lead correct legal standard for determining whether or not a party seeking reimbursement for attorney's fees and expenses under the equal access to justice act which correctly used in this case we believe that the veteran the board in this case reached two requests for revisions and made two distinct legal errors both of which were conceded both of which were found to have been made by the veterans court as a result of the veterans court determined that in one of the requests for visions there was no jurisdiction because the agency original jurisdiction had not considered the allegations in the first instance in the second the board took the wrong legal remedy and address the merits instead of dismissing without prejudice to allow for the pleading both of those war legal determinations on the merits and if there had not been an appeal in them then  so as i recall reading the veteran's court's decision made it clear that the board essentially lacked jurisdiction to handle either of these two things that mr snyder submitted well actually the board did not lack jurisdiction to handle the second the miss plant was the appropriate disposition under the veterans court case law was to dismiss without prejudice the board clearly had jurisdiction to enter that order of  missal and allow the veteran to repleat that if one reads a veteran court's decision and saying the board but the board should have done with all of this was dismiss it all without prejudice to permit mr snyder to make a proper q claim to refile his cute claim so that it fulfills all the technical requirements then why wouldn't this case  very very similar to help and where the veterans court orders the board to dismiss the case for lack of jurisdiction the how protgs is both distinguishable and non political in this case in how brown the veterans court was relying upon an earlier decision that determined that the board did not have jurisdiction to address the issue of fee eligibility in the first instance on the basis of this case case the court merely vacated and sent the case back to dismiss for lack of touristic chip on appeal the this court found that the veterans court used the wrong legal standard again and determining the question of prevailing party but then went on to say that mr palparan was not in fact a prevailing party because the legal relationship of the parties had not changed the legal relationship of the parties in this case had changed if there had not been an appeal of the board's decision in by mrs dover on behalf of her deceased husband there would have been a final disposition and those allegations of clear and unmistakable error could not be replayed again they are now able to be replaced and as the record indicates the board on remand send it back to the agency to address the repla claims so the notion that there is any comparison between this and how brown simply does not exist that what exists here is a clear addressing of the merits of whether or not the board made the correct decision on these requests for revisions that was never reached an outcome that the court did not decide without the veterans court saying we're not going to address the merits of the board's analysis of all of the not that there's anything wrong with that the distinction here is that the board give me the veterans court didn't have to reach the merits of the argument but had to reach the merits of whether or not the board did or did not make the correct legal determination and on procedural grounds the board made clear errors of law regarding both requests for provision revision and as a consequence vacated the board's decision and sent it back to the board that then took further action what the court erroneous we concluded was is that mrs dover would not obtain further agency proceedings other than dismissal that's simply wrong and the record demonstrates that she did receive something more that case is now gone back from the board for the agency hardly a good line on the fact that the boards  designated what mr dover filed before the board in two thousand and eleven as as being a new cuchulain what the board did was to recognize that mrs dover could reap lead the defectively pled request for a revision that would have been made by her husband before his death and that replayed q claim was remanded back to the agency of original jurisdiction to address in the first instance which they've now done and the not that is now back in appeal status there are clearly further proceedings the legal relationship changed based upon the judicial decision that was made by what if that had been the facts of this case would you say that well there was a mr dover was a prevailing party because even though his q claim it been completely dismissed without prejudice and then he had to refile his claim and then maybe ultimately did prevail at least in part on that he would still be a prevailing party here yes your honor because the question is whether or not there were or there was or was not a change in the legal relationship it's your point if you needed fact pattern you know based on the hypothetical i just created the proceeding would have ended and new proceeding would have had to be generated by that that's what's contemplated by the court's case law in terms of the correct disposition of a case a claim that is not adequately or correctly play it right but for the v a s perspective from veteran courts perspective the proceeding is now finished once the q claims dismissed well went and then you know if the veteran elects to subsequently refile well he's welcome to do that but as far as this particular proceeding it's over yes your honor and except that that was the entire reason for the appeal of the board's decision that denied both requests for revisions in the first place to to either have the marriage addressed or to recognize the procedural errors that were made and allow for a revision or read pleading of that and it is not a separate case because we're talking about undoing finality this important there's something a little strange for me about your case because it's all predicated on mr dover making certain mistakes mistake number one filing a q claim that was insufficiently plain mistake number two presenting argument in evidence at the board level without having first submitted that evidence to the our own and it's if everything else that happened after that is because of mr dover's own mistakes and if everything is been done correctly the first instance all of that would have been dismissed in the first been one hundred two responses that first this is supposed to be a