i came into this case february second two thousand and one in the issue that i was retained to resolve was this third degree or full thickness turn of the right hand since that time at that time m that there's a third degree burn the board admitted to that when we went up on our q motion in two thousand and four they said oh yeah there's a third degree burn well a third degree burn is there is a medical term of art and when you cross that line from second degree burn where your skin just really blisters off and then comes back like a real bad sunburn and you go into the world of you've actually burned away the flesh and you're going to now have this the scarring material you totally doraine just the nervous system in the blood flow and everything in this hand and that was the point so collateral estoppel here here we have you know the secretary raised in another case recently and i i had the same response i thought that in that case also it was it was not appropriate and i don't think it it lines here we did go on and do some for their  of court and i think we briefed it well and i you know jurisdiction is always an issue i was at the court conference a few days ago and there was some discussion that this court should be eliminated from from the review of veterans cases my comment in rebuttal to that was that they should have full review but that's for congress that's not for us today but i believe we have jurisdiction and and of course as as was discussed here in judge garzon in may and so you know with with counsel for the secretary there she was not something that this court really can review i mean those determinations are outside of the purview but this is a due process argument in other words what was the before the veterans huge issue review act what remedy what tools  this seriously burned veteran have in his tool box and what did he do except keep coming back again and again now once the court was created and and certainly after you've had counseling you had a swing at the ball remember that until i came into the case and they came to the court the first time the hendersons had never had access to their records so they had never seen the the record in this case so when we went to the physicians and had them review the record that was the first opportunity private practitioners have had to actually look at the record now jurisprudence has shifted a little bit recently and you're going through in some cases that have said that you know the private practitioners don't have to review the records but at that time to compete with a a v a medical opinion the only way you can compete was you had to be able to say that you had only reviewed the service records and in the the medical records in the case so the development of this case really commences you know and two thousand and one and we've made great progress but the frustrating thing is even though we have the secretary admitting that the man burned his hand in and confessing to that they don't they don't craft a remedy for this family you know they don't say well you know now we know that let's go back in the interest of fairness and justice  and correct our mistake and they seem unable to do that but in any case i feel that it's so egregious what this this man has been put through that it does rise to the level of a due process violation and and again the only thing that distinguishes it from from mr cushman is that the records were here right in plain sight and they clearly indicated this man had a third degree burn that's a total different adjudication that's a total to the court was well how can it how can you ever have a b b s finding that is that is erroneous and permissible you know the language of of secretaries brief that you know they made a permissible finding under seventy one zero four how can you make a permissible finding under seventy one of four which is absolutely contrary to medical science and contrary to the record to and you know we're i was over on the hill a couple weeks ago and talking to the senate committee and we're talking about this back on we talked about the speech right office that mr henderson comes out and  detroit has worked diligently to contribute to that nine hundred thousand claim backlog over the years i'll tell you you know the it wasn't easy but this is a very frustrating case i worked on this case i have and also this real reaction to it and this man has been long suffering he's a patriot he's a great american he's been stoic and in the face of all this and never become bitter and he kept his family together and by kids through college one through trade school system great american and the it's a troubling case to me how do you how do you craft a remedy in these situations and this court has been very reluctant to say that there's been a due process violation and i understand but i think this is one where i think the line is crossed and we were before this court in two thousand and four and leave and you know we raised that issue then but it seems that after you know another nine years of litigation we've made a lot of progress in the benefits side but the singular issue i think that really that took this man out of combat and sending home the thing that that then we have a constitutional question it seems to me that the the unwillingness or inability of the system over this sixty years to get this right it seems to me at they please the court mr henderson raises two principal arguments in his brief the first is whether the veterans the court failed to require the board to state its reasons and bases as the court questions indicate that the court understands that question is is how your honor mentioned that the reason that that's an important issue is because as a court recognized mr henderson sought compensation for his writing write him burn three times  sixty nine hundred seventy one one hundred seventy four he then brought it to motion on those decisions which the veterans court decided and he appealed to this court which dismiss for jurisdiction so he has had any number of reviews of the compensation for his service connected burn injury and that question has been put to rest disability question before the court now is whether or not he has vascular neurologic orthopedic  disability secondary to that burn injury as we note in our brief he went to the region office which turned him which denied his claim he was reviewed by the board of the veterans court review that the board  made lengthy findings of fact as to whether or not the disability that he was claimed existed and whether it was connected to the burn injury it made factual determinations which the score can review saying that there was no connection between any  secondary injury and the burn injury and denied his claim the due process allegation really stems from the fifty years of frustration at mr henderson is felt which we understand his belief that his third degree burns should have been compensated along the way however those that question has been answered repeatedly by the board by the veterans court and then by this court with the court has many questions what was just saying he's in an  unfortunate situation but it's beyond the power of this court to