Legal Case Summary

cases today, too, for argument and two that will be submitted on the briefs. First case is number 2008-7120, gamble against the Department of Veterans Affairs. Mr. Morn. Good morning, Your Honor. May I please the court? Good morning, Your Honor. The question presented in this appeal is whether a veteran who applies for disability benefits has a due process right to explore the basis of an adverse medical opinion by serving inter-rogatories on the reporting physician. And we would submit that he does. As we explain in our briefs, many of the courts who address the issue in the Social Security Context, for example, have concluded that constitutional due process requires that an applicant for Social Security benefits has a right to cross examination of the witness. But he didn't ask for it here. That's true, Your Honor. He didn't request anything that was denied to him in this regard, right? He didn't ask for inter-rogatories. He didn't ask for a subpoena. There was no instance of him making the request that the government denied him. That's correct, Your Honor. I have to go all the way to notice, which very few cases have gone so far in the Social Security Context, all the way to notice being required in order to satisfy due process in this case. Well, I would respectfully disagree, Your Honor. We have a situation here, Your Honor, where two options were given to my client, the claimant. Are you disagreeing with the notion that not a lot of cases have gone so far as to saying notice is required in the Social Security Context, or are you disagreeing that this case is somehow different from them? I'm disagreeing with the second, and on the first, I can't quantify for you, but I think well-reasoned decisions have said that where they're not options laid out to a person for a certain avenue and where they haven't been given to that individual claimant that they can't be found to be a waiver of some type of a problem with the fact that they didn't request it. And I'd point Your Honor to the Wallace case, for example, out of the third circuit, which is cited in our briefs. And in the Wallace case, what happened was even when represented by Council, the Council was never told that they had an opportunity to cross-examine the reporting physician. And the third circuit found that that can't be a waiver when options A and B were given, and option C wasn't given

. As in here, in this circumstance, he was given the option of submitting adverse evidence, or a submitting argument, but he was never given option C of submitting interrogatories. There simply can't be a knowing and voluntary waiver in some regard of his due process, right? Knowing and voluntary waivers different from forfeiture. And the Supreme Court recently had a opinion, you may be familiar with it, the Puckett case. Yeah. And which the court really did, well, I won't tell you what it's about, you know about it. Not terribly, while you're on a bank, I'll talk about it. Okay, basically it says waiver, who isn't the right analysis in a situation where somebody simply does not invoke the particular procedure that is available to them. As opposed to affirmatively waiving a right that they have is in waiver of the right to counsel. Yeah. This strikes me as falling more in the category of forfeiture by virtue of not non assertion of something that is now claimed to be a right. I would respectfully disagree on that category. Oh, I'm sorry, I would respectfully disagree, Your Honor. I don't think that there can be a forfeiture of something that wasn't available or offered to them. I mean, the point here, here's the rub, he was never told the opportunity to submit interogitories because that avenue was never made available to him. The idea that somehow he forfeited or waived or whatever he want to call it in the circumstance, any rights. We have here a situation where one of our nation's veterans was now represented by counsel at that point in time. He was represented by a service officer who was not attorney and who the record indicates didn't even read the file. That somehow he could have forfeited constitutional rights or waived his constitution. What did you say was represented by a service representative who was not in the term that's correct and in appendix page one in our supplemental reply brief and our reply brief indicates quite clearly that he said he hadn't even reviewed the file. So I mean, there's even a tacit acknowledgement. I would suggest in the government's opposition brief on the subject in a footnote

. They drop a note saying something to the effect of if he were unrepresented, you might have an argument, but here he was represented at that level. And we would submit that the idea that a service officer who had never read the file who wasn't an attorney is not representation of the type we're talking about. What do you think is if there is a notice requirement, what form do you think that notice requirement should take? And let's as a predicate for my question, let's assume that there are different ways to protect his due process rights. A interrogatories is not the only route to get to protection. Obviously, there are different ways in different situations. Like what would be the kind of notice that you think would be constitutionally sufficient? I would say that he at least has to be apprised if he's right to submit interrogatories. But would you agree that he doesn't actually have a constitutional right to submit interrogatories? If for example, he has a right to the presence of the doctor in an opportunity to cross-examine. Yeah, but that's the problem, Your Honor. I would submit, and I think we try to lay it on our briefs. I would submit that due process requires that he be provided some avenue to look under the hood. Right, okay, but that's why I'm asking, how would you articulate the right to look under the hood in a notice? You can't say you have a right to interrogatories because that's not the only way to look under the hood. Right, and to what extent should that notice or would that notice be required to be detailed? I don't think, and let me stress your honors, I'm not trying to push off the responsibility of this to somebody else. The exact parameters and wording of the notice is something that's not in my day-to-day job, but it would at least have to put them on notice of the fact that he had this opportunity. To try to answer your question, I really do want to try to directly answer it. Where do you have an absolute right to serve interrogatories? Would they have to make him aware of that right? If he had an absolute right to cross-examine the witness, I would suggest not because that would provide him with some mechanism to look under the hood. What we're saying in this appeal is all we're asking for is... Oh, in this case, the doctor was more than a hundred miles away. That's right. So, learn if they had notified of him of his, wouldn't that be confusing to a veteran if they had some blanket notice that said you can provide evidence, you can provide this, you could issue a subpoena, and he's more less than a hundred miles away

. Wouldn't that even get more confusing? Ultimately, by listing things that he really isn't actually entitled to because in this case, the doctor doesn't fall within a hundred mile limit. Right. And that's the problem. I would say to you, it certainly would be confusing, but in this circumstance, he had no right to look... He had no opportunity... Sorry, didn't interrupt you, Judge Moore. Oh, I was interrupting you. But I thought the council... I thought that you told Judge Bryson that no, there wouldn't be an absolute right to have to be made aware of the right to interrogatories. Look, what I'm suggesting to your honours is that every one of these veterans who has an adverse medical opinion against them has some due process right under the Constitution to test the merits of that. What was considered, what wasn't considered, how wrong they spent with a file, what the qualifications were. I would submit that's a basic due process right. Well, let's look..

. I'm sorry, Dave. It's just that even if we agree with you that it's a due process right, there's a question of whether in this case, the right extends as so far as to encompass the notice with regard to interrogatories because he didn't request them. So it's not even a... Do you have a right to interrogatories? That's not what you're arguing to us today because he didn't request them and he wasn't denied them. You have to go even further and say there's a due process right to be notified of all of the avenues that you are available to you for opposing the decision. And that's a lot further. And so that's... You realize, of course, we could write an opinion that says we don't have to decide the issue of whether there is or not due process because in this case, even if there is, it doesn't go this far. And so what I'm trying to help get you to focus on is how far does it really need to go? Well, I respectfully disagree, Your Honor, that that would be the avenue that would be the appropriate route for the court to take in addressing this. We have a situation where... It's not exactly the right, the Supreme Court took not that in the social security cases and lots of other circuits have taken in those as well. Oh, no. Most of the circuits in the social security cases have come to the conclusion that, of course, due process allows for interrogatories. So I know that doesn't answer the notice question quite yet. The case that I'm aware of that's really addressed this point on where someone wasn't at least told of their right to issue a subpoena or ask for a subpoena because in the social security context, the claimants are told that they have the opportunity to subpoena and get the cross examination

. In the Wallace case, what we had is a case that I think is directly on point out of the third circuit where in a post hearing type of situation, the lawyer wasn't told there was an opportunity for cross examination and the third circuit said, you can't say that he forfeited or raved or that there was some problem with us reviewing this on appeal because he was never told he had that option. I guess when we get to the threshold issue of whether or not he has some availability to look under the hood and all we're arguing for, look, if the court wants to go so far, although I don't think it's really the issue presented, as to say, we have a right to cross examination of the doctor, which is what most circuits have said. I mean, the Litty Court said in 1990, 20 years after prowess that no court had decided by that point of time that applicants didn't have the right to cross examination. If you wanted to go that far, then that would satisfy it because he'd have an opportunity to ask questions live and look under the hood. All we're saying in this circumstances, when we get to the balancing test for due process, Matthews versus Eldridge, we just ask him for the lesser of the due. We're not trying to impose ridiculous burdens on the Veterans Administration. We want our guy to be able to say, look, for example, here's a bunch of medical evidence that had trauma can cause cataracts, send it in an inter-ogatory to this physician and say, does that change your opinion? But here, even if you look at the Matthews factors, if you look at the first factor, how the private interests of the veteran would be affected, in this particular case, you've got a bit of a problem because the qualifications of the physician were not challenged. The request was never made for a personal hearing. The temple was never made to subpoena the doctor, nor was there a request to submit any sort of inter-ogatories to do anything to confront directly the witness. But instead, your client went that the conventional route provided by the procedures and submitted evidence contradicting the evidence that was submitted by the VA position. So, don't you have a problem, even if we agree that there's a constitutional right of due process here, with the particular request you're asking us to provide? Well, I don't think so respectfully, Your Honor. And I hope I'm addressing the panel's questions adequately in this regard. But if you agree with me that there's a constitutional right to at least inter-ogatories, right? There's the last burdensome and the more burdensome. There's two ways to look under the hood as I use that phrase we've now been using it. You can ask questions in writing or you can ask questions or only. We're asking for the leads. Not necessarily the universe of possible ways to challenge evidence. Well, you can challenge evidence by submitting rebuttal evidence, which is what he did. And let me move to that. If I could follow up, Judge Lynn's question, let's look under the hood and see what's there, right in this case. What you've got is this statement by the doctor

. And I take it that there really isn't anything in the statement that you take issue with except the next to last paragraph, right? The search of the literature and the question of whether a contusion on the head could cause cataracts. And the doctor says that she's searched the literature and hasn't found anything to support that and you challenge that. That's really your the summon substance of your challenge, correct? That's the summon substance of what he could do because he didn't have the right. No, no, no, no, no, no, no, no, no, I'm asking you now to look back and say what if anything in the rest of what she submitted, would he have been interested in or could realistically challenge? Because most of this is just straight medical history, which I take it is not disputed. Right. So that's the paragraph that you're concerned with, right? Two paragraphs actually, but the paragraph before it says what the ideology of cataracts is and lists things and fails to list. But those two paragraphs and stuff. If you take the first and you don't disagree with anything, it's in the previous paragraph. You just think that they should have had and contusions. Right. Maybe even the best way of proceeding to challenge somebody's assertion that I've searched the literature and I didn't find X to introduce evidence or either in the form of the literature or in the form of a doctor who does a search and says that doctor doesn't know what she's talking about because I've searched the literature and I found ABCDE and here they are. Why isn't that not only an adequate basis for challenging that evidence, but the most effective basis? That may be one of the most effective basis, your honor. If it is, why isn't that satisfied due process? Well, here's the problem, your honor. The board is a practical matter in this case and the matter of the record in this case found that to be the most probative evidence of record, the VHA physicians opinion. Well, because I didn't come back with very much. She came back with a, as far as I can see, a one thing that he pulled off the internet which was not terribly powerful. Well, you see, that's why we have to look under the hood. But the point is, I mean, the fact that he couldn't find anything that was contrary, he had an opportunity. I mean, if there was a lot out there, I was contravening. She was saying, well, I don't think that asbestos causes mesothelioma. That's her opinion

