at and but even if we think that what the and i don't know about this appeals management center or there are story but even if we think that what happened st to use a late term in other words that they shouldn't have manipulated the doctor's conclusions that way or suggested that the doctors who couzens be altered even if we believe that's the case how do we get around the fact the representative for the veteran at the time all that was going on in two thousand son was given the information fairly late in the game  they did file a brief in two thousand and six what they filed on the roof was an indicator that the person of their fuel management center had given direction to the medical examiner in our courtesy to do a little bit more what the american legion didn't know or didn't articulate it that was all that language that was in the directive from the appeal management center about you couldn't possibly have  running in this medical opinion because this veterans otherwise would have been dishonorably discharged or had article fifteen disciplinary action were not completed of the american legion was in the record but you're saying that that exchange from the management center to the doctor was not in the record until two thousand  vienna parent about two three years later came up there was another there was there was a record in two thousand and six there was not a record in two thousand and eight there was a record in two thousand  that's when those documents sort of become an obvious so is your argument not so much that you should be allowed to raise a due process claim at any point in time but you should be allowed to raise the due process claim after an initial seamy decision if there's evidence that the information that's relevant to the due process claim was was  not produced or not provided to the pattern that's correct and it wasn't provided to the veteran initially when that directive came out in the middle of two thousand and five it was never a sense of the veteran representative they only discuss they only discover sometime during the next year one of their briefing was done in two thousand and six but i didn't discover them so a couple of years later because i didn't see it in the original you saying you didn't see it or it wasn't in the record in the record ok and you know it's not mr hockey is not saying anything wrong here because from the look  american legion of some point finally did see this but the part that they put in their brief doesn't go to what we've been calling them sam why didn't you argue that this was a newly discovered evidence case because it was the you never argue back where i mean you can say you know we both of these breached talk about the two exceptions to the finality rule one of them is newly discovered evidence and you but you never made that you didn't say  or probably that we have a situation now where we have a deceased veterans can be a little hard to get a medical exam i've been trying to argue that for about five years i probably would have aband box but it's ok's when it's a case management kind of an opinion and a case management kind of activity that's going on it's not the same level of activity as trying to see if we're going to serve or just not and what i what i saw when i saw mr huggies relief was a great job trying to do the right thing but it's the wrong for me it's one thing to do to do the right job trying to do the right thing but it's just the wrong and i think goes all we have here we also have a whole different problem there is a whole other side of this issue i'm still a little bit perplexed that the veterans court after that argument last year did what they did with this case because the real underlying issue from day one in the us case and this is including what the american legion was seeing back in two thousand and six is this veteran never got a real hearing i mean he had a physical hearing where the already showed up and they told their story but he never had a real education of this case never had there was always a question of missing records it was always a question of not having the right evidence before the board because of the missing rigors of the american legion because there are words of do with it and one of the reasons why we had some of the procedural issues that occurred back in two thousand and six seven and eight was that we were trying to figure out how do you get the corroborating which we put into the rosters and we tried to build a case that said if you look at the record as a whole it makes sense if you believe that in those missing record that it would have shown that there were some disciplinary issues was that he went on some of those far as we can get with that but if we actually had medical records it would show that he went on sick call for psychiatric for says i'm never going to go that one hundred fifty four in the the brief that was filed before the board in two thousand and six that indeed the amc remained request was in the claims file the two thousand and six elections american legion brief quotes from it and if you look at one thirty one there is actually in the third paragraph in the bottom an actual quote from the same page containing this language there's discussion on the following page actually talks about this page ten of the decision but it's at appendix eleven suggests in the in the back his court found that it was in the record a lot of the question here was or in the briefs was simply whether or not a third exception finale exist based upon an argument raised to the  and our position is no so you're saying as a matter of fact you couldn't have made a newly discovered evidence claim because or at least the the effectors court has already made a finding that them to the extent you would make a new material obviously based upon this particular evidence i would speculate but but i suspect that the court would find that that wouldn't be valid because that evidence  either disciplined during service of the psychiatric had psychiatric treatment would have been destroyed in the in line so the discipline part wasn't destroyed it's i think or at least there was no record of it and there was record that he had been receiving promotion so as i understand the record certain service records were not destroyed but other records to include all the medical records that would have been created during service were destroyed part of the seventy three fire  so the point that the mc was making was generally when they are confronted with these questions of paranoid schizophrenia there is some evidence in the record that the