next case is the national organization of veterans advocates for assistant secretary of veterans affairs thousand fifteen twelve for what it's seven zero to fo the congress created this statute with a clear and unambiguous intent to live in aiding what congress perceived as unnecessary administrative hurdles that existed on there the prior process but mr carpenter what in the regulation is inconsistent with the statute the there are two provisions the first appears at thirty eight  r three point ten ten and the and the second clears at thirty eight c f r twenty point thirteen zero two and twenty point nine hundred eighty two in the administr we have no problem with dependents being qualified it is the relationship between the qualification for persons who have already been qualified as dependent by the v a and in particular the provisions that part plenty of which require first with the v a dismissed an appeal and second provides that the matter will be returned by the board by the administrative agency the administrative hurdles are that these individuals have already been qualified there are in fact two classes of dependents under the v a system dependents who recognized class by both statute and procedure in which the v a recognizes dependents prior to the veterans death in those circumstances with that friends who are receiving compensation or  pension compensation purposes they have to be rated at least thirty percent for their service connected disability or disability and then their dependents are qualified by the v a to enhance the amount of compensation as a consequence of this class of dependence is already known to the v a under the regulatory scheme that has been created by these new regulations the v a excuse me the better it will have been receiving additional compensation in the form of service connected compensation or pension because of those identified dependents those dependents are not going to if at time of death they're going to be exactly the same individual and the v a knows that within that system because the v a is paying additional amounts of compensation for their their their pain but it's always possible that there has been some event such as early marriage or whatever that that has changed the dependency status of the previous dependents but hasn't been reported to the v not but with respect to the lack of reporting the v a is not relevant to whether or not that dependent relationship existed at time no but it may be that for example to take the following case and i'm not sure exactly how this would work out in practice but just generically someone is getting compensation that includes compensation for dependents a year before that person's death if the v a is preview that the veteran has reported would have reported in one hundred percent of the cases a change in independent status and therefore they don't ask at the time of the veteran's death that person after the veteran guys the continuing benefits go to the er the that the better for the accrued benefit i guess goes to the structure and would not necessarily iraq but that's why the survivors in the camps to try to get some benefit group benefits that but there the pendency benefits are independent benefits based upon either a service connected cause of death or based upon american being totally disabled those benefits are separately applied for by the dependent with a separate application for this process allows the a qualifying dependent to step into the shoes of the appellant and the question here is the delay in the process by trying to by the lame the determination of a fact that has already been determined to take your example for instance in what  proposing is the invalidity of this regulation if the regulation recognise this distinction and in their form they said identify whether you have been previously recognized by the v a as a dependent that the b h simply needs to check that off they either are or they are there is no disruption particularly in terms of appeals pending before the board there is no need for the bigger paycheck i'm sorry to interrupt you but that's what i just just a question is relevant to what you're talking about and your blue proof for the pre page thirteen footnote three you say that when a child reaches maturity or there is cath there to force or remarriage dependents are removed or added because the veteran does not make that report but you see your honor what we're talking about here is whether or not the individual would be qualified to be substituted if that child becomes an adult dependency is the trigger you either have the status you are either a qualified dependent and there are three classes of qualified dependents surviving spouses dependent parents and minor or dependent children and the reason that i make the distinction is that you can be a disabled adult child if you become incapacitated prior to the age of eighteen so there's a kind of gray area there for children but that status is definitive there isn't any ambiguity about that status and that status either exists at death or it doesn't and the best information for that for existing dependent determinations is whether or not death if it was not updated and that information were in correct that in correctness would only go to a lack of eligibility not for eligibility and therefore because they lack of ability they would no longer be entitle to be substituted what we're talking about here is the process of substitution and the delay in that process of substitution how is that for ever find out that there was a lack of eligibility if they didn't have the evidence before them i mean how far they have is the old in evidence the old record that  is correct on less and until the v a determines otherwise in other words what i'm saying is is that we as