. He would be able to bring in a ton of contrary evidence. Why does he need to cross-examine a doctor who says that when the contrary evidence would be powerful? Now, if this were that situation, wouldn't that be sufficient to satisfy due process? Well, we submit that this is a slightly different situation, but in any circumstance, an important one in which to be able to ask the physician questions. From an exemplary standpoint, she says she didn't find any literature. Your honor points out, in your opinion, from reading that, I believe, and I don't want to misstate. It's something, but it didn't seem to be very much what he submitted. If that's a fair characterization, what you just call it. There was one item. Two items, actually. There was an item in the regular appendix, which was one item out of the medical literature. And then if you look at our reply brief, which could be clear, I admit, at pages three and four of the appendix applied attached to the reply brief. Oh, I see that. There's a digital reference of ophthalmology that was also... Okay. Just before the JMA, your honor. Two pages earlier of the reply brief. It's page three and handwriting of the appendix. You see the digital reference of ophthalmology. Oh, I see. And that was submitted along with the item that's on page 32

. That's for our inquiry. Okay. If you look at the bottom, it says non-perforating injuries such as contusion or concussions or associated with cataracts. Oh, okay. And I know I'm out of time, but I'd like to answer your question if I could. We'll extend your time. Thank you. What we have here is a situation where a 47-year-old man has two lenses replaced because of cataracts. And he submits literature, associating concussions with cataracts. Now, you ask your honor. Why isn't that the best thing he could do? I tried to try to undermine what the physician said, but I submit to you, the bullet still said the most probative evidence of record is what this physician said. What would have happened, not far fetched, my view, if he had an opportunity to submit an interrogatory like we might do in a patent case and say attached as exhibit A is this medical literature? Does this change your opinion or how long did you spend looking for this literature or what background and specialty do you have in this particular item or how long did you spend considering this file? It might have been able to even get to the point where the physician in good faith because it's supposed to be a non-adversarial system. What have withdrawn that opinion, having looked at that literature, in which case the most probative evidence, what have at that point disappeared? The bottom line is this. We all know this from our practical other cases that we see. It is not necessarily sufficient and usually is not sufficient. If someone puts in, let's say an expert report, for you to say, okay, I'll put in my own expert report, but not be able to depose asking interrogatories or cross-examine. Because when they look in way the value of the evidence, which is something that the board said that they had to do here, look at the nature of it, the credibility of it, they're not able to fully do that because there's undisclosed information that is in no way available to the veteran. In no way available if he doesn't have the right to ask questions, how long she spent what she considered and whether her opinion would change if given certain evidence. And in those circumstances, we would submit to you, Your Honor, that due process would require some mechanism. And what we're doing here is we're trying to take Matthews versus Eldridge head on your Honor, which is the third part, Prong of that test says, how much is the burden going to be on the government? We want the system to work well, we don't want it to slow down. We're not suggesting, like in the Social Security context, where most courts have said, you always can cross-examine

. That you have to drag the physician there. All we're saying is there's got to be some way to really test that opinion. And we'd prefer to do it, and we suggest doing it in the least intrusive of the two ways. One final point I know I'm proud of time. The threshold issue I'd point out, Your Honor, of whether due process applies to an applicant versus a recipient, I think is something that my partner, James Barney, on another pro bono case, is argued before you, I think, in the, maybe in the Eldridge, that's an Edwards case. And so I'd just point out, Your Honor, that there is another, I'm afraid I'm not going to be considered. There are actually several of those cases floating around. It seems to be the issue of the jury. But the, it's also true that the Supreme Court has, we aren't the only court that has ducked this issue on occasion. I think the Supreme Court, if I recall, lean against pain. Maybe even in Walters, I think they may have also said pointedly that they had not decided the issue of applicants for benefits as opposed to beneficiaries who are, as in Goldberg, who are subject to having their benefits. The one thing I encourage you to do, Your Honor, though, on that, that's true that some courts still haven't decided the issue of the Supreme Court in particular. Well, they have in the haven, right? Parallels really almost assumes it because Parallels was an applicant. But after Parallels, in both Walters and Leng, they said we haven't decided. So I take their, their later word to be their characterization of Parallels. I agree. And my only point on that, Your Honor, and I know I'm, I'm, I'm, I'm, I'm pushing forward. My only point on that, Your Honor, is if that issue is being addressed here or another case is that you're considering. I understand. I would very, very much encourage you to look at two, just two decisions, which really take a, a, a cab log of all the different court decisions. One, of course, is the, the cook on bond case judge, Guarante's, where he talks about five different circuits that have, of rule that an applicant has a right to it, but maybe the best case is the Millette case out of the fourth circuit

. And there they looked at 13 different decisions by 11 different courts and said that no court, no court, it is accepted this kind of false applicant versus RIPSEMPI in distinction. And of course, here we have what's the most basic of entitlements. It's essentially a social contract, even though it's a mallal also, that when our veterans go off to war and they're injured in times of war or when serving our country, it's not an abstract wish. It's not some kind of hope that they might be taken care of by our country for their injuries in serving our country. It's called basic entitlement in the statute. It's an entitlement and we think squarely satisfies the decision in Roth, which says that if you have an entitlement to property, then you have a due process interest in it. I could think of no more important a situation to say that people have an entitlement to, to services and to benefits than our veterans do having been injured when serving our country. Thank you very much. We'll reserve your rebuttal time. Oh, thank you, Your Honor. Very well. Now, Mr. Lester, if you need some extra time in order to even things up, we'll allow you extra time. Thank you, Your Honor. I'll take your lead on that though. May it please the court. Your Honor, I certainly would not want to suggest that the court duck an issue that needs to decide, but this is a case we believe where the court could duck the procedural due process issue. So, give in light of the facts of this particular case. Let me ask you this and maybe I'm asking you a question that you're not going to be either able or willing to answer, but what is the government's position with respect to the issue of the applicability of due process in the social security connection? That has been litigated many times and most of the cases as far as I can see, not all most of the circuits seems to have said that the property interest line is crossed in the social security setting. That is to say that there is a property interest by virtue of your participation in the social security system such that you are entitled to do process protections when you make an application for benefits. Well, I certainly don't want to step on the solicitor general's toes or the toes of other attorneys and other courts that are actually dealing with the social security applicant cases, but my understanding is that our position has been as we discussed in our brief that there is first of all, as the court has already identified and laying in other cases, the Supreme Court has stated that it has never held that applicants for benefits are in fact covered by the court. So, I think that by due process, procedural due process protections, we agree, obviously we have to agree with that point and the idea that applicants are covered by those protections is our positions they are not. There are in the social security arena certain statutory protections that and statutory requirements that apply to hearings that certainly from a statutory basis need to be followed, but those protections do not necessarily rise to level of an applicant to a constitutional level that certain procedures are mandated. In the VA cases, we don't have the same statutes that apply in social security arena with regard to application of APA type procedures, although both SSA and VA cases are non adversarial in nature. The VA has a different scheme of how things work and the VA court, as the veterans court recognize here, although procedural due process protection is known as FI, certainly the VA, a judiciary process does require a fair process. That doesn't necessarily mean that the constitution is in folk with regard to due process rights, but in the end certainly if we look at fair process that's sort of what the due process benefits are protections are, try to measure as well. So in this particular case, when we look at the particular argument that's being raised here that there's some kind of a right at the board level to interrogatories in response to independent medical exam physicians report during board proceedings, certainly the process that is provided here which is identified in the regulations, which is after the VA requests the physicians report is submitted. The regulations provide a procedure for the claimant to obtain notice that the first he gets notice that request is being made for a physician's report, but when the physician's report is submitted, he receives notice that it has been received by the board. He needs to talk to the other and he has 60 days to respond with evidence or argument. That argument can- It doesn't have a right to confrontation. There is, certainly there are- Clearly you acknowledge confrontation because you've got the subpoena, but you balance it against sort of unreasonable demands by limiting it to within a hundred miles. But interrogatories are unquestionably a less burdensome alternative, not more burdensome than the subpoena would be you don't have travel, you don't have to take a whole day. A doctor could answer, maybe there's just one or two questions, it could be answered very quickly. So in the Matthew versus Eldridge world of balancing interrogatories seem like a very small price to pay to satisfy the right of confrontation, whether we're talking about either a fair process or due process requirement. Well, the issue, as you pointed out, is whether he had a fair process, must it be interrogatories? The issue here is that there must be a specific notice that interrogatories are available, but in the next case where we have, there must be a notice for request for admissions for a doctor-production request or actual cross examination, where it does stop and why particularly interrogatories as opposed to- You have a very, isn't the statute supposed to be pro-claimant and these people aren't represented by lawyers? So, I mean, aren't there these sorts of protections that aren't ought to be done by the government? I mean, these are veterans. Well, and the process here provides those protections, we believe. The notice allows him to make any kind of submit any kind of questions or questions about the report to the board and the board judge is entitled. If it identifies deficiencies or problems or questions about the physician's report can always remand to the RO for further development. If there's- And so, in the- And particularly if we look at the types of questions that Mr. Gamble says in this case, he would have asked or should have been allowed to ask, which are identified both on pages 23 and 24 of the Mr. Gamble's reply brief and on page 44 of the appendix that he submitted attached to his initial brief, the types of things that we're talking about that he's talking about really deal with he says the qualifications of the physician, the expertise and the information that wasn't considered. He actually as the court already recognized submitted evidence that he thought he'd found on the internet

