the next case for this morning is fourteen seven zero zero eight zero versus gibson the issues and i'd like to read in three minutes for rebuttal the issue this morning is whether the statute should be interpreted to require an individual to apply for benefits before she had any reasonable belief that she would be eligible for those benefits subsection e of one or one only applies to people who would be eligible for benefits in two thousand and three but for their remarriage in fact the secretary admitted as much on page four of his brief he notes that the statute covers people who would otherwise be eligible and that's the only those are the only people who had to meet the one year filing deadline do read eligible to mean entitled to i do judge i think that that's consistent with the pla language of their of the of the phrases eligible for benefits it's not just eligible to apply before the inactive the definition interpretation does it does the statute require people who did not believe they were eligible to apply nonetheless and to interpret the statute to require people in that circumstance to apply leads to the absurd result of saying you have no basis for believing you're eligible but you nonetheless have to apply you have to force the v a to go through their entire t but it's not just she didn't choose to pursue it judge it's that she didn't have a reasonable basis for pursuing it and what i think what we're talking about here with you know even with a case is that you are for your answer no one would have a you will know i'm saying that there has to be some evidence that there has to be some reasonable person standard read into the statute not some theoretical hypothetical  applying for benefits when there was no reasonable basis the v a definition of service connection is the cause of death is generously broad it includes people who had a symptom that was later determined to be related ideas or listen to a condition maybe i'm missing something i guess i'm a little unclear let's assume we even agree with you that she wouldn't have been eligible during this period of time don't you still have a gap in the statute that doesn't get to do we need to go i mean maybe it's a gap in congress forgot about it but the statute disquiet clear is that not that you've got this period to sign up and that's the period one year beginning on the date after not one of the but only people who are actually eligible for benefits in two thousand and three had that year that other people she follows that's the it's that the one year under is a subset of the group under a a says  going forward people with the eighty remarriage for someone over the age of fifty seven is no longer a barrier to receiving the i c benefits she said more reform one plausible than on necessarily winning  percent i think that it does i think that that's more consistent with the plain language of the statute but i think that it's that the phrase and would be eligible could also mean of that surviving spouse that did file for benefits they didn't just merely apply they ask actually still have to prove their case right that there was a service connection between the the veteran death and connected to the s they i honestly don't know what the numbers were and when the number of people who sought simply reinstatement like this is fredricka and people who sides knew new benefits if it was the first time someone had applied yes they would have to  and the question is whether so now it's just a it's a question of proof just like it was a question of proof for miscarriage yes and it's a question of whether the statute requires her to do that required her to do that a very minor subset of people which is the persons who had previously established in title meant but just lost the because of the remark dr no that's your view of the statute that it would only be limited to that small category because as judge chen pointed out know i think in terms of the list that i think is consistent with the statutory provisions a person with eligible for benefits typically in the statute and in the regulations it means that the person is eligible to receive those benefits not just eligible to apply because status is simply the first step of stablish ing status is a veteran status of the surviving spouse that's a first step so you saying that someone who it has to have been established that someone is eligible when you say someone is eligible for benefits they're entitled the benefits that presumes that there has been a finding and had to take a stand or some sort of finding as to entitle right i think that that's the that's the group that's the one year deadline applies to yes i don't think it has to be read that way i think that it can also be read to be to include people who had some reasonable belief or not not who had but where there was a reasonable basis based on the facts in the law establishing eligibility but it does not but it would be eligible for benefits should not be expanded in a way that is inconsistent with the intent of congress in a way that clairvoyant that that perhaps some day the science or the v a will decide that the symptom that the spouse had was related to service and that therefore they might be that's just absurd it's an absurd result to simply think the congress intended to impose that on flame and and impose that burden on the v a to process these claims when there was not a basis for determining that the good morning honors and man the record i'd like to direct my comments directly to this idea of whether in this statute eligibility means the same thing as entitle me it clearly does not and i heard opposing counsel in h remarks continually acquaint the idea of eligibility to the notion of status and we agree with that idea eligibility is about status and these statutes the two most centrally issues here are talked about status of survivors surviving spouse in light of that person's remarriage or not one of these kids previous remarriage and as judge time your pointed out the whole notion of the if the stats for section has to do with the status definition of who counts as a surviving spouse that is in the thirty u s c section one hundred one three and the point is previously that definition of the status of surviving spouse defined away the course under such that the subsequent amendment number two thousand and eight it's not the weekly presumably it is there some way if you could then go back and get it once this new provision was yes i believe she would have recourse and i have to seven four one nine in the case numbers number eleven two seven six nine and western one seven zones there are nine yes that's correct it is it benefits in the two thousand and three two thousand four timeframe it doesn't involve the extra wrinkle of the remarriage provision but but that aspect of it is sort of irrelevant to the issue we're discussing this person this person applied in two thousand and three two thousand and four  denied service connection for l s and then as a result of the new regulation that came in the fact in two thousand and eight two thousand and nine with the presumption both sought a reman and of her existing case but and this is the key part of her advocates on her be have also sought to reopen her original cleans under the provisions that allow a veteran or surviving star in this case i guess just of surviving spouse to reopen clean based on new material evidence and the factual recitation in the hickman case makes clear that the board the excuse me the v a the regional office and ranted that request to reopen the claims under thirty eight u s c five one one zero gee that's a statutory provision that the language used isn't quite directly on point because it has been interpreted broadly  allow a surviving spouse to take advantage of what's an a new actor issue or in other words a new law or regulation so in this case the the  a regional office granted that applications reopen based