position and the reasons in support asked the government asserted in the record before the agency or in the court litigation followed his other facts question an application of lot of facts so that we don't this quintessentially discretionary ruling necessarily involves question of fact in that petition a lot of fact whether the secretary's position was substantially justified in the carpenter case though you my recollection is that this did it did not involve the issue of what was the position of the united states but rather whether that position was persuasive under that condition if you know if  reasonableness of the position of the united states that i think you could be right that partner would apply but that's not what the question is here the question is could the better and scored for any purpose consider legal positions or reasons in support of legal positions that the v a never asserted either in the board decision the two thousand and seven or decision or in its argument or the veterans court how could the well that's not precisely what marriage decision said what the merits decision said looking at the argument in the litigation at the judicial review argument the s only argument was that the statute fifty one ten l was clear and unambiguous and that controlled the outcome of the case the veterans court rejected that it said there was no support for that position that was the v a s litigation position and that is the position against which substantial just cation has to be didn't think the court below say that the parties arguments mamak to a t that's what the ija decision judge said in fact the merits decision said may no such finding the merits decision said that number one  the decision that it did not read refer to it as the decision advanced by mr sharp but it described the interpretation and dance by mrs sharp that it was consistent with the plain meaning the language or of the statute in contrast it's said that the government asserted no support for its utter interpretation so that the application of gardner was triggered in the veterans court merits decision because while it found that the position that mrs sharp advanced was consistent with the language of the statute and could be could be read applying  could be read consistently with that statute the statute did not specifically address whether a subsequent rating decision could b the basis of a separate dependent benefits of ward that's in sharp contrast with its total rejection of the veterans of the v a s position that the statute was clear and unambiguous and showed that that could not be so and but i'm a little unclear going back to judge laurie so first point if we've got to i guess is that is the age of decision that says the underlying appeal was a case of first  of close question and in order to evaluate your are commit here would we not have to kind of look back at that but the weight assigned to various issues and second guess that it wouldn't that encroach upon a you know the jurors the lack of jurisdiction here well i don't think so and number one there are i respond to that and point out that there are two separate substantially justified inquiries one addressing the board  rationale one addressing the rationale asserted at the court level that close call analysis was never made with respect to the agency position at the board and either one a lack of substantial justification or a failure of the v a to show that it was substantially justified at either the administrative level or the court level will support the  so that's number one but number two  i would i would contend that first of all the ija judge cannot alter the actual findings of the merits panel in this case the merits panel did not find it was a close call  and i think it exceeds the scope of the the ija judge in holding later that it did because number one that the decision of the merits panel i would argue is the interpretation of twenty eight u s c twenty four twelve in terms of the phrase position of the united states correct so what what interpretation of that's that youth was made those statutory provision it did not specifically address that but it implicitly relied upon an interpretation that the position of the united states for each of purposes was not limited to what was  in the record of proceedings if you actually look at the record and that's what controls if that's not true if that's not an accurate view of twenty four twelve the one then mr sharp that there is a good faith belief that the finality of the regional office decision precluded and earlier effective date earlier effective date was never an issue in this case the issue was whether if i may take just a moment there were two rating decisions the first rating decision generated entitlement to section eleven fifteen dependents benefits and there is no question in my mind and would never challenge below that decision awarding dependents benefits under that first reading decision offered mr sharp everything that he could have got he didn't appeal it because he had no legal grounds to a mountain appeal the question was whether a subsequent grading decision which granted a higher benefit a higher rating to him and therefore generated a greater section eleven fifteen dependents benefits was a separate basis for an award of section eleven fifteen dependents benefits the that decision in arguably was never final the finality argument so we applied to the first rating decision in that and the fact that mr sharp did not appeal the dependence benefits award made based on the first reading decision but the there was never a question of finality about the second rating decision and the second warrants even though it was wrong that it was consistent with other types of wards that position was never asserted by the board or by the v a in the litigation  the before the court or i'm certain that the board's analysis was simply that it's not allowed you can't do it you can't get a section eleven fifteen benefit on us if any subsequent rating decision it offered no rationale for that it was just they just said no essentially so there's nothing to review there is no position of the united states with respect to the board's decision except it's be your conclusion that this is the way it is  sharp contends that the trance court's decision is an error in two respects it contends that the veterans court a tribute to the government positions that the government did not take in the proceeding and secondly that the veterans  attributed to the merits decision findings that the merits panel did not make that are contrary to the decision on the merits this court has no jurisdiction because neither an event happened in this case and there is no real legal issue for the court to address and i just step back to try to understand be sure i understand what you're saying as i understood at least a portion of mr books argument it was that the legal question presented in this case was that the position of the government there's a totality of circumstances test and then there is the position of the government and i thought she was complaining or arguing that totality of the circumstances should not be allowed to be applied to go beyond the positions actually argued by the government is my white about that is that so is that not a legal question because is that not a legal question as to whether or not position of the government can include arguments or facts or theories other than what was actually presented it market by the government in sharpe's reply brief she does attempt to craft that legal question our point is that the legal question has to be embedded in the veterans court's decision if the legal question is not they are in the record in the veterans court's decision there is no question for this court then to review and why was it not in bed because the district of the merits decision never really parsed i mean never really  mean beyond the positions actually asserted by the government the reason why the legal question is not in the veterans courts ija decision is because in the ija decision the veterans court did not interpretation of the term position of the united states