equal access to justice act is concerned for it has been here before and there's a lot of water under this bridge both in this court and elsewhere and it's a result of that we are in this sort of unusual posture in that the government has affirmatively conceded that for any pageant was railing party it also doesn't contest that its position was not substantially justified and so the only question that remains on this appeal is whether certain attorneys fees that were incurred in the course of proceedings without which mr paget would not have been the prevailing party including the proceedings in this court to which you refer judge  are somehow or for some reason excluded from compensation under the job or some no wonder the veterans benefits and nothing in either statute requires such or result accordingly the decision below should be vacated and the case remained it for further calculation of attorney's fees what the specific order on remand that you would ask for the specific order would be to vacate the portion of the decision below that to which i do most of it is reasonably clear your honor the vast majority of the fees that are in each application and that is in the joint appendix it nine twenty i believe most of those relate to the appellate proceedings both in the veteran scored and subsequently in this court back in the veterans court again and some of them relate to the ija application itself but they are pretty clear itemized  analysis of whether certain features related to mrs paget derivative of crude benefits claim or whether certain of them were properly attributable to mr patrick's own underlying claim for benefits and th precisely the problem under hensley which is sort of the second one we make in our briefs the supreme court has said that the relevant inquiry is whether fees are separable or not and when they are not separable when they are not separable then they are that is most directly relevant is it page eight of the joint appendix it's a single sentence and the reasoning of the court seems to have something along the lines of the following a veterans claim for benefits dies died there can be no further litigation on the veterans claim for benefits this court recognized as much in a subsequent philips decision in which it interpret it again the earlier decision and padgett and indeed the veterans court itself in subsequent decisions has recognized that particularly in light of the new congressional enactment section fifty one twenty one capital a it is indeed permissible and sometimes necessary if not if not all together common for a crude benefits claimants or some other representative of the veterans state to be litigating on the better end underlying claim for benefits after the veterans stepped that's the very purpose of fifty one twenty one capital a now that statute by its terms doesn't apply in this case because of its effective date but what it does teach is that the legal analysis that seems to  under way veterans court's ruling is wrong as a matter dies with him in richardson fact mr rich's brother as a representative of the state which was not disputed before the court made a note by a score attempt to continue to reduce litigation as a representative of she was she was a ultimately tonight standing when she was when she received recruit benefits or pursuant to fifty one twenty one she recognizes and then put out that hashing proceed it with a claim for attorney's fees and her only at she would ultimately come that was why the court conducted a standing analysis on mrs paget if the court was substituting was allowing as a representative of the estate mrs paget to continue as a representative of the state all they need to do was a determine whether she was a legitimate representative of the state bed when a veteran approaches the veterans administration he has missed his statutory basis to obtain benefits is usually under one of three statutes eleven ten eleven thirty one or eleven fifty one and when he dies under fifty one twelve his claim dies with and he has no more statutory right benefits under the v a but at the time of his death another stage kicks in which is fifty one twenty that allows in a crew benefits claimant often the spouse but not necessarily outside the context of the shows realm there may be ways that states can recover fees but we don't understand how there would be any reason to conduct any litigation after the actions duff given fifty one twelve in other words  has taken admittedly clever approach in trying to say we're actually trying to bootstrap this argument about the general language of you know generally the claim died to the back to which this court is used to describe the fact that the reality had having prevailed for the score and then before she actually got any relief from the judicial avenue that this court provided for in pageant she was worded benefits on a fifty one twenty one little way ok had been straight away we indicated in pageant the basis that has always existed for crew benefit claimants and for which there was no ija a work attached so you have to question was was her award under fifty one twenty one a as a result of her that the board made as it was concerned that the board would just make them same mistake again and then she would be right back to the factions core after fighting for thirteen years has been fighting for thirteen years she didn't want to have to redo that and the score wisely took that into account and said veterans administration paid benefits stowaways i think after this court's issued its decision and whether or not there was a connection between certainly she got benefits in a timely fashion as it and it did not materialize the way she was concerned that it would materialize but unfortunately because that's how she got her benefits and not through the judicial avenue that this court made available to her and pageant she's not entitled to see each of these are own right and she's not you know because of the interview thank you let me try and untangle a couple of different strains here and i think there are three key issues that deserve attention first of all counsel argued that mrs padgett could the appeal it was talking substitution not intervention if she wasn't substituting on mr paget's claim it's a mystery to me why any of this was being discussed second of all the claim has been made they do you can never litigate a veteran's claim after his death and there are at least four or five different authorities that make clear that that is not correct first of all i would submit that pa face patrick won in two thousand and seven it was all about the status and effect both mr patrick's own claim nothing in it is in any way inconsistent with richard richard simply say is that mr patrick can't be worded veterans benefits but in no way does it for close litigation on the veterans only claimed by someone else and phillips said that in exactly those words five  it thirteen sixty three this court said discussing the decision in padgett we have helped root benefits claim and may be substituted for the deceased veteran big disability benefits claim it were to protect the accrued benefits claimants legal interests but it's absolutely clear that phillips understood the earlier decision and patch it in precisely the way i am advocating fifty one twenty one capital ebay says exactly the same thing it promised to the crew benefits claimant to quote file a request to be substituted as the claimant for the purposes of processing the claim i the v a late last year the veterans court having determined that fifty one twenty one capital eight doesn't apply to proceedings in the veterans court issued a decision section the next thing i was going to get killed in the breedlove seven at nineteen the statute quote expressly recognizes that a crew benefits claim it in appropriate cases can continue the veterans claim fifty one twenty one s may even before fifty one twenty one capital a did exactly the same thing and this relates to that in the file requirement which you may be familiar with i know it comes up with some frequency and this court and the who point of this is that and accrue benefits claim and may be a work in benefits that we're doing payable to the veteran in fact actually had been adjudicated in a word to the veteran at the time of the veteran staff in the war which were quote based on evidence in the file at the date of death fifty one twenty one eight even before padgett and even before fifty one twenty one capital way recognized that there were going to be circumstances in which the accrued benefits claim it was litigating some aspect of the veteran's own underlying claim for benefits even after the veteran staff so that was the second point the third strand in all of this is this question of standing and it is certainly the case that standing was necessary for mrs paget to be able to proceed in the earlier appeal but that doesn't say anything one way or the other about whether she was a little getting the underarm claim for benefits that's just a prerequisite for her going forward and again it seems to me that between the time that mr padgett died and the point at which the veterans court finally once and for all reinstated the judgment that guy back in two thousand and five no protonic without that he wouldn't have been the prevailing party that the government concedes that he was it would truly exalt form over substance to think that years of litigation that were necessary for mr paget to be the prevailing party are somehow a large part and parcel of litigation on his own claim for benefits such that they should be able to be compensated under the full access to justice