taken under submission and we thank both council for their argument but the no case for today are not kind it's meant to work our next case for today is a two zero one seven dash one zero four nine sterling versus sh to the secretary was at the time of the court's decision she argued they argued that the second prong is not met and so therefore they dismissed the appeal as untimely but you've asked for doesn't the veteran have some obligation to update their own address with the a in this process what if the veteran never updates it moves then years later comes back it gets on  later comes back should that claim have remained pending the whole time i understand your client was diligent this has nothing do with your client this has to do with me being concerned that you're asking for a rule of law that would apart from the sympathetic facts of your case not work in many many many other cases i 'm not sure how often how often from a practical sense that that happens because most veterans at least the ones that i do with usually are pretty up to date with their claims i mean isn't the problem you're essentially asking us to read the statute that the time for notice of appeal as running from her seat and there are such if there are time for appeal period out there that run from receipt but this one doesn't seventy two for mailing to the last known address then that was met here i wasn't talking about a large hard or hard talk about if the time was from the time it was mailed the first time or the time what doesn't matter which one the statute that runs the time of the peal says that the notice of appeal must be filed within one hundred twenty days after the date on which the notice of decision is mailed pursuant to section seventy got up for so did the mailing date is what c me or the time for appeal to write right that's correct that's correct and seventy one zero four requires the board to mail a copy of the decision to the last known address that's correct and so if those that's where you get the second is to is to address the issue of whether or not they veteran received the mailing or not that's not true is it isn't the person regularity it's not  to receive them because we apply it in cases where there's a question of whether the v a actually mailed it because that's the critical date for the time to appeal to right i have a lot of sympathy for your  client i mean even after not getting it and apparently having allegations of homelessness and the like she still filed one day later that's a different question the statutory question of when the time for  perception of regularity attaching to that is based on paul and the fact that it be a mailed it to the last known address and you're asking us to read out something that's not only kind of a common sense you know use of the presumption of regularity but something in the statute well i think of it the way that i understand what the what the presumption of regularity is that is that is that it's used in situations where where the veteran that is correct that is correct can we can i ask you about the facts so it was september twenty second when the board decision was sent to the address on file and it came back to the board as undeliverable that's correct and then in this case mrs record doesn't explain it to me but the reason i ask is she called in october probably roughly a month after the case is actually resolved and i'm just dying to know what she was told was she told it was resolved and the reason i ask is because then they didn't send she called back in i guess in november and at that time updated her address and they sent at that time a copy of the september decision to the address that she gave them when she updated it november and i guess i'm just sort of curious why why it couldn't have been mailed to her in october why she wasn't told about the the decision on the phone what what happened in october she called there's no question she called on y out of curiosity i understand that she was personally in the early stages of this process but i am just beside myself that there isn't an equitable tolling argument here because i can't imagine a better case for you make that little tolling argument for the top four decision notes that you that she alleged homelessness and the like but she didn't allege that that was the basis for not being able to timely file file any kind of brief to the veterans court no well in fact i believe if i'm mistakenly correct that i thought that she was pro se at first and she hired another counsel are you just your other p r i'm just here up to the federal are you aware if you only gave us the decision the government gave us some additional stuff but do you remember what it argued i mean it it's hard for us to piece this together we don't even know what was argued to the veterans  e so yeah and then and you know at the end it was my understanding whenever i looked at the brief that was the that was more of their their argument but i but i did not put that in there because i was concerned about whether or at least made some attempt to preserve that issue ok ok well we'll save the rest here time for a bottle let's hear from the government can you tell me what was given to the veterans court on this issue all of you i mean you gave us additional materials and i'm not faulting you for not giving us everything but you gave us her hand written notice of appeal which if that was all we had i think what i don't understand is the record it doesn't seem to be disputed that she then called in october ok yes if the the it's address of record the v m knew she didn't get the september thing and came back  with the october mailing remailing of the september decision which was that the simple supplemental index page seventy five and so then she called in november and did she she must have again asserted i have not yet received this opinion and  as raising every claim or give them sort of every benefit why didn't you interpret her pleading as one of equitable told him while they were on her it seems that the veterans court to some extent at least did they addressed the question of equitable tolling the problem that they had both based on her initial brief and then her revised brief but there was no claim that the only potential brown for equitable tolling the only extraordinary circumstance should be an ability to find she was or say yes or most of the us for part of it was and and there certainly representation that she was diligent by calling the office calling with a new address and the like there are also allegations that she was homeless during parts of this time is it really her obligation to say on the record the reason i didn't pursue this was because i was homeless and therefore you should equitably toll i mean in these circumstances isn't it the veterans who are top location particularly when it's one day to look at this sympathetically and realize it meets all of the elements for a little tolling she acted diligently there were certainly delays and receiving those that you know may have been somewhat her fault updating tolling argument was one of the elements is causing action and she actually filed a declaration saying that she lived at that address that the d a initially mailed the decision to you during that time period during september twenty know i get it this is not about the statutory argument but it seems to me that if if that's the case and the v a policy the statute then your argument is going to be that there's almost never equitable tolling i mean i can't think of a clear case for  tolling and somebody coming in and saying you may have complied with the south you this may have been my address i may have been living there but i was i mean it seems to me like she was shuttling back and forth between various relatives houses that's what i gather from the record in that the ideal or quintessential case involving homelessness is where there was no address at which the veteran could have received the claimant could have received the decision to live and they do their best to try to update addresses even if it was mailed to this address if this was at her house where she wasn't living there regularly if there were other people in there throughout the mail how is that her fault i mean as long as she's acted diligently and showed that the reason that she didn't get this which was she wasn't in a regular residence throughout this period and then the that when she finally did receive it she acted diligently then i i just don't understand how any reasonable fact finder could determine that this isn't grounds for acquittal foaling your honor the veterans were in this case determined that she was not in fact homeless as a the relevant time she was it says that she was homeless for several years and it doesn't say none of the times when she was homeless was any of the relevant time period the veterans court doesn't make those findings it does not make those findings your honor but even there there is no connection she again she confirmed this mailing address when she called in october and to move to the court asking it to be sent its decision which it did there is no showing in the record that that could not be delivered  or that she no longer lived there at that point and to the extent that the veterans court apply these facts to the the  allegation of home with you think that the fact that the postal service did not deliver the mail when they could have computerized  how the fact of her homelessness caused her to be unusual does she have to explain it i don't want to beat you up too much over this but she was pro se at the outset she got counsel there all these allegations i mean how specific to this she have to say this is this is what led me to file a day late well frankly ron i think she has to say that and i think the problem again and i don't want to rehash too too many times but the problem the parents were has is they made a finding that she was not homeless when this decision was mailed out when it should have arrived at her correct address and that she c council for their argument