advocates are always placed at a disadvantage with the v a because we're told that the v a has the presumption of regularity the presumption of regularity in this case is is that if the v a records says that the veteran has dependents of a wife and three children then the better to have a wife and three children until that presumption is rebutted once that presumption is rebutted those of the vigils are disqualified and they would be disqualified from being substituted that is the barrier that the v a wishes to er here to justify a delay for the substitution of individuals that they already know that they already have documented are qualified dependent in your brief on you say that the secretary t six years to promulgating these regulations they did what was the practice during those six years with respect to this didn't they for the first several years it was no practice no substitution were being permitted eventually the v a grafted a what they call a fast letter which was a v a explanation as to how they would do this and many of the things that are in the regulations were in that fashion or when they probably get of the regulations they took some out they added some other ones but regulations with respect to three the requirement that that depends seeking to substitute submit evidence that the court has already covered this in detail but i'll just reiterate that the as the v a noted in its final or final rule the evidence before the v a is not always accurate enough to date oftentimes it's possible that a child for instance who would be entitled to  dependency benefits because he or she is a college student is no longer a college student but the but the claimant or the better never updated the record before his death is that your view that even aside from these hypothetical problem inconsistences the regulation tracks the statute and was therefore valid yes the statute says that the the that the person seeking to substitute shall present evidence of eligibility within one year after think i think he has that backwards what we're talking about is information that submitted by the by the that or it not did not that you didn't see these actions or or procedures here here if the percent then it's entirely possible that the veteran never updated the information and in fact v a often has to to handle overpayment claims for that very reason because the better and did nothing there's no presumption regularly that applies to the veterans o wedding certificate or so forth from fifty years ago what weight is given and what procedure is followed in a case like that to the spouse's statement that we've been married for fifty years well  there could be a demand for evidence that very few people would it be able to come up with proof that you are the surviving son of these two people that are on my birth certificate it's not so easy to do what  t is there a regulatory provision that addresses this question of degree of proof i don't think that there's a the floor of information that must be submitted what happens is that the person files the request to substitute it if the if the agency decided further information is needed or that that there are questions that need to be answered they will go back to the putative substitute however there is no requirement that  agency wants to be in a position consistent with the statute of knowing that the person who has filed the request the substitute is eligible under i think it's three point one thousand a one through five  it's not like my understanding is that the person will not be deemed in a multiple to substitute if the evidence is no longer available unless there are competing claims i mean you could talk about a special form of either present wife and that sort of since the time that the proposed rule was was put in place once a substitution takes place and the case goes back to the poor what does it mean that the case is put in the same position and liar same place that it was before the substitute party have to resubmit the park papers that have been submitted or how does that work if you're not what happens is when the when the or that the return has died the whole file is sent back to the agency the original jurisdiction where the that the substitution issue can be resolved then the entire file is sent back to the fort and wherever the board was in pro sing that file before it was sent for the substitution for decision is where it is sent back the person depending on what the place you are in the process of the veteran is in the process you get that just like a month after filing in the before business really just gathering the record together and trying to figure out you know what's the next step that would be where you are if you were two years in the process and were and the board was thinking about setting the hearing then you get that place back if if what was very close to decision then you'd be at that point as well just as counsel didn't spend any time on this but i'll just briefly touch on the issue of whether or not it's whether or not the board could itself made the determination as to whether a dependent is is that an eligible substitute that if the board were to make that decision if it were deprived that substitute is unhappy with the future substitutes not happy of the decision they will have their one review on appeal to the board and in their brief petitioners make reference to a very narrow exception to that rule that applies when there is an issue that's already on appeal to the board and the claimant waives their right to wonder if you want to appeal for the sole purpose of putting an additional evidence on an issue that's already been resolved by the agency for  the agency of original jurisdiction has never decided whether this dependent is an act knowledgable substitute