cloning the veterans mr niles raced to claim at the v a for benefits based on a due process violation that occurred during the life of the veteran specifically the v a violated the veterans due process rights by helping to appoint m he asked them to recognize his power of attorney which the regulations in the v a have declined to do they don't recognize the power of attorney and that's pretty clear under their rules did he submit an application or in fact that would actually be did the veteran submit an application asking to have him appointed to do sheri duty so the family certainly submitted several requests to be appointed the fiduciary there's a letter that were signed march tenth by the veteran to the court or to the a seeking a change in veterans benefits we don't actually have a copy of that letter in the record all we have is a letter from the v a recognizing the letter from the veteran that it received it is our understanding but again it is not in the record that that included a request that his son be recognized as personal representative there's no doubt that from february to september and then actually in the months that followed mr hiles who was acting as the veteran's personal representative for all of health care france financial needs sent more ethical requests and also sent a letter documenting that his father was incompetent they sent a diagnosis from the father's family doctor saying you're incompetent he's got also timers he's got dementia he's been put in the hospital it is hard to imagine a scenario under which they could have done more to get in that they never make it right and then in september of two thousand and six a decided a number of things want anybody appointing somebody my friend you should produce shiri and given the power over my state if i was not in fact incompetent right would want to see that happening so they said at that point they're going to conduct a competency evaluation they conducted it we all wish it would have gone in more timely fashion that is certainly true from september two thousand and six i told january two thousand and seven i'm dying to know exactly what they did during that time what constitutes such a company the evaluation hopefully the governor will tell me do you have any idea what they did during that time so i would say they did nothing and i know i think it is if they did that would be irresponsible hoping that they say they did something other than nothing but actually they didn't conduct a incompetency finding from our investigation from september to january actually they said in their september the tiger team september decision there's a definitive finding of incompetence so they actually found it they said there was a proposed finding based on a definitive diagnosis from the family doctor i think th paragraph the sentence beginning way or sorry the sentence beginning since since there is a definitive finding of incompetency by a physician in this case so basically they had all the facts in front of them by september two thousand and six and then just did nothing in the time that followed and then the veterans family on october first immediately sent a letter challenging certain aspects of the decision one aspect they did not challenge was finding of incompetency and the government has come back and said well we had to let a sixty day time period run because the regs require us to give the veteran its time to challenge a proposal of incompetency but it's there at the very least there was an implicit waiver of that sixty day time period giving everything that had been provided to the v a including the veteran providing medical records from the doctor that he's incompetent there's there was no way in which the veteran would have challenge should have just moved forward and appointed to do so if they let the sixty's roll then it would have been november two thousand and six when a fiduciary should have been appointed right that's right and then that fiduciary would have been eligible to accept receipt of the increased benefits at a minimum that had been awarded as of september two thousand and six that's right and so what did happen though they didn't do anything in your view until january two thousand and seven and then what did they do so i think it's twenty one no one  twenty one of two is where they address the competency issues and they basically just repeat the same thing with the tiger so now they would have to go through the process of officially appointing reproduce cherian in granted they have their own process they don't immediately recognize the power of attorney but it's clear that that is the standard sort of paperwork that they would have accepted alternately so only the fiduciary can receive on behalf of the veteran because that's what this money is for me after the term or dependent children which we don't contest on does not qualify as correct correct so what what really what really is at stake in this case so it would do you i think i understand from the answers that you gave earlier that the position that you think what the government's going to say you understand the government's position to be the reason why they were such a delay was just in the event there's a sixty day window established for somebody who's been where the incumbency finding has been proposed so they can challenge it in the event that they're not in conflict here there was really no question about whether incompetency was an issue but for the government has really boiled it down to these two sixty day windows from september to january but the case is really february two thousand and six to january two thousand and seven february two thousand and six is when the family starts making claims to the v a saying my father's health problems it's critical by the way that's why a tiger team was appointed because they're there for expedited review when you know a better in his new year end of life the veteran submitted his own letter in march of two thousand and six this went on the family continued to repeatedly send letters over the summer preceding the tiger team's decision so i think it any point during that period is he a very easily could have initiated incompetency findings instead it let it go until the tiger team reached a final decision and then but then the february information that was the knitted original with that plane include allegations of the veterans a competency a kind of arose a little later in the process as the disease progress rights were violated by virtue of due sharing not being appointed at an earlier time or what what is the precise nature of your due process argument right that the due process argument is a violation of the veterans due process rights and it's going from a time period of february two thousand and six intil it would effectively terminate january two thousand and seven because they never you know completed the process of appointing for douche if you cheri and it is the v a s failure to expedite and move quickly in that process and and to essentially have delays throughout to not recognize that the correspondence that was sent over the summer to not move once it had the tiger teams decision and then after you know even if you had to let that sixty day window expire if it still did absolutely nothing please the court would first like to address the at the sixty days that we are talking about before so september twenty sixth there's a determination of the proposed incompetency there's under the regulations sixty day notice period and that's really for protection of the better so what would we do with that sentence that says since there is a definitive finding of incompetency by a physician in this case and the claimant is not shown that would have put us to land that would put you to november twenty sixth or around that time two thousand and six and then january seventeenth was the final determination i'm sick and stuff why then didn't the agency do anything in front of armor twenty six until january seventy well i can't really explain that your honor there's nothing in the record that would explain what what exactly is going on there one possible explanation is that the sixty days runs i mean if somebody would come back ten days after the sixty day period i mean that would be information that that would be the regulation i don't believe says on the sixty first day they have to issue what the document they were just