morning your honour's may please the court will you millikan for appellant ernest france way the veterans court in this case erroneous lee expanded the presumption of competency into a presumption of specialization every medical examiner chosen by the v a has specialized knowledge in the particular area required by the veteran a tissue so if you had your druthers and there was no presumption apply here how  that you should have sent it to two orthopedic specialists as opposed to want with the it specialist and one in turn nasty well it to answer your r's question about how it should play out i think that if a border manned order specifically requires an opinion or examination from a specialist then when that examination or opinion is rendered the v a needs to do something to document the fact that the examiner is a specialist in the necessary when whatever examiner is chosen to give the opinion gives the opinion they should attach their c v to the to the opinion or they should write a few sentences explaining why they are a specialist and i think it would be up to the forwards were it confusing because that seems to me to be two separate issues here one is compliance with the remit or which is unique to this case and the other one is what the presumption is which is a general issue which has come up before and are you are you both of those point we're arguing both your honor our narrower argument however is that when a were manned order as here expressly requires a specialist the duty turned sure is substantial compliance obligates the board to ensure that a specialist is in fact procured and it can't rely on the presumption of competency to absolve it of the duty to comply with that affirmative burden so are our narrower position is that where and only where as here you have a remand order requiring a specialist there has to be some evidence in the record supporting the idea that the examiner has the specialize is the problem with saying if there's a specialist and there's any question raised because they they do this what their area of specialization of whatever it is is their big deal big difference in your showing is because the board has this recognized affirmative duty to ensure compliance with remand orders and the reason that these burdens fall on the v a in the v a benefits context it's a very paternalistic system of the veterans are often pro se they don't necessarily know what to ask for how to ask for it and so this is my understanding you're saying it all sounds good but if the person isn't competent or isn't savvy enough to know what to ask for it's a lot more complicated to figure out what to do once you've got me information so i'm not sure somebody is not savvy enough or not interested or not they tune enough to look at the titles of these people in the record and the agency has satisfied its duty to sort of provide all of the information that's necessary for the veteran to substantiate or not their claim and so this wouldn't even be an issue on appeal to the veterans court because we would have documentation in the record suggesting that the person was in fact a specialist here we don't have that there's no evidence one way or another as to whether dr schachter the internist has specialist in orthopedics and the reason is mr france was briefed to the board which is found that appendix one thousand and fifty two dollars this is the belief that prompted the two thousand and thirteen remand order he specifically asked for a board certified specialist in orthopedics and it was based on that filing that the board issued this remand order which required an opinion from an appropriate medical specialist and i think it's significant that the board's remand order used that word competence which competency which you've complained about ought to be corrected i think that it should be up to the agency in the st instance to decide how to make the showing that they were lying on competent medical evidence which is evidence provided by someone who's qualified to render medical diagnoses it could be something as simple as a c v it could be the examiner writing a few sentences in the as part of the opinion this is why i'm competent to o on this particular condition and i'd note that the for this court's presumption of competency cases the v a in fact provided examiners c v s quite often as a matter of course and when they issue these sorts of opinions and suppose suppose we were to say that the overall presumption of competence only requires one thing and i think this would be consistent with the cases and the one thing is that the veteran reads the co assist it makes more sense to put the burden on the v a to put some kind of evidence and again it doesn't have to be extensive but just some evidence supporting the idea that the examiner is competent so what's the the issue but we would say again that given the duty to assist then as with most issues going through substantiation of a claimants claim that the burden to produce the necessary evidence should be on the v the better and i'm not holding about producing evidence i'm talking about just raising the issue well i i think that the issues are intertwined because you've got to stick with my hypothetical  on the veteran to produce any evidence or do anything except to say i challenge the competency i think that that would be a far better system than the one that is currently in operation but i think that  again i'd like to go back to the point that even if that were the current regime and even under the current regime as it exists under reso that one result in this case where there is a remand order that explicitly requires a specialist and i  witness that's how the veterans court has articulated their role and i would note that when a veteran submit a private medical examiner's opinion in support of a claim the v a in fact were choir's that examiner to substantiate their qualifications the v a says otherwise we can't assess whether the opinion is entitle to any weight and our point is just that it should work both ways it should be the same when the v a produces an opinion from someone who is essentially acting as an expert witness and one of these sorts of proceedings back to your narrow issue i'm having i have a concern about whether or not it was appropriate and in your brief your response to the waiver argument just comes the nd full paragraph the paragraph begins mr france way asserts once again the v a has yet to provide him an adequate examination and opinion and then it goes on to discuss the deficiencies in the opinion and we think that under the liberal standard of portable to veterans filings in the board the reference to an adequate examination is best read as a challenge to the qualifications of the examiner particularly given that mr france we had was by an attorney right understood your honor but i'd like to say also that even setting aside of even if you disagree with us about whether the issue was raised before the board the government's waiver argument is really a repackaged version of its argument on the merits because our position is that under the duty to ensure a substantial compliance if a remand order requires a specialist the affirmative burden is on the v a to demonstrate that the person is a specialist it's not on the veteran to say to the board this person isn't a specialist and so we think that the waiver issue really just collapses into the merits of whether or remand order that requires a specialist imposes wasn't there something called harmless i mean even if you're right i'm not sure i see why it's collapsed because when it went back down and nobody says anything then the assumption that that person waved it right because they presumably were satisfied that the specialists portion of that we me and and kind of everything else that isn't mentioned here was ok so even if technically  well i think the preservation that we see out of time and i think the question is are i think the preservation that we had to do was to to raise the issue of substantial compliance with the veterans court and and in addressing our substantial compliance argument the veterans court didn't say oh no there is evidence in the record that this person was a specialist as required to the rand order instead it said it doesn't matter that there's no evidence we're entitled to assume that the internist was a specialist because there is this general