. So, I think that by due process, procedural due process protections, we agree, obviously we have to agree with that point and the idea that applicants are covered by those protections is our positions they are not. There are in the social security arena certain statutory protections that and statutory requirements that apply to hearings that certainly from a statutory basis need to be followed, but those protections do not necessarily rise to level of an applicant to a constitutional level that certain procedures are mandated. In the VA cases, we don't have the same statutes that apply in social security arena with regard to application of APA type procedures, although both SSA and VA cases are non adversarial in nature. The VA has a different scheme of how things work and the VA court, as the veterans court recognize here, although procedural due process protection is known as FI, certainly the VA, a judiciary process does require a fair process. That doesn't necessarily mean that the constitution is in folk with regard to due process rights, but in the end certainly if we look at fair process that's sort of what the due process benefits are protections are, try to measure as well. So in this particular case, when we look at the particular argument that's being raised here that there's some kind of a right at the board level to interrogatories in response to independent medical exam physicians report during board proceedings, certainly the process that is provided here which is identified in the regulations, which is after the VA requests the physicians report is submitted. The regulations provide a procedure for the claimant to obtain notice that the first he gets notice that request is being made for a physician's report, but when the physician's report is submitted, he receives notice that it has been received by the board. He needs to talk to the other and he has 60 days to respond with evidence or argument. That argument can- It doesn't have a right to confrontation. There is, certainly there are- Clearly you acknowledge confrontation because you've got the subpoena, but you balance it against sort of unreasonable demands by limiting it to within a hundred miles. But interrogatories are unquestionably a less burdensome alternative, not more burdensome than the subpoena would be you don't have travel, you don't have to take a whole day. A doctor could answer, maybe there's just one or two questions, it could be answered very quickly. So in the Matthew versus Eldridge world of balancing interrogatories seem like a very small price to pay to satisfy the right of confrontation, whether we're talking about either a fair process or due process requirement. Well, the issue, as you pointed out, is whether he had a fair process, must it be interrogatories? The issue here is that there must be a specific notice that interrogatories are available, but in the next case where we have, there must be a notice for request for admissions for a doctor-production request or actual cross examination, where it does stop and why particularly interrogatories as opposed to- You have a very, isn't the statute supposed to be pro-claimant and these people aren't represented by lawyers? So, I mean, aren't there these sorts of protections that aren't ought to be done by the government? I mean, these are veterans. Well, and the process here provides those protections, we believe. The notice allows him to make any kind of submit any kind of questions or questions about the report to the board and the board judge is entitled. If it identifies deficiencies or problems or questions about the physician's report can always remand to the RO for further development. If there's- And so, in the- And particularly if we look at the types of questions that Mr. Gamble says in this case, he would have asked or should have been allowed to ask, which are identified both on pages 23 and 24 of the Mr. Gamble's reply brief and on page 44 of the appendix that he submitted attached to his initial brief, the types of things that we're talking about that he's talking about really deal with he says the qualifications of the physician, the expertise and the information that wasn't considered. He actually as the court already recognized submitted evidence that he thought he'd found on the internet. Well, but Mr. Morne says, I think with some force that there isn't any of this, including submission of other materials, suppose he did come up with six things off the internet that said all of which were consistent with his position, the contusions can cause cataracts. There's nothing as valuable as saying to the person who has said that the literature does not support that. What do you say about this? Do you think these are wrong? Did you look at them? Do you think there's some explanation such as, you didn't spend a lot of time at this or you were remembering from your medical school days something that was thought to be the case then but is no longer the case. But those kinds of probing questions that go to the ideology of the opinion as opposed to the expertise of the person holding the opinion would seem to be pretty useful, don't you think? Well, but certainly the board judge has that right then if there are information that submitted that raises questions, again has the right ability to remant the RO for the whole world. Okay, yeah, you've submitted a few interroggatories, let's send them over to the doctor and see what she says. Well, essentially, I mean that's sort of, although it wouldn't be called in a rocket or he's per se and there's nothing in the regulations about interroggatories. By submitting questions to the RO and in response. But without going back to the RO, I mean we all know that going back to the RO. I'm sending something back to the RO. There's a formula for years to lay. But I'm just wondering whether that can be done in the context of the board hearing. Well, the board could also request that the physician be, you know, there certainly is teleconferencing that can happen now. It's certainly it's unusual. It would be unusual for a physician to be called in to test a fire to provide evidence, but it's certainly the board judge has discretion to run the board proceedings. So, you know, but I think probably more likely would be a remant the RO, which doesn't necessarily need to mean years and years of delay. I'm not going to try to superimpose on the board and the RO how they run their proceedings, but certainly that's how the procedures were. I'd like to like to. And there are procedures in place to protect the claimant, which again, we're talking just about a fair process, not exactly the process that somebody wants. Just is the process overall fair without getting into the idea of whether this actually invokes procedural due process protections as outside just a fair process. I'm sorry, Your Honor

. Well, but Mr. Morne says, I think with some force that there isn't any of this, including submission of other materials, suppose he did come up with six things off the internet that said all of which were consistent with his position, the contusions can cause cataracts. There's nothing as valuable as saying to the person who has said that the literature does not support that. What do you say about this? Do you think these are wrong? Did you look at them? Do you think there's some explanation such as, you didn't spend a lot of time at this or you were remembering from your medical school days something that was thought to be the case then but is no longer the case. But those kinds of probing questions that go to the ideology of the opinion as opposed to the expertise of the person holding the opinion would seem to be pretty useful, don't you think? Well, but certainly the board judge has that right then if there are information that submitted that raises questions, again has the right ability to remant the RO for the whole world. Okay, yeah, you've submitted a few interroggatories, let's send them over to the doctor and see what she says. Well, essentially, I mean that's sort of, although it wouldn't be called in a rocket or he's per se and there's nothing in the regulations about interroggatories. By submitting questions to the RO and in response. But without going back to the RO, I mean we all know that going back to the RO. I'm sending something back to the RO. There's a formula for years to lay. But I'm just wondering whether that can be done in the context of the board hearing. Well, the board could also request that the physician be, you know, there certainly is teleconferencing that can happen now. It's certainly it's unusual. It would be unusual for a physician to be called in to test a fire to provide evidence, but it's certainly the board judge has discretion to run the board proceedings. So, you know, but I think probably more likely would be a remant the RO, which doesn't necessarily need to mean years and years of delay. I'm not going to try to superimpose on the board and the RO how they run their proceedings, but certainly that's how the procedures were. I'd like to like to. And there are procedures in place to protect the claimant, which again, we're talking just about a fair process, not exactly the process that somebody wants. Just is the process overall fair without getting into the idea of whether this actually invokes procedural due process protections as outside just a fair process. I'm sorry, Your Honor. I'd like to get back to the notice for a minute and clearly there's no dispute here that the veteran would have a right to subpoena witness if the doctor was within a hundred miles of the place of the hearing. But the notice did not include any, anything to a price, the veteran of that right. Well, that notice, but there certainly are regulations and there is notice at the outside of the case about certain procedures that are. Is it a form that goes out as a part of that? Well, we're talking about something that is significant that affects at least brights of fairness here. So it's not just a matter of whether it's a form or not. And so my question is, is it your position that that the notice doesn't even have to apprise the veteran of the right to subpoena the witness? Well, I mean, if every, I guess if the question is does every single document that goes to the claim it have to identify all procedural rights that are available to him. No, I mean, the regulation identifies what the notice is a notice sufficient if it identifies no rights. Well, no, because the regulation identifies that it must inform the claimant of his right to submit a response to both with evidence and argument in response to the independent medical report. And it's just so if the notice is that generic. Well, the notice in this particular case. Do we have a copy of that notice by the way? Yes, I'm trying to look in my nuts to see what page that would be on. Sorry. Thank you. It's on pages 20. Sorry. 20 through 30. 28 through 30. 28 through 30. Which one of the index? Of the blue index. Yes. And it's out of order to your honor

. I'd like to get back to the notice for a minute and clearly there's no dispute here that the veteran would have a right to subpoena witness if the doctor was within a hundred miles of the place of the hearing. But the notice did not include any, anything to a price, the veteran of that right. Well, that notice, but there certainly are regulations and there is notice at the outside of the case about certain procedures that are. Is it a form that goes out as a part of that? Well, we're talking about something that is significant that affects at least brights of fairness here. So it's not just a matter of whether it's a form or not. And so my question is, is it your position that that the notice doesn't even have to apprise the veteran of the right to subpoena the witness? Well, I mean, if every, I guess if the question is does every single document that goes to the claim it have to identify all procedural rights that are available to him. No, I mean, the regulation identifies what the notice is a notice sufficient if it identifies no rights. Well, no, because the regulation identifies that it must inform the claimant of his right to submit a response to both with evidence and argument in response to the independent medical report. And it's just so if the notice is that generic. Well, the notice in this particular case. Do we have a copy of that notice by the way? Yes, I'm trying to look in my nuts to see what page that would be on. Sorry. Thank you. It's on pages 20. Sorry. 20 through 30. 28 through 30. 28 through 30. Which one of the index? Of the blue index. Yes. And it's out of order to your honor. Page. It's 20 page 28. Then page 30. Then page 29. Oh, yeah. Okay. It goes out of order just a little bit. And Mr. Gamble's response to the notice, which includes sort of the claim form is in the government's appendix supplemental appendix page three. Now, as far as now that's the notice that accompanied the request for a doctor's opinion, right? This is specific to cases in which there is a board makes a specific request to a doctor to provide an opinion. It's not the notice that comes to somebody when they know exercise when they file a notice of disagreement or whatever the current. No, no, this is simply exactly your honor. This is simply the notice that came in response with the when the medical report. I was actually curious about. Well, this is helpful, but what is there something more that gets provided to the veteran at the point at which the veteran wants to invoke board appeal rights? What I'm fishing for here is let me ask the question more. I don't think that is in the. Is there anything? The rules of the board are set out in 30 HCFR 20.700 and at SAC, I guess. Are those rules ever either provided to our called to the veterans attention in any form that sent to the veteran at any point in this process? It is my understanding that they are. I would want to clarify that with the VA, but I'm fairly certain I saw them. I have seen those

. Page. It's 20 page 28. Then page 30. Then page 29. Oh, yeah. Okay. It goes out of order just a little bit. And Mr. Gamble's response to the notice, which includes sort of the claim form is in the government's appendix supplemental appendix page three. Now, as far as now that's the notice that accompanied the request for a doctor's opinion, right? This is specific to cases in which there is a board makes a specific request to a doctor to provide an opinion. It's not the notice that comes to somebody when they know exercise when they file a notice of disagreement or whatever the current. No, no, this is simply exactly your honor. This is simply the notice that came in response with the when the medical report. I was actually curious about. Well, this is helpful, but what is there something more that gets provided to the veteran at the point at which the veteran wants to invoke board appeal rights? What I'm fishing for here is let me ask the question more. I don't think that is in the. Is there anything? The rules of the board are set out in 30 HCFR 20.700 and at SAC, I guess. Are those rules ever either provided to our called to the veterans attention in any form that sent to the veteran at any point in this process? It is my understanding that they are. I would want to clarify that with the VA, but I'm fairly certain I saw them. I have seen those. Maybe. I don't think in this particular case there has been an allegation that Mr. Gamble was never informed of a subpoena writer hearing right. It was that the issue here is whether the sole issue has been whether or not he's entitled to notice of interruption. Well, that's right, but it may be pertinent. If he is to the notice question, if he is given notice of a variety of rights, if invocation of one or the other of those rights would have the same value to him in our viewer in the view of the board as this the interrogatory right? Certainly, honor. We'd be happy to look through the record in this case and submit as a supplemental submission to the court copy of whatever notice was provided. Maybe if you and your opposing counsel could get together so you could make a joint submission so there's no dispute about what it was. Sure. Certainly, honor. In this particular instance, though, again, the sole issue is whether or not first the government must provide notice in this response that he can submit interrogatories, which Mr. Gamble requests from things that should be limited to five or six interrogatories, which is identified on page 20 years or five years. Say we find there is in fact to do process, right? And then we say he should have had a right to submit interrogatories. I imagine your argument is most likely there's a slippery slope where does it stop? What other things do we have to make them aware of? Well, give me examples. Real world examples of just how catastrophic this is going to be. Well, the big prop, the big burden really is the biggest burden will become the change to the non adversarial system that we have. I mean, really, the request is to turn these non adversarial proceedings into something that's very lawyerly within a record of all the kinds of discovery that and cross examination that we have in trials in the court of federal claims where it is an adversarial system. Here, the whole system is built around the idea of the VA's duty to assist the veteran to develop his case, the and the other non adversarial proceeding attributes that come with that. It is not supposed to be where the veteran has to go out and hire a lawyer to do all these things for him and to become basically the advocate who creates sort of the investigation. I don't imagine that Mr. Moran or anyone else would suggest the interrogatories have to be in some formal pleading sense that it's just he should have an opportunity to confront whether it's through questions or otherwise he should be given a chance to confront

