ok i sue more familiar with the light system when the yellow light comes on beginning to consume your rebuttal time when the red light comes on you've exhausted your entire time we'll hear argument first to number two thousand and nine seven zero four three arena against the department of veterans affairs a mystery good morning my name is shawn raven i represent the veteran mr an area on a program to basis for v a benefits veterans who are eligible for bell benefits or entitled to assistance from v a in the development of their claims under fifty one of three a part of the duty to assist includes the provision of medical examination or medical opinion the issue in this matter is whether or not the due to assist is discretionary and whether or not the secretary has discretion to determine whether or not by one form of assistance over another in helping to develop a plan i guess i'm confused i didn't think the question was whether the duty to assist was discretionary but whether the duty is to assist required of medical evaluation in this case that's a smaller subject sure whether or not  didn't understand the v a to be suggesting that the back injury didn't exist but rather there was no nexus no link between the back injury and service and how would any medical examination a stablish that the back injury was in fact related to service thirty years prior the medical examination is is different than a medical pinion in an examination requires the examiner to actually talk with the veteran to find out the history of the injury to find out how long whether or not there been any symptoms at all kirk a lot of veterans do not report their injuries when they're in service it's not a macho thing and a lot of veterans self treat their injuries for a long time because many veterans do not apply for benefits because it think that benefits are only for those who are severely disabled and a lot of them will self treat for a long period of time until it gets too painful and then they apply for benefits that would possibly explain a lot but tremendous amount of time very lapse between service and injury so the harm that was done here was not giving the veteran an opportunity to explain and or testify through a medical examination about his continuing injuries and how they may or may not have preceded his twenty five years of martial arts training absolutely because even the injury is  information in some way other than a medical examination because it seems to me that what your complaint is based on is not a doctor's opinion or a conclusion from a medical examination but giving the veteran an opportunity to put forth his own statement about what has occurred so is that opportunity provided in some other way it is provided but you have to remember that veterans are not represented by counsel the pro se their lay persons they have no sophistication with how to go their claims and that's the whole purpose of the do to assist because congress and the country understands that these people have provided honorable service and they did assistance in developing their claim how decent of us men said to mr rena a questionnaire how long have you been suffering from these symptoms mr reno would be able to answer those questions but left to his own devices mr arena like many veterans simply do not know how to develop the players and that's why the do to assist fall squarely on the government side as a government obligation but is is just more question suggests that would sound like something that could be done by means other than a medical examination in the way you've parsed that the missing piece here sounds as if what's missing is a sympathetic and perhaps even a sympathetic ear and even a probing set of questions about medical history it which is really that's really the crux of  piece that you think is missy's not exactly but but that doesn't really require a medical examination i disagree only medical examiner has the competence to ask the questions that are necessary to develop a medical history for example mr reno probably would not know on his own that had he should have written whether or not he had continuous symptoms of disability whether he treated those symptoms of the over the counter medication but the only person who has the expertise to ask those questions would be a medical professional so they will suppose that there is and i doubt that this is frequently the case but suppose that in the regional office there is medical professional can say here are the questions given this claim here are the questions that he needs to be asked and that questionnaire is formulated and sent to the better would that be sufficient in your view that is to say it's coming from the medical profession that would be better than what currently exists but again the problem is that questions are not always fully understood by a lay person and a live examination allows a doctor to interact allows the doctor to obtain take it an examination what in two thousand is that right and actually examination of his back from what i recall he might have had an examination that was not provided by v a provided by it might have been provided by the  institution where he was incarcerated but that in yes the answer questions were chaos but what was missing in your view from that examination that would have been provided by a v a examination would be this medical i'm it's the medical history and it's the purpose of the examination doctors at an institution would examine some of the purpose of treating them says competition and pension examiners when they provide an examination for v a they're not providing  for treatment purposes it's for the collection of data to analyze by the medical opinion for example whether mr arenas current neck and back disorder or you know logically related to his injury when he fell off a cliff in the marine corps and travel is it your view well let me ask two questions first of all do you know