altered document but it ignores the part immediately below that talks about i mean that's it either and it says that he is attending vocational rehabilitation and he has a goal of finding some type of work that he can do across the board shouldn't be able to hold against him that he wanted to find some type of book that he could do the fact of the matter is that he just was unable to find that type of work and there's no medical evidence in the record anywhere that says what type of work he could do all the board found was that he wasn't precluded from sanitary employment but the record shows that sitting aggravated is injury to me extent but it cost him severe pain and it shows up in the medical documents so illogical that to judge players last question which is what you're seeking so you're not seeking sort of  and we do think that this court has the power to remain with instructions to end that thirty two years of injustice that's gone on here but we are seeking a fair hearing are those two different things they are two different two but without the altered docket exactly or put that much money approximately how much money is it state here you how many i don't know but it's the difference between a sixty percent rating minutes so we'll give you if you needed us with my counting is right here twenty four minutes if you need it that will be completely equal if you can finish sooner fine think what we have to remember is we're talking when we talk about due process we're talking about the process generally and not in an individual case and explain first clear about that in the question that's was lost in what i've just heard of  zero the cases that talk about it generally right backing about the question of whether the statutory vision is or giving someone an opportunity to be statutory system of hearing and review for determining whether someone is entitle to a particular benefit and we would the supreme court would say that meets before our decision makers who were deliberately paid off to home against the applicant and that there would be no remedy under a due process claim for a that kind of a totally tainted hearing you don't you're not saying that due process just requires the statutory procedures regardless of how there are you well occurred at the veterans well on this it would also set a curt was the one that the process that was provided what's the what's the process that's available to the to the client what was a process that was those under those kinds of cases that they determined where the agency does not retain discretion to deny benefits once criteria have been established courts of appeals have said that they would consider at least in different levels property interest existing with respect to those applicants a problem just for to answer this question the problem i think with that reasoning is it skips over the entire i mean sure puts the cart before the horse we're assuming that all requirements to establish benefits are the same when you look at what the supreme court did in the one nine hundred seventy s and eighty's with respect to these due process claims they were really focusing on this concept of the legitimacy of expectation well we did the individual have a legitimate expectation in in thinking that they had the property interest and when you think about that for a second you can't you can equate the situation in which someone only has to establish that they were a veteran receive benefits as opposed to someone who has to actually establish all of the requirements of nexus in service incident and present disability there are in the midst depression had to require he was required to establish service connection and and he did a the injury with respect to certain benefits he got a sixty percent rating he did not establish that he was entitled to one hundred percent rating so in that sense he's still in the same position as any other applicant and that he is reaching for something that he does not  helped me understand your position i read the government grief and i've been very public so help i would like to explain our position ok our position is that when the court looks at the process provided under the math used to let's just assume for a second that the court's going to say yes there's due process what i said earlier about the court doesn't need to reach the issue is precisely that or could find well we don't need to reach this difficult question of whether we're going to change our due process view in v a p else because even if we did process was provided in this case and that's what all courts do this is court's done that to try to avoid those complex difficult questions of constitutional law so let's apply let's look at the second matthews problem what was the process that was provided and this is where we i think i diverged although i'm not so sure after hearing this morning from the opponent in that when we think of the process we think of a process that starts and ends and the process that the court asked consider in this case has to include that process that place in the one nine hundred seventy s and eight that led to today so does a claimant who comes in and says that i think there was a document that should be in my file and i like to have that document not considered and i'd like to have it the noble which is what we issue is not whether that hearing process then they did by congress is in general terms adequate it clearly is the only question is when he went through that hearing process did he get a fair hearing applied to his case now he's raising the argument that those hearings were not fair the fact that they exist that can be used against it  he's maintaining that they were unfair because he tell can hands the decision maker without support i might add because the record doesn't support it the decision maker relied upon a document the v a decision maker now in contrast to the social security individual a j relied upon a document that shouldn't have been there what we're suggesting is that it could have had a remedy there was a remedy built into the process the v a procedures that would have addressed that had he taken advantage of that now when when we look closely at the record we find out that in entire claims file which presumably included the document because obviously the judge had a year before all of this took place and and i would add one thing there's one citation that the court might be concerned interested in and it's to the record but unfortunately did not make it into the appendix which is the pundits page five zero three which is the transmittal letter that the v a provided to with a copy of his entire claims file all of this took place prior to his oral testimony before the board in one nine hundred seventy nine and his subsequent written testimony to the board in one nine hundred seventy nine had he been concerned about that document at that time he could have raised it as an issue he didn't say your whole case is resting on the fact that there's no due process violation because it was up to him that we're supposed to infer that he knew and appreciated this altered document was going to be before the board and he had therefore the responsibility to make sure that it wasn't in his file