sharp contends that the veterans court decision contains an interpretation of that egypt term to the effect that position of the united states includes all potential legal reasons for guard less whether the government ever asserted such a reason there is no such interpretation of the term position of the united states in the ija decision but if the aid to decision had explicitly called up to circumstances other than positions taken by the government that and with that be sufficient no because the decision here it's not that type of decision what the decision does on page three is set out what the position of the united states yes and this is on page three the first full paragraph and it starts out and gives an explanation of the secretary's position at the administrative face with specific citations to the record of the proceedings to the regional offices statements of the case and then to the board decision and explains what the secretary's position was so you're saying that there's nothing in this decision that decision that would point to the or the clay court having gone beyond the physicians actually argued by the government correct it in this they give the explicit death an explicit explanation in the the first four paragraphs on page three as to what the secretary's position was starting at the administrative phase and it's all set out there but to sum it up very quickly the secretary's position was that there was a time limit to give information as to your dependents that the information compensation benefits effective january first one thousand nine hundred ninety seven that was a decision of the agency giving dependency compensation benefits in that decision of the agency was never challenged became final independency benefits were paid beginning january first one nine hundred ninety seven to mr sharp and paid well into the future well is it the government's position however just leaving aside the facts of this case that the totality of circumstances best applied egypt cases that go beyond what was actually advocated by the government  that is a valid issue to look at i think that's the very important language of this court in white vs nicholson now what mrs sharp is complaining about is the reference in the opinion to the secretar being consistent with other provisions and that's the paragraph that is at the bottom of page three and it's also a reference at the top of page for where it's the judge states based on the dearth of then existing case law and similar provisions consistent with the secretary's position and rules of finality through orozco is ition was a reasonable one now that's the valid issue now it was certainly a valid issue to look at similar provisions because the merits decision did the same thing when the merits decision looked at this difficult legal question that had never been addressed by any veterans or decision by any veteran square to singe and they looked at the statute they looked at the history they also looked at the structure of the statute including other provisions other similar provisions now at the merits decision can look at other similar provisions in evaluating the reasonable secretary's position certainly the ija judge could do the same thing well i may agree with you entirely but what i'm missing is why wouldn't that be at least a legal question posed to us so that we would have jurisdiction i mean if we have  might end up agreeing with you that what they did was entirely appropriate at the totality of circumstances approach but why isn't that a valid question to our reserves several reasons first of all in her reply brief sharp says that she has no issue with the totality of the circumstances test she is not asking this court to interpret again the t circumstances test nor in her reply but she also says that she's not asking the court to apply the totality of the circumstances test to the facts of this case because of course this court doesn't have jurisdiction to do that so she says explicitly that she's not asking the court to interpret the totality of the circumstances test nor she asking the court to apply it so that's that's the so she's not presenting the legal issue then of course the court doesn't have any legal question and then the second point would be that before the court can undertake to review a legal question it really has to be there it really has to be present in the veterans courts eja decision now there is really no issue as to interpretation of the totality of the circumstances test in the veterans court's decision  because all the court did was faithfully state the test citing to white vs nicholson and then apply the test to the facts of this case which is of course a question that the court cannot get into under the court's for example the carpenter decision that the court cited and the buoy versus west clemens versus answered your question your honor the so as to the position of the united states that legal issue that sharp is trying to frame that question is really not embedded in the ija decision because the ija court did not adopt an interpretation of ija such that the position of the united states would include walked tensional reasons regardless of whether the government actually asserted them in the record at the press or in the record of the case with the ija judge did is faithfully set out the reasons that the government did assert and then he went forward and apply the substantial justification totality of the circumstances test to the government's position and evaluated whether it was a reasonable one and concluded that it was indeed a reasonable one that a party could taken given especially the fact that this was a difficult legal question that there was no war decisions though the veterans court decisions in fact it's rather remarkable that this issue had never ever all risen in given the history of all the decisions that have been issued with regard to dependency compensation and the awards of benefits to veterans newsgroup just like to say that because mr sharp has not demonstrated that the veterans court adopted findings that are inconsistent with its decision on the merits that there is also no no legal issue with regard to whether or not it concluded that the merits issue was a close question she hasn't demonstrated that there is an in between the conclusion of the ija judge that it was a close question and the merits panel decision the merits panel decision points out that both parties contended that the statute was clear and ambiguous and that ultimately if found this particular question was not addressed in the statute it described the question as being a muddied question as being a question that is not addressed in the both was little more than two nominates thank you your honor the substantial just occasion issue is a two part that step analysis under the statute the first part is that the court must identify what the position of the united states was only once position is identified and the government has agreed in its brief that position is analysis of whether that position substantially justified that's the point step two at which the totality of the circumstances test first arises the totality of the circumstances does not define limit expand in any way on the position of the united states it is the task that that is of assistance in determining whether or not that position was  reasonable so who did the decision of the veterans court depend upon any argument that was not made by the government  that the government presented as is almost totally bereft of any rationale or analysis the decision depended on number one and contrary again to what the the government says today  conversely the only argument presented in the government's brief was it's your conclusion that the statute was clear and unambiguous and therefore it board  consideration of the second reading decision the veterans court outright rejected that it said there was no support offered for it that interpretation has no support that's what the veterans cou position that that mr sharpe's argument was consistent with the language of the statute it rejected the secretary's position because it had no support