enough our question of i believe it's always been of law your honor because it does because it focuses on whether or not this was or wasn't as a matter of law an explicit denial and  explicit denial requires notice to the veteran or in this case the claimant of the action that was taken that effected benefit the failure to make any reference whatsoever to the i c benefits precludes the finding as a matter of law because in order to communicate to put ms i mean i read with you that in the ordinary context with the denial you think it would pointed out in our briefs there was a six specific regulation at three point one zero three eighty that required notice and that that notice explain what they did there is no explanation in the judgment on the part of the board that in the words of the board in the words of the veterans court construed the language to mean something there is no legal principle that allows the board in giving adequate notice of an explicit denial to do that by inference to do that by suggestion determining whether something is an explicit did not engage provide notice even though there is no mention of the claim and nothing in the three sentence letter which would convey to any reasonable person that that claim was being resolved in that letter and that that is really an interpretation of the regulation resolved on the basis of regulatory or statutory obligations then it should be resolved on those narrower issues before going to a constitutional argument the second problem is no constitutional argument was raised not existed the notion of an ability to construe language to be an explicit do not i know of no statute or regulation within this scheme that uses that phraseology and explicit denial the notion of an explicit denial comes from three point one zero three eat where you're putting the veteran on notice so the veteran can know whether or not in this case she was required to appeal and it's that failure to appeal that is the basis for preventing mrs rule from getting the earlier effective date back from when is two thousand nine eighty four this letter obviously doesn't reference the i c benefits and in fact the d c benefits were part of a separate application and it's a little confusing but i understand they become part and when i read these three sentences i guess what i walked away with is the conviction that what the government is trying to do is as a matter of law say if we make a predicate fact finding which we did in the burial denial  wasn't due to service condition that we have the last explicitly denied all other claims you made a filed even though not mentioned even though not tied to the exact same application if those other claims require that same predicate fact it's almost as though as a matter of what they want to say it's enough for us to explicitly i mean i was horrified when i didn't even go to the implicit n l they were explicit wow that's a lot of grandiosity right there so what what i was looking at was thinking to myself what the best i can figure for the government is they want to rule of law that if they make a fact finding with regard to one claim isn't just going to play as a matter of little claims it's going to serve as notice that all of their claims nine maner well the statutory and regulatory structure for burial benefits differentiate between burial benefits provided to a person who died from a non service condition which was at the time mr all circumstance and the explanation for why the lower amount was awarded and not the higher amount was because he did not die from any service connected condition as was determined in one nine hundred eighty four and that was a correct determination had he died from a service connected condition he would have been an excuse me she would have been entitled to a higher rate of burial benefit minutes left so let's hear from the government can we use up all your rebuttal time to fact and findings of fact well i think you were here when we were having a conversation with mr carpenter's and you heard what you were discussing with him about the idea that the only plausible theory for why the board in the veterans conclude that what happened with the obvious ten letter is an explicit denial is that there was a predicate fact finding for aerial reimbursement a completely different claim that applied and t the in the board in the veterans toward and how it understood that language in terms of the facts and terms of how it was read and context and the fact that there is notice of procedural in appellate rights boardin i would read the language determined that it was not in however way they were reading it was not an implicit denial of the burial rights that you see are probably right we can't see anything in there that there's no result in the denial of other claims those other claims are therefore expressly didn't know me and we have sat there and that absolutely satisfies the notice of the denial requirement mention a fact in one claim that would result in denial of other claims would that be an interpretation of three point one zero three if frank that way by the veterans cor if that was an interpretation of three point one zero three e u that was not applying lot of fact then that would be but that's what winning i guess i'd love for you your position makes it such that there is no such thing as an interpretation of whether there is adequate notice how will you give me please an example of what would be a veterans court interpretation of adequate notice that we under three point one zero three that we would be allowed to three point one zero three if they apply if they use the terms of the statute or there i'm sorry the regulation and said that something that is other than what the chase law of this court or as previously understood regulations if there was something that was very to that and they said that was permitted if that was an interpretation that they used that would be reviewable if they let me give you for example the word notice if they say the word notice nothing that we're denying a claim that would be an interpretation of the word notice and i would have the right to review that on appeal would not i believe that would be tracking your honor but i guess that's what it feels to me like they did in this case almost exactly is they denied one claim