third twelve eight because he is bashing requested and challenged the qualifications of the experts in this matter below before or before the court which is exactly what the cour every where she requested and is discussing her requests to the board and to in a letter and phone calls to the regional office challenging the the qualifications in the composition of the experts and she listed a request call my us representatives office ron paul scott green a to represent paul phoned me about the letter and phone to euston v a office and in phone me that they would not respond to my request answering the wrong question mrs bastion identified information in the record that is what the secretary's people the experts are supposed to do themselves they have thrown out the message because they have deemed the messenger unqualified we challenge that a claimant needs to be qualified to point to issues in the record and say here's how i read this but the facts are in the record whether she came up with a number or not she said you received these fifty or  hundred exposures the board accepted that policy that that process in its two thousand decision which apparently the secretary's relying upon here which is not before this court in the two thousand and six decision which is before this court the board said we're not qualified we're not going to consider that information it's information in the record they should have done with the six plane why they didn't do exact same process that they did in two thousand mr expert we haven't seen from asian identified to us please explain it to us what this means there's never been a challenge it's undisputed this is baskins to submit those who want there but there in her identification of the actual exposures to her husband there may be reasons why are some asian the total number of radiation the amounts that he receive extent that mission so we're only talking about the two thousand and one that is the information supplemental information because the two thousand board decision was remanded but there is also two interstitial board decisions before you get to two thousand  is supplementary information as any other case before the court what we're saying is everyone seems to have missed below that the secretary had an independent if you want to go seven thirty eight u s c fifty one of seven duty are because in two thousand the board looked at it and said you're identifying radiation information we don't know what the significance of that information is agave the doctor ask why they did not do that in two thousand and six right they just said the messenger is not qualified to identify this to us it's not medical information how else is is a claimant any claim that supposed to identify information to the board other than submit here's a list of information and in this case she said i've added it which was it was based on the recorded dose of ten milligram an extremely small dose not the probable those doctor made there in one nine hundred ninety eight at the secretary seems to rely on stated her office could not perform a dose assessment that's a quote out of her four paragraphs the bottom paragraph to that then says based on this dose we've given you you know i conclude that you couldn't have any service connection here she also admitted there was no scoping dose so what she said was i don't know how much does mr bascomb got i don't know how much dose you need to get the cancer mr bastion has but i conclude that whatever he got wasn't enough that's the error dr made and the eighty eight there was a nine hundred ninety nine submittal by ms bashing a two thousand pinioned by an expert who adopted the amount suggested by mrs bastion in two thousand and then a two thousand and one opinion which no one has ever dealt with board said we're not going to do it for the it is and it is a legal issue of whether you can take it reported to us as waltheof we found in the record one page which is known to be incorrect the only thing we are sure pointed a single error in the record citations or even the textual citations to a general text and mrs bashing submittal it's a duty of the secretary through the board or through the experts to interpret that for the board not to dismiss it because mrs bastin is an expert if she would have said to the grief she did say it was appropriate for the board and the court to say we can't had to make the whole presumption which is not what rizzo says and secondly it is unclear how a claimant can identify medical material in the record because you you can just say you're not you're not a doctor you can't point to the record that is the argument here also without any reasons and basis that the court or the board they treated substantially similar submittals completely different except it provided to an expert the first nine hundred ninety nine mil and said we're not going to even look at we're not going to submit to expert for sure and we're not going to give any weight to her second submittal because she is not an expert if that is just pushed forward have to it is unclear how you can raise these issues when the secretary doesn't do his or her job and identifying the material in the record which is their fundamental duty for the doctor's credentials so my first answer would be that that would be insufficient if we look at this court's decision in rizza the court basically adopted the c a b c's decision in cox in the context of and she was given those qualifications that was responsive not immediately and that's why she was complaining that she never heard but she did ultimately in fact i think it was actually the subject of one of the remains that it became clear that procedurally she had never gotten a copy  in thinking about the birds that this really is the underlying problem isn't it here we have an extraordinarily rare disease and the only thing that this veteran did which was different from someone else was that he had some exposure to ionizing radiation so would been arguing so far today and through the briefs as to how much exposure did he have but meanwhile there's nothing in  record to relate on izing radiation and this kind of cancer and i'm reminded of we great debate about agent orange there was nothing in the record so for the early cases there was wish medical connection because these rural new kinds of expenditure for the veteran lost until congress enacted a law and provided a presumption now so here we have another case it's clear that this veteran had some exposure to ionizing radiation and i think is pretty much common knowledge these days that some people get cancer for money or some people get cancer from l