what that works and what the court looks at when they're procedure and i must say that and again the premise there underlying your question are honored with all due respect is this assumption that the document is tainted that that it was fraudulent we put in the record that's never been established in this whole you know there's a another version we don't know if not we don't know if the same individual who wrote the first phrase came back later and added the second part of what except a few because years later appears i don't remember where in the record but when they discovered this whatever it was  think they were even to get the ready that they're requesting that they will but if they did i would assume the record that we're talking about which is the v a s record no longer contains that document because there were some concession document and not the allegedly altered document as far as what the appropriate record of his medical documentation is finite and it if yes as well as all the other evidence that led the board and that his court to not find q including i think as your honor indicated th ironically same dated letter from mr cushman to the v a of nov sixteenth and except anyone which he also lists his symptoms in a pretty much almost identical fashion as the so called alter document but my point is that the procedures that led to the removal of the document after the board decisions didn't change the fact we could have been removed prior to the board decisions and i believe we believe that when you look at the matthews test the question is were the procedures properly in place to allow a fair hearing and because someone whether there of whatever reason they don't raise an issue doesn't mean automatically that there's a due process violation when they could have raised the issue they just didn't now i recognize that does put somewhat of a burden on individual when the raising the due process issue but i don't i believe everybody has to can't nobody can sit on their rights and say we'll i didn't take advantage of an opportunity i had then so i want to come back later and and and try to rectify it now there is even more process provided by congress in the form of the clear and unmistakable air statutes and regulations which allow now collateral attacks on non final decisions but those have to be you have to show us a loser are we come to terminate it which is something other than one would have to shell if there were some due process problem but that doesn't mean that the original process the original procedures that predated the final decision didn't allow the challenge at that time so and frankly as we pointed out wrist that's right because your stature has to be considered within the overall scheme of the system but you keep seeing you keep judge approach this having the same problem i am with that argument you're suggesting he either knew or should have known that somehow into his record back in one nine hundred eighty eighty two there was y of some kind hood and the record is built to show that yes he was in service yet affidavit from other soldiers about how he was injured and so on and moves and medical evidence and the record it's from the be a medical they're saying our analysis of mr smith is that he is a melton ten and a fraud and doesn't really have any of these injuries and all that in the file and they they are denies him any pension and that's a further by the board later on it turns out that that last document was about an entirely different mr smith had been misfiled than his record at that point is it the government's position that there has been no he has no claim to a new hearing that there is no due process violation of his rights to a fair hearing when he has and can show that the record before they are of was clearly improperly compiled  the answer to that question you are according to the second matthews tests where the procedures exist to rectify that situation then there doesn't need to be any change or additional process production provided the answer to that question your honor is yes denying it it may be that the rest of the record is weighted in there really wasn't any sufficient injury to warrant that we don't know just as we don't know in this case what the decision was we it's not like the there was as a record reveals in both any major board decisions a series of records that they reference in support of their decision none of which included the particular document question but included other documents and statements which support their decision that it was not it that you are still that and again we have to ignore for a moment whether what the standard of review is here and whether we're looking at the due process but it seems that the foot of veterans claims in the current case relied heavily and it heavily and everyone is talking a lot about how we're not it's not clear to us there's no indication that they relied on this altered document that seems very strange to me and all of the cases we have where district courts don't end up saying anything in an opinion about a certain piece of evidence of that is always that we absolutely assume the they reviewed and considered and relied on to the extent possible that evidence and in this case it seems we're taking an entirely different tack your position is predicated on they didn't say anything longer perform present type of work leads to the conclusion that he was not entitled to one hundred percent to deny you a war well it seems to me i am reading it differently for instance on page eight of the claimed altered nine hundred seventy six week order it seems to me there was heavy reliance on the fact that but having said that let's move then to the question that you raised which is because there was plenty of other evidence  starting with the premise that when this case was sent back at this early stage my recollection is that the instructions were to really look at the medical evidence that it was the medical stuff that was critical here and i guess i'm not saying it because i'm focusing on the very specific conclusion here which turned on whether or not he could perform sedentary point so that's what i'm looking at and except for this so called allegedly altered note which seems to me very clearly to go to the question of whether or not sitting was within the range of what he can do i'm not saying what other medical weapon and it was in the record to demonstrate that he was able to sit well right it was not the issue i mean the don't you mean the board has everything rested on the fact that while he may not be able to lift or carry but he can see it right i think when we look back at the record which we did before our argument is very close detail and i know the court did as well you're struck by the impression that mr cushman its claims have somewhat changed over time during the late one nine hundred seventy s mr cushman was recovering from a back injury but at the same time maintained through several communications with the v a that he had no way and  commend him for this in no way was going to be dependent on the system for the rest of his life he was going to go out and get some other job that didn't involve heavy lifting of the floor contract so he went