individual had behavioral issues during service which at the time may not have been attributed to mental could mental condition but then later can form positive supporting evidence for a finding that the condition rose in service and here based upon those records that were available including those exit and commendations and promotions and good service the amc individual or regional office branch raised questions about the medical report which based pretty much clearly on the history reported by the  honor i would say actually what happened here was was a perfect example of how the system should work because it's also the case and i think the court would probably look back at some cases out over the years and find that you could have a situation where the regional office faced with this type of medical opinion which does pretty much attribute the finding to history the regional office which would give it a lower prabhat of value and simply discount it and say this other record evidence is that what we would call negative evidence evidence not supporting the claim overcomes the probative value of the medical record here what the a n c did was what we think was a nice thing they looked at it the reviewing profession official said look when i look at the record evidence i'm left with no reason to give any problem of value to your opinion can you change my mind and send it back and ask for that individual to so if that doctor had responded to that request and said no no this particular type schizophrenia is the kind of thing that wouldn't necessarily show up in good service reports he might he might be able to have function perfectly well and so it's not unusual for for there to be in my opinion and in service yet in a world where cooke already existed and when this court sitting in full size there are two exceptions to finality and arguably dicked addresses even a potential due process allegation although i will say just as an  aside the allegation in hair and in cook and frankly in this case are all of us sat there basically and their like assistance types argument something went askew during the development phase of the case it's not so much like cush where something happened and mr cushman didn't know about it here we have a complaint about the quality of the assistance that was provided or not provided as as the case may be by by the v a and that was a known things would be some changes three point one five six which is the regulation it implements fifty one away but nothing that would have affected the scope of this court's decision which was that congress in issuing fifty  i'm not we're not uncomfortable with the board entertaining the idea that there was some sort of denial of process they do that all the time most of the part of the part of the reality though is matthew's due process considerations generally are a backstop to something provided by statute or regulation and our position historically and continues to be that the scheme developed by congress and the v a to provide that trans assistance goes well beyond anything that matthews would require outside those weird cases like you had with cushman your process has built in gates and gate keepers even that allow someone to challenge any concerns like in this case had there been concern at the time and it looks like the american legion was aware of this and see action but had a different view of the problem they weren't so much concerned with the go on and try to find some other doctor report that could have addressed this question that was the that's the gist of the briefing that they presented to the board but the long and short answer is no we don't have a problem with the board actions court statute specifically says that it can look at whether the secretary complies with the constitution and act it is actually there is that issue being discussed in another case about facial challenges but that that's not the at issue i reserve the right to consider that further the appropriate time the american legion talked about the route the reporter was asked to obtain a rational now for the february of five finding and to train a specific decoration of claims file review that's all while your recollection of what's in the file we can accept coming from you as an officer of the court but we are bound by the factual determination that some veterans court made that it actually was in the file but the does it's not it's a small distinction that those are hockey is not incorrect that the brief that was done the american legion talks about those requests but the request itself doesn't seem to be elegant to the veterans or the veterans representative and you know so far as i was concerned until a couple of years later that that's it and the appeals management center dealing with this back to fuels national center has different offices there's one right around the corner here and there's this one in cleveland that does this particular case thirty years ago whatever this and that is an alternative regional office it's not it's not the board and it's not the regional office the the agency of original jurisdiction is albuquerque and  american legion and i did too i was very unhappy that this whole thing was being done by an alternative regional office that we have no connection with at the time and i it doesn't work where the mc does not report to the regional office or it doesn't work like that it's its own energy and it tends to be the same thing as the agency of original jurisdiction it's not and that's what that breeds the l s two pages is all about they were issuing a statement of the case about this whole issue and then they were rendering an opinion about this whole issue as if they were the albuquerque agency original regional office agency or original jurisdiction a or j and they're not and there's no connection between the veteran journalist saying in cleveland at all and it's not really an arm of the board the board sounds the paper over to these amc offices to have them do the secondary work but they didn't send it back t albuquerque and you're right i mean this is exactly what was going on there and we originally requested that this record be improved and expanded and have the thing actually decided correctly in two thousand and seven at the regional office level that's why it was done that way because all these records were missing and we want to the people that actually do the work we could do  simon sinek in his book about five years ago start with why it's as if we were starting with the wrong questions if we don't understand the co author then even the right answers