on the the new law the presumption of the left and so because again we can't predict what would happen in this case but we've got one scenario where precisely what your hono in coming in for the early years before this two thousand and eight and then why would congress have wanted to distinguish a deprived or in a coma said another way why would it of wanted to force people who are reasonably  just to preserve their rights in case something happens at the end of the day years later it's not kind of an odd thing for congress to have not what the legislative history of the statute makes clear that it had a a prospect of policy the policy rationale the idea of the veterans benefits act and this is a page twelve of the house report that was also recognized in this court frederick decision of the purpose of the law is really to not discourage existing surviving spouses who who who may choose to remarry in the future to not get discouraged because if they choose to remarry they might potentially lose their benefits and so congress said look we're going to change the law if you remarry  in the future you won't lose your benefits and so the law is really about a prospect of issues and congress turned around and provided in section one one each a limited retroactive effect to the presumably out of fairness to folks who of two thousand three well that's not i'm sorry or that's not exactly correct in fact harkening back to the frederick decision this law has always been interpreted as used by the court of veterans claims to apply to the folks in this carol's category folks who would never apply for the benefit the whole issue in frederick and how that court came before this court on appeal was a court of federal venerated claims that federal applies to people like ms carroll who have never applied before but we're going to interpret it is not applying to people who had previously receive the benefit and would now be replying we're going to say that that that person's initial application counted as being within the deadline and  this court reversed and said no it's those people as well what with ms carroll is coming in and now arguing at the converse that actually no it was just the people in frederick but but essentially that that's not how these type of provisions work although this isn't quite a statute of limitations because it has a substantive component to it in terms of defining who is a who's a surviving spouse if you've been in this kind of thing occurs all the time the statue of limitations contexts where someone's and that seems to be what's going on in the legislature history of the fact there are rational budget estimates of exactly how much of this is going to cost there was initial attempt to do this age fifty five years in congress raise the eligibility age to fifty seven years so are the same thing so that being eligible by reason of the amendment need to be entitled by reason of the amendment that essentially one would simply have to submit an application to be entitled to benefits and that's clearly not what's going on here but it's a totally absurd consequence of the interpretation this carol is proffering and presumably that would propagate throughout the veterans benefits laws and a give an example one of those concentric circles could be a separate section that we cited two in our brief was was section one of the three d for which to find the first month of eligibility for benefits this is the same statutory provision  that says amended by section one or nay of of the act here and that essentially that section one hundred three before said that the first month of eligibility is the month after i believe either the veteran died be talking about in type essentially entitlement to benefit even though clearly one doesn't have to meet to benefits upon regaining eligibility to apply for benefits and in this type of situation so that's that's just one example and we also cited another section our grief over thirty eight u s c sixty three zero three c which is the provision that covers the v a s obligation to notify people who may be eligible for benefits of course again hundred percent automatic in the sense that if there were contrary evidence to show that the veteran who develop a less conclusively for example outside of his or her military service then that presumption could be overcome but but it's a bit i benefits in order to apply for the benefits within that one your windows surviving spouse with that surviving spouse has been deemed to be eligible for benefits in the face of a regulation that  answer is i think it's hard for me to speculate what the result of an application would be i think that person would still be a surviving spouse who is eligible to apply for benefits whether you're a percent chance of winning zero right you've got it got a regulation now saying no way you're going to win right and i understand that but in that case the person would still be an eligible surviving spouse but would not who absolutely occluded from ever getting benefits on all these people ought to run to the v a and this one year window and try to parse their cases with them precluded from wedding i mean that can't possibly been what was going on here right that would be nonsense but i don't believe that's what that's what was going on here so the answer the distinction that doesn't that apparent in the statute between the notion of someone simply being eligible to apply for benefits as a surviving spouse with which the person in judge chance hypothetical still would be a certain at least for that year period would have again the status of a surviving spouse who is eligible to apply for benefits but in a situation where there is zero chance of entitlement because of the b because the regulations essentially say we don't we don't recognize entitlement because the condition simply wasn't recognized at the time whether whether that would be a basis to not apply to not apply the regulation or whether that person could say as a person for example and  our position would be the same in that different case but i was think there are some additional legal considerations that would be considered and i didn't i didn't want to mislead the court that this might come into effect any claim that i think the odds are at final not your binding precedent but we're not citing it for the law or citing it for it as an example of that of the fact the second issue is there are two statutes the government material evidence there's five one one zero g which is about new laws and regulations but there's also thirty  you since we went over with the government's lawyer when we give you five minutes only if you know that you know not that i think that you said it absolutely correctly teche prose when you said congress could not possibly have wanted to impose this every single person who had some fanciful thought that there might be some possible eligibility in the future that they should burden the agency that's the absurd result that comes from saying that every single surviving spouse over the age of fifty seven in two thousand and three had to apply simply to preserve status and that's why the statute and the secretary's regulation should not be interpreted to lead to that absurd result  this that and the flipside of that is that the the goal of congress was to encourage people or permit people gold star widow such as  to remarry and this interpretation found by the lower court and urged by the secretary forces mrs carroll into divorce court because if she were to divorce and remarry she could reapply and get benefit prevented his by reason of a truly great and the change was this then they gave her status that's the change there wasn't an eligibility provision other than status and and so once once the once she came status the the provision applies to people who only were missing status the one year statute only applies to people who are missing status or otherwise were otherwise