please the court my name is maxwell came in and i represent a veteran in this case rahm inter congress the question in this case is whether or not the v a must comply with remains and that question has been answered in the past and the early one nine hundred ninety s what was happening was the v a was refusing to comply with remain orders from the board when the court of appeals for veterans claims was created in the early ninety's they were sending orders back down to the v a and there was a period of time where the v a would simply not comply in a landmark case the goal versus west i believe and nine hundred ninety eight the veterans court determined that the v a and its administrative office must comply with freemantle years now after a period of this court to do is to determine how far how much room the doctrine of substantial compliance can be given before it runs into a constitutional violation such as due process considerations for example you know not speaking of the facts in this case but if if the court of appeals or veterans claims remained of the decision for a leg examination and instead the veteran was provided with an army examination and no notice or no documentation of the leg with bapi substantial complian if the veterans court then determine that is substantial compliance my argument is well frankly that runs into due process considerations and what i'm asking this court to do respectfully is to make a determination as to what the actual definition of engine and what happened with mr turner was that there was no examination no adequate examination provided he was provided an examination but the very own same v a determined that that examination was inadequate and it was improper so then instead of providing him with an adequate examination they only provided him with the medical opinion and the veterans court determined that well even though there was no examination that still all right because he was divided with the medical opinion and that that expansion of what satisfied substantial compliance when it is that broad and that all encompassing turns into a due process violation because as we're aware of these veterans they have they have right to do the due process is a constitutional right to that to the veterans interest and when the veteran is left in a position where they have a court order saying that the v a must do x y or z and then the v a doesn't comply that's a violation determination that's better left up to the veteran support my argument here with this case is this is so beyond the pale it's such an expansion of substantial compliance that it then runs into the due process considerations that i've outlined outlined below other words it's a very important fact that's true if cases if veterans cases are going to go forward where the be courts and the lower court and the v a does not simply have to comply at all with remand decisions then what veterans are going to be left with are simply decisions that are on of help and that this court won't review because they're under the umbrella of substantial compliance and furthermore there has been no set definition of what actual substantial compliance is to the veterans court refuses to make a a hard definition of that because they don't want to be constrained because they want to have decisions such as in mr turk's case where they can say well the v a didn't comply but they substantially complied i would just respectfully a court make that definition for the veterans court but i don't recall civil response that might be that this court is much wiser than i am and courts of higher ability have that ability to make to lose those definitions and you know if i was going to propose one but if the v a orders that the veteran be provided with a medical examination and no examination is provided period there is no way that that can be substantial compliance there's no way that can be compliant at all whether it's substantial or not and that's what i believe we have here is that the v a ordered an examination and opinion and examination was given but the v a determined that examination was incorrect and that was it was it was wrong and what was what was left and was just an opinion  so if there is a remainder order and it's not complied with at all i don't see how that can be substantial it would be the same with the v a order of the court ordered the v a to to retrieve social security records and instead of restricting s security records the i v a decided well let's just retreat records from the veterans state state unemployment office and then the court determined well that substantially complied because they had some sort of records and frankly  that's just not one and the same and so i would propose a hard and fast rule as to what is substantial compliance is that it's compliance within the meaning of what the court had previously order i'm staying there's no there's no easy way to do that in these factual type situations with was the examination adequate or was a veteran provided this notice at this point in time but when you go back and look at look at the facts especially mr turps case it was not complied with at all around and i think that's the issue in the problem we run into here well there certainly is a need for an understanding of what actual compliance is but that would be the jurisdiction of the veterans court they are the ones who look at factual questions in these cases and they are the to what the v a considers to be the standard for a substantial clients and i quote from patient time every man order will be deemed substantially complied with when the v a s actions resolve the issues that required a here first off we believe there's no jurisdiction this course entertain this case because it is a factual question but even if we put that jurisdictional question aside and look at this case this is not a situation where someone has a head a physical examination and says this is an adequate report of the examination is inadequate for rating purposes and the reason why was that ok so the remaining order of work talking about is on one nineteen i examination after this order you say that even though there wasn't the medical opinion was