appearance on behalf of is represented by kenneth carpenter in this matter mrs rustic appeals a decision of the veterans court which we believe misinterpreted the provisions of both thirty eight u s c section fifty one twenty one fifty one twenty one percent say and they have received different interpretations as a result of our over decisions the veterans administration construed thirteen eleven thirteen  eighteen as permitting the fall of a new claim by the widow but fifty one twenty one prendes say in jones and i guess perhaps other cases well has said no no you can't file a new claim it has to be a pending plan are you contending that there's an inconsistency between the interpretation of those three statutes i am your honor although in this particular case this case arises out of the secretary's interpretation of the entitled to receive language in thirteen eighteen which created three point two to understand the background i've just been for myself i'm convinced that that accident that there was a decision earlier under thirteen he team effects the results here are what i put the lid on put that to one side is there an inconsistency in the interpretation given to thirteen eleven thirteen eighteen as opposed to fifty one twenty one per and pay me the language is similar but not identical i believe that there has been your honor and that this case demonstrates why the interpretation of entitled to receive should not preclude the qualifying survivor from proceeding based upon a request for a revision of a request for revision has been described as a procedural device it is not a separate claim it is a means to correct a prior mistake and that's precisely what happened in this case albeit going down a slightly different track and the end result was that the one hundred eighty three decision was revise the question then remains is why would there be any reason to justify a bar to the widow receiving the seven here you're arguing the based on the quirk of fate that there was a thirteen eighteen decision first what i'm trying to get you to address is whether there is an inconsistency in the interpretation of identical statutory line or nearly identical statutory language and provisions that i believe there is and apparently i wasn't communicating clearly i believe that the interpretation needs to be consistent and this case demonstrates why that consistency is important because mrs rusty should have been able to simply bring a direct claim under fifty one twenty one using the procedural device of a request for revision under fifty one o nine because it relies upon the predicates that are set out in fifty one twenty one act and existing decision and the evidence provision to the claimant or the secretary and i and i believe your honor that what congress invision in creating fifty one twenty one was that the claimant although a different not the surviving spouse could continue a request for revision and this court said that they couldn't because the remedy was under fifty one twenty one and that remedy under fifty one twenty one was simply to start a new there there was no prohibition based upon hands or fifty one twenty one that would have prevented mrs haynes from coming back before the agency and filing a new request for revision in the circumstances in haynes the other cases that we've fifty one twenty one capital and that applies to and only to if i understand it cases in which the claimant dies while a claim for any benefit is hence that's great so in the statute fifty one one twenty non cash had applied in a way that allowed someone to come in without regard to whether there was a pending claim or not why would fifty one twenty one capital a have been necessary because it seems to me that fifty one twenty one capital a has a narrower scope of an exception to the general you can't be substituted rule that would exclude mrs rusk because the agency interpretation of fifty one twenty one small and up until the time that congress intervened was to require a do over was to require a start anew and therefore when there was a pending claim the procedure required that the proceedings and with the death of the veteran and that they new congress said no we don't want that to be the procedure that clearly when there is a pending claim that the process should not be automatically stopped but a qualifying survivor under fifty one twenty one a should be permitted to substitute and they said it was your contention that fifty one point one per and a small is broader than fifty one twenty one capital and yes your honor because if you want twenty once capital a deals with the exclusive circumstances of when a case is pending when there is a matter pending and it permits substitution for that pending proceeding so that the qualifying survivor can step into the shoes without being forced to go back to the beginning and to start a new fifty one twenty one contemplates that there will be a new beginning for qualifying survivors if one of court's decision in haines that wouldn't permit that that required you to the qualifying survivor to start from the very beginning and fifty one twenty one capital any negates that  person to start from the beginning there's nothing in hades that i'm aware of that says that it's permissible to start from the beginning as the survivor with it with a cute claim that had not previously been raised right no but in haynes it was a pending few i understand but but your own you meant seems to be that in effect that this is rustic is in better shape by virtue of there never having been a cute claim raised by mr rosicky then