year as we near the end of the year he's still not feeling the brunt of the only intervening factor was an act of congress which took effect on july excuse me to th of this year what congress did was give a separate and distinct pathway so that now we were dealing with two pathways secretary chose to use the nd pathway as a means of limiting or rather eliminating that st pathway and we think that that was not correct st of all argument from the government is is that by imposing a stay a temporary stay this is just a pause on ministering all these claims are going to be a lot of questions and so the agency is trying to get for something that could be regarded as a final agency action to respond to that certain i'm glad you brought that up your honor it's certainly is finally we've had at least a dozen people that we know of that have passed away during the during the pendency of the state certainly final to them but if you look at other actions you know this closed one of the pathways it closed the pathway by  eight it eliminates the air space for for anyone that flew over the territorial sate so we have that type of final agent actually closed off pathway questions are was  working on the state because everybody agrees that the ships that were in the harbors or within twelve nautical miles of land were covered by procopio they have been stated people have died other people may or may not ever and that's one of the things that concerns me is that the explanation the government gives for why these days are necessary it seems to me the only substantive reason is because we're not sure exactly and it's it seems a bit arbitrary to have stayed all claims but wait the flipside of that is they were only state for six months while the v a an agency which is absolutely struggling to do right by our veterans and in my  view unfortunately doing right by our veterans but they're struggling to i don't know what to do six months is a very short period time i understand short for everybody not short for vietnam veterans who served a long time ago and who are actually sick which is why they fall within the statute so trust me you've got me on all of that but i just don't know what to do with such a short stay or trust your job more but i'm not sure that across the secretary to maintain six months recall you said there is no outer limit but the statute does have the effective date which is kind of what i understood from their brief then the secretary would not have authority to extend stays except if you do a different reading of the statute it actually says that he can start those states on january st twenty twentieth's but implementing regulations is the employment but we don't know when that's going to happen now maybe the secretary will lift on january st what you say implementing regulations but i don't think that that's right i mean he's implementing the statute isn't he going to be processing claims and issuing benefits i mean we're not going to are is it your view that the government is going to wait you need to stay by the podium and that's ok your voice will be picked up and but we're not instantaneous it is you know we're into november i'm a little worried by january of one your complaint is moot if we can't act with that degree of expedience and that might be the case your  honor and something we've considered but at the same time even if the decision comes out in december or january of this favorable to us it will prevent any further extensions or the addition of any additional stays your honor i'm into my and i have my question and i have my answer because you're buying the government and if you buy in the government i'll be very happy so my question to you is is it your is that the government's position that section one thousand one  until january st of two thousand and twenty and after that this statutory section at least gives the secretary no further state power yes thank you and another just expand upon that a little bit because the effective c which issued its remit to the board sometime during the summer i believe a letter went out from the board offering to allow mr procopio to submit additional evidence in support of this claim and it just hasn't reached that final point yet but it should i believe it should soon but his claim is not covered by the stay and the reason for that is paragraph six on appendix one says the state does not apply or does not prevent that v a or the board from complying with any order of any court and the  from this court to the veterans court and from the veterans court to the board is an order that the state does not affect so mr copas claim should be decided in due course and should not be affected by the state i'm confused as the v a communicated  certain of our judgment it's an impairment it's not being enforced well i would dispute respectfully that he's here seeking enforcement of the judgment he's here on a petition under section five or to challenge one cope with this morass when it's so clear it seems from what you say as well there is no real dispute as to what ought to be happening that is in force one of the judge well i agreed as to other petitioners simply are seeking to take advantage of the precedent set by the no but not a judgment of this court and so there is a change in law affected by the blue water navy act does come into play and the state authority authorizes the secretary to stay those claims in addition to newly file claims provision your brief suggested that come january one or maybe january two the v a s going to start issuing decisions granting or denying claims that have continued through development but until the final guidance is in place and the final lines have been drawn they cannot make a final determination on each