constitutional question of the denial of due process the veterans court in mr taylor's view of too narrow a view of his allegation of his denial of due process before this court mr taylor presents  page twelve of the red brick government says that quote because the government the veterans court held that it did not possess the equitable power to provide relief and mr taylor did not appeal this hol in effect you weighed any equitable claim by failure to appeal it is is it is the government correct or that about that i have to be candid your honor i'm not sure i it is difficult for me to discern the difference between equity and a constitutional remedy if there is in fact no difference than it seems to me that that there isn't a question of waiver but it is fair to say that mr taylor does not rely on this brief in this appeal to asking this court for equitable relief short of the relief that should be afforded due process well the reason frankly that i went to due process is i see little clarity in the law as it relates to equity in relationship preempts the court for providing equitable relief for veterans court has been very narrow in its willingness to accept that they have any equitable powers that the consideration below was too narrow and that this is a situation that screams relief and as i pointed out in my response to chuck walling it just seems there is a lack of clarity in the law as it relates to how or to what extent the veterans court does have equitable authority mr taylor certainly has no problem with this court relying upon the failure of the veterans court to afford him equitable relief short of addressing this as a constitutional question but to be candid your honor i'm not sure i would be able to articulate taking stary or a tort terry for depriving him of his right to make a claim sooner your honor i apologize you are absolutely correct i have to confess that that did not occur to me but of course by the believe is pertinent for this court to address is what is the role of the veterans court in correcting a circumstance such as this is it to go to its equitable powers which it doesn't  deal with our decision and for us i mean we said the court can't expand the scope of his jurisdiction to award substantive monetary relief in the form of equitable relief it does and that and covered many many years decades and i would think the number would be fairly high although i think that it is also fair to say that the likelihood that the severity  damages that were done to mr taylor represents a fairly narrow portion of the total people that would be subject to guess i look at him as being  taken advantage of by the non disclosures that were made and then the rather oppressive non disclosure agreement that he was required to sign just put him in a hobson's choice in which he couldn't ask for the benefits to which he was entitled because of the threat of the secrecy agreement which he at least perceived and i think not unreasonably so could have been in force after his discharge two of the read brief in saying the government has such sympathy you say mr taylor quote was exposed to chemical agents at a u s army facility close quote as part of the effects of those chemical agents well your honor i believe looking at the record it's not possible to tell the exact chemical agents that mr taylor was exposed to a lot of the history the edgewood program difference types of chemicals including mustard gas in the early days that soldiers were exposed to in this program but i'm concerned about specifically that mr taylor do you agree that he was exposed to nerve agent i think that's what the record suggests that that's a strong possibility i'm not sure that the record shows that definitely what he was exposed to  rectify this issue wasn't going to provide him with the release that he was questioning and i can get into the act would be and statutory relief in a moment your honor what avenue is out there that you have in your hypothetical violated the individual to process rights and get an injunction from the district court that secrecy has district court can work that out whether or not you know whether or not  you what our proper defense did in the military court i don't have that kind of knowledge base your honor turning to whether or not statutory at least with available for mr taylor the parties do agree relief that the secretary could have provided mr taylor but for what is available under three o five that would be in terms of the veterans court again their release that if there is a situation for individual slipped through the cracks because of actions of the government or what have you congress can act to amend the statutes to provide them relief in this scenario i've seen or have another remedial law for individuals such as mr taylor that is also another avenue congress has to fix the system for people like mr taylor as opposed to providing the almost every aspect when he when the government indicates that there is no statutory or equitable relief for mister taylor in these circumstances therefore the only relief that is available to him is constitutional relief it seems to me that the government does not really challenge that there was a denial of due process based upon th secrecy agreement and therefore this court ought to find that because there are no other avenues of relief that his only avenue of relief is to seek the protection of the constitution and then the question becomes one of remedy and as we tried to emphasize in our briefing the courts have held that the concept of due process particularly in relationship to its relief must be flexible and these are extraordinary circumstances hopefully circumstances that are not going to be repeated i believe the judge wallach's hypothetical is is precisely comparable to the situation that is found here he was faced with a hobson's choice of either violating this secrecy agreement or going ahead and trying to get his benefits and making a disclosure that would result in the violation of that secrecy agreement and his potential prosecution that is an untenable position to put any service member in and if there is any validity whatsoever to the thumb on the scale of just as for veterans that has been noted by the supreme court this is the circumstance in which that has to take real form and provide real relief so i believe the question is one of remedy how does this court provide due process relief and what we're simply asking for is for this court to find that based upon the due process violation that the provisions of five thousand one hundred and ten be found to have been superseded by the violation of the constitution and that as a result the secretary should be required to consider his application as having been  made but for the secrecy agreement and that this matter be returned to the board to return to the agency to determine the extent and degree of his disability from the day following discharge to his current effective date of two thousand and seven that seems to be the only reasonable remedy and one that really i do not believe  the statutory scheme or the notion that the secretary is compelled to do something that he's not per able to do by statute these are just not circumstances that are contemplated by the statutory scheme and there is no remedy for this for instance in a clear and unmistakable error notion because there was no prior decision because there was no application it is that preclusion of the opportunity to present the application that really creates the due process violation and that there's further questions from the court i'd care to submit the matter any question