may please the court by name story hines and i'm appearing today on behalf of the d m v in v f w with respect to the rules challenge i'd like to address three issues one with respect to the effective date for like to go to the second issue first because it was addressed in the questioning in the last case now with respect to tolling tolling was addressed in our brief and we did argue that the quizzical about whether equitable tolling is something that's that would be possible for a claimant under those circumstances but at least in terms of acquittal tolling it's his understanding of the rule that it on its face doesn't bar the possibility of a rule tolling for claimant who is in the circumstances of having filed a nonstandard form another day and that may be that hasn't been the government's position before in fact when we issue the government did not respond at all to our argument about henderson and the applicability of henderson the regulation does say though that the filing of an alternative form or other communication will not will not extend toll or otherwise delay the time limit for filing the notice of disagreement and we think that's pretty clear that there is an express prohibition on tolling and we think that's invalid if the government now that assumes that that there's no forms ever filed rather than a form just filed late right that assumes that is the case for a veteran who does not submit the not on the form that's correct and that's our challenge is for the better and that does not submit the form that there should be some possibility of calling or of extension work or some way if the veteran does not do that to get that time period we think that's docket number eleven thirty five thirty seven was that to the extent of the board had said or suggested that seventy one of five that's the not provision is jurisdictional that was  undermined by the supreme court's decision in henderson so they didn't directly rule on it but they certainly strongly suggested that equitable tolling should apply and we believe it should and we believe it should require a change to that particular regulation and this issue was not raised in that october case is correct that this particular issue was not raised in the october that's correct no further with respect to the is the specificity required by the you know day you know this court in a number of its cases has explained what a notice of disagreement is in the struck a case the burden case hamilton and rivera this court has been very a different result in fact you know yes this court looked at the regulation approvingly at the regulation that defined and not at the time and said that it supported the result they're the that is the only difference i don't think i can be read to suggest that any other condition that the v a wants to put on the n t is appropriate but i think what it did say is that there's a gap in the statute that v a to fill i agree with you that the v a doesn't have unfettered discretion to add any particular additional requirement but it would have to come within the bounds of could not do was change were distraught said struck him ten years before and said congress implicitly adopted a definition of the n t when in acting specific legislation implicit definition of not recognized by congress needs to continue to be recognized by the way if the requirements of the are going to be changed by statute it must be done by congress it cannot be done by the way because of straw and because of the other cases that say that burton hamilton and rivera which also recognize that the energy is something supposed to be something so simple and basic triggering the appellate process and getting that the veteran from the decision phase to the appeal face and so and so how would this new system not comply with that prints well if you look at the form itself instead of a veteran submitting potentially a letter to the v a that says i disagree with the decision that you made a march seventh two thousand and sixteen full stop now instead this  must submit this form that requests a lot of additional information and in particular one problem and problematic area in commenting on the proposed rules to find that it j twenty seven the government said it would not be necessary for a claimant to describe the area of disagreement ok that's what was said in the in the during the rule making but if you look at the form and the form again at eight to ninety three the form tells veterans v a will consider the form complete at a minimum if it indicates among other things the area of initiate claims for decades so we're not opposed to that the form though should be consistent with the implicit definition adopted by congress and that there should be some provision where a veteran who the other issue i'd like to address is the effective date and this is at the other end of the the claim process which is the effective date for initiating your claim as opposed to the date for the  file the form in order to get the effective date and the the problem is not the form the problem is a limited in the time period from an informal submission and until of the actual formal claim or formal form is filed and the loss of benefits for that time period and that is what we are petitioning that change now the government argues that by statute it can require forms to initiate claims and we don't believe that's true the government relies on thirty eight u s c fifty one zero one for that proposition that is titled claims and form and it says that a specific claim in the form described by the secretary must be filed but the end of it is what's significant in order for benefits to be paid requiring the form i any person creamy or plying or expressing and intends to claim or apply for a benefit the secretary shout furnish all instructions and forms necessary to apply but you know what's troubling a were balanced by the way to try and figure out where the greater good is and how to decide it that's wrong is very difficult on the record i can see that it's easier for a court there is no change of you and the response i would say two things forms are required and we have no objection to a form being required for benefits to be paid what we object the now new mandatory nature of a form to initiate a claim we think that is inconsistent with the statute that provides that a veteran cla or plies inflates in attempts to apply and then the form is provided and then the procedure goes on so the very first thing is a claim or application followed by the form and we have no problem with that and the think that it was as clearly addressed a response to the government's statutory position with respect to five one one there were many arguments about chevron deference if the system is consistent with  statute that is absolutely true and we agree with those arguments the issue i want to bring to the court's attention is a specific response to the government's