court kind of carpenter appearing on behalf of christie in america the substitute appellant for her deceased husband mr merrett mr maritz death your honor does not affect in any way or deprive this court of article because there is nothing pending before the v a for her to substitute in the proceedings are entirely before the court if this court affirms there are no further proceedings to proceed with before the court the only way that she is able to proceed is if this appeal is sustained and the case is remanded back to the veterans court for enforcement of its order but i'm not merrett had nothing pending before the agency at his death he only had the appeal pending before this court and therefore the appeal that was pending is subject only to the rules of the veterans court substitution in which congress has allowed a qualified survivor to step into the shoes of a veteran or claim and based upon their standing as a  qualified dependent the mr carpenter i mean you look at the recent case in footnote five and it says claims for accrued benefits must be filed with one within one year of the bedrooms death given that more than one it's difficult for me to see how her notice satisfies the the new more rigorous requirement of the regulations if that's the case then she's out of luck pending claim by the deceased veteran or claimant there was no pending claim before the agency so there was no basis for mrs merrett to have filed a claim under fi i guess i'm not clear what if we were to we man this to the c a t c does that come within your definition of something before the agency yes it does your own but it would be based upon rematch and from the court in which the court found that mrs barrett was entitled to be the substitute appellant it is our position that because of the absence of any reference area that requires the filing of that claim to substitute before the agency he not including the courts would not be a bar to the finding by the court that she dollars small a to be a qualified substitute appellant only require that she had been married to the veteran at the time of his death and she was mrs arbiter on that question that she would use after their marriage as opposed to the name marriage the question is whether or not she is or is not a person who was married to mr merri license i apologize for that well if that is a complete change of what you said in your writing to us all we're left to satisfy ourselves me that it is unreasonable for someone to claim to be a spouse of an individual when she is not there is no reason for her to continue benefit is pending or an appeal of a decision with respect to such a claim so you can file in a crude benefits claim as long as there's an appeal pending with respect to the claim so you and concluded that the reference to appeal meant an appeal before the agency and not an appeal to the court that precise argument was made in breedlove and rejected by the veterans court facts were essentially the same as they were here in terms of the death of an individual who had a qualifying survivor who wish to be substituted the question was whether or not before the court was the interpretation a five thousand one hundred and twenty one a and whether that statutory provision did or did not apply to the veterans court and required the veterans court to substitute the veterans court pending before the secretary and the congress had expressly failed to address the role if any of the courts in substitution the court went on to conclude  breedlove that they would then based upon their own rule and their prior case law regarding substitution decided that substitution would be appropriate in appeals before the court bins i do not believe so your honor because the what would be then pending would be a rematch and from this court that was not pending at the time of death and in which she had been substituted by both this court and the veterans court following the reman from this court what she would be required to do is to substantiate that she is in fact the fouls mr merrett if she cannot satisfy them and i believe that the secretary is entitled to make on remand a threshold determination of that a new and if they find that she is not then that would be a matter within their discretion to make a decision of the secretary under five hundred and one that would then be subject to appeal as to whether or not she was or was not a person who was married at the time of death simply because there is a question of law before the court that needs a legal determination that should not be deferred pending a determination of her status agency and that if this court wants to make that determination and require additional evidence from ms mare before she proceeds that this could be before this court proceeds then certainly mrs merrett will provide answering the question law before us and i understand that your honor what i'm trying to suggest is that if this court wants additional proof to be satisfied before you go forward to resolve this case as validity of her representation that she was married to mr merrett at the time of his death then i will certainly produce that information in the form of sworn affidavits from her and anyone else who is in a position to know to be a pending claim breedlove actually recognize that there was a death of the veteran during the proceedings or for the veterans court but still address the questions of whether or not that she was indeed the surviving spouse and whether or not they had filed the appropriate application within the one year deadline and eventually did what we asked this court to recognize and this case where those are really upfront determinations that need to be made by the v merits remand it back to address the upfront question really and the entire analysis that is supposed to occur here she's merely allege that she may have some sort of future entitlement but these are determination that need to be made up front by the v a especially here where there is a dispute over whether or not christine america is actually the surviving spouse and when she has not filed the appropriate representation that's an accurate statement that she could somehow file out of time afterwards be it cited the spring court case schweitzer where it basically said we're coming talking about the sort of statutory requirements this court has no authority to claims that christina is the w only evidence that is come forward about this being a combined name is statement of counsel which is not evidence and there's and it has recognized there's no other documentation and even coots sort of identifying information for the so based on the bare record that's been submitted were involved in the motion to substitute and everything on it there is simply continued factual dispute over the appropriate identity it may be the same the argument among my colleagues disagree and i think outside of that in our discussion of breedlove really the bottom line here is that congress has established a scheme for crude benefits certain requirements need to be met and they have not been met here and the court has no position the government relies upon the proposition that mrs merrett is doesn't have standing before this court because her application is out of time the only way her application can be out of t ime is if she is the wife of mr merrick seems to me that this is is a non issue here from the perspective of who should make this determination this determination should be made by the court the court should satisfy itself and if it requires more evidence actual or evidence for i'm sorry you as interpreted by the veterans court in breedlove this is a question that should be but if we hold that you have to file within the one year period this case is m that would be true your honor except that the issue is not before this court what is before this court is whether or not mr maritz death deprives this court of jurisdiction and the only way that mr maritz death deprives this court of jurisdiction is if there isn't an appropriate person to be substituted before this court the question of being substituted before the agency is only based a claim that was pending because this is a predicate statute for accrued benefits in which the claimant is not asking for accrued benefit claimant is asking to be placed in the shoes of the appellant mrs merrett wishes to be in mr merrett shoes to pursue this appeal in order to get a determination of law by this court as to whether or not the veterans court erred in failing to enforce its re mandell order why did mrs merrett not file within the one year period for accrued benefit because i did not believe that there was any basis for such an application since under my reading of reading there is no jurisdiction of the agency of the original jurisdiction to take substitution as a predicate to proceeding before the agent's mrs breedlove was not asking to proceed before the agency she was asking to proceed in this appeal before this court because of her husband's