no here argument next to number thousand and eleven seven zero seven not west against the department of veterans affairs mr weston's here today having traveled through a blizzard and utah to get here there are three issues before the court i wanted to deal with issue three which is the one that is really the most troubling in these kind of cases which is that the national security issue mr west was in the operation dominic pacific range nuclear tests an aviation maintenance person with the p nine with the patrol planes and planes were out there not just providing security and keeping the russian trawlers away in the in the navy fisherman but they were also flying th clouds and gathering samples and they were part of the actual data collection and photography mission and he was servicing these planes right after they came through these radioactive clouds and in served on the lexington c v sixteen he was injured there is back out there but the real focus and the real problems we've had below he's now at ninety percent so as this case in the case was was down below he was i think at ten percent or something and we've now there's parallel proceedings going on here and we've now got him up to ninety percent he's on unemployed villainy you're issue is at the gate now we've got this so issue three right mean this is absolutely you know a prohibition this man was not be brief he was told look you say anything about what you saw out there on that island and what you participated in and you get to go to leavenworth and you don't collect two hundred dollars now it's it's difficult for us now in the context of these times to understand you know we haven't conducted a nuclear test since sixty two sixty three nuclear secrets some of them and perhaps some that he held and holds now are out on the internet but still and all the rosenbergs had had been hundred sixty one nine hundred ninety two he was ill enough and he was in desperate circumstances he started getting health care from the v a but he wasn't pursuing a compensation claim because he felt in order to do that he was going to violate his trust but he did come forward before the perry and the radical right for health care for it in a very low grade and then he was he was notified he got in contact with the national radiation survivors and the president of that organization informed him that no you can here's copy this perry letter and you can you can say what you need circumscribed by not going into technical you can't go off the health care reservation you've got to stay inside the box let me bring you back to judge proceeds question which was which i have his well which is that in this this looks like  a difficult situation for somebody to be in they can't make a claim and without being able to make it plain they can't start the clock running even on a later effective date and so forth but what is your theory as to how how do we rule in your client's favor given the statutory limitations on our power to direct that the v a alter the the statutory clai knows where most he was that mr west was medically evacuated you know to hawaii a couple of days before the test and it by the way mr west is a son of the great state of texas he's a real grew up on a small ranch and he's descended from one of the in i think when you when you announce this five fifty and we've had all this trouble with the t r a now the other aspect of this case is he needs the whole body radiation calculation to be made and i certainly sixteen trying to get me as i saw it there was a difference in kind between your argument for an earlier effect in your argument that there had been and it adequate assessment of the five fifty information including without limitation your request for a whole body radiation instrument which i ever i couldn't find in the rectory never asked for that but i are those issues separate oath both are to be calculated yes there are two separate tests one is the surface radiation and it's this is science and then you get down into the whole body and that's the type that radiation oncologist get involved in a part of your body that they're radiating they calculate very carefully the impact on your are some letters and correspondence over the years who did i miss something i didn't see any any discussion in the v a or in ca b c opinions of the request for in the denial of the giving  the whole body radiation i think it's couched in this term where they said well you've now we've got the five fifty scan and i think mr west of course he's a lay person he's representing himself in the board and he's saying look you've now conceded five fifty or something in that zone certainly not zero point zero in that innings zero six five were miles away from that now so we need to look again and he said there's there's a remain needed there's more work to be done one thing is the other the flipside of that coin is the whole body assessment i need that only d t r a has that data that's that's still classified and the other thing that he needs is he needs fresh medical examinations based upon the you know the fact that we're now conceding yes you were on the island and yes you were seriously radiated and he presented with all that he was evacuated for radiation sickness you know what i'm trying to manage me is that remedy lost to eco back to the are out now and say you may not have been hearing me clearly enough or before folks but i would like to have a full body radiation a day and i have really tr boehner had been i think assistant general counsel deputy general counsel that and n r c and he's very knowledgeable in