and every claim and so that was part and parcel of what they were attempting have been attempting to do in the six have been issued there are some open questions that they're still grappling with such as as we noted in the fact section of our brief where exactly the line between cambodian waters and the enemies water should be drawn given the language in the statute so there are some issues that they're still figuring out but the training and guidance should all be done in time for them to the constituent decisions on january st that is where the next seven weeks are saying yes or what about a notice of proposed rule making where that i don't know exactly i know they are working on the regulations but the blue water navy after the v a believe though that it can handle all these claims while in parallel doing the rulemaking process well i believe it's years position that the veteran should not be required to wait while the go through a formal notice a common rule making which can obviously take a long time and section to see one of the blue water navy i contemplated that  i'm just trying to satisfy my own paranoia that the v a is not going to wait until final regulations issued before they ultimately process and decide that is not the v a s position there's nothing there again we we his decision should be issued you know i would hope very soon by the board but i would be nice if they got it out before today when it would have yeah so it's you i just want to understand is the ball and with respect to mr pickup your you suggested earlier that perhaps the board was waiting on a submission of further evidence from mr burke o p o is is that where we are now or is it is the ball really in the board's court court where the b b a has everything it needs and now it needs to render a decision on this to perk up its claim it's in the board's court that's my understanding is v b a sent out a notice to mr burke o b o that he had ninety days to submit additional evidence he could waive that time and the board would would move to it immediately to cation and he did waive that time and so the board has moved to adjudicating has his claim where were you in the courtroom for the appeal or tokyo appeal argued earlier this week  specific location of his service i do believe mr lawson it was unclear from the records whether he had type one or type two diabetes and so there were other factual questions that needed to be determined on re man and certainly a stay is a rather blunt instrument and there are veterans who service records may show that they were you know within visual distance of land and i don't know the facts of mr lawson's case well enough to say whether he falls within that or not but the line drawing that is required out of the blue water navy that will be complete by january st and in addition the v a is undertaking a massive scanning of all navy deck logs held by the archives so that they can be fed into an electronic tool that the claims adjudicators can use to very quickly determine whether or not someone's served with them the geographic boundaries of the blue water navy x so there is a lot that is ongoing in order to expedite the treatment of these claims including i would assume have the power to review this because it's at minimum and interpretive rule you know we would dispute that it's an interpretive rule at all i think the stay a memorandum itself simply applies the authority given in section two of the blue water navy act if it was an interpretive rule of general pluck ability it will fall under five hundred and fifty dollars to a one and would be reviewable our position is there's nothing interpreted in this day memorandum the claims that preexisted the law that passed in june i don't believe so your honor the plain language of the state authority is that he can say the claims that he stated so it didn't require any interpretation to reach the s memorandum here the same manner and memoranda does not put forth any interpretation of that provision it simply states that it was authorized and the plain language of the statute so authorizes i'm posing counsel mentions that in his can imagine a claim from an airman attempting to argue that perk o p o provides him with a route for present service connection but because you know we haven't really dealt into that type of claim i can't i mean i don't understand why you're sort of so certain his claim has been stayed i mean we've all been hinting about how long it takes the veterans agency to do even the simplest of tasks so it's hasn't been before the b v a that law awaiting final resolution having been sent back from the court and having him requested you want to submit new evidence he says no i waive that it hasn't been there that long so why are you positive it's waived as a you i would hope great solace is the government is now bound by the statement that was very clearly made today that their interpretation of one thousand one hundred and sixteen a is that the secretary of state authority does not extend beyond january one not just that doesn't extend beyond january one but the secretary would not be able to there after adopt another stay at that point sort of stands to change your honor and their good or it will be a situation we're willing to everything scanned in time or to our deck lo bind and he did so he obviously was authorized to come in and make that the did position clear if that has any impact on the decision today i would think that you would have great cause to have and stoppel like argument against  law got some internal inconsistency ship we recommend against i'll tell you that i think i cited that proof because of these internal consistency some because of the state and everybody felt now except us that wouldn't