substantial compliance for you to present to us as though there was a physical examination after the lenient order in question is not after your honor actually  amc saying you need to do this again and what to remove the amc actually says here is to quote them therefore we need a supplemental opinion with the rationale as to whether it is at least as likely as not and that is j ninety three the standard so that's what the the crux of the argument between the parties is could this second opinion be drafted by someone who didn't actually perform the physical examination so to circle key point of this hearing your honor it says to quote it smoking being the number one cause of c o p d that mr turner was a smoker veterans court then considered mr turk's information that he subsequently  of his supplemental statement of the case which said if you do not smoke that past one hundred fifty five they found that to be not credible because of all the medical records that show that he was a smoker for much longer period of time and then term that  substantial compliance was actually measured so we do not have a situation where there was no compliance whatsoever we do have a situation here where the issue for the remand was resolved so even if this court we but again you know it is a very important factual question but still nonetheless factual question that should not be before this court was a factual question in the service issues that it actually does raises your opponent saying is your honor that mr charke following this occurrence of having a second individual take a look at his records and produce a new document he had the opportunity to be heard adam before the board and the veterans court than say that it says the board and its decision and in this document mr turner takes issue with the conclusions of the second examiner the board considered this the board found credible some of the information here but found he had the opportunity sponsor a supplemental statement of the case then he had the opportunity to say he is responding this is this document i'm not sure on the diving actually referenced oh here we go i hope this clears up some of the suspects some of the subjects i have a problem with within the statement of claim just how does this relate to the examination that was sorted and removed because the examination occurred there was an confusion here is there was an original remit in december of twenty two which ordered an examination and there was an examination the question is whether the documents it appears and j one nineteen is also  look at the language that you're with your concern your honor if the original remember instructions and this is a quote from the board from their december twentieth twenty ten we managed to show so this is a quote it's not ne instructions instructions occur and a paragraph before that and this is the paragraph it starts with in his in his opinion there sentence we have is therefore we need a supplemental opinion with the rationale as to whether it was provided with an examination that examination was inadequate because that doctor said well mr turk you want to pose to d d t ok so therefore you cannot be service connected the appeals management center then after that exam determined well oh dr you made a mistake we that that examination was an ass and i was the proper decision there but then after that the appeals management center on their own decided management center determined that examination was an asset because that examiner when he examined mr turk had the wrong factual background in his mind so where is the real in order that says there should be a new examination there's no there's no opinion and i don't think there's any dispute between the parties part of an examination you're saying the question is whether there was an adequate examination and because it wasn't an adequate examination there was no compliance with december exactly if the v a ordered an examination and i performed the examination and then the v a determined well you're not even a doctor so that's not an average examination and then the v a just provided an opinion i would store you that of the remain argument is that i never got a fair examination i never got to tell my story it was our present and second doctor looked at it and we've got a spy and you looked at the report didn't perform another examination  t and then crap to the opinion mr tarbox argument is that he was never provided a proper examination at per the orders of the room and it's important because medical opinions are just that it's just looking at black and white on the paper but when you actually examine one of these veterans and get to hear what they actually experienced how long they experienced what other exposures they had in your life that can alter your medical opinion and mr turton self in that february two thousand twelve document after the opinion was provided and said wait a minute i didn't get a chance to tell the doctor what happened i only smoke for ten years i didn't have exposure to farm chemicals which is what the the new opinion  didn't have exposure to woodworking fumes i work in a controlled environment and this is these are things i would have told the examiner and if i would have if the examiner would have heard this from me in the exam the kind of crap opinion based upon my statements and based upon my d d p exposure and based upon scientific evidence instead of the examiner early seizing stead the doctor only relied upon what was in the v a s record and he did not get the better it was never given a chance to have his exam he was given his exam and michelin but everybody agrees that that examination was an adequate that was it was plainly inadequate because the doctor didn't even believe mr turner that he had been exposed  chard was never given a an examination by a doctor that was proper and that was what the v a what the board had ordered on a three minute order that mr turk should be revived with an examination and an opinion and he was only provided with the opinion that everyone agreed that the examination was was beyond the pale wasn't was not was not frank in the in the least question question thank you