. Maybe. I don't think in this particular case there has been an allegation that Mr. Gamble was never informed of a subpoena writer hearing right. It was that the issue here is whether the sole issue has been whether or not he's entitled to notice of interruption. Well, that's right, but it may be pertinent. If he is to the notice question, if he is given notice of a variety of rights, if invocation of one or the other of those rights would have the same value to him in our viewer in the view of the board as this the interrogatory right? Certainly, honor. We'd be happy to look through the record in this case and submit as a supplemental submission to the court copy of whatever notice was provided. Maybe if you and your opposing counsel could get together so you could make a joint submission so there's no dispute about what it was. Sure. Certainly, honor. In this particular instance, though, again, the sole issue is whether or not first the government must provide notice in this response that he can submit interrogatories, which Mr. Gamble requests from things that should be limited to five or six interrogatories, which is identified on page 20 years or five years. Say we find there is in fact to do process, right? And then we say he should have had a right to submit interrogatories. I imagine your argument is most likely there's a slippery slope where does it stop? What other things do we have to make them aware of? Well, give me examples. Real world examples of just how catastrophic this is going to be. Well, the big prop, the big burden really is the biggest burden will become the change to the non adversarial system that we have. I mean, really, the request is to turn these non adversarial proceedings into something that's very lawyerly within a record of all the kinds of discovery that and cross examination that we have in trials in the court of federal claims where it is an adversarial system. Here, the whole system is built around the idea of the VA's duty to assist the veteran to develop his case, the and the other non adversarial proceeding attributes that come with that. It is not supposed to be where the veteran has to go out and hire a lawyer to do all these things for him and to become basically the advocate who creates sort of the investigation. I don't imagine that Mr. Moran or anyone else would suggest the interrogatories have to be in some formal pleading sense that it's just he should have an opportunity to confront whether it's through questions or otherwise he should be given a chance to confront. And so what I guess what I'm looking for from you is, you know, what is the slippery slope? I don't see the other things on the slope and I want you to tell me, well, gosh, if you've got a right to this, then are we going to have to also say he has a right to this and this and this. Are we going to have to give a notice of this and the other thing are all of these things going to fall? I want to know for me. But that's exactly our point, Your Honor, is I mean, why, why five or six interrogatories? Why in the next case won't it be? Oh, well, they also had to tell me about I needed RFA request for admission or I needed this. There's always going to be some other type of discovery tool that won't be identified in some notice. And further, the more things that are identified in there to a non-lawyer are going to make the veteran have to go out and get some kind of a legal assistance to understand what will become a very complicated form when the VA has to try to identify every possible procedure that a veteran might invoke or questions that are things that veteran might do to try to combat an independent medical exam report is put into the record. It's simply that that's super, it's difficult for me to identify all the creative things that somebody might be able to come up with that ought to happen in a case, but that certainly I think we can take judicial notice of that. And Your Honor, with regard to the type of notice that an opportunity that the veteran has here with regard to the notice of the report and the ability to submit of evidence and argument within 60 days after receipt of the report provides, in essence, really provides a better and the type of opportunity he's asking here. He can put those questions, those thoughts into the response. It is a non-adversarial system. The Board Judge does have discretion to when valid points are raised to obtain more information from require for the development by the VA. So really, I mean the procedure that is in place, in essence, particularly with the types of questions that he's identified in his briefing that he ought to have been able to ask or should have been told he should have asked, those types of things certainly could have been put into the response and the Board Judge could have decided what to do with that. The idea that, and if we look even if procedural due process protections do arise, the second factor in Matthews is the risk of erroneous deprivation of the interest that the procedures used in the probable value of any of additional substitute safeguards. The safeguards here, if we look at the questions that would be asked, it's very difficult to see particularly in light of the information that Mr. Amble did put into the record in response to the medical report that there really would have been some kind of a change here. So in fact, the fact that Mr. Amble didn't do the things that he's saying he wants to know here, we don't know exactly what would have happened to it, it makes it very difficult given the failure to actually do the things that he's saying he should have been told he should do. So it makes it difficult to sort of guess whether or not there's some kind of, there would have been some kind of change. The Council is in the fact that you don't know what would have happened if he got the chance to do this, his very best argument for why he should be allowed to confront. I think we look at the second factor in Matthews, it seems pretty unlikely if we look at the questions. We just said you don't, we don't know what would happen if he got to do this. I mean, doesn't that sort of undermine your claim that under Matthews nothing would change? Well, again, I probably misspoke a little bit, I overstated it a little bit, I think it's pretty likely that we can see given that he did submit the evidence that he thought supported the idea that the doctor didn't look at the independent doctor didn't look at or didn't find this particular medical literature certainly provided the board with the information, you know, the same type of information that he thinks he should have been able to question the doctor about

. And so what I guess what I'm looking for from you is, you know, what is the slippery slope? I don't see the other things on the slope and I want you to tell me, well, gosh, if you've got a right to this, then are we going to have to also say he has a right to this and this and this. Are we going to have to give a notice of this and the other thing are all of these things going to fall? I want to know for me. But that's exactly our point, Your Honor, is I mean, why, why five or six interrogatories? Why in the next case won't it be? Oh, well, they also had to tell me about I needed RFA request for admission or I needed this. There's always going to be some other type of discovery tool that won't be identified in some notice. And further, the more things that are identified in there to a non-lawyer are going to make the veteran have to go out and get some kind of a legal assistance to understand what will become a very complicated form when the VA has to try to identify every possible procedure that a veteran might invoke or questions that are things that veteran might do to try to combat an independent medical exam report is put into the record. It's simply that that's super, it's difficult for me to identify all the creative things that somebody might be able to come up with that ought to happen in a case, but that certainly I think we can take judicial notice of that. And Your Honor, with regard to the type of notice that an opportunity that the veteran has here with regard to the notice of the report and the ability to submit of evidence and argument within 60 days after receipt of the report provides, in essence, really provides a better and the type of opportunity he's asking here. He can put those questions, those thoughts into the response. It is a non-adversarial system. The Board Judge does have discretion to when valid points are raised to obtain more information from require for the development by the VA. So really, I mean the procedure that is in place, in essence, particularly with the types of questions that he's identified in his briefing that he ought to have been able to ask or should have been told he should have asked, those types of things certainly could have been put into the response and the Board Judge could have decided what to do with that. The idea that, and if we look even if procedural due process protections do arise, the second factor in Matthews is the risk of erroneous deprivation of the interest that the procedures used in the probable value of any of additional substitute safeguards. The safeguards here, if we look at the questions that would be asked, it's very difficult to see particularly in light of the information that Mr. Amble did put into the record in response to the medical report that there really would have been some kind of a change here. So in fact, the fact that Mr. Amble didn't do the things that he's saying he wants to know here, we don't know exactly what would have happened to it, it makes it very difficult given the failure to actually do the things that he's saying he should have been told he should do. So it makes it difficult to sort of guess whether or not there's some kind of, there would have been some kind of change. The Council is in the fact that you don't know what would have happened if he got the chance to do this, his very best argument for why he should be allowed to confront. I think we look at the second factor in Matthews, it seems pretty unlikely if we look at the questions. We just said you don't, we don't know what would happen if he got to do this. I mean, doesn't that sort of undermine your claim that under Matthews nothing would change? Well, again, I probably misspoke a little bit, I overstated it a little bit, I think it's pretty likely that we can see given that he did submit the evidence that he thought supported the idea that the doctor didn't look at the independent doctor didn't look at or didn't find this particular medical literature certainly provided the board with the information, you know, the same type of information that he thinks he should have been able to question the doctor about. And if the board had found that to be, that violence again, it could have remanded to the R&D. I am, and have meant for a long time struggling with the notion that we see again and again that the system is non adversarial, it is paternalistic. And that certainly is true, that was what Congress had in mind, at least to some extent preserving, there was some tension there because they are also creating certain absolute rights. But squaring that with the notion of allowing a participant in the system to put his best foot forward. Now, it can be very paternalistic system to the extent that they might just have a system in which they say, don't worry, we'll consult the doctors, we'll take care of it all and we'll let you know at the end of the process, we'll send you a letter as to whether you're in it, your cover or not. And I don't think any of us would be comfortable with that. The risk of error would go up, presumably to an unacceptable extent. So we have in place some form of adversarial or confrontational system in which he at least gets to say no, no, no, that evidence is wrong, here's the right way to look at it. And once you start down that line, haven't you already walked away from the model of, we'll take care of this, don't you worry, we'll send you a notice that you get your benefits or you don't. Well, the mixed concept of adversarial to the extent that we feel that this is useful, but non adversarial to the extent that he wants more, leaves me with no guidance as to where to draw the line. Well, I certainly, obviously, the VA doesn't then advocate as the evidence is developing, advocate a position in this particular situation though, we have the board asking for a medical opinion and then a non VA doctor providing that opinion and the VA just submitting it to the board. In that instance, I mean, it's not the VA sort of creating evidence to support its position that this is not service connected, the cataract here are not service connected. This is a request by the board for an independent review that then the veteran has an ability to respond to in terms of whether this here is adversarial in nature becomes adversarial. I guess only because the independent doctor identifies no service connection or can't find the service connection. But I mean, I certainly understand your point, your honor. I just not sure that this is the particular case in which to explore that. And one final question, I'll put past your end. The government's position, I take it as a section seven of the APA, the 556D does not proceed, that's at the procedures for hearings, the default procedure does not apply to the VA. That's right. In fact, if you look at the development of the Veterans Judicial Review Act, it's actually a distinctive idea. There was at one point a provision in there in the drafts before Congress that would have done that, but that was in when it's finally enacted that was not in there

