an adversarial procedure that heavily burdened claimants are not represented by attorneys which is most which is most of the clients what what what what what's that they're supposed to do so in this particular case i could see rule to be that the v a should be presumed to be picking a doctor that's competent to do the examination for that particular veteran for a particular election but and then if the veteran sees the doctor and realizes that this is the wrong doctor and the veteran can say wait a second this is a generalist and for my particular condition i really ought to be examined by a specialist what's good what's wrong with that ged medical problem that that they have to get you know experts from happens or the cleveland clinic every time that there's an alleged medical problem that that is beyond you know sort of something that you would normally have in a day to day basis i'm just not sure what they're supposed to do disperse to do to give just some showing some showing like what seven o two requires which is a liberal standard in the civil side in which rodriguez adopted difficult question or i'm not i don't see it as a difficult question but the men are happy to question by shift it to the better your recent it's not an issue is because you're taking advantage of law right it's it's more of a clue about medicine so i guess my question as mean i've got an internist who i think would be competent to diagnose almost anything i don't need to goto a pulmonologist for this question if if that's my internist so why is that at the v a has to say in advance that a specialist should be involved when well you may not need the special i never said that a specialist was required i just said somebody it's a big problem and i don't think that just sweep it under the table and saying well you could've raised it is is a satisfactory is a satisfactory answer to what should be a claimant friendly system meaning i really i really don't get it which seems to me you can raise the issue of competence if you don't have any basis or information upon which to raise it situation in which the veteran sees a report and says this doesn't make any sense and then questions whether or not look if you look at it but the v a is a more sophisticated body i mean why put the it i'm not i'm sympathetic to the arguments that you're making and i'm not i'm certainly not unsympathetic to the fact that that i don't see how this arises out of presumption of regularity what i'm concerned about is that i don't know how the v could operate under an alternative rule and you're not giving me you're not giving me practical ok well let let me just ok and i paid less for that five but look at let's the v a has not argued that it doesn't have the resources are not specialists and i'm not saying you need a specialist to be it to make pain of a minimum level of competency but if you look at page twenty one of their brief it says moreover just because the v a often requests medical opinions from general practitioners does not mean that especially if the pinion is not available when warranted mr mathis ever looks at the adjudication process includes multiple opportunities for the challenge to begin with but that's true too i mean there is the accessibility of the information the disparity i mean it just seems like a natural the v a has all that from their employees they could easily find out what the experience they then in every single case supposed to then provide a detailed analysis of what level of experience they've had with the particular symptoms the best way  this that if you look on the civil side because it's a similar issue that comes up it's a very liberal standard and i can't give you a one size fits all it really depends on the complexity of the issue i mean there are  diseases and then they're really rare a kind of vascular disease or so it has some play there and i think only the v a has a sophistication to understand that i mean the veteran looks at the v a as a paternalistic disability i would say it's per se evidence per se conclusive evidence that if you have a neurologist or orthopedist or an expert so any specialist would cameras they say you know what is your what are your credentials it would just be very informal it's about i'm a neurologist i'm a board certified i've done you know if you're a general practitioner like this well i because the v a knows that you're going to unsophisticated vulnerable veterans who just don't have a clue they don't even and i deal with on the service officers at the time they don't even read that the v a should be doing in order to to to inform the veteran or to give the veteran if what you're saying is true the veterans not even going to read that stuff what i'm saying is if you're looking for the ideal experience your education for experience and with those you're going and in fact it's interesting because if you look at the last page of the appendix page sixty three what's the fix the fixed the fixes to put a little box a little question in there that questionnaire saying what are yours what are your what is your education training or experience you have a family practice what what what education what training or experience do you have and respiratory illness or sarcoidosis i think you would have said none i would fix the problem in a hurry is there something that has come up since rizzo that demonstrates that it's wrong and to answer your question or i don't know nothing mr matter simply disagrees with this i wish that had been cited differently back in two thousand not so how does this work in practice s circumstances happened after resolved there would compel us to want to take a look at this again so if a veteran doesn't raise a competency of his medical examiner before the board then the court of appeal says  we can't hear the appeal we've said that too we can't hear the appeal either that's is the veterans got to raise a competency in the medical examiner before the board correct and the the as far as i understand the petitioners cases that the veteran doesn't have a basis doesn't have the information on which to say i challenged the competency of my