he performed those examinations he would have been breaking the law and there has been no evidence presented by the agency in any of the four matters below or in any of the briefs before this court that conclusively establishes that he could lawfully follow those orders is it your contention that that one of the protected disclosures of mr who was that he was not qualified to perform these these exams one of the protected disclosures that my client made was essentially that he was not qualified but more specifically that he and others had improperly been granted privileges to practice medicine by the v a that was one of only a few disclosures that he made which we believe provides the be on june twelfth and they sent it back down saying that the judge below had not sufficiently considered a great deal of evidence relating to motive he holds no new hearing he except written submissions only hears n testimony the only documents he gets are documents that show motive and then following that concludes he changes his ruling from it was a contributing factor to there was no evidence of motive  and he does so without any explanation now as the court has held in fact in the previous argument as this court was discussing where they were the court below or the judge below fails to explain or fails to provide any reasoning or logic behind their findings this court cannot properly review that that finding that something as critical as motive under was civil protection act we believe that the judge below erred committed an of discretion but not laying out his findings i thought part of the findings was that no official or or that texas valley medical facility itself was negatively impacted or criticized in light of the various disclosures that dr kroger that i think that your honor is correct and the judge below did find that the two individuals who had who proposed and decided on the termination of dr krigsman they had not had their jobs but i believe to suggest that the types of disclosures that were made here which resulted in the office special counsel contacting secretary shinseki at the time which resulted in shinseki ordering the v a to examine itself and that examination resulted in six pacific findings including that the entire v a authority in the in valley be subjected to a  and also in particular that the nature of the initial disclosures were that this was that this gigantic new building this ambulatory service center which had been built under the leadership of doctor regularly and dr milligan he said the a track system which is being used to supply air to the offices upstairs in the sick people downstairs also being used for the surgery rooms he said you can have to make five to ten million dollars worth of changes to the center for it to be usable allegations in this case are very similar in their in their nature to those in whitmore they go to the heart of the agency's responsibility these are disclosures about hands costing too much or are people not punching their time cards these were disclosure that says the v a is not protecting its veterans the v a is not providing adequate medical care those kind of owners go to the heart of the agency's mission to find their argument that a question one part is we don't know if they could have or would have dismissed him from his position because they present evidence that they were doing right we you and i may not be able to g they they said that he was not qualified for the position even though they were about as was actively one of the season complications of this case is what was the position he was brought in to be an associate chief of staff having not seen a patient in ten years he had no ability to practice medicine new being put into this position where there are many duties that involve patient care so there was the record reflects a sort of tacit understanding that he would either not be required to perform those roles or that he would be given sufficient time to move into them but the record reflected that he was given an application to you know for the c and b exams at the time of hiring which he filled out he did and the record reflects that he did do some that are online training or something like that yet and then the record reflects that he for whatever reason took his time before he got around to doing the actual in person seventy six he is the service chief of compensation and pension exams he's the guy in charge of this he's the person who was supposed to provide dr koop with the training and said he would not be able to do it until may at the earliest couldn't get sent up to the p p in june clearly having been given no opportunity to even qualify for the credentials he's allegedly not not using in the service of the v a his lead one was that person's letter the person's letter a person letter was earlier on and when i come back i'll have the big three i'm just trying to figure out was that august or september was the prior year was during the period of time in which was attempting to get privileges for p and c but the letter more it doesn't speak so much about dr drew when it more generally indicates that obtaining these kinds of procedures is a massive undertaking that that fo could take up to a year and that and that no one should expect to be able to bring in a new physician and start getting privileges for p and c right away and he's the guy who would know and he told that we believe that you quarters that he perform those exams the orders that he do the other types of exams were illegal and without a city without a showing very clear and convincing evidence from the agency that he could lawfully perform those orders import considered pertinent evidence including conflicting evidence provided by dr krugman and also weighed in live test in person live testimony making credibility determinations as to the scope of his duties notably the board considered testimony from d we noted that dr krugman was expected to manage on patient care and manage to supervise and super high staff and also that he would be expected to engage and into signing off on fee