different kinds of influences the slowness the burden is on the veteran it looks as if it can be met in such a circumstance and i just wonder if that really  and this recitation of what's included in the record in both the board and c b c is opinion the entire record including quite a bit of data not just one record of his of his dosage not just one record from the batch but quite a number of documents eventually came forward showing his dosage exposure during different periods of time they did it in a server two thousand one commission that we were talking about earlier heard two thousand one submission and even heard in one thousand nine hundred ninety mission both of those were not to identify other instances of his exposure they were her temps to mathematically calculate the dosage that he was exposed to based on the instances of records that she was she said i'm using math and you know research methodology is to calculate what i think is the appropriate does it it's not that she was coming forward and say you didn't take into account when he was after texas and every actor and therefore you're off might require some change in the statutes regulations but as they stand now right now there is still a burden to demonstrate medical causation between the acknowledged exposure to radiation in service and the disease from which the veteran died and that's what wasn't there because the two medical experts that specifically addressed that question said in looking at all of the literature and all of the studies on this point there is not evidence that exposure in service and extraordinary usually for cancer i guess and i think the cancer is an unusual form of cancer but the record doesn't suggest that mr bastions exposure to radiation was unusual in fact to the contrary it suggests that his exposure was extremely low i mean people all people even people that are not in the service are exposed to a certain amount of radiation we all go to the dentist we have x rays taken we may have other medical procedures but particular kind of cancer the state of the knowledge right now and there have been studies in doctor prescribe the side it's in numerous studies looking into this exact question and the studies show that individuals who were exposed to the kind of radiation dosage that mr bachchan was exposed to had no increased risk for this particular unusual form of cancer that's exactly right two different loaded question here the first is how much radiation was he exposed to there was no evidence that you can't get this kind of attention for minor nicely radiation but that is not sufficient to win the case for the claim that under the state of the current state of law that rizzo left that door open except that and he said that resists courts expressly says this court adopts the reasoning of the veterans court in cox and right before that's that's where the burden actually should we start with a presumption of the publication and the burden actually shifts to the attacker to come forward with something some evidence or something challenging and so by adopting that decision i would say that th shifting to the attacker to show to the contrary mr cox has provided no evidence nor can the court discern any of the record that would cast doubt on dr pros competence and qualifications so applying that reasoning to this case the c this case eight page seven of the joint appendix that ms bashing provided no basis for questioning the publications of the doctor yes she asked for us to see the report that she asked for his qualifications but having received them she didn't come forward and present court's decision in rizzo because of its extensive citation to cox no that wasn't an issue in rizzo i admit that because he didn't make any challenge but because the court went to the extent of adopting the decision cox and cox did have a finding that there was no actual challenge and saying yes there has to be something more that i challenge or i question this doctor's expertise there has to be the burden shiftings there has to be some evidence coming forward to actually challenge it and here the c a v say see said as then they adopted ten milligram and one expert report the next expert report adopted two points of the rent two thousand seven hundred milligrams you get three different answers from two different people i think that is a legal basis to say all right who's doing this and what is their background who do we believe or who can i challenge as a legal matter those that the use of ten milligram based on a single document is is an error here that was adopted by the board and it was an error of the court to approve the issue in cox is correct you have to have some basis three different opinions two different people that is a basis to challenge to figure out who the  legally required fact the probable dose was off between these two individuals by a factor of two thousand seven hundred that is an issue here subsequently and let's not forget no one has ever looked at the two thousand and one submittal which came up with numbers on the range of one hundred fifty red one hundred fifty thousand milligrams that c and eat they have to have the fact that legal error here on three one one is again that no one but stablished the probable dose as a matter of fact today we do but that the process as a legal matter be stringent enough to allow the best estimate of what happens if dr post quality is asked to look at the two thousand one submit and says there is chest dental it's all of the other stuff that no one looked at there is no evidence we know doctor made it look at it she said when she looked at ten mil or hilbert says she has to specify which  factors she looked at she said who and the court said we relied on those two but those which she said she couldn't figure out and she said was ten milligram then dr football he said was something else and the sensitivity of with this information and even guidance what needs to be done with the information that was not considered by the experts where the board kind of handled the qualifications of mr bashing to raise it is all moot they needed to call him the expert for the third time because the information was to say although updated any other veteran can do when the remands go back this case has been removed from the board five times it wouldn't surprise it is not surprising won't be surprised because back for a sixth but haven't been able to get it right and these are now the reasons because we've been able to sit down and look at all the law and see where the legal barriers are not waiting factual issues but not addressing factual issues as required by law