this radiation is my first radiation case but in looking at it i clearly perceive that we needed more work there and we went back and in fact mr west petitioned the regional office director to send his case down to jackson mississippi which is home port for all the radiation assessment and they refused to transfer the case so we now we to command that be done because we've been busy working on the other aspects the cases that we've now got him up to ninety percent unemployment building so we've got money we've got health care for is for a spouse now but now we're looking at the earlier effective date issues and also he hasn't been able to really educate his his internal problems and that goes to the you know the issue one that's the duty to assist the inadequacy of these exams no one can do can address his argument which is that his joint pain is whole body joint pain where his joints of dried out because the radiation and all those internal diseases he suffered from they're directly related they're the same symptoms you get when you have radiation cancer treatment you know when that and that narrows what your body you're going out on this issue though don't you run into the problem i'm sure you disagree with inappropriate or unexpected in a man of this age now and he also says i know again i'm i'm sure you're going to say i hardly disagree with his his having said this but you don't say and i did look at the  five fifty there's nothing there's not mention of the that letter that they did that letter and there was he didn't say that he was he he reviewed the evidence of radioactive exposure well and he said that mr west could point to not one example and in fact the the record i think is fairly replete with all the operation dominic information and everything of what he what unit shipmates endured i know but given our narrow jurisdiction which i give very familiar with know that that what we are not in a position to examine facts and we get really down in the factual weeds here what is the legal point that we can settle on as a basis for reversal based on dr sativex analysis or put another way doesn't dr sativex analysis as inadequate as you might think it be it doesn't it satisfy the requirement of re man from the board to consider a new your client's condition judge riders who heard this case below on assignment and remained in this case originally mr west position is that he did not enforce his own remained order and that the radiation analysis wasn't done and the other physicians and i'll give said a victory not present of at this credit until he has in his for that you know the research what we know about the facts he can't form he doesn't have all the evidence upon which to form a regional opinion so i don't think he really dodged the question i think he but i also don't feel that he properly did an adequate history and physical and i felt that he flung scuffle on those now you alert eluded i think earlier and i just want to make sure i have it right you alluded to the whole body radiation assessment without that high radiation dosage a whole body number a radiation oncologist and we spoke to several said we do not now have that classified data s a i c the contractor has to crank the handle and false positive that the badges had numerous problems with them and for that reason did not credit the reading which there was a batch that d t r a consider and that had a point zero six five r savak made his evaluation based upon the claims filed which at that time included both of those radiation estimates not to the extent that mr west challenges the adequacy of those opinions that the medical opinion or the correctness estimate those are factual matters that do not fall within this court's jurisdiction to review turning to mr west argument related to the effective date we do agree that  extent he's asserting the veterans court misinterpreted fifty one tenth the effective date statute that is a question that falls within the square its jurisdiction however this court has been clear most notably in the  is not subject to waiver for equitable reasons congress clearly set in fifty one ten the date of the claim as the earliest date at which would be a is authorized to pay benefits that  if under in mackay this court actually looked at the question whether fifty one times operates like a statute of limitations like that time period for which an appellant has to file an appeal and explained that fifty one ten is not the statute of limitations which says which cuts off and appellants right to seek review a and a veteran can file a claim at any point in time fifty years after service if that happens to be the case so this this court all the albeit before henderson but did did look at whether fifty one ten might operate like a statute of limitations and for that reason might be subject to tolling and the court said no  congress has set that limitation upon had that limitation on the books for the v a cannot pay benefits earlier th in the reply brief in the opening brief and before the veterans court mr west argued the equitable nature of the equitable relief aspect seven ninety three the espionage act that is a new argument but nonetheless turned to the merits of that argument it's our position that it's constitutional in name only it's simply reiterating this argument that fifty one ten should not apply to him should not set the effective date for frankly i'm not i'm not sure but as far as the hypothetical where an officer for example might tell someone you're not allowed to file a claim for benefits no that would not be a due process violation