kind of carpenter appearing on behalf of mary ellen mason she is the substitute appellant for the deceased appellant in this matter kenneth mason at issue in this case is whether the veterans court misinterpreted the provisions of thirty eight to say justification but the notice of disagreement that he filed was in fact untimely under the v a s use of seventy one o five a to treat a fee agreement review by the v a as a simultaneously contested claim he his no disagreement was in fact untimely under the provisions of seventy one o five a the question is whether or not the a can rely upon seventy one o five a in the context of an attorney fee review since an attorney fee review is not a claim and does not involve competing claimants it involves an administr procedure in which the v a is reviewing a fee agreement that is created under the statutory provisions of thirty eight u s c fifty nine zero four d this is a statutorily created fee agreement that says that if the attorney agrees to modify or conform his fee agreement to the terms of the statute which are that he will represent on a contingent fee basis only and that he will not charge any other fees to the veteran for that representation then the v a will be responsible to withhold the fee called for in that fee agreement and pay that fee to the veteran the v a has decided that it needs to review these fee agreements administratively the v a and the lower court have determined that this process involves a claim it does not involve a claim there is no claim there is no application by either the attorney or the veteran to initiate this process this process is initiated completely so sponte by the v a in initiating the process they render a decision this is a five eleven thirty eight u s c five eleven decision which subject to appeal and review by the board of veterans appeals and ultimately by the bedrooms court as a consequence of the attorney by being required by both the v a and now this decision to comply with the provisions of seventy one o five capital as the attorney is limited in his time of ailill under the statute seventy one zero five which is the corresponding statute requires or provides for that in all circumstances other than a simultaneous claim that the claim is initiated by filing a notice of disagreement within one year of the d a s decision is the attorney  laws administered by the department of veterans affairs pertaining to veterans and their dependents and survivors isn't the attorney fee a payment determined under the laws of minister by the department of veterans affairs pertaining to the it is not the determination of the amount of any benefit it is a determination soley as to whether or not the fee agreement that is entered into between the attorney and the veteran is compliant with statute and regulation four under a law but with reach of any means but with respect your honor the payment is not determined by the fee review the payment is determined by the fee agreement the fee agreement can charge anything less then twenty percent of the total passed to benefits so the payment is dictated not by the big age decision but by the terms of the fee agreement if the fear agreement calls for a ten percent contingency or a fifteen percent contingency that's what the amount of the payment of the fees are determined by not independently determined by any decision made by the v a i guess i don't understand most  fifty nine zero for the based upon the amount of past due benefits that are awarded by the v a that is when the amount is determined by the v a in their award based yes your honor except that what you need to understand is that these disputes are not an issue dated by either the veteran claimant or the attorney in other words it is not a disputed matter until the v a makes a decision the v a reviews only for compliance only to determine whether or not the provisions of fifty nine o four and the appropriate to be a regulations implementing fifty nine zero four have been complied with was there an appropriate decision that generated a entitlement to charge a fee and was there and subsequent or collateral award or subsequent award for past two benefits which then triggers the statutory provisions of fifty nine zero four which allows for the secretary to withhold and then to pay and before the segment to be our own makes a decision and that's what triggered either a sixty day error when your clock right that's correct and if it is a decision that was favorable to the attorney based upon the fee agreement entered into with the veteran then that's the end of the matter although the veteran does have a right to initiate an appeal he can dispute but all he can dispute is not the amount of the fee but whether or not the fee agreement is or not compliant with the statute or the regulation me ask you a different question as i take your position that seventy one hundred five and for simultaneously contested claims can apply in this scenario because what mr mrs mason had for us is not a claim there and that's correct and the problem i have with that is that both the seventy one o five and seventy one zero five talk about claims and claims and the real therefore it seems like it can't be a distinction for her client to say th only one of them is dealing with claims when when both statutes in front of me talk about claims so you're either have a claim or seventy one five or a claim under seventy one o five a with respect your seventy one of the five existed and talked in terms of playing because there was no attorney fee provision the fees were capped at ten dollars under the present one hundred eighty eight statute so there was no  other things than claims of claimants there just aren't expressed in seventy one ofa yes your honor because this court in bates determined that when you have a matter that affects benefits that is covered under seventy want to file and a decision just like the decision to