offhand whether the v a will send a doctor to the nursing home typically in those situations even if it's some distance from the v a medical facility or does the person is the person expected to travel to the v a medical facility in order to get the medical examination i represent about five hundred clients and in my experience it's only happened once were  actually paid for fee basis examination for v a pay for a doctor to go to a nursing home to answer to examine my client the better and to stick to analyze the data collect the data and then provide an analysis and opinion and that has happened but what the v a s in danger of doing here what the real danger is is that people who live far away from v a medical centers and people who are institutionalized are going to be put in a group of just getting a v a medical opinion not even by a doctor if you notice in this case is by physician assistant who who basically didn't even provide a diagnosis but these people these veterans are placed in a very separate category from those who are able bodied able to come to a v a medical center to appear for examination sends a as if what you're saying is it's not discrimination against incarcerate people it's discriminated against skin the nation against people who for one reason or another can't make the trip to the that's correct but if you live you're perfectly healthy but you live in cut cebu alaska and there's no v a a facility anywhere closer than fair banks and you can't afford the trip you get an opinion is that cares and you think that that's that's the the v a can not have such a system they have to send somebody to cut cebu no they don't have to send someone there is a fee basis system where they can actually pay for the doctor who lives and to see both are close to him but if there's no one who lives and cuts even they have to send a doctor at this point that's under the do to assist an examination otherwise a veteran would all people who live far away would only get medical opinions and they wouldn't get examinations so your  examination but a medical opinion provides sufficient information to decide a claim the plain language of the statute provides the answer and the answer is no consequently this court should refer the decision of the court of appeals  the only way to have a medical examination would be to send somebody out there or to have a fee based examination conducted by an independent position  is that a factor that the v a can weigh in determining whether a medical examination is going to be given in a particular case or not my understanding is that  simming that the v a has concluded that an examination is in fact necessary on the facts of the case let's start with that so so assuming that the v a has put an examination is necessary then there's the determination made up my understanding on a case by case basis if an examination is not provided there's an explanation provided for why that is not done and that explanation can itself be reviewed and determine whether or not it's reasonable right but there i'm so i guess my question just to get right to the nub of it is is it legitimate as part of that explanation to say that even though we thought that an examination might be helpful and would have conducted one had he lived  blocks from the medical center he doesn't it's really hard to come up with a way to get somebody to cut and so that's one of our reasons that we're not going to conduct a medical exam is that a legitimate reason i think in certain circumstances it could be a legitimate explanation if it's simply not feasible if the person over the money or not there to do it while they're much there to do it i mean it's just a question of allocation of resources i mean it if it's going to cost a thousand dollars let's say to conduct a medical examination and the conclusion is the medical examination is necessary that is to say it would be potentially helpful in a way then opinion would not does the v a have an obligation not to factor in the cost in making a determination whether to conduct a medical exam your i can't give you a definitive answer on that on that hypothetical  have not looked at details about where an examination is necessary where cost is the factor that is the basis for a denial the statute itself gives the v a discretion to decide what is necessary on the facts of the case here you're positing where the v a has determined that an examination is in fact necessary to decide the case and it looks to me as if the statute is itself if the statute itself does not answer the question that you're providing it says that  that an examination needs to be provided at the v a is already determined in the exercise of its discretion under the statute that it needs to have an examination and i think the statute let me go to the language of the statute itself and that's where that's where i would start that would be the starting point for answering your hypothetical that says in the case of a claim for disability compensation the assistance by the secretary under subsection a shell standard for what they what is looked at and the third part of that standard is the record does not contain sufficient medical evidence for the secretary to make a decision on the claim now if all of those things are  if if the v a says look here we have a situation where a medical examination is necessary and without a medical examination we do not have sufficient medical evidence to make a determination of the claim it would appear to fall within the scope of the statutory now i think we've gotten a bit far removed from the situation in this particular case because first of all here the v determined that it would not necessary to obtain a medical examination to decide the claim that mercy mr arena has posited first of all the question itself was one of nexus  and as came up during the questioning if the question were what is his current medical condition and does he in fact