higher burial rights that she sought by making a fact finding and then they said that fact finding amounted to notice that other claims were denied and maybe it's a little more than a hint it's a fact finding not so much a hint but it's really the same thing and the fact that they didn't call it an interpretation in their opinion makes it no less is my problem correct i mean yes obviously your honor the word interpretation does not need to be in the decision for this court to have jurisdiction but as we stayed in our briefs for example the case is jealous and may feel though show that if there is a situation where the question is whether a language the it's willing include reference to the claim that it's being denied i don't believe there is a specific chase or statute that says that claim has to be named i think it's sufficient that for the veteran to understand further that it to be understood that the vat the benefits are not going to be received or to appeal that and if there was there's a there's some inference it's in the letter from the one that sentence the evidence does not show that the veterans death was due to a service connected condition the na is the specific factual basis for having to be i c a claim in the first place which is a finding of service church and you can not be awarded the i c if you're is what you just said almost verbatim it seemed to my concern about notice under the regulation the regulation requires notice of what you just said is that sentence and all the evidence doesn't show a service connected condition interpretation just the word interpretation wasn't used but what you're really asking for is a new rule of law that says notice is satisfied when a predicate fact is decided in one cl result it provides notice that all any other pending claims that might also require that the predicate fact have now been explicitly denied that's the rule of law i feel like you're asking for in this case well your honor that the concept of what the of fact no your honor but the the board in the veterans might that question is if the board of the veterans tort create a new rule of law that something else was being created that was not previously the established understand in the law or are they taking the law in one thousand nine hundred four and saying this letter satisfies it obviously our position is that it's the latter and i think the board of the veteran court felt they were purporting to do the latter i understand that your honor disagrees but in well the question it that the issue is that in cream natalie versus principi the understanding of what was required to provide a veteran notice and denial is different than how we understand it today seems to me  so the question of well it's in a letter talking about burial benefits is within the board in a veterans court factual understanding of how that context should be understood the board in a veterans courts are the ones making the inferences about  well i think it's an understanding that the tron touched is what it is how it is what makes it less of an island that's there that's there fact finance what the evidence showed about that letter so i think we've covered this ground do you have anything else you want to hit on or you want to relevant to what the issue is here and the government has conceded that there is a de i see claim in this case and there's no reason for us to reach that correct correct we're not saying anything we need knowledge that the submission of the death benefits form as a matter of law know i don't have it for that offer unless it's for the question from the court you know just one quick question i want to make sure that we both understand that implicit denials satisfy the notice requirement that point one of three yes so implicit denial is predicated upon an explicit denial of another benefit that is reasonably close to that benefit in requires that underlying fact so there was an explicit  on claim one and claim two was also at him plus that lee did not but not explicitly that i give you an example supposed of tension denial had not said because she makes too much money but instead said because she's not service connected is that a scenario where you have there been both a pension and a d i see claim pending at the same time if both of them had required service connection you know a single decision resolving a single application which has to gleams that both her car the same predicate fact that might be a did she make a claim that there was surface connection but no i want to do not believe she did i believe all she did was to indicate the amount of money that was expended for her husband's funeral and they responded that you're eligible for burial benefits because it is death was not from a service connected condition at the lower because she didn't indicate that it was service connected now that letter it if she even if she had not indicated but he wasn't but he in fact died from a service connected condition that she would be entitled to the larger burial benefit of i'll let you really clear just about all of that it's an application right not a letter as well i remember seeing application form i don't remember even seeing a box on it where she wouldn't designate service connection at all so it wasn't for her to assert one way or the other at that point whether he was service connected so your view with i understand it was technically they didn't deny anything she requested correct they granted her was not to the grantor the most that she that maybe any person could have gotten under different facts no but that didn't amount to a denial of anything she requested that's correct ok i understand but actually when she didn't get everything  request and part of that no no she didn't get everything that she could have been entitled to as judge moore pointed out there is no request in the application form to distinguish between the higher and the lower  didn't share that with this i honestly don't know but i would correct you that actually she got three hundred dollars she got one fifty for the internment and one fifty for the marker and if you note in  the record it says one fifty twice so she got the maximum benefit that was available to someone whose death was not the result of a service connected condition and that was the beginning and the end of the