reliance on fifty one one and the system overall our view is the statute sets forth the scheme that's has been adopted in ratified the congress changes the veterans rules fairly often and again when the general as it was in place that is a claim can be initiated by the veterans in any way in an informal way that's been used by the v a for almost a century that was not changed it was certainly ratified and it's certainly consistent with the actual statutory language so our view is in view of the statutory language the practice in the ratification by congress of this system that the v a by benefits to be paid and five will want it to the secretary has authority to prescribe all rules or regulations which are necessary or appropriate to carry out the laws to include the forms of how the patients buy claimants under such laws and we've always interpreted way i think actually the regulations this time actually are more consistent with the regulations and they may have been once upon a time but that being said the even aren't regulated ins now are more consistent with the stats a day more merit the idea behind the statutes of compensation to applications and complete out of patients under fifty one to one year effective date is the date of your application it doesn't say the date of your incomplete application says the date of your application so in order to allow the statutory extended benefits and they're doing it today here's an example your honor i wake up this morning and i want to file a claim i'm a veteran just it's a hypothetical but i'm a veteran i want to file a claim under the old application i fill it out i sent it in that was actually that was what i could do in march of last year this morning at wake up i want to figure out how do i file a claim i call the v a out how can i file a claim well let me connect you to our claims person you tell them you want to file the claim they take their information over the phone and your affected date is that day so under the new system your effective date is as early as the day you wake up to try to figure out if you want to file a claim if you make phone calls now i  and under the rules you need to work with the v a person on the phone who actually types out the information for the form into the form for you while you're on the phone they ask you the questions what's your social security number or what your this what your that and they fill out the information there when you say under the rules that happens all the rules the rules actually say there's a rule for phone that's one of them one of the great perks of the new rule is when you are eliminating the idea of placeholders we're updating is filed when it gets filed but you can do it by phone you know there's actually a placeholder aspect to this as well so you can go on you can go on you call a person and you give them a minimal amount of information that's a placeholder it's almost like you wrote it or sell off then you get the form in the mail that's more expansive and you fill that out that forms very similar to the form the form that's always been required to fill out alternatively you could if you have access to a computer i mean i know it's you know the reason we do this is because most of our veterans actually use computers to court to communicate with the v a as the court knows and of course office does when doing process they like to use computers and that's your home unless you're homeless but the same concerns judge about homelessness would also affect written communications through the mail that's why we in response to the room making the proposal actually did kind of a limited with the sort of paper communication method somebody and that it will be filled out over the phone maybe they don't know any of this with don't think so and as it's been done for decades they write a letter and say they got it wrong this is that seems to be the general doesn't doesn't have access to something but sends in the doctor under actually under the statute fifty one or two which is incorporated into the regulation three point one five five the v a is required to assist that person to help complete the form they're required to send on the clock to help you fix it now that's a slightly different as i said this is very good what do you mean by on the clock is it just in terms of understanding fifty one o two if if the claimant files an incomplete but standard claim want to see i believe it is the time period is after the i think i think under the fifth you want to see the time period when you start from the date that they get the application but within that the regulation builds an additional safeguard that says if you submit an incomplete uppish in the v a will tell you what's  missing i'm not sure if the sixty day or one year actually i think that is i think it's so six days or when you're separate longer because sometimes you might not get back to the person within the one year period so there's an alternate sixty day period that would they would have sixty days to respond in order to keep everything moving along but i think again the one thing that was discussed earlier enough to be perfectly frank that that is i don't think essentially we're not going to make these forms mandatory then efficiencies are reduced so we need to balance the equation and the room making that's what the agency does have to balance the interest of the entire process against they don't want to encourage people to simply file nonstandard forms when they've been provided the standard forms as part of their decision so they have language in the regulation that discourages that behavior we think that's perfectly acceptable and it doesn't preclude a board or factions court or this court of moving some kind of tolling on that process so is it fair for the court to read the rule as the rule says you don't enjoy as a claimant automatic tolling i think that when you file an informal however there's nothing in this rule that bans the possibility of equitable tolling if you are i meant under those circumstances after looking at all of the larger facts and circumstances surrounding the untimely statute does not mandate this system that you're using now this is in terms of in terms of any decent of the claims i'm sorry the terms of the in terms of using the  form to initiate the claim that argument was to be is ever call the argument about whether or not the had the authority to require these claims and what was going to happen with the old and from the same so twenty three years i stood for the governor to help them or something like that so so those are those that aspect of the end of the i do think was new i don't recall that being subject to the challenges of and that was simply designed to have the court of address new cases not cases that are been subject to board hearings years and years before only a new claim which was appealed into the system after the fact that they nine's