terminate accreditation on the review of a fee agreement is a matter that affects the provision of that animal and i understand that this court used that term claim but it use the term claimants it a generic way as opposed to using it in the context of interpret ing whether or not zero four d d or in the context of seventy one zero five a because all it does is to define what the phrase simultaneously can tested claim means and it defines it as the situation in which one claimant results in the disallowance of another claim well if the veteran doesn't make a claim for review and the attorney doesn't make a claim then that part cannot apply in that definition the regulation keeps going up yes it does and then it says in the alternative or the allowance of one claim that results in the payment of a lesser benefit yes to another plane right and this is a binary decision by the v a it is either a compliant fee agreement or it's a non compliant fee agreement if they find that it's a non compliant fee agreement then there isn't any question that subject to appeal but that money is veteran gets the entire amount that was with him so there's no payment of a lesser benefit it's an either or proposition the veteran is either obligated under his or her fee agreement with the attorney or they are no if they are not then they are in the is in title or is obligated under is the agreement and the v a is obligated to pay it if it is found that there isn't compliance then the entire amount of the with health the agreement withheld c from that c agreement is returned not a lesser amount and they've expressly used payment of a lesser amount that's fiction that doesn't happen here we're talking about fifty nine thousand dollars which when that was awar pursuant to congress indication that to induce attorneys to represent veterans they will agree to direct the secretary to withhold a fee that is compliant with the provisions of fifty nine  if you charge more than twenty percent then you do not have your fees withheld or you charge a flat fee or an hourly rate or a combination of all three then those fees are not subject to the fifty nine zero four d withholding provision so we are not talking about something in that the veteran was not a party to the veteran entered into this fee agreement in order to get free representation on the of formal claim as we both understand that under veterans law and what the statute says in simultaneously contested claims for all so not a dispute over the money that is due on a single claim but rather two separate claims plural and the difficult thing is the notion of treating the attorney fee contract and somehow a separate claim for benefit under the veterans law that's what i find t most difficult thing to wrap my head around well the board of only deals with players whether it's under seven one of five or seven one of five a that's what the board does the board deals with claims whatever that is there's a veterans clean and issue here the veterans benefit if not the most elegant way to describe it but it is in fact a play and if it weren't a claim then mr at that point out here then mrs mason wouldn't or her husband previously wouldn't have gotten been eligible to file a notice to disagree with the first place they never would have gotten notice of what's going on here because we only have the veteran as the claimants but in fact the attorney and a veteran were both given notice feels awkward because we're dealing with a situation here where an attorney is seeking a portion of his youth as you noted of the veteran's benefits but technically it's a claim and technically he's the cleanest but separate from all of the fact that the statute and the regulations never ever use the word claim that to describe the attorneys and in fact oftentimes say the claimant camas a claim is represented kamel orders the cleanness attorney what about the that attorney is only called out as somebody different than the claimant and then threw out everything they're called those early in iraq yes your honor as the attorney get they would be really awkward to say the claimants seeking a claim or the other claim it would be expressly and conclusively distinguishes between claimants on the one hand and attorneys on the other as two different animal altogether it is the eternal is not a claimant and this isn't a claim then it's unclear on the how he could go to the board in the first place if that's the only way you can get to the board if he wants to challenge this determination you're saying under seventy one outside there'd be no basis for him to get three or four that's correct your honor so everyone else five speaks in terms we have a determination by the v a that the attorney is or is not eligible to receive this money but how does the the veteran i'm sorry the attorney then go to the board has to be under seventy  to undersea the word claim is used under de want it says where the claimant or the claim is representative it's talking about those of the whole basis is that this is a claim this is what the board does that deals with claims so let me just read to me one of the one to be the veteran under seventy one of five because under seventy one to fight a is where you deal with multiple different individuals the claimant and deployments representative who is now a new claimant but doesn't it doesn't fit  am we have twenty two point three which bush physically says the allowance of one claim results in the payments of a lesser benefit to another claimant and that's where we started this conversation because there's clearly a lesser benefit being paid to the veteran here when his attorney is getting some portion of it fits under twenty point three even if that didn't you know we have to leave him in is your argument should i understand your argument to be judge moore this statute doesn't fit perfectly in this situation you can point to claim nt versus claimants representative