i think our first response to that would statute was there he was going to be physically restrained by the people who charge you with removal and we disagree with that characterization seven ninety three the espionage act says that an individual cannot the very information that the letter later said he was able to give so the record evidence doesn't support his contention that he could not file a claim because in fact he filed a claim giving that very factual sumption that anybody told him he could not follow claim he's not going to any of that he was instructed not to file a claim rather he says he couldn't discuss his participation in operation and in that case the veteran file that he had claimed that he had not filed his claim because he had agent orange related disability and the government was not at that time recognizing any link between his disability and agent basis either for equitable relief from fifty one ten so to to the extent that mr west claims or some due process right here again we think it's constitutional in name only and that the court has assessment i'd like a full body of yes he could see he could ask for that as i pointed out he has received the full body estimates of the request would be more in the nature of my five fifty scan and i find it difficult to five fifty ram is a real and large amount i don't know if you've looked at this but you recognize that's that's a very substantial number and that's my understanding yeah i mean it's it's it's not like a trip to the dentist for a couple of x rays it's it's sort of hard to believe that you would have an exposure estimate in that range and then have device is or are not real discriminatory in terms of they're only going skin deep i mean there are a lot of people who have had substantial exposure through  exposure to weapons testing and so forth that has been more than just skin deep as i understand the science and it's just strikes me as  peculiar if those numbers really are and that they just seem hard to to square with one another i would think that the v a might look somewhat skeptical e at the  fifty on the one hand and see one the other now i recognize that the five fifty wasn't up to five fifty which doesn't necessarily put him at fifty but nonetheless if if you conclude this mr walsh has suggested that what they're really saying is he's in the neighborhood of fifty that's a very large number well and it might well be that a lot of people die within a matter of weeks from that kind of exposure it might well be that if he were to go back to  he had a perfectly normal child before he was a radiated he had to trial children with birth defects he now has grandchildren with birth defects one who is fighting for life with cancer right now so we think that we think that the five fifty concession was a wonderful thing but it's ham and eggs you know we need the other half of the meal there's certainly a moral and ethical obligation on the part of the government in these united states to furnish that test whether there's a legal obligations for this court to say we have gone back informally at the regional office level and attempted to get them to do that by cajoling them they seem not to be willing to do that what is it that you think is the physics you can have five hundred fifty exposure on your skin and by the way the medical presentations of this appellant are consistent with up there in the range of you know three fifty four hundred i mean he almost  cured compromise now he's he's been plagued by illness all his life because of it but i guess what i'm really getting at is what is it that you would say other than that is it's just wrong i mean is there a way to impeach the statement that shows up on page to judge ivers opinion that happened in september two thousand and six that d t r a provided a critical element of necessary to the analysis or do you know well they didn't have his testimony and i think somebody at the t r a part finally picked up the file read his testimony looked at his actual badge because he has refuted that adj number was probably one of his never taken a lead boyle and he said that was my badge number i wrote it down and he remembered that four digit number and it's in the record in the transcript so somebody went back and look and they said look this guy was at the airstrip on johnston island we gave him some dark glasses he stood there and watched an h bomb go off that through a seventy five thousand foot high mushroom cloud the strongest ever ever flown on  earth he was absolutely a radiated and like i said he's lucky to be alive and so that's his gender oh that's his buchanan you know he's entitled to that he's also studied this stuff and he's worked on this pretty hard to understand that that you know that interaction between the physics the physics of it and the hell science of it and his the experts we've talked to said look without that whole  body radiation calculation which we make in all of our oncology work you know because we set the upper limits and we know we can only radiate in this area for so much time or else will cause these problems if we don't have that data only d t r a and there contractor have it the government holds the data if they won't make the calculation we can't get it it's classified we can't get discovery on it so this this man i think it's purely adversarial they go right back to high chair you know this is this is adversarial and that's all it is they haven't said that we won't we give these calculations out all the time we're just not going to give you an accurate one in this case thank you th