therefore that the process that the that the agency is put into place where all cases are dismissed and sent back to the reasonable one and it's consistent with this tactic and also protects the feet not substitutes for to a certain extent the issue came up as to the relationship in the briefs as to the relationship between chad brown and gardner right  we've taken a couple of runs at that issue who i'm not sure we have any global view as to that question what is the government's position with respect to what role chevron plays you know maybe the way to look at this what role gardner plays in the chevron world i think the government's position is consistent with the position this court has taken in a garret heart and certainly in some of those other cases that th pro veteran canon of construction comes into play only when all of the chevron analysis has already been exhausted but doesn't that mean ultimately that at least in take the place of ambiguity as to the as to the meaning of the statute by substituting the agency's judgment if it's reasonable for the court's effort to resolve the ambiguity if that if substituting the agency's judgment is the right way to go then that would seem to me to mean that you will if you apply chevron moily you will always come to the conclusion there is a proper construction subtraction reasonably given by the agency and therefore case where it's a very close case where it could be it could be said that the agencies that the v a s position was reasonable but that also the veteran has offered an equally reasonable  interpretation and although deference obviously is up zero the agency it's such a closed case the that the case would shift in favor of the closeness of the case would be with respect to the question of the unreasonable ness of actionable th state the agency's construction so if i came to the conclusion that i think this the agency's construction might be reasonable but it might all it's so far out toward the edge that it might also be unreasonable then in that situation in that situation alone i would apply garner that would be one situation but presumably if i didn't have a gardener i would have to choose one or the other because these decisions are determined you have to choose one or the other but since i'm choosing one or the other because even though i think they're close one is a little better than the other it's hard for me to see where there really is a quick points what you're saying is that in the digital go situation there might be a quick was but other than that gardner really has no role in th if you look at trait to under the instructions there is no record of submission of any evidence so all you do is complete the form and you don't submit evidence yet there is a regulation that says well your honor is it evidence that is necessary to delayed the process we're talking about a process here in which an appeal that is a pending before what is supposed to be an independent the novo review of an appeal of the decision of the secretary is delayed in this in fact dismissed until such time as there is a determination if the only evidence is a declaration that this person is the spouse why can that declaration not be made directly to the board and the board simply pull up the veterans file it's all a chronic now and they are either recognized as the spouse or they're not recognized as response take something like the child was in college but may have dropped out of college when i presume leave the form would require the child to indicate whether they're all right well it says this relationship all that would be required is i am the son or daughter of the beth it actually says i am eligible to receive or could benefits to give the deceased client and i am eligible to substitute that actually fifty one twenty one and that is a representation that they qualify as opposed to are not qualified right under the same boat but presumably there would be some people that would say whoops i can't sign that's because i'm out of college i happen to know because i  matter from law school or whatever i happen to know that i'm not qualified under the statute but that that would be a case in which the failure to file the form would correctly pick up someone who is not qualified to  up i'm not going to sign the form because i know i'm not qualified to receive the benefits and i don't know i think that's an important distinction here is it's not a question of being qualified to receive benefits it's a qualified to be  i dropped out of college and then i could be substituted but with all due respect or that hypothetical is premised upon protecting the v a against some hypothetical threat to an applicant making an application for benefits to which they're not entitle what we're talking about in substitution is the right of a qualified survivor to step into the shoes of the veteran and continue the ill with out delay it is the delay that is  attendant to taking an appeal that pending before the board under the directions of these regulations dismissing that appeal and having a new administrative process undertaken before the agency before that appeal can continue when on their application all they ask for is a declaration that they have a relationship to the deceased and there is a statement of god's fault referred to if that indicates that they are eligible to be substituted if they are later determined not to be eligible to be substituted that process of having been substituted is not well thought out what we're talking about here are that class of individuals who have already been qualified by the v petitioners view that car gardner has a role and should have a different role when we're talking about a rule making challenge then for a existing regulation that has already passed the rule making