or attorney but in other places it talks about benefits this is arguably portion of benefit you know the statute ain't perfect but that's why we give deference is that part of what your argument is that's not where you're going what words were saying the statute in fact the last sentence this should be handled as a contest to claim due to the possibility the v a may be required to attempt to collect an e p paid the attorney from the claimant so this is the a specific lease thing that the attorney withholding situation is a contest in and said no i you are supposed to withhold that for me and you didn't you were supposed to pay it to me then the veteran could i'm sorry the attorney could file in the disagreement and complaint and if this were a timely  disagreement that's exactly what would have happened here and if he ultimately was successful then the v a would need to take that money back from mr portman and pay it to mrs mason and that's what would have more clarity do not pay an amount in excess of the monthly benefit this is see at the very bottom of the page they are to withhold twenty percent of past due benefits as potential payment terms for you and denials payment skipping a couple sentences going on it says upon receipt of a notice of disagreement from an attorney we have a situation where two parties are contesting for the same amount of benefit money and that's it we're dealing with here that's what this manual's talking about is when an attorney a veteran are fighting over the same pot of money the same amount of benefit money for that reason and says contested claim procedures will be followed and they're talking about the simultaneous test a claim procedures mandated by seventy eligibility decisions are considered contested claim as two parties are involved the attorney or agent and the claimant have sixty days to file a north of disagreement after the date of the decision notice to the manual we cement is is clear interpret their own regulation and they're entitled to that under this court's decision and get people to handle four hundred as third thirteen fifty two this court described skidmore deference and how it applied in the court said and i'll quote here we believe the supreme court intends for us conclusion that the proper construction statute even if we might not adopted that construction that's what we have here at least so we leask it gets good more deference but we believe we get our differences well because we believe they're interpreting the regulation wind when writing the manual of course the v a is considering both their own regulations and the statute and they are trying to decide which box this fits into this situation of a veteran attorney and is attorney fighting overseas and they decided it looks more like police court i believe that the government has incorrectly characterized its manual provision and the reason for its inclusion in the manual as it's reflected at one forty the circumstance with as described the arises out of the case at the veterans court called snyder versus nichols in which the v a fails to withhold the twenty percent called for in the fee agreed and as a result the veterans court held that the a was obligated notwithstanding their failure to withhold to pay mr snyder the attorney the fee agreed the fee that was required to have been with help this manual provision was created to address that situation that's what they're talking about in terms of the last sentence therefore there could be an issue of the possibility that the v a would be required would have fees paid to the attorney from the claimant that is not in the circumstance that we have here you know section says this should be handled as a test to claim this describing the situation where they failed to withhold but in any event your honor this as well as their newer manual provision still constitutes a misinterpretation of the statute because the statute involves separate claims your honor correctly pointed out that there are not two separate claims here there are not two separate claimants the attorney does not become a client and the attorney becomes a person who has a disagreement with a five eleven decision that was made concerning the benefits or the payment of attorney fees called for under fifty nine zero for the they made a decision adverse to the attorney just as in the bates case dealing with the credit de sion the seventy one zero five provisions then apply and allow the attorney to make an appeal to obtain administrative appellate review the none of  these notions about claim fit well because seventy one zero five predated fifty nine zero four and what is in fact happened here is the v a has not even following the scates case from this court promulgated any regulations dealing with the process of deciding see eligibility issues now had they written a regulation that interpreted fifty nine and four that would be impossible to chevron deference but they didn't met write such a regulation they relied upon a manual provision only and now they're able to rely upon the veterans court decision this court needs to reverse the decision because seventy one o five was misinterpreted it is odd and it is wrong to make or create my legal fiction and it turning into something other than what the attorney is as contemplated under fifty nine   four he is a person to assist in the prosecution of the veterans claim fifty nine zero four deals with the right or entitlement to receive the fee called for in that fee agreement seventy one zero five contemplates a tension between two claims there is no tension between two claimants because two claims have not been made the veteran doesn't make a claim for the attorney feet nor does the attorney make a claim the v a makes eligibility a fee reviewed determination for compliance if that decision is adverse that either party has the right under seventy one o five to initiate an appeal not seventy one zero five