. And if the board had found that to be, that violence again, it could have remanded to the R&D. I am, and have meant for a long time struggling with the notion that we see again and again that the system is non adversarial, it is paternalistic. And that certainly is true, that was what Congress had in mind, at least to some extent preserving, there was some tension there because they are also creating certain absolute rights. But squaring that with the notion of allowing a participant in the system to put his best foot forward. Now, it can be very paternalistic system to the extent that they might just have a system in which they say, don't worry, we'll consult the doctors, we'll take care of it all and we'll let you know at the end of the process, we'll send you a letter as to whether you're in it, your cover or not. And I don't think any of us would be comfortable with that. The risk of error would go up, presumably to an unacceptable extent. So we have in place some form of adversarial or confrontational system in which he at least gets to say no, no, no, that evidence is wrong, here's the right way to look at it. And once you start down that line, haven't you already walked away from the model of, we'll take care of this, don't you worry, we'll send you a notice that you get your benefits or you don't. Well, the mixed concept of adversarial to the extent that we feel that this is useful, but non adversarial to the extent that he wants more, leaves me with no guidance as to where to draw the line. Well, I certainly, obviously, the VA doesn't then advocate as the evidence is developing, advocate a position in this particular situation though, we have the board asking for a medical opinion and then a non VA doctor providing that opinion and the VA just submitting it to the board. In that instance, I mean, it's not the VA sort of creating evidence to support its position that this is not service connected, the cataract here are not service connected. This is a request by the board for an independent review that then the veteran has an ability to respond to in terms of whether this here is adversarial in nature becomes adversarial. I guess only because the independent doctor identifies no service connection or can't find the service connection. But I mean, I certainly understand your point, your honor. I just not sure that this is the particular case in which to explore that. And one final question, I'll put past your end. The government's position, I take it as a section seven of the APA, the 556D does not proceed, that's at the procedures for hearings, the default procedure does not apply to the VA. That's right. In fact, if you look at the development of the Veterans Judicial Review Act, it's actually a distinctive idea. There was at one point a provision in there in the drafts before Congress that would have done that, but that was in when it's finally enacted that was not in there. Thank you, Your Honor. For these reasons, we'd ask the court to affirm. Thank you. Mr. Moren, your rebuttal? Yeah, I'll be very brief, Your Honor. I just want to address a couple of quick issues. You and Mr. Lester will get together on the issue of what was received by way of general notice, if the record will permit that. Yeah, absolutely, Your Honor, and I don't foresee any problem with doing that. Very good. First of all, to just briefly address the non-adversarial aspect of things, it gets to be kind of a misnomer sometimes, right? You got two sides submitting contrary reports and testimony. I mean, the Scosen case that came out yesterday talks about the applicant having a burden or an obligation to come forward with evidence of being their claim. I mean, clearly there are avenues provided for that have adversarial qualities to it and that are permitted. I mean, the very notion that you can subpoena a witness potentially within a hundred miles. All of a sudden you have an adversarial aspect that's already to it, so we're not destroying the adversarial nature of the system. And all of us have been around litigation or reviewed records of litigation. Know that it's in the scheme of adversarial in our agitories are quite a bit lower than the confrontations that you tend to have in person. But that said, I mean, the parole case is instructor from the Supreme Court anyway because the Social Security system is supposed to be and it's been called non-adversarial. And the Supreme Court said in parole that he did not exercise his right to subpoena the witnesses in finding that the hearsay evidence could be used. And that's a right to subpoena the witnesses and most of the courts that have addressed the issue have come to the same conclusion that in an adversarial process there's still the opportunity for cross-examination. What the court pointedly said and setting aside from a moment the forfeiture issue in parole

. Thank you, Your Honor. For these reasons, we'd ask the court to affirm. Thank you. Mr. Moren, your rebuttal? Yeah, I'll be very brief, Your Honor. I just want to address a couple of quick issues. You and Mr. Lester will get together on the issue of what was received by way of general notice, if the record will permit that. Yeah, absolutely, Your Honor, and I don't foresee any problem with doing that. Very good. First of all, to just briefly address the non-adversarial aspect of things, it gets to be kind of a misnomer sometimes, right? You got two sides submitting contrary reports and testimony. I mean, the Scosen case that came out yesterday talks about the applicant having a burden or an obligation to come forward with evidence of being their claim. I mean, clearly there are avenues provided for that have adversarial qualities to it and that are permitted. I mean, the very notion that you can subpoena a witness potentially within a hundred miles. All of a sudden you have an adversarial aspect that's already to it, so we're not destroying the adversarial nature of the system. And all of us have been around litigation or reviewed records of litigation. Know that it's in the scheme of adversarial in our agitories are quite a bit lower than the confrontations that you tend to have in person. But that said, I mean, the parole case is instructor from the Supreme Court anyway because the Social Security system is supposed to be and it's been called non-adversarial. And the Supreme Court said in parole that he did not exercise his right to subpoena the witnesses in finding that the hearsay evidence could be used. And that's a right to subpoena the witnesses and most of the courts that have addressed the issue have come to the same conclusion that in an adversarial process there's still the opportunity for cross-examination. What the court pointedly said and setting aside from a moment the forfeiture issue in parole. What the court said was 556D is if not the governing statute then it's effectively governing because the Social Security statute was equivalent. And so here contains these forms of protection that's enough. So here if it's true that 556D doesn't apply doesn't that break the equivalence between the Social Security cases and the veterans cases? Well, I don't think so, Your Honor. I don't think so, Your Honor, because in the Social Security regime from my understanding of that system it still statutorily gives discretion to issue those subpoenas. And most of the courts have addressed the issue the LIDI court summarizes this says no it's not voluntary or discretionary it's mandatory and that's what most courts have found. We would just submit that the idea of this parade of forables that would come from being able to submit a few questions whatever the number that would be decided would be to a physician is a little bit exaggerated. Well, I think that you're mischaracterizing his parade of forables while he wasn't creative with them will grant you his parade of forables were notice. He never actually stood up here and said there's a parade of forables if you're allowed to submit into rockatories it's where does the government draw the line and the things they have to tell the veteran about the things they don't have to tell the veteran about it's not whether he has a right to so much as whether the government's obligated to tell him he also could explore this avenue for discovery purposes. Yeah, so that's where the parade of forables I think comes in at least the way I understood his argument. Well, I mean I think that's something that could be addressed similarly to how it was addressed in flat for it if there were provided for notice for in a rockatories for the potential for an adverse VA opinion then the courts would have to perhaps address the issue of whether more was required once they were in a rockatories flat for it I think is a very well reason decision. Well, it doesn't come out it's a six circuit case well it doesn't come out with the absolute right to cross examination they said it wasn't necessary here because in a rockatories were available and I think you could end up having those types of decisions that it wouldn't have to be our FAs and and in a cross examination and all that type of thing but he needs some mechanism and one thing I really like to focus on your honor because I didn't think I answered your question well enough the first time around you asked this issue about notice and we seem to be trying to look at it as to the threat of the threshold issue of are you saying it's a notice problem or are you saying it's a due process problem with the inability to ask in a rockatories and I would just submit through your honors in this case that if you decide and I think you need to do that in the first place that due process at least requires the right to in a rockatories then the notice issue should come out of play he wasn't represented by council and he wasn't given the option he was given two options and be they said here's how you can receive it. It was a close set it didn't say in the notice when you look at it for example you could do a or you could do be it says you have two options a and b and to find that somehow he had waived or forfeited as Judge Bryson used that term his constitutional rights when given choices a and b by not unrepresented by any lawyer at the time saying I think I'd like option c that just can't fly and I quote from the Wallace case out of the third circuit where he was represented by council and it says the secretary of the law is not going to be a lawyer. The secretary admits that it might be unfair to find a waiver if Wallace were unrepresented that's our circumstance but argues that we should find a waiver here because Wallace was represented by council no waiver could be effective if council is not given reasonable notice. Waior over the right to subpoena and cross examine witnesses concerning post hearing evidence must be clearly expressed are strongly implied from the circumstances and in light of the lack of any provision in the regulations for subpoena under these circumstances and the failure to notify Wallace's council that there was an option to subpoena the consult of witnesses council did not receive the type of reasonable notice that could serve as a predicate for waiver and I'd point also to footnote five in the government's brief which was not given the right to the court. The reasonably acknowledges that issue saying that the government's brief again although some federal appellate courts have suggested that notice may be required in some circumstances involving unrepresented claimants see Hudson that situation is not present here as Mr. Gamble was represented before the board it's an acknowledgement there that there may be an issue if he's not not represented he wasn't represented the guy didn't even read the file. Well thank you Mr. Morenen and Mr. Lester thank you thank you. Thank you.