exam or because there's no there's nothing there and it seems like they're saying give us your resume at least a little c v a paragraph something where we can look at that and make that initial decision which for all of that why why why should we veterans administration you've got all the information you know the background of the of the doctors that you hire whether there is side or outside one like saying you know it seems to me to be a really is easy fix to say give us a little bit of your background and noted something tailored to every single case same exact experience with len conditions for instance or a heart conditions or whatever it is a cd isn't going to cut the mustard in this situation or are but that's beside supp you're answering the question i guess the question really is why is it hard for the v a or for the medical examiners to write inside of one little box on the t v you have experience with respiratory illnesses and i've been practicing as a doctor for fifteen years and although i'm a generalist i have experience with respiratory illness period some kind of clue just mr mathis knows that case it would have to probably be extended beyond this simple case of medical examiners or i would stop here we're not going to use a presumption of regularity for the selection of medical examiners what about the selection title as this court has said and part with the actual doctor with his job title the presumption lies with the individual the v h i who selected that doctor and that's where the presumption of regularity of tax attach so it is the same cause and what you have here is an opinion that just says yeah he smoked a lot i think it's more likely his smoking if there was not much analysis he had limited exposure to asbestos that you know i would respectfully disagree with your honor change is that that it's too complicated or there won't be a practical difference i think it's fair for us to look at the practical side exactly a veteran can always challenge the adequacy of a decision on what basis if they show up with a to to make the because well not yet but we are certainly as you know the status quo currently fixes the problem because right now the veteran can say i would like to see a c v i would like to see qualifications or write in to meet with a specialist that's why you know so there won't actually be an objection every single case where somebody asked for a c p a but certainly the status quo as it is now one simply needs to ask receive your qualifications but your passion looking at nor it appears that they the ash there's the veteran can't say i don't think the nurse practitioner is competent because she's ill she brings it out on law school last year a middle school or nursing school rest she but she got a nursery school last year i mean the bittern doesn't even have that information well you want to be a would probably reveal what yes i know you basically what it is right now the status quo is a two step process it's not a single step process which i think is the concern you're voic but we could say an opinion it's our understanding of the current practices every single time a veteran ever requests for information about the medical examiner the v a does supply a stepping back from that year and i want to be very clear i don't know of any policy i don't know i've got a two sexpert looking at my loves well certainly in your example your honor i think that's really kinda the lives case now lives case we have a situation and that's before the veterans court where a situation where we have nothing in the medical examination report to indicate that  medical examiners a dentist in my hypothetical and so the so the veteran would have no idea and challenge the competency of the examiner or even to ask for the medical background well i think in  discreetness there are many cases every day where our medical examiner comes back with a positive decision for a veteran and they walk away with the veterans benefits that they believe they do serve no situations the all i would every else is looking at this is also considering that the presumption of compazine applies to this specific example so it does help veterans in certain cases your honor so there is a positive side to that so i'm not sure what you're saying are you saying there are times where incompetent medical examiners are granting benefits the veterans and so therefore we should take that into account but you know you and i think what i'm saying is that there are situations where a a that or a b c it's a positive decision that  and in this case there was a challenge to the adequacy saying that there was a chronic condition but if you look at page fifty nine of the joint appendix the bullet found that there was no chronic condition here based on the i believe my doctor was not qualified because of some prejudice because they didn't like the doctor in particular because of their race or gender or something along those lines i could see a situation where the v a says or we're not going to respond to that or to provide reasons basically say that that's just a prejudice but if they come up with a specific objection saying hey you sent me to a general practitioner and i'm suffering from a hearing condition and i condition and i think that that person wasn't qualified at that competency for medical experts medical thing then it's going to crop up it's going to cut all across the board the rating specials and whatnot if you look at pages forty fifty in my reply brief i responded that it's clear that  a physicians and i think systems up assume the role of a witness when they get and when they are used in the v a system and that's witnesses they have to show some level of competency where a rating specialist or some my understanding of the my understanding is that they can request it but they can't required that i've dealt with a lot of decision review officers which are sort of rating specialists but on the  when they say that it's really and we can ask for it but as whether we get it it's out of our hands there's part of the problem here is just there's no transparency and this whole process needs just so much