control the interpretation of this regulation and the clear intent on the part of the act was to permit the claimants to submit new and material evidence during the pendency of an appeal decision now became more expansive it included appeals to the united states court of appeals for that complaint as well as appeals to this court and the united states supreme court clearly that mr jackson's position is that in order to interpret the plain meaning of the regulatory language the purpose expressed in the ordinary use of the word is what you control and i don't what right do you think they'd be a as a change given forty five years in light of all that's happened on  ultimately rejected by the veterans court but it seems to mr jackson that that is simply a question of the v a s obligation to amend its regulations if they believe that that regulation  not clear on its face and we believe that the granulation is not clear on its face to the extent that there and lived to be a limited meaning to the term appellate decision the term  includes judicial decisions and there is no reason for any claimant after november of one thousand and eight to believe that there would be any other meaning than the appellate decisions that were available to he or she during the period of prosecution of an appeal to the veterans court or to this court in the event that mr jackson would have prevailed before the veterans court there is no question that on the three point one five six b that the same evidence which he submitted  during the pendency of the appeal to this court had been submitted on remand would have been subject to the provisions of three point one five six be equally happy prevails in his appeal to this court in the matter  the date of the claim which he commenced to reopen and the fact of mr jackson's case which are simply not in dispute mr jackson's original appeal to this court the appeal that was pending at the time which he submitted in the terri eleven's involve reopen he was attempting to reopen the previously denied claim and he had been told by the da that he had submitted a material he didn't find out that he had received no material evidence until we got to the bore when he got that board decision and he appealed that board decision to the veterans court and ultimately to this court and was unsuccessful in that appeal based upon this court's determination that the board had the novo review and appropriate authority under fifty one a way to is wholly unique it provides a benefit that is not provided for in any other statute any other regulation the v a does not cite to either fifty one ten the earlier affected day and right statute or fifty one  exercising the secretary's authority under five eleven to promulgated regulations in accordance with the statutory scheme under that authority the secretary provided the regulation the provides a significant benefit to claim it provides an opportunity to submit a new and material evidence the matter at issue in this case it was merely medical directives once that medical nexus evidence had been submitted to the satisfaction of the secretary that benefit was granted but the effective date was respect to the question of whether this is a proper agency construction of a statutory provision as opposed to the agency's interpretation of its own regulation let me ask the question a different way but it's still the same question and that is if the us so there's no statutory compulsion to adopt this position as opposed to the opposite position the agency has a choice and isn't the agency's articulation of its choice something that it's entitle to substantial deference in saying this is the choice we made and this is what this language that we used in making that choice means  i don't think so or not not when the statute is playing on his face or scrutiny when the regulations and the ordinary views of the term appellate decision is plain i think if it were a question of we're going to target this particular way then i think that would be part of the deference but the question in this case is is what is the ordinary meeting what would the average claimant or for that matter the average claimants counsel understand the term decision to make a post november nine hundred eighty eight and i believe that there should be no difference afforded to the agency is what i believe is post hoc interpretation is simply to defeat mr jackson's right to gain the benefit of that he should be entitled to rely as every claimant should be entitled rely upon the plain meaning the ordinary meaning of the words used appellate decision is not  believe that the remedy should be for the secretary to simply amend this regulation to either provide a definition of appellate decision as to be limited to the decisions of the board or to simply remove which the veteran is provided by the very nature of this regulation with a benefit that isn't otherwise available and it seems to me that that it's only a question of limitation and any interpretation that limits i after a formal adjudication whether it's presidential or not and if it is the statement of the agency's official interpretation of its regulation again we don't need to get to the deference question because clearly just the regulation as an act that in sixty one has a specific of the like now i would say that there is one procedure that when effect perhaps this court but could perhaps affect an appeal at the v a and that is there's a lot of a case called surreal and a lot of cases following that where the that the district court said well i've got this new material evidence motion i can't do anything about it because the court of appeals has jurisdiction and i know it sounds as though under those circumstances it might be appropriate for the party to go to the court of appeals and say please so the district court can skim center this noon material evidence question and maybe we could do the same thing and maybe that would be the solution and it might be your i can't rule it out since a question stop before us i can't tell you position as we have to consider it in brief it certainly wasn't done here the case that the prior case was final before the court and indeed final after of ca to see decision only pending before you not like to start first with the reference made in the government's argument about this is a new claim i believe that that assertion is inconsistent with this court's recent discussion joyce about what constitutes a claim and the only claim here is the claim for mr jackson to back condition i think it's also important to recognize that this is not in the nature of a claim the matter or the proceedings to reopen are specific proceedings involving the exercise of jurisdiction as has been interpreted by this court and bar in this court of mr jackson's previous appeal to this case in which the matter of reopening is a matter of the sufficiency of the evidence to require under fifty one a way that the secretary reopen that is a matter of the exercise the proper exercise of jurisdiction over a matter to be reconsidered if you will on the merits based upon the submission of new material  as a consequence i believe that those are entirely different circumstances that are faced by mr jackson in his original proceeding in this case obviously the role was to have his agency's interpretation made in a non presidential board decision of the term excuse me of appellate decision i believe that there is no basis for such deference and that the ordinary meaning of the term appellate decision should