cases today, too, for argument and two that will be submitted on the briefs. First case is number 2008-7120, gamble against the Department of Veterans Affairs. Mr. Morn. Good morning, Your Honor. May I please the court? Good morning, Your Honor. The question presented in this appeal is whether a veteran who applies for disability benefits has a due process right to explore the basis of an adverse medical opinion by serving inter-rogatories on the reporting physician. And we would submit that he does. As we explain in our briefs, many of the courts who address the issue in the Social Security Context, for example, have concluded that constitutional due process requires that an applicant for Social Security benefits has a right to cross examination of the witness. But he didn't ask for it here. That's true, Your Honor. He didn't request anything that was denied to him in this regard, right? He didn't ask for inter-rogatories. He didn't ask for a subpoena. There was no instance of him making the request that the government denied him. That's correct, Your Honor. I have to go all the way to notice, which very few cases have gone so far in the Social Security Context, all the way to notice being required in order to satisfy due process in this case. Well, I would respectfully disagree, Your Honor. We have a situation here, Your Honor, where two options were given to my client, the claimant. Are you disagreeing with the notion that not a lot of cases have gone so far as to saying notice is required in the Social Security Context, or are you disagreeing that this case is somehow different from them? I'm disagreeing with the second, and on the first, I can't quantify for you, but I think well-reasoned decisions have said that where they're not options laid out to a person for a certain avenue and where they haven't been given to that individual claimant that they can't be found to be a waiver of some type of a problem with the fact that they didn't request it. And I'd point Your Honor to the Wallace case, for example, out of the third circuit, which is cited in our briefs. And in the Wallace case, what happened was even when represented by Council, the Council was never told that they had an opportunity to cross-examine the reporting physician. And the third circuit found that that can't be a waiver when options A and B were given, and option C wasn't given. As in here, in this circumstance, he was given the option of submitting adverse evidence, or a submitting argument, but he was never given option C of submitting interrogatories. There simply can't be a knowing and voluntary waiver in some regard of his due process, right? Knowing and voluntary waivers different from forfeiture. And the Supreme Court recently had a opinion, you may be familiar with it, the Puckett case. Yeah. And which the court really did, well, I won't tell you what it's about, you know about it. Not terribly, while you're on a bank, I'll talk about it. Okay, basically it says waiver, who isn't the right analysis in a situation where somebody simply does not invoke the particular procedure that is available to them. As opposed to affirmatively waiving a right that they have is in waiver of the right to counsel. Yeah. This strikes me as falling more in the category of forfeiture by virtue of not non assertion of something that is now claimed to be a right. I would respectfully disagree on that category. Oh, I'm sorry, I would respectfully disagree, Your Honor. I don't think that there can be a forfeiture of something that wasn't available or offered to them. I mean, the point here, here's the rub, he was never told the opportunity to submit interogitories because that avenue was never made available to him. The idea that somehow he forfeited or waived or whatever he want to call it in the circumstance, any rights. We have here a situation where one of our nation's veterans was now represented by counsel at that point in time. He was represented by a service officer who was not attorney and who the record indicates didn't even read the file. That somehow he could have forfeited constitutional rights or waived his constitution. What did you say was represented by a service representative who was not in the term that's correct and in appendix page one in our supplemental reply brief and our reply brief indicates quite clearly that he said he hadn't even reviewed the file. So I mean, there's even a tacit acknowledgement. I would suggest in the government's opposition brief on the subject in a footnote. They drop a note saying something to the effect of if he were unrepresented, you might have an argument, but here he was represented at that level. And we would submit that the idea that a service officer who had never read the file who wasn't an attorney is not representation of the type we're talking about. What do you think is if there is a notice requirement, what form do you think that notice requirement should take? And let's as a predicate for my question, let's assume that there are different ways to protect his due process rights. A interrogatories is not the only route to get to protection. Obviously, there are different ways in different situations. Like what would be the kind of notice that you think would be constitutionally sufficient? I would say that he at least has to be apprised if he's right to submit interrogatories. But would you agree that he doesn't actually have a constitutional right to submit interrogatories? If for example, he has a right to the presence of the doctor in an opportunity to cross-examine. Yeah, but that's the problem, Your Honor. I would submit, and I think we try to lay it on our briefs. I would submit that due process requires that he be provided some avenue to look under the hood. Right, okay, but that's why I'm asking, how would you articulate the right to look under the hood in a notice? You can't say you have a right to interrogatories because that's not the only way to look under the hood. Right, and to what extent should that notice or would that notice be required to be detailed? I don't think, and let me stress your honors, I'm not trying to push off the responsibility of this to somebody else. The exact parameters and wording of the notice is something that's not in my day-to-day job, but it would at least have to put them on notice of the fact that he had this opportunity. To try to answer your question, I really do want to try to directly answer it. Where do you have an absolute right to serve interrogatories? Would they have to make him aware of that right? If he had an absolute right to cross-examine the witness, I would suggest not because that would provide him with some mechanism to look under the hood. What we're saying in this appeal is all we're asking for is... Oh, in this case, the doctor was more than a hundred miles away. That's right. So, learn if they had notified of him of his, wouldn't that be confusing to a veteran if they had some blanket notice that said you can provide evidence, you can provide this, you could issue a subpoena, and he's more less than a hundred miles away. Wouldn't that even get more confusing? Ultimately, by listing things that he really isn't actually entitled to because in this case, the doctor doesn't fall within a hundred mile limit. Right. And that's the problem. I would say to you, it certainly would be confusing, but in this circumstance, he had no right to look... He had no opportunity... Sorry, didn't interrupt you, Judge Moore. Oh, I was interrupting you. But I thought the council... I thought that you told Judge Bryson that no, there wouldn't be an absolute right to have to be made aware of the right to interrogatories. Look, what I'm suggesting to your honours is that every one of these veterans who has an adverse medical opinion against them has some due process right under the Constitution to test the merits of that. What was considered, what wasn't considered, how wrong they spent with a file, what the qualifications were. I would submit that's a basic due process right. Well, let's look... I'm sorry, Dave. It's just that even if we agree with you that it's a due process right, there's a question of whether in this case, the right extends as so far as to encompass the notice with regard to interrogatories because he didn't request them. So it's not even a... Do you have a right to interrogatories? That's not what you're arguing to us today because he didn't request them and he wasn't denied them. You have to go even further and say there's a due process right to be notified of all of the avenues that you are available to you for opposing the decision. And that's a lot further. And so that's... You realize, of course, we could write an opinion that says we don't have to decide the issue of whether there is or not due process because in this case, even if there is, it doesn't go this far. And so what I'm trying to help get you to focus on is how far does it really need to go? Well, I respectfully disagree, Your Honor, that that would be the avenue that would be the appropriate route for the court to take in addressing this. We have a situation where... It's not exactly the right, the Supreme Court took not that in the social security cases and lots of other circuits have taken in those as well. Oh, no. Most of the circuits in the social security cases have come to the conclusion that, of course, due process allows for interrogatories. So I know that doesn't answer the notice question quite yet. The case that I'm aware of that's really addressed this point on where someone wasn't at least told of their right to issue a subpoena or ask for a subpoena because in the social security context, the claimants are told that they have the opportunity to subpoena and get the cross examination. In the Wallace case, what we had is a case that I think is directly on point out of the third circuit where in a post hearing type of situation, the lawyer wasn't told there was an opportunity for cross examination and the third circuit said, you can't say that he forfeited or raved or that there was some problem with us reviewing this on appeal because he was never told he had that option. I guess when we get to the threshold issue of whether or not he has some availability to look under the hood and all we're arguing for, look, if the court wants to go so far, although I don't think it's really the issue presented, as to say, we have a right to cross examination of the doctor, which is what most circuits have said. I mean, the Litty Court said in 1990, 20 years after prowess that no court had decided by that point of time that applicants didn't have the right to cross examination. If you wanted to go that far, then that would satisfy it because he'd have an opportunity to ask questions live and look under the hood. All we're saying in this circumstances, when we get to the balancing test for due process, Matthews versus Eldridge, we just ask him for the lesser of the due. We're not trying to impose ridiculous burdens on the Veterans Administration. We want our guy to be able to say, look, for example, here's a bunch of medical evidence that had trauma can cause cataracts, send it in an inter-ogatory to this physician and say, does that change your opinion? But here, even if you look at the Matthews factors, if you look at the first factor, how the private interests of the veteran would be affected, in this particular case, you've got a bit of a problem because the qualifications of the physician were not challenged. The request was never made for a personal hearing. The temple was never made to subpoena the doctor, nor was there a request to submit any sort of inter-ogatories to do anything to confront directly the witness. But instead, your client went that the conventional route provided by the procedures and submitted evidence contradicting the evidence that was submitted by the VA position. So, don't you have a problem, even if we agree that there's a constitutional right of due process here, with the particular request you're asking us to provide? Well, I don't think so respectfully, Your Honor. And I hope I'm addressing the panel's questions adequately in this regard. But if you agree with me that there's a constitutional right to at least inter-ogatories, right? There's the last burdensome and the more burdensome. There's two ways to look under the hood as I use that phrase we've now been using it. You can ask questions in writing or you can ask questions or only. We're asking for the leads. Not necessarily the universe of possible ways to challenge evidence. Well, you can challenge evidence by submitting rebuttal evidence, which is what he did. And let me move to that. If I could follow up, Judge Lynn's question, let's look under the hood and see what's there, right in this case. What you've got is this statement by the doctor. And I take it that there really isn't anything in the statement that you take issue with except the next to last paragraph, right? The search of the literature and the question of whether a contusion on the head could cause cataracts. And the doctor says that she's searched the literature and hasn't found anything to support that and you challenge that. That's really your the summon substance of your challenge, correct? That's the summon substance of what he could do because he didn't have the right. No, no, no, no, no, no, no, no, no, I'm asking you now to look back and say what if anything in the rest of what she submitted, would he have been interested in or could realistically challenge? Because most of this is just straight medical history, which I take it is not disputed. Right. So that's the paragraph that you're concerned with, right? Two paragraphs actually, but the paragraph before it says what the ideology of cataracts is and lists things and fails to list. But those two paragraphs and stuff. If you take the first and you don't disagree with anything, it's in the previous paragraph. You just think that they should have had and contusions. Right. Maybe even the best way of proceeding to challenge somebody's assertion that I've searched the literature and I didn't find X to introduce evidence or either in the form of the literature or in the form of a doctor who does a search and says that doctor doesn't know what she's talking about because I've searched the literature and I found ABCDE and here they are. Why isn't that not only an adequate basis for challenging that evidence, but the most effective basis? That may be one of the most effective basis, your honor. If it is, why isn't that satisfied due process? Well, here's the problem, your honor. The board is a practical matter in this case and the matter of the record in this case found that to be the most probative evidence of record, the VHA physicians opinion. Well, because I didn't come back with very much. She came back with a, as far as I can see, a one thing that he pulled off the internet which was not terribly powerful. Well, you see, that's why we have to look under the hood. But the point is, I mean, the fact that he couldn't find anything that was contrary, he had an opportunity. I mean, if there was a lot out there, I was contravening. She was saying, well, I don't think that asbestos causes mesothelioma. That's her opinion. He would be able to bring in a ton of contrary evidence. Why does he need to cross-examine a doctor who says that when the contrary evidence would be powerful? Now, if this were that situation, wouldn't that be sufficient to satisfy due process? Well, we submit that this is a slightly different situation, but in any circumstance, an important one in which to be able to ask the physician questions. From an exemplary standpoint, she says she didn't find any literature. Your honor points out, in your opinion, from reading that, I believe, and I don't want to misstate. It's something, but it didn't seem to be very much what he submitted. If that's a fair characterization, what you just call it. There was one item. Two items, actually. There was an item in the regular appendix, which was one item out of the medical literature. And then if you look at our reply brief, which could be clear, I admit, at pages three and four of the appendix applied attached to the reply brief. Oh, I see that. There's a digital reference of ophthalmology that was also... Okay. Just before the JMA, your honor. Two pages earlier of the reply brief. It's page three and handwriting of the appendix. You see the digital reference of ophthalmology. Oh, I see. And that was submitted along with the item that's on page 32. That's for our inquiry. Okay. If you look at the bottom, it says non-perforating injuries such as contusion or concussions or associated with cataracts. Oh, okay. And I know I'm out of time, but I'd like