she would be if she were coming in with a claim having been previously raised by mr right because since he died before two thousand and eight fifty one of nine capital a wouldn't apply to her anyway or respect to iran i'm not making that kind of comparison it's not a comparative advantage of a situation but then that gets us back to the question of what what did congress think it was doing was that all it was doing in your view is saying we already have a situation where someone can raise you claim but if it so happens that there's a pending cuchulain fifty one out of nine capital a will allow them to continue that and that ending q claim but they could start over and there'd be no statutory part of that yes you're ok because those alternatives are available if you do not you're not required to substitute you can in fact go back to the beginning and start anew if you choose to do that you know there is now  options part of the problem here unfortunately is that the agency has not been forthcoming with its regulations interpret in fifty one twenty one capital that so where out there is no regulation no there are no regulate th about an existing decision or the evidence in the file of time that so i do not believe that the current interpretation in three point one thousand is excluded exclusive or  i see that i have gone around sort of the powerlessness and good morning argument please the court i'd like to start with where judge dyke started and that's the difference between thirteen eighteen thirteen eleven and fifty one twenty one because they're not the same things that's very language under fifty one twenty one it says entitled under existing ratings or decision and that's important distinction because the other two statutes just say in title to a seat and this court held that congress in telling congress clearly intended when they added that entitled receive language they were trying to include the ability to break you claim that's not the case of the approved benefit statute which pre existed that was already in place the congress wanted to change it for a crew benefits they could have done so course but they didn't and there are other readers understand what your psyche is that makes sense as to the first order of the language in fifty one twenty one times but the second part says or would have had would have been entitled to benefit at the time of death would be satisfied and that's interpreted the language in title to receive in thirteen eighteen and thirteen eleven in the court and the v a was trying to consistently read those based on this course commanded they do so in nova that's totally separate from the language and if you want twenty one which says entitled at death under existing ratings or decisions this court's precedent but you're not reading the whole thing it says is not been interpreted as requiring a final decision not a final decision your are as to have a claim by the claimant to the veteran had to have filed a claim for that second officer i get i would ask you isn't the language at least as to what it means as to everything following the or in fifty one twenty one a sounds like is what your arse focusing on this that second provision the second portion of of the statute i have a couple of responses first that been no claim by the veteran we agreed with something this serious exception if that as actually repeatedly said that what fifty one twenty one is all about is to allow the survivor to step into the shoes of the veteran here that there was no that that's the survivor's own claim and because it's the survivors don't claim the survivor can't use cue to attack the underlying basis for that claim because she was all about correcting an error in your own cl substitute once he filed this claim but you say not if he had correct because it's and that's that's a fundamental point here it's his claim it was it was a plane what her plane hit  substitution one doesn't but as a practical matter is there any difference between the two of them well there's that's all fifty one twenty one big gave out it's up to if you want twenty one just what i would like put it this way what i would addition that you can substitute in addition to find your own claim and in some ways it is broader because it's not just about a group benefit plan the senate substitution in the case of any claim for any benefit so potentially there are there are categories of that could reach that fifty one twenty one and not so time is up and not but the take home message really is that thirteen eighteen where they say that you can use you that's a procedure to get  please accord seems that the government is committed to the creation of obstacles and impediments to on doing their own find they made the queue fine the board because fifty one twenty one small a as a governor has conceded is about stepping into the shoes of the battery it's not the survivors claim it is the bathrooms class and the veterans claim would not independently be entitled to be a shipwrecked that's correct right so are you saying that someone who was not of the d i t c beneficiary or potential the i c beneficiary could file would have been available to the bet with the accent would seem to be broader position then than you're arguing for here but logically consistent with and even compelled by the position you're arguing for and i agree with that with the one capriati that we cannot and should not be using the word claim a request for revision it is a procedural device because there is nothing in the statutory scheme to have any clue to the use of this procedural device to