presumption that the v a chooses qualified medical examiners and we think that that legal point that it's allowed to use the presumption of competency to assume that dr schachter was remand did not substantially comply with the board's freemantle water so that it shouldn't strike that issue was raised to the veterans court and the veterans court found that it had been waived because it had not been raised to itself is adequate the substance of the opinion is adequate we're not talking about on page one hundred and sixteen dollars the argument arguing that the internist is not a competent individual to is not an appropriate medical specialist excuse me and therefore there is no compliance with the remap of water so our position is consistent with the veterans court decision that this issue has not been raised the issue of lack of reasons in bases provided as to why the nine of the this is the veterans court decision itself and the nd to last paragraph we talk about we start with the word finally and that's where the court is saying that there is an argument posed by mr frank way that there  failure to ensure substantial compliance with the remans water and then the following paragraph the court says initially the court notes that the v a benefits for the presumption that has properly chosen a person who is qualified to provide a medical opinion no your honor i did not i don't believe that that's accurate i mean that's certainly what we argued otherwise in our briefing and we haven't got a response otherwise what's the next the next page continuing the same paragraph we have the sentence thus the board was not required to riemann or right because it was inadequate yes inadequate substance not on the competency of the examiner ok all right that's why we see it as one issue i know your honor so there's two issues twelve but they are kind of tied together here your honor in order how much of this a plate out your honor is another question we talked about what should have happened is that mr frank way before the board after receiving the examination report by the internist should have that point said it is inadequate because of the substance to it if you did argue it and because this internist does not qualify as an appropriate medical about it let's move away from the waiver issue to the others so it's applying this whatever the presumption is what  my question what is the presumption the process your honor it's about the process of selecting a medical examiner so what we're looking at here is that a logical please let me start the birthing process is his that someone has to ask that we provide or they have two thousand i think in most cases the duty to assist would come into play to requires provision of the c v there are some outlier cases that we could think of where call the board case here in that matter that match or excuse me the claimants requested the c v prior to the examination the board found it to be an attempt to use certain litigation tactics and said it was no requirement at that point to provide the c v but basically wait until after the examination see what the examination says then ask receive if you disagree with it that kind of situation another judge jackson just in the since questioning of your friend that at least when the complainant when the complainant asks for it generally think of course it should be provided generally yasin the  why this individual was not competent to provide a medical opinion otherwise under fifty one of the seven once he raises the issue has the burden on the v a to show that the medical special of individual i think there would be you mean in that situation your honor we have already provided the c v and any information that goes along with the c v that would have ensured information on the competency of that individual perhaps  specialty or what have you the cases do discuss a specific need for a specific reason as to why the individual is not competent and i think that fits with the system because the system requires  medical evidence if we have a c v saying that an internist has experience in lower back disorders and then we have a claimant say the internist was not competent to provide testimony or receive an person and then one so he said look she's an internist my everything we're talking about a back problem right in fact an orthopedic surgeon is part of the do to do is just you recognize that i've and then what happens with that issue the board must decide that issue and provide reasons and bases to a staff the board will make a decision as to whether the medical officer was actually competent and provide reasons and basis for explaining that decision so if the board decides that the plane then just wrong and this person was an appropriate specialist or in the more general case the person was competent to perform the assigned duties then the board does have an say not it's not just that we amount of argument it's like the nature of the challenge or the current cern or the question has to be put forth by the veteran correct because and the run of the mill  if you provide the see the you don't know whether the challenge would be they went to the wrong schools or whatever or whether really is a question of they were competent to perform the kind duties they were asked if because we're talking about training education and experience these are the things that are to show they had any answers that she had any expertise in that area that's sufficient and then the more it has to come in and decision is i want to find out who has to come forward with what arguments and in some way you're saying they have to identify what the question or the issue is but then it's up to the board to confine reasons  just it's it's assertion of competency or special right i mean at that point the issue i guess you can say is litigated before the board and the board must make a ruling on it and then if there's a disagreement with that ruling you can go to veterans court we're going to lose to be clear about this and so the government's position is that all the presumption of competency to office is that what's the burden veteran to argue a lack of competency and once the orange lack of competency the presumption disappears oh no the presumption is not rebutted then i mean that's the entire point of it your honor is that there must be an argument made i maybe we're talking past each other here i don't think  understand yeah i'm saying is the veteran makes an orangeman there's a lack of competency ok and properly raises the issue that way at that point the presumption disappears it has no further  if that's all it is then i think it wouldn't be as big of a problem however that is not how the presumption has been applied and rizzo and it's progeny it's not just their veterans we said that that's what it means based on the government's fashion that with the right well your honor i think that would be inconsistent with rizzo and bastion and sickles and parks they say not only does the veteran have to raise the issue the veteran has to supply a specific reason for thinking that the examiner is and competent will i don't know what that means in some cases if they ask for the see the get the see what do you do i mean the problem is normally i assume w because otherwise how does anybody ever adjudicate if they don't know what the the source of the complaint so don't you think that just for everybody's sake including the veterans of the we don't swim around for ten years on remains and so forth understood your honor i think in the mind run of cases that would be a much better system than the one we have today i think however that on these facts where there's a remand order that specifically requires a specialist something more is required there has to be an as the government conceded in response to judge dykes question mr france we did raise the issue of substantial compliance and generally speaking before the board we think that's enough but even if you disagree with me on that this court has held in sullivan versus macdonnell the case we cited in our brief that if the veterans court issues a decision on a point of law then regardless of whether the veteran argued that point below it's properly before this court here the veterans court decided that the presumption of competency allowed it to assume that the internist was a specialist and that's the legal holding they were asking th