forms for stocks of appeals could constitute an o t c and the analysis and scott and hamilton was all about the process that takes place when you appeal a claim in the v a system and the idea being that it starts with a notice disagreement it's followed by the preparation a statement of a case by the v a explain more fully the basis for the denial at the regional office level or agency her original jurisdiction as a statutory tournaments and then followed by the filing of require the agency of original jurisdiction r o to reconsider the case they need to do and apparently this is because as part of the end of the process the claimants are actually allowed to submit new evidence so that if the an example said notice the disagreements there really wasn't any dispute in those cases about what these things were they were they were not disagreements that were filed in those cases prior to november one thousand nine hundred eighty but there were v a form one nine subset of appeal documents that were filed subsequent to that date and the arguments in those cases were all about well could those qualify and this court session hamilton went through in a very very thorough manner the v a appellate process and in so doing there reference actually instruct to all congress refer to any of these but the point of that reference isn't to define for on for all time what an entity is required or may contain the point of that reference was to define for purposes of among other things the us section seventy one zero five which is the statute that talks about most of this agreement does not express a complete an unambiguous reading for the statute or there's a disagreement we can only read that one way and that is that each of the precise question that's raised in this case not stopped when the question is in this case is and the day in the most disagreement asked of action to identify the body part and we believe we can and that's what we're doing and that's all we're asking for and the form does ask for additional information if it's available to the individual and why because that helps the process the sooner we get the information which is eventually going to have to come from the veteran anyway the better off it is so we ask for that information like for example with respect to the bar on the form where it says what is your rating or desired rating we say if you know we're not we're not holding these people to that but if they have the information and many of them do as a good time to give it to us as part of the you know the process that's all we're doing we're not we're not and we're not asking for detailed you know medical views about why they think that their service connected if that's the issue we're asking what is the area of your dispute and if the hope that the aid figure out in a claim special thing where there's multiple things that are that they're talking about this particular claim or that particular claim because it is the case in many of these cases have multiple claims and i will add one thing i'm going to repeat it here that that i responded to it or argument it hasn't come up yet  supposed to be and released always invitations to be something simple and easy for the veteran to do it puts the burden then the v a to prepare a statement of the case it's different from a typical appeal but it is specific to a veteran's appeal and while mr hockey is correct that for some veterans it may be good to provide more information sooner that's not the case for and that is our problem with the increased specificity it may help some but it may hurt others that's the problem with the box saying a little everything suffice well your hon may and that issue was addressed in the in the rule making to jay twenty four and mr hockey is correct to that admiral argument in october he said that that was being looked into in january of this year the v a reissued the not form and did not change that so apparently they have looked into it but nothing has changed the form is still as complicated and being consistent with the regulations as it was at the beginning and i want to point something else out on the not for the right to a detailed pages of instructions followed by the form itself and in all capital letters on the first page of the form at the very top presumably where the veteran reads first the v a instructs the veteran but desire to contest the result will constitute a notice of disagreement while special wording is not required the nod must be in terms which can be reasonably construed as disagreement with the determination that the language is the language of the regulation that's been superceded by the new regulations that language is telling the veteran and all you need to do  contest the prior determination that language could certainly be read by a veteran and saying i don't need to write all this information of all i need to do is tell the v a i disagree with the decision but they can't build lose their rights if they do that now mr hardee i want to move to the arguments that mr hockey made with respect to balancing the nod and making it mandatory there are statistics in the record that during study in houston when the nod was optional and optional not in the first month ninety percent of recipients filled out forms and a few months later that was up to about ninety four percent so many people will do it they get the form to fill it out our objection is to those who can't or won't and there should be safeguards in place consistent with how the knot has been defined as something much less than it is now and something that gives people the opportunity if they don't file if they can't file if they filed late to get some relief but there was something in the register that said it was closer to fifty percent using the nod with respect to time fifty one ten and this is moving to the effective date issue mr markey argued that there was an effective team result under section fifty one ten section fifty one time and refers again to the two to look at what congress was intending and what congress was addressing section fifty one i want to see is not from when the application is originally sent it is from when the it gives notice of something that needs to be completed that is an additional problem with the regulations under the new regulations the veteran will have one year from submitting the incomplete application to provide information the deer's position is that the application itself can provide the notice of what's missing  and that's a bit circular if the veterans submit an application that's incomplete and already has that notice they get nothing else but they may get nothing else from the v a telling them what else they need to do the statute requires one here to provide information from the date of the notice not from when the form is submitted to the regionally which is what the regulations now state so we believe those regulations both for the for the