basis consuls the board considered testimony from d dr krugman stated that he was unqualified for the position however after his resume was reviewed before the board he then changed his story and indicated that he was qualified for the position and in regards to the v a s investigation into the whistle  was qualified but when you look at is it is record in been twenty years since she had been examined anybody well your honor it had been he had an active medical license and in terms of a compensation exams the v a actually investigated the allegation that he was not qualified for holding these exam and holding these privileges by noting that there is no on prohibition in v a handbook eleven hundred nineteen which is referenced on the answer is maybe a particular doctor doesn't need to have an expertise in a particular area but at a minimum have to be a competent doctor in order to perform any kind of physical examination on someone that's correct your honor and the a and investigating with the possible allegations noted the compensation and pension exam require the physician to meet with the patient intake historical information conduct an examination but then it's a diagnostic tool that's used to  disability level the doctors not providing treatment or prescribing medication and the v a noted in its its finding that the claim was unsubstantiated that the any sort of bridging the gap in terms of level of experience could be done through training really can't be doing these examinations because he's not allowed to under the law well in terms of the examinations and this is limited just to the compensation and pension and not the fetus consultation that i can discuss in a moment but in regards to the facility and when it was time to reapply for those privileges because that facility was going to be terminating off privileges for doctors that didn't practice there he then stated that he did not want to perform them he had privileges to do see in p examination another facility when he was hired your honor he obtained those privileges for purposes of this job but because he harlingen facility was brand new and up and was not yet up and running he was required to get the privileges at another those privileges and that he would be able to perform compensation and pension exams provided that he was at a v a facility and when he applied to get those privileges essentially reka directory credentialed in march and the p s p approved  april the p s p noted that he would need to undergo additional training because he had not performed any compensation and pension example in the last twelve months and that ended up being an issue that came up before the p s p so in terms of the charging document  evidence that the responsible officials were actively monitoring the disclosures that the whistleblower was making and that they had expressed concerns of that and after the board remanded this case back to the administrative judge the administrative judge found no evidence that the compensation pension exam is an examination warmed by a v a physician that determines what level of compensation or disability payments a veteran will receive for the remainder of his or her life it is an important obligation an important duty and it absolutely involves the practice of medicine of all human patients history and involves examining physically often physically examining the patients and making a determination of the level of their illness or injury leisure there were a lot of things that he signed at the outset of his employment during this period of time where him and aguilar were trying to sort of carve out a position for him where he could oversee this ambulatory unit while not actually performing a doctor because they both knew that he couldn't perform as a doctor there's ample testimony and id why did he show on the floor of the in this case he signed the form to get privileges because he knew it would be in a jurisdiction where he would not be practicing he was not concerned about getting privileges at a place where he would not be required to perform any kind of medical exam the reason he was asked to get those privileges was to justify his salary and i think the fact that he got those privileges so another not the same state well it is the same state but it's equivalent to having a license to practice in one area and not in a different area she never had authority to check she performed these exams in the area where he actually worked really hostile that p and c exams that they would have assigned to him would required him to to to perform the exams without pretentious and without privileges but again to the point of how easily  again i would direct the court's attention to join appendix page to seventy nine which is the actual application this is the closest thing we have to the law of when a practitioner can perform these types of exams or not because the requirements are laid out on the form itself and there are several areas where dr crewman squarely does not meet the requirements most notably in experience and in training which he had not yet finished with the last wants to get back to a job is not qualified to do he's being told that if he doesn't get these privileges you get fired so he's doing whatever he can to make himself all of one of the things he felt he needed to do which is not just take a quick about his his qualifications to form the base councils ultimately with enough training he he found that he could do them but his experience was as he was simply a conduit the furious consul would come to him and it was dealing with a cardiac patient he would walk over to the head of cardiology who would then do all the analysis and then he would bring it back stamp it and move it along he felt that that was not a good use of his time that certainly evidence in the record us how quickly other essentially an offside if he was on a qualified at month nine and was equally unqualified on day one and it was known to everybody who hired him and there's a clear disconnect between agency that hire somebody with known limitations and then fire