out any pursuit this  so when mr cushman was approaching the v a in seventy seven seventy eight and you can look at the record with respect to some some of the records what what he's arguing is ira specific hundred percent t r u awards for specific periods of time various  times to reflect the fact that at that particular time whether it be because i'm that right after my surgery or with respect to the nine hundred seventy seven seventy eight period of time was because i was actually attending locational training and i was unable to get a job because of trying to learn the skills of a poor decision that said the question isn't whether you're unemployed it's whether you can't work and he was clearly attempting a comeback if you will in another profession and so there cannot be any to the spew that at that time mr cushman had a positive view of the future he was going forward he was going to try to get a job and and that's all inconsistent with a t d i you were one hundred percent now subsequent to that his back the period more and in the ninety's he was granted one hundred percent disability t not as we all know what a cube or are or even the birth of the paradigm is required to look at big they're supposed to look at what they're presented with at the time and that was an individual who was trying to get back to work try me i guess i'm a little confused i mean you know do you disagree i mean i'm reading the board decision we believe this evidence and the evidence was it appears the disability was of such the ferrety as to preclude him from performing his duties the manager of the floor company coming company so i thought the focus really on the board was this floor company thing and not necessarily that he was earning up one hundred dollars a month by doing it but let me just fit however the disability is not shown to be as such so ferrety as to effectively preclude all forms of the plot because because we believe the evidence fails to show the presence of symptomology which would preclude sedentary inclined so all of this ras on medical evidence showing that he can perform or not perform precluding sedentary employment i mean what they say that i don't i don't i don't i wouldn't agree with that that it's resting only on medical evidence and in fact although obviously those statements precluded this court's decision in general who the birds are you know the borders are always considered latest money where it's a political and certainly a situation in which lead testimony is i only missed three or four days of work per month during my vocational rehabilitation exercise that is that wouldn't that would support a finding but do you plead that the import of this so called alteration between what it said before and what it said after the import of that was to suggest that he can do sedentary employment when you contrast when you compare and contrast that the so called altered document with appendix seventy one which is mr christmas letter of the same date which you know one might speculate led to the alteration they're going to call mr christmas basically identifying what he can't do with respect to his than present type of employment can't sit for prolonged periods of time you  say can't sit so he can't sit for prolonged period of time which would rule out things like driving a truck cross country but it doesn't mean that i can't have a sedentary job repairing electronics where i stand up and go like this and twist around every once in a while and i sit back down there and that's the focus when you combine that with the evidence that he was actually pursuing that potential occupation you're left with the un undisputed i think position that there was more than substantial evidence in this record to support the board's finding that in the two considering this thing on a on the on a on a record that did not include the would not include the the revised document i mean we don't believe that there's a really a legal basis to do so th you one more question before i get off this morning i want to point out three eight zero part twenty point nine zero four which is a regulation that the v a has where there is a contention of the not due process and there's a lot of problems there but i take it that the government would not be willing to have its own water jets at this point to give this to cushman a new he now because of course that would involve authorizations both my paygrade if you will but i will certainly take that into consideration and not expect that if the court wanted to defer issuing a decision for a couple of i think five minutes would be enough ended up going over the twenty four minutes you had a lot of questions and i think five minutes in the few minutes is enough here on so i want to make a few points in eight which is the one nine hundred eighty decision is to outpatient clinic records in february march july october and november one nine hundred seventy six and if you compare that to that document which is at fifty nine through sixty one in its various versions you'll see that for each one of those dates there's an entry on the doctor's progress notes for the outpatient clinic including the altered entry which appears right after the november nineteenth seventy six entry so it was referenced by the court the holding about the board is that it wasn't specifically relied on i which i take it to mean unlike the social security administration  next i want to point out that there's been a lot of talk that there's not findings that a v a employee altered the stockmen's there's not findings in this case about that but in the social security administration case which considered the very same record they made a finding by a preponderance of the evidence that a v a employee altered the claimant's medical records and made a finding that the v a employees did so knowingly and they made a finding of similar fault not quite fraud but similar fall saying that the so security administration's decision could be reopened and he was awarded full retroactive benefits for his social security claim which is basically the same record opinion simply says especially in light of a fraud the altered note right which they based i take it on the social security funding was nervous so security findings are after the ninth circuit opinion so the ninth circuit calls  then i also want to there was a lot of mention of appendix a seventy one so i'd like that for to take a look at that document which is among the many documents that lists it it has among other things he couldn't do says lifting bending sitting st and driving that requires that is required in his job caused him to give up his job as a manager at the flooring company and there's many other references that are side in our grief that have this reference to it can't sit for prolonged periods and it also came up during an argument that the document was ordered destroyed by the c e o of the portland regional office when it was discovered that the author document existed there is no reason whatsoever to destroy the author document and lessons of signing that something's wrong with that document that it shouldn't be there that it was inappropriate for that document to be in the record if there are no other questions w