remove the well no i mean so the medical evidence shows that he is has both second and third degree burns and so the characterization of there being correct and in reality the question framed by the board here with respect to the disability actually at issues is vascular orthopedic and neurological disorder secondary to the burn injury the question framed was not based on the of the burn it was simply whether or not he had these disabilities and whether they were service connected to the burn injury of his right hand and so the question presented really presented by this appeal is whether or not that decision was correct the severity of his burden really didn't plan factor in the determination of whether or not these secondary disorders were service connected to his burn injury we do have jurisdiction over the fact application actual genuine due process claim is here but then i believe in answering your questions you have done a five our position which is that there is a fundamental difference here which is that in cushman the court view the evidence as having been altered here  evidence has not been altered the evidence was before the boards and the v a the entire time that brings us back to collateral estoppel again correct correct and so it is our position that even though he has a firm belief that his that the mischaracterization of his burn injury should have resulted in a change he has brought that to the board several times he has brought his cue claim it has been reviewed and it has been finally decided i think that it the generally und medical fact that for some kinds of injury is the manifestations become worse as one gets older and this is a korean war so why is it not context of the cure claim it may not have been error thirty or forty years ago today that doesn't matter whether you call it second or third degree because you are not disabled a to after so many years of past to say we we decided as thirty years ago go away well except that in making its decision the board goes back and reviews the medical evidence leading up to its determin the the the determination of for instance if if the severity of the burden was determining factor the contemporaneous evidence that was developed at the time of the burn is most likely to be the most correct evidence of the severity of the burns because there are the answering my question my question is why a decision made today as to the situation that this veteran finds himself in because of what happened in the korean war why that should be based on the evidence that was produced six years ago i think if you're going to make a determination of service connection i'm not sure i understand how you can divorce the determination today as to whether or not the injuries connected to service from the medical records  existed at the time in service because then you'd simply be relying on a medical opinion maybe forty or fifty years separated from the incident and i latched on to my question by pointing out that it's no that injur disability can from time to time become manifested in elderly that are not manifested in earlier times when you have more muscle tone than whatever the determination here and in his previous claims wasn't simply that at the time of his burn he didn't have a conventional injury or at the time of his burn he didn't have the secondaries ask your neuropathy or neurological or orthopedic injuries it was happened in the korean war then why did it compensable today even if it wasn't compensable when it was a young man if the v a were to agree that his situation now was as a result of the cream more than would be to due process or for the v a to decline do answer that question but the v a hasn't declined to answer that question in this case the v a has repeatedly gone back to look at whether or not first he had a combustible burn injury alone and now has gone back to look at whether or not he has a compensable secondary a disorder is related to that burn trees so they haven't refused at all to go back to look at it or saying on the current stop was that the v a has already gone back if you want to bring a new claim for issue isn't it for the da to say they have to bring a new claim which means that you can't bring the injuries back to the time of service is in though that's why you well i mean if i have a new claim even if the connection is granted is not entitled to compensation before who files a claim but there are parts of the procedures are set up to allow him to bring in for example the queue motion which would bring it back to the time of the original decision so i'm not trying to stand where the procedural due process claim with lie in the fact that he can bring on a new claim for disability compensation for this burn as he has already brought three this man and made in his his hand objective lee worsen because they cause more harm than they solve he didn't have carpal tunnel you had a bad hand so he didn't have repetitive motion injury he couldn't use his hands that was very weak so what we did is we reframe the issue here when we talk about neurological vascular and and muscle injury you know secondary to the burn that's by way of  trying to get it over here into the world of full thickness burns because they keep sending out over these decades inquiries for examination that say review the second degree burn of the of the spectrum and so they do an exam on it and they you know they can't hand twinked not examined to second degree burns and so they say oh we did and it's still a second degree burn and so we have one of their wonderful exams in ninety three which got him the the ten percent compensation on the on the scar said this man needs to see a hand that expert that's right in the seam p t needs to be referred to a hand and plastic surgery specialist ordnance went off that's how he got involved and burned standing on its feet for ninety six straight hours saving the lives of those young men and so he devoted his life to burns he looked at this case and he was just appalled so he wrote i think a very good decision which then the board pushed aside and it's not relevant who's this guy and why should we care and so in the in the in the end here i think mr henderson has the better of it he's been right he's not go get compensated he joins his brothers and sisters on that side of the line there's millions of them but it won't make it right and whether or not this court can craft a remedy for this family i don't know but i think this rises  to the level of due process and exactly there was an objective worsening of the situation after the seventy eight surgery he then goes and then there's all the in two thousand five hundred going through physical therapy but there's a machine where you  fifty one two thousand and one took fifty years to get an objective strength test of this man's right hand i don't know what it was like before that because they never seen through the physical therapy and they never they never did in the objective testing they rejected him out of hand and as i said whether there was a racial component in that i can tell you by the time vietnam came along the sixty's that was all going on you know whatever your ethnic origin or your race or