have a disability or in a different sort of case is he entitled to a greater disability operated those sort of cases would perhaps call out for a medical examination here what we're talking about is no question about what his medical condition is right now the medical records that he got through the examination at the prison cell were in front of the v a and so the medical examination would not provide additional information about his current condition that's just wasn't at issue in the question of nexus the v a reasonably concluded was not something that called for a medical examination now the the again to go back to a question i asked him st vincent there was a prior medical examination conducted that was conducted by the institution doctors is examination which was documented in the claim materials is that right that script ok so that there was a physician's account of his physical condition presented to the v a at that point that associated with that physician's report do you happen to recall i do not recall ok what was stated in that particular report i do know that you know there was medical history from before the time of that report that was compiled i do know that his service medical history was compiled and was part of the review so it's not as if that was the sole medical information that was available either there was over a period of time from both his service records in the one nine hundred seventy s and some medical history in the me hundred ninety s and that examination or talking about that was all before the board made the decision if there hadn't been an earlier medical evaluation in the record with the government be contending that no medical evaluation was necessary here either if there was no medical examination that documented his current condition if the decision was going to be based given what you're saying your condition is and what happened to you in the one nine hundred seventy s and what happened in the intervening time there's no nexus but if you want to say that no we're not going to provide you  any any payment here because you don't have the condition certainly that's something that requires a medical examination if the issue is what is his current medical condition and either he hasn't for cured an examination or you know there is no medical explained the statute itself provides the v a some discretion in determining what it is that it's going to provide how it's going to provide assistance be it a medical examination or medical opinion based on the particular facts of the case and that not an examination was necessary here that was decided by the board it was reviewed by the veterans court and whether or not an examination was in fact necessary is your question a fact or probably more accurately has been decided it has been reviewed and that's not something that is reviewed and new in this court we have of the question the legal a i think you agree that the legal question is whether the duty to assist judge bryson you asked a question of the government as to whether or not distance played any role in determining whether or not via would exercise its discretion but examination on page thirty nine of the  it starts please conduct current examination and provide a medical opinion on whether or not it is more likely than not less likely than not worse likely is not that any current back to split is weighted in service though back strain please provide complete rational for any opinion given even if better and cannot report for example please review records and provide quested medical opinion based on the evidence of record in other words v a determined that examination was necessary in this case but if they were unable to provide an examination a medical opinion would suffice with distance or any person who is institutionalized this will be the same case there will be two types of utterance there with those who receive assistance in the form of a medical opinion by physician assistants or a nurse who just looks at the medical records in the claim file and will be those veterans who receive assistance the formal examination i'm not sure i draw the same inference that you do from that material it seems to me it could very well be inferred that what's going on here is that v a has a default will typically make a medical examination they will if you can travel but if for some reason you can't that doesn't mean they've made a judgment that a medical examination is essential to assisting you it's just making this available if you can if you can travel in the medical opinion may be sufficient don't you think that's a fair reading at least equally likely reading of that expression i think that if there is an interpretation of the ten year old then you also agree that v a has unfettered discretion to decide who gets one form assistance over another which conflicts with the statute of a two which says that no reasonable system shall be denied unless there is no reasonable possibility to assist the claimant developing the claim so i'm not sure wh i'm not sure that i understand why that connection connection because i mean suppose that i'm a fetter and i i have been told that we the a thinks that really a medical opinion is all that's necessary in my case but i show up convert everybody else's case into one in which an examination was improperly did not write your correct but again your in your example you're close enough to be a medical center to do that i have clients people who are institutionalized because they've had a stroke or their their house down or their in some institution to which they can't get a v a medical examination because be able to pay for fee basis examination they won't send an examiner out and will simply give medical records to a to a physician's assistant or whoever's available to provide an opinion and those people suffer because they don't get the same level of example assistance that other people would get other veterans w