to answer your question if I could. We'll extend your time. Thank you. What we have here is a situation where a 47-year-old man has two lenses replaced because of cataracts. And he submits literature, associating concussions with cataracts. Now, you ask your honor. Why isn't that the best thing he could do? I tried to try to undermine what the physician said, but I submit to you, the bullet still said the most probative evidence of record is what this physician said. What would have happened, not far fetched, my view, if he had an opportunity to submit an interrogatory like we might do in a patent case and say attached as exhibit A is this medical literature? Does this change your opinion or how long did you spend looking for this literature or what background and specialty do you have in this particular item or how long did you spend considering this file? It might have been able to even get to the point where the physician in good faith because it's supposed to be a non-adversarial system. What have withdrawn that opinion, having looked at that literature, in which case the most probative evidence, what have at that point disappeared? The bottom line is this. We all know this from our practical other cases that we see. It is not necessarily sufficient and usually is not sufficient. If someone puts in, let's say an expert report, for you to say, okay, I'll put in my own expert report, but not be able to depose asking interrogatories or cross-examine. Because when they look in way the value of the evidence, which is something that the board said that they had to do here, look at the nature of it, the credibility of it, they're not able to fully do that because there's undisclosed information that is in no way available to the veteran. In no way available if he doesn't have the right to ask questions, how long she spent what she considered and whether her opinion would change if given certain evidence. And in those circumstances, we would submit to you, Your Honor, that due process would require some mechanism. And what we're doing here is we're trying to take Matthews versus Eldridge head on your Honor, which is the third part, Prong of that test says, how much is the burden going to be on the government? We want the system to work well, we don't want it to slow down. We're not suggesting, like in the Social Security context, where most courts have said, you always can cross-examine. That you have to drag the physician there. All we're saying is there's got to be some way to really test that opinion. And we'd prefer to do it, and we suggest doing it in the least intrusive of the two ways. One final point I know I'm proud of time. The threshold issue I'd point out, Your Honor, of whether due process applies to an applicant versus a recipient, I think is something that my partner, James Barney, on another pro bono case, is argued before you, I think, in the, maybe in the Eldridge, that's an Edwards case. And so I'd just point out, Your Honor, that there is another, I'm afraid I'm not going to be considered. There are actually several of those cases floating around. It seems to be the issue of the jury. But the, it's also true that the Supreme Court has, we aren't the only court that has ducked this issue on occasion. I think the Supreme Court, if I recall, lean against pain. Maybe even in Walters, I think they may have also said pointedly that they had not decided the issue of applicants for benefits as opposed to beneficiaries who are, as in Goldberg, who are subject to having their benefits. The one thing I encourage you to do, Your Honor, though, on that, that's true that some courts still haven't decided the issue of the Supreme Court in particular. Well, they have in the haven, right? Parallels really almost assumes it because Parallels was an applicant. But after Parallels, in both Walters and Leng, they said we haven't decided. So I take their, their later word to be their characterization of Parallels. I agree. And my only point on that, Your Honor, and I know I'm, I'm, I'm, I'm, I'm pushing forward. My only point on that, Your Honor, is if that issue is being addressed here or another case is that you're considering. I understand. I would very, very much encourage you to look at two, just two decisions, which really take a, a, a cab log of all the different court decisions. One, of course, is the, the cook on bond case judge, Guarante's, where he talks about five different circuits that have, of rule that an applicant has a right to it, but maybe the best case is the Millette case out of the fourth circuit. And there they looked at 13 different decisions by 11 different courts and said that no court, no court, it is accepted this kind of false applicant versus RIPSEMPI in distinction. And of course, here we have what's the most basic of entitlements. It's essentially a social contract, even though it's a mallal also, that when our veterans go off to war and they're injured in times of war or when serving our country, it's not an abstract wish. It's not some kind of hope that they might be taken care of by our country for their injuries in serving our country. It's called basic entitlement in the statute. It's an entitlement and we think squarely satisfies the decision in Roth, which says that if you have an entitlement to property, then you have a due process interest in it. I could think of no more important a situation to say that people have an entitlement to, to services and to benefits than our veterans do having been injured when serving our country. Thank you very much. We'll reserve your rebuttal time. Oh, thank you, Your Honor. Very well. Now, Mr. Lester, if you need some extra time in order to even things up, we'll allow you extra time. Thank you, Your Honor. I'll take your lead on that though. May it please the court. Your Honor, I certainly would not want to suggest that the court duck an issue that needs to decide, but this is a case we believe where the court could duck the procedural due process issue. So, give in light of the facts of this particular case. Let me ask you this and maybe I'm asking you a question that you're not going to be either able or willing to answer, but what is the government's position with respect to the issue of the applicability of due process in the social security connection? That has been litigated many times and most of the cases as far as I can see, not all most of the circuits seems to have said that the property interest line is crossed in the social security setting. That is to say that there is a property interest by virtue of your participation in the social security system such that you are entitled to do process protections when you make an application for benefits. Well, I certainly don't want to step on the solicitor general's toes or the toes of other attorneys and other courts that are actually dealing with the social security applicant cases, but my understanding is that our position has been as we discussed in our brief that there is first of all, as the court has already identified and laying in other cases, the Supreme Court has stated that it has never held that applicants for benefits are in fact covered by the court. So, I think that by due process, procedural due process protections, we agree, obviously we have to agree with that point and the idea that applicants are covered by those protections is our positions they are not. There are in the social security arena certain statutory protections that and statutory requirements that apply to hearings that certainly from a statutory basis need to be followed, but those protections do not necessarily rise to level of an applicant to a constitutional level that certain procedures are mandated. In the VA cases, we don't have the same statutes that apply in social security arena with regard to application of APA type procedures, although both SSA and VA cases are non adversarial in nature. The VA has a different scheme of how things work and the VA court, as the veterans court recognize here, although procedural due process protection is known as FI, certainly the VA, a judiciary process does require a fair process. That doesn't necessarily mean that the constitution is in folk with regard to due process rights, but in the end certainly if we look at fair process that's sort of what the due process benefits are protections are, try to measure as well. So in this particular case, when we look at the particular argument that's being raised here that there's some kind of a right at the board level to interrogatories in response to independent medical exam physicians report during board proceedings, certainly the process that is provided here which is identified in the regulations, which is after the VA requests the physicians report is submitted. The regulations provide a procedure for the claimant to obtain notice that the first he gets notice that request is being made for a physician's report, but when the physician's report is submitted, he receives notice that it has been received by the board. He needs to talk to the other and he has 60 days to respond with evidence or argument. That argument can- It doesn't have a right to confrontation. There is, certainly there are- Clearly you acknowledge confrontation because you've got the subpoena, but you balance it against sort of unreasonable demands by limiting it to within a hundred miles. But interrogatories are unquestionably a less burdensome alternative, not more burdensome than the subpoena would be you don't have travel, you don't have to take a whole day. A doctor could answer, maybe there's just one or two questions, it could be answered very quickly. So in the Matthew versus Eldridge world of balancing interrogatories seem like a very small price to pay to satisfy the right of confrontation, whether we're talking about either a fair process or due process requirement. Well, the issue, as you pointed out, is whether he had a fair process, must it be interrogatories? The issue here is that there must be a specific notice that interrogatories are available, but in the next case where we have, there must be a notice for request for admissions for a doctor-production request or actual cross examination, where it does stop and why particularly interrogatories as opposed to- You have a very, isn't the statute supposed to be pro-claimant and these people aren't represented by lawyers? So, I mean, aren't there these sorts of protections that aren't ought to be done by the government? I mean, these are veterans. Well, and the process here provides those protections, we believe. The notice allows him to make any kind of submit any kind of questions or questions about the report to the board and the board judge is entitled. If it identifies deficiencies or problems or questions about the physician's report can always remand to the RO for further development. If there's- And so, in the- And particularly if we look at the types of questions that Mr. Gamble says in this case, he would have asked or should have been allowed to ask, which are identified both on pages 23 and 24 of the Mr. Gamble's reply brief and on page 44 of the appendix that he submitted attached to his initial brief, the types of things that we're talking about that he's talking about really deal with he says the qualifications of the physician, the expertise and the information that wasn't considered. He actually as the court already recognized submitted evidence that he thought he'd found on the internet. Well, but Mr. Morne says, I think with some force that there isn't any of this, including submission of other materials, suppose he did come up with six things off the internet that said all of which were consistent with his position, the contusions can cause cataracts. There's nothing as valuable as saying to the person who has said that the literature does not support that. What do you say about this? Do you think these are wrong? Did you look at them? Do you think there's some explanation such as, you didn't spend a lot of time at this or you were remembering from your medical school days something that was thought to be the case then but is no longer the case. But those kinds of probing questions that go to the ideology of the opinion as opposed to the expertise of the person holding the opinion would seem to be pretty useful, don't you think? Well, but certainly the board judge has that right then if there are information that submitted that raises questions, again has the right ability to remant the RO for the whole world. Okay, yeah, you've submitted a few interroggatories, let's send them over to the doctor and see what she says. Well, essentially, I mean that's sort of, although it wouldn't be called in a rocket or he's per se and there's nothing in the regulations about interroggatories. By submitting questions to the RO and in response. But without going back to the RO, I mean we all know that going back to the RO. I'm sending something back to the RO. There's a formula for years to lay. But I'm just wondering whether that can be done in the context of the board hearing. Well, the board could also request that the physician be, you know, there certainly is teleconferencing that can happen now. It's certainly it's unusual. It would be unusual for a physician to be called in to test a fire to provide evidence, but it's certainly the board judge has discretion to run the board proceedings. So, you know, but I think probably more likely would be a remant the RO, which doesn't necessarily need to mean years and years of delay. I'm not going to try to superimpose on the board and the RO how they run their proceedings, but certainly that's how the procedures were. I'd like to like to. And there are procedures in place to protect the claimant, which again, we're talking just about a fair process, not exactly the process that somebody wants. Just is the process overall fair without getting into the idea of whether this actually invokes procedural due process protections as outside just a fair process. I'm sorry, Your Honor. I'd like to get back to the notice for a minute and clearly there's no dispute here that the veteran would have a right to subpoena witness if the doctor was within a hundred miles of the place of the hearing. But the notice did not include any, anything to a price, the veteran of that right. Well, that notice, but there certainly are regulations and there is notice at the outside of the case about certain procedures that are. Is it a form that goes out as a part of that? Well, we're talking about something that is significant that affects at least brights of fairness here. So it's not just a matter of whether it's a form or not. And so my question is, is it your position that that the notice doesn't even have to apprise the veteran of the right to subpoena the witness? Well, I mean, if every, I guess if the question is does every single document that goes to the claim it have to identify all procedural rights that are available to him. No, I mean, the regulation identifies what the notice is a notice sufficient if it identifies no rights. Well, no, because the regulation identifies that it must inform the claimant of his right to submit a response to both with evidence and argument in response to the independent medical report. And it's just so if the notice is that generic. Well, the notice in this particular case. Do we have a copy of that notice by the way? Yes, I'm trying to look in my nuts to see what page that would be on. Sorry. Thank you. It's on pages 20. Sorry. 20 through 30. 28 through 30. 