veteran friendly not adversarial system and those quote mistakes are because this is a very technical way of underling the finality and that's the case here they're not separate proceedings but there is one goal and one goal only to under the finality of a previously final v a decision it was not the errors of mr dover or that caused the legal error in this case it was the error of the board in addressing it in the request for the first request point that if mr dover has not appealed the adverse board decision to the veterans court and succeeded in getting the veterans court to take it that court decision then mr dover would be out of luck you put it then you're done you can't bring that claim again but you can plead to on different bases so simply because he was precluded from putting it on one basis doesn't mean that he kind of proceed by i think more importantly  develop that a little bit more for me you can you can plead it claim on a different basis what does that mean what would that mean here let's assume for the moment that when mr governor ever appealed t board decision would mr dover in that fact pattern be able to just refile the q claim including all of the arguments that he presented to the board in these two thousand and eleven here he gets the adverse board decision he decides he wants a new cue claim he wants it to encompass all the arguments he made to him two thousand and eleven would he be able to do it he would not be able to do it but i don't think that  determine what the train sees in this instance because the appropriate analysis for determining if tourney fees are are warranted is not whether someone is in a slightly different position than they would have otherwise it's a decision makes clear that that was the intent of the veterans court and sending it back in one pending for any other claim to be decided they were simply intending that the board dismissed the case without prejudice and under the motorola standard under cases such as he but i think i think you have to view the better and critically to see i'm correct on that then would you say that that there are further proceedings that misnomer has now the opportunity to submit evidence in support of a claim and it's not necessarily just to dis with an order to dismiss ok here we don't have that we don't have the word dismissed as just for further proceedings in addition the court is a permitting ms knoller to submit new evidence how does helping to find help me applies because when in support of her claims in the board's report of the consider any such evidence an argument but then a j a sixty five veterans court goes through the law and says among other things this court is held that the proper remedy for the board when it comes fronted with an inadequately pled to claim is to dismiss it without prejudice to refine and then citing the regulation stating that the board must dismiss without prejudice amon board determined that a q claim lacks the requisite pleading specificity and so it goes on says instead the board should have dismissed the request as to all claims without prejudice to a filing and then finally wrapped up by saying to the extent that the board must first be submitted to and adjudicated by b r l before the board can attain jurisdiction over the requests so all of that what you call the body of opinion strongly suggests that there isn't the board had no power to address any of this and then we have the final sentence in the opinion saying a on remand mr builder is free to submit additional evidence so what do you think is going on here well i think you can knowledge to the davis case and the davis case this court made clear that you look beyond the four corners of the remain in order and considering the intent of the veterans court and i think here i agree that the reman order is the phrase given the body of the decision but looking at the body of the decision and looking at the case all and to mr carpenter's point that she can she can go forward as mrs dover survivor and even assuming that the ability to move forward again that that's what the court intended she can't even in order to continue and survivors cannot do that with respect to accrued benefits sorry just saying even if we disagree with you and find that she was a prevailing party ultimately she is going to get nothing because she only gets survivor benefits i think she can be considered a prevailing party for many reasons i think the first reason is because i think if you look at the body of the veterans court decision and in light of the case saw it's any further proceedings aside from a dismissal and based on that using the health and standard the court found correctly that attorney fees are not appropriate because when you are simply obtaining a missile they're not going to be any further proceedings on the merits there were further proceedings if there were further proceedings under motorola mrs dover was a prevailing party to the government's point about mrs dover ability to twenty of the a regulations in chapter thirty eight i can't give you the exact citation i don't remember it off the top of my head but it does pacifically say that when the board room views a request for a revision and makes a final decision unless that decision is appeal to the veterans court that decision becomes final and no further pleadings can be made what happened in this case was the board made a final decision as to requests for revisions those survivor but as a substitute appellant congress in two thousand and nine i believe amended the statute to allow for substitution substitution is different from filing a crude benefit claim in the first instance never mind me again where this is dover with respect to getting these veterans benefits the request for a revision that was remanded  for consideration in the first instance by the v a has been decided that has been decided adversely both requests were denied and she is within her one year appeal period at this time to continue and the feel of the the a's now correct addressing of those reading led the government disputing whether she has i don't know what the right word is standing well they certainly had the opportunity to do that she has a different standing because she is not just a survivor under fifty one twenty one but she is a survivor under fifty one twenty one a as a substitute developed and she has every right that mr dover had while he was alive to finish his appeal that's why this is not separate perceive that there is no separate proceeding here this is a continuation of the proceeding commenced by mr dover when he was alive