looking for we you know and we can explain it but you know we can explain th delay of approximately six weeks call it they're saying that that in part amounts to a due process violation of the veteran because he was not able to receive the disbursement of the funds forget about the six hundred thousand dollars i don't even understand that that you giving him the money you would you to keep him in title to it why wasn't he getting it well the explanation was that they hadn't gone through the fiduciary appointment process and then once the final is anyway they could have explained to me why did they have to go i don't understand he has not been adjudicated incompetent right you're telling me that he had not been adjudicated incompetent and so is that it but there's an allegation of proposed incompetence so if i'm a veteran right and i'm living on these meager i'm subsiding on these meager disability benefits i'm a disabled veteran someone has alleged that i'm incompetent i can't get my benefits that i'm that you would you to get me necessary for life you found that he the only not interest in your standing are going right now i want to know why he wasn't getting his benefits well the explanation from the v a and from the board was that a final determination of incompetency had then if he does something bad with the money we were sort of not right sure it is that or a logic behind that the regulations are for the protection of the venti but here's my favorite part you are continuing to give in the original benefits during this time so w we've got a proposal and come to see that i've been getting a ten percent disability rating you are sending him that money can't you've now adjudicate him in title to a higher disability rating so the only thing you're withholding from it is the difference between the ten percent he was originally getting and the higher a male that you've adjudicated he's entitled to a necessary for his survival how do you explain that how can any logic justify he's potentially a couple so we can't give him money so just give him half the money but not all the money think any degree of logic justify that well it is certainly difficult difficult to explain your honor i mean i would say i think at that point in time they were focusing on the change that difference in terms of the new money that would be coming in potentially i guess the v a should have probably withheld all funds to themselves so none of that's none of the money necessary to allow him to survive pay his bills get food it saying what they should have done is not give him any money they in fact gave him some money wouldn't that suggest then there's a real problem with not appointing a fiduciary from september until january because under your logic he should have gotten any of this money that's the logical so do you got a disabled veteran who can't survive absent this money which is what the rating decision decided and your suggestion is it was ok for the v a to give him no money from september till january h three five three life not sure if it's in the to where it is where the beneficiaries rating confident the veteran service center manager will develop information in a under that section see any other language within this that say when defection is rated incompetent just out of curiosity when is did that happen according to you didn't happen in the september thing that proposed to sing competency or did it happen the rating decision that according incompetency i believe it would have to be the for the final now really right so then how did they withhold from september until january this right wouldn't support them doing that right even if the strike supported them doing order to demonstrate a due process violation you have to have a property interest and as far as mr mr house the son goes we think that the statutory framework for an adult child is clear that he cannot recover and we think that young men and the richards of us case that young men cited to which which goes through due process is clear on that that when a veteran dies his  entitlement to the benefits is extinguished now there are certain individuals certain specified individuals who can receive those those monies and they already  statutory entitle ment now if they have been in that i've i believe you're absolutely right on crude benefits in general but i didn't find any cases suggesting that due process claims like federal circuit so what are you sure that those due process claims likewise evaporated a veteran's death sure well that was an argument on reply that mr house pointed out one of the cases that we relied upon young men young men such to richard's view west and on a given the site on that one there was a due process claim there and that was the brother the error was a brother trying to get it and the court stated that because of veterans claim to disability compensation under chapter eleven of title thirty eight is term and by terminated by his or her death a veteran and therefore a veteran's estate cannot have the protected property interest arising from existing rules or understand understanding and such compensation so we feel that the young man case which was the primary case relied upon cited and mentioned that case upon it heavily and so we do think that there is no protected property interest that these benefits have been awarded a could be a writ of mandamus that they have been awarded not paid this is this is not a five year period you know we were looking prior at the length of time here i mean in general delays in these v a cases are not often turman to be due process violations in and of themselves and it's often the years period here we're talking about a matter of six weeks now do still under a situation where there's no standing to see still not able to recover any money and so that even if it is theory him a cup or money after the veteran died it was a well that's the young men case you know in case there is actually a fiduciary appointed and they 're trying to recover the money in that situation so we're even one step removed from that case so i'm not sure how it would be a century a standalone due process claim in the absence of any sort of veteran disability benefit compensation and we certainly don't think that mr house has put forth any precedent for such a claim and it really is in terms of standing it's it's that the claimants burden to put forth some basis for standing that there's some sort of injury in terms of veterans benefits that have been suffered by mr hi you can see my frustration over how all this veteran and his family were hand handled be a but i'm very much afraid that he's right on the legal issue and despite really poor behavior by the v a that treated this better than this that only very well nonetheless he has a technical legal argument and i am as a judge bound to follow the law so tell me how is it that there is standing in this case too for benefit so first i would say that we don't think it's barred by fifty one twenty one because the due process claim stands independent of a claim for accrued benefits under fifty one twenty one we've met we think it is an open question whether the state can step into the shoes of the veteran we've not found a case particularly or that the directly addresses this issue the government brings up richard's case the rich case is different because the richards case the air that was trying to step into the shoes of the veteran to pursue a mind which we think is potentially an issue of first impression is whether the heiress in that situation when it's been awarded and not paid can then step in the shoes where you have a due process violation we think there's a good reason for it because you recognize that that would be distinct from all your other claims for example i understand that mr hospitals power and wanted to challenge the september decision because he thought and got his dad thought that he should be entire to hide higher rating that he had actually been given you realize due process of cover none of that right we understand that we haven't raised that out of you know the appellant was was pro se below and i know he raised a number of arguments we've only addressed this issue on appeal we've narrowed it to the singular issue of the due process claim relative to that september decision it wards benefited or the benefits awarded through that decision to be limited in that way