28 through 30. Which one of the index? Of the blue index. Yes. And it's out of order to your honor. Page. It's 20 page 28. Then page 30. Then page 29. Oh, yeah. Okay. It goes out of order just a little bit. And Mr. Gamble's response to the notice, which includes sort of the claim form is in the government's appendix supplemental appendix page three. Now, as far as now that's the notice that accompanied the request for a doctor's opinion, right? This is specific to cases in which there is a board makes a specific request to a doctor to provide an opinion. It's not the notice that comes to somebody when they know exercise when they file a notice of disagreement or whatever the current. No, no, this is simply exactly your honor. This is simply the notice that came in response with the when the medical report. I was actually curious about. Well, this is helpful, but what is there something more that gets provided to the veteran at the point at which the veteran wants to invoke board appeal rights? What I'm fishing for here is let me ask the question more. I don't think that is in the. Is there anything? The rules of the board are set out in 30 HCFR 20.700 and at SAC, I guess. Are those rules ever either provided to our called to the veterans attention in any form that sent to the veteran at any point in this process? It is my understanding that they are. I would want to clarify that with the VA, but I'm fairly certain I saw them. I have seen those. Maybe. I don't think in this particular case there has been an allegation that Mr. Gamble was never informed of a subpoena writer hearing right. It was that the issue here is whether the sole issue has been whether or not he's entitled to notice of interruption. Well, that's right, but it may be pertinent. If he is to the notice question, if he is given notice of a variety of rights, if invocation of one or the other of those rights would have the same value to him in our viewer in the view of the board as this the interrogatory right? Certainly, honor. We'd be happy to look through the record in this case and submit as a supplemental submission to the court copy of whatever notice was provided. Maybe if you and your opposing counsel could get together so you could make a joint submission so there's no dispute about what it was. Sure. Certainly, honor. In this particular instance, though, again, the sole issue is whether or not first the government must provide notice in this response that he can submit interrogatories, which Mr. Gamble requests from things that should be limited to five or six interrogatories, which is identified on page 20 years or five years. Say we find there is in fact to do process, right? And then we say he should have had a right to submit interrogatories. I imagine your argument is most likely there's a slippery slope where does it stop? What other things do we have to make them aware of? Well, give me examples. Real world examples of just how catastrophic this is going to be. Well, the big prop, the big burden really is the biggest burden will become the change to the non adversarial system that we have. I mean, really, the request is to turn these non adversarial proceedings into something that's very lawyerly within a record of all the kinds of discovery that and cross examination that we have in trials in the court of federal claims where it is an adversarial system. Here, the whole system is built around the idea of the VA's duty to assist the veteran to develop his case, the and the other non adversarial proceeding attributes that come with that. It is not supposed to be where the veteran has to go out and hire a lawyer to do all these things for him and to become basically the advocate who creates sort of the investigation. I don't imagine that Mr. Moran or anyone else would suggest the interrogatories have to be in some formal pleading sense that it's just he should have an opportunity to confront whether it's through questions or otherwise he should be given a chance to confront. And so what I guess what I'm looking for from you is, you know, what is the slippery slope? I don't see the other things on the slope and I want you to tell me, well, gosh, if you've got a right to this, then are we going to have to also say he has a right to this and this and this. Are we going to have to give a notice of this and the other thing are all of these things going to fall? I want to know for me. But that's exactly our point, Your Honor, is I mean, why, why five or six interrogatories? Why in the next case won't it be? Oh, well, they also had to tell me about I needed RFA request for admission or I needed this. There's always going to be some other type of discovery tool that won't be identified in some notice. And further, the more things that are identified in there to a non-lawyer are going to make the veteran have to go out and get some kind of a legal assistance to understand what will become a very complicated form when the VA has to try to identify every possible procedure that a veteran might invoke or questions that are things that veteran might do to try to combat an independent medical exam report is put into the record. It's simply that that's super, it's difficult for me to identify all the creative things that somebody might be able to come up with that ought to happen in a case, but that certainly I think we can take judicial notice of that. And Your Honor, with regard to the type of notice that an opportunity that the veteran has here with regard to the notice of the report and the ability to submit of evidence and argument within 60 days after receipt of the report provides, in essence, really provides a better and the type of opportunity he's asking here. He can put those questions, those thoughts into the response. It is a non-adversarial system. The Board Judge does have discretion to when valid points are raised to obtain more information from require for the development by the VA. So really, I mean the procedure that is in place, in essence, particularly with the types of questions that he's identified in his briefing that he ought to have been able to ask or should have been told he should have asked, those types of things certainly could have been put into the response and the Board Judge could have decided what to do with that. The idea that, and if we look even if procedural due process protections do arise, the second factor in Matthews is the risk of erroneous deprivation of the interest that the procedures used in the probable value of any of additional substitute safeguards. The safeguards here, if we look at the questions that would be asked, it's very difficult to see particularly in light of the information that Mr. Amble did put into the record in response to the medical report that there really would have been some kind of a change here. So in fact, the fact that Mr. Amble didn't do the things that he's saying he wants to know here, we don't know exactly what would have happened to it, it makes it very difficult given the failure to actually do the things that he's saying he should have been told he should do. So it makes it difficult to sort of guess whether or not there's some kind of, there would have been some kind of change. The Council is in the fact that you don't know what would have happened if he got the chance to do this, his very best argument for why he should be allowed to confront. I think we look at the second factor in Matthews, it seems pretty unlikely if we look at the questions. We just said you don't, we don't know what would happen if he got to do this. I mean, doesn't that sort of undermine your claim that under Matthews nothing would change? Well, again, I probably misspoke a little bit, I overstated it a little bit, I think it's pretty likely that we can see given that he did submit the evidence that he thought supported the idea that the doctor didn't look at the independent doctor didn't look at or didn't find this particular medical literature certainly provided the board with the information, you know, the same type of information that he thinks he should have been able to question the doctor about. And if the board had found that to be, that violence again, it could have remanded to the R&D. I am, and have meant for a long time struggling with the notion that we see again and again that the system is non adversarial, it is paternalistic. And that certainly is true, that was what Congress had in mind, at least to some extent preserving, there was some tension there because they are also creating certain absolute rights. But squaring that with the notion of allowing a participant in the system to put his best foot forward. Now, it can be very paternalistic system to the extent that they might just have a system in which they say, don't worry, we'll consult the doctors, we'll take care of it all and we'll let you know at the end of the process, we'll send you a letter as to whether you're in it, your cover or not. And I don't think any of us would be comfortable with that. The risk of error would go up, presumably to an unacceptable extent. So we have in place some form of adversarial or confrontational system in which he at least gets to say no, no, no, that evidence is wrong, here's the right way to look at it. And once you start down that line, haven't you already walked away from the model of, we'll take care of this, don't you worry, we'll send you a notice that you get your benefits or you don't. Well, the mixed concept of adversarial to the extent that we feel that this is useful, but non adversarial to the extent that he wants more, leaves me with no guidance as to where to draw the line. Well, I certainly, obviously, the VA doesn't then advocate as the evidence is developing, advocate a position in this particular situation though, we have the board asking for a medical opinion and then a non VA doctor providing that opinion and the VA just submitting it to the board. In that instance, I mean, it's not the VA sort of creating evidence to support its position that this is not service connected, the cataract here are not service connected. This is a request by the board for an independent review that then the veteran has an ability to respond to in terms of whether this here is adversarial in nature becomes adversarial. I guess only because the independent doctor identifies no service connection or can't find the service connection. But I mean, I certainly understand your point, your honor. I just not sure that this is the particular case in which to explore that. And one final question, I'll put past your end. The government's position, I take it as a section seven of the APA, the 556D does not proceed, that's at the procedures for hearings, the default procedure does not apply to the VA. That's right. In fact, if you look at the development of the Veterans Judicial Review Act, it's actually a distinctive idea. There was at one point a provision in there in the drafts before Congress that would have done that, but that was in when it's finally enacted that was not in there. Thank you, Your Honor. For these reasons, we'd ask the court to affirm. Thank you. Mr. Moren, your rebuttal? Yeah, I'll be very brief, Your Honor. I just want to address a couple of quick issues. You and Mr. Lester will get together on the issue of what was received by way of general notice, if the record will permit that. Yeah, absolutely, Your Honor, and I don't foresee any problem with doing that. Very good. First of all, to just briefly address the non-adversarial aspect of things, it gets to be kind of a misnomer sometimes, right? You got two sides submitting contrary reports and testimony. I mean, the Scosen case that came out yesterday talks about the applicant having a burden or an obligation to come forward with evidence of being their claim. I mean, clearly there are avenues provided for that have adversarial qualities to it and that are permitted. I mean, the very notion that you can subpoena a witness potentially within a hundred miles. All of a sudden you have an adversarial aspect that's already to it, so we're not destroying the adversarial nature of the system. And all of us have been around litigation or reviewed records of litigation. Know that it's in the scheme of adversarial in our agitories are quite a bit lower than the confrontations that you tend to have in person. But that said, I mean, the parole case is instructor from the Supreme Court anyway because the Social Security system is supposed to be and it's been called non-adversarial. And the Supreme Court said in parole that he did not exercise his right to subpoena the witnesses in finding that the hearsay evidence could be used. And that's a right to subpoena the witnesses and most of the courts that have addressed the issue have come to the same conclusion that in an adversarial process there's still the opportunity for cross-examination. What the court pointedly said and setting aside from a moment the forfeiture issue in parole. What the court said was 556D is if not the governing statute then it's effectively governing because the Social Security statute was equivalent. And so here contains these forms of protection that's enough. So here if it's true that 556D doesn't apply doesn't that break the equivalence between the Social Security cases and the veterans cases? Well, I don't think so, Your Honor. I don't think so, Your Honor, because in the Social Security regime from my understanding of that system it still statutorily gives discretion to issue those subpoenas. And most of the courts have addressed the issue the LIDI court summarizes this says no it's not voluntary or discretionary it's mandatory and that's what most courts have found. We would just submit that the idea of this parade of forables that would come from being able to submit a few questions whatever the number that would be decided would be to a physician is a little bit exaggerated. Well, I think that you're mischaracterizing his parade of forables while he wasn't creative with them will grant you his parade of forables were notice. He never actually stood up here and said there's a parade of forables if you're allowed to submit into rockatories it's where does the government draw the line and the things they have to tell the veteran about the things they don't have to tell the veteran about it's not whether he has a right to so much as whether the government's obligated to tell him he also could explore this avenue for discovery purposes. Yeah, so that's where the parade of forables I think comes in at least the way I understood his argument. Well, I mean I think that's something that could be addressed similarly to how it was addressed in flat for it if there were provided for notice for in a rockatories for the potential for an adverse VA opinion then the courts would have to perhaps address the issue of whether more was required once they were in a rockatories flat for it I think is a very well reason decision. Well, it doesn't come out it's a six circuit case well it doesn't come out with the absolute right to cross examination they said it wasn't necessary here because in a rockatories were available and I think you could end up having those types of decisions that it wouldn't have to be our FAs and and in a cross examination and all that type of thing but he needs some mechanism and one thing I really like to focus on your honor because I didn't think I answered your question well enough the first time around you asked this issue about notice and we seem to be trying to look at it as to the threat of the threshold issue of are you saying it's a notice problem or are you saying it's a due process problem with the inability to ask in a rockatories and I would just submit through your honors in this case that if you decide and I think you need to do that in the first place that due process at least requires the right to in a rockatories then the notice issue should come out of play he wasn't represented by council and he wasn't given the option he was given two options and be they said here's how you can receive it. It was a close set it didn't say in the notice when you look at it for example you could do a or you could do be it says you have two options a and b and to find that somehow he had waived or forfeited as Judge Bryson used that term his constitutional rights when given choices a and b by not unrepresented by any lawyer at the time saying I think I'd like option c that just can't fly and I quote from the Wallace case out of the third circuit where he was represented by council and it says the secretary of the law is not going to be a lawyer. The secretary admits that it might be unfair to find a waiver if Wallace were unrepresented that's our circumstance but argues that we should find a waiver here because Wallace was represented by council no waiver could be effective if council is not given reasonable notice. Waior over the right to subpoena and cross examine witnesses concerning post hearing evidence must be clearly expressed are strongly implied from the circumstances and in light of the lack of any provision in the regulations for subpoena under these circumstances and the failure to notify Wallace's council that there was an option to subpoena the consult of witnesses council did not receive the type of reasonable notice that could serve as a predicate for waiver and I'd point also to footnote five in the government's brief which was not given the right to the court. The reasonably acknowledges that issue saying that the government's brief again although some federal appellate courts have suggested that notice may be required in some circumstances involving unrepresented claimants see Hudson that situation is not present here as Mr. Gamble was represented before the board it's an acknowledgement there that there may be an issue if he's not not represented he wasn't represented the guy didn't even read the file. Well thank you Mr. Morenen and Mr. Lester thank you thank you. Thank you