little confusion or conflict with each other both of which really pertain to what the statute covers so why don't we actually start with the statute and then you can tell me which of the two cases seem most faithful to the statute is there any difference between the general counsel opinions in the two cases explain them paralyzed veterans that might be a basis for saying both of those decisions could be correct or are we really in a situation where they're from is flat out inconsistent with each other and we need to figure out which one i interpret the provisions of the eleven fifty watt i do believe that they did and they were required to do in order to answer the questions that were posed by the board the panel in p v a never reached the merits because they said that  did not have to respect but what about your claim here are you making a challenge to the general counsel's legal interpretation or two and the application of that legal interpretation to mr snyder's particular field agreement the former and not the latter because the general counsel's opinion does not apply to this or snyder's case although it is the basis for that opinion that general counsels o a ground that the general counsel's opinion simply doesn't apply to to this particular case if if the interpretation made of fifteen i don't for the judgment of the appeal that pending before the court i also believe that the appeal pending before the board based upon the state of the law at the time of mr backstab rendered that appeal mood and was properly dismissed originally by the board based upon his death and therefore that proceeding should be over and the da should be required by law to comply with the in denial for and pay the fee that they withheld from mr snyder they should pay mr snider forty one thousand nine hundred and twenty dollars which is twenty percent of the benefits  despite the fact that he actually withdrew from representation in the case only ten months after an issue eating it and with only having written basically a two page letter on behalf of the veteran and then the veteran went on for two years to prosecute this case to successful completion and now mr snyder swoops back in and would like to take twenty percent i e twenty or forty thousand dollars of the veterans benefits without having done any work towards the successful completion of that case and that's what you're advocating for today mr carpenter it doesn't seem like a position that i'm sort of i'm surprised to see you standing at the podium today go ahead with respect you do not believe that a fair characterization of what has happened in this case this court is not permitted to examine the facts or how those facts were applied that's certainly the first time i've ever heard you say that  snyder was entitled to that fate and that question was appealed by mr back at the time of his death that appeal or give me that decision by the v a was the law of that case and that case ended with the death of mr bet we are not here to argue the merits of whether or not mr snyder was or was not entitled to that feat or should or the deal were here to decide whether or not the v a general counsel properly decided that his widow could go forward with that appeal well i'm not quite sure that that's what the general counsel opinion decided but that is the effect of this decision what the general counsels of been to decide it was is that attorney fees as they claim constituted a crew benefits under the provisions of fifty one twenty one small way they do not constitute approved benefits because they are not periodic monetary payments periodic monetary payments were paid in full to mr back during his lifetime pursuant to the plain language of fifty nine a for the twenty percent of those asked the benefits or withheld and directed to be paid by the secretary to mr snyder once that decision was made by the a that converted these funds to attorney fees and stop those funds from being or ever able to be considered again as periodic monetary benefits the only way that fifty one twenty one small eight is implicated in this matter is if and only if there was an enticement to periodic monetary benefits attorney fees are not periodic monetary benefits they are some that by a statutory contract that was created by congress are with held from those periodic monetary benefits based upon a percentage of a contingent fee agreement for representation that contingent fee agreement for representation was found valid by the v a and mr snyder and mr beck were both notified that that fee was payable by the v to mr snyder the provisions of fifty one twenty one small way of the misinterpreted by the general counsel in this opinion to permit ms  back then step into the shoes of mr back as though this war and the crew benefit it is not accrued benefit by definition and accrued benefit is an ambiguous lee defined by congress as a periodic monetary benefit attorney fees simply are not take the can i ask of a but i don't think this has been raised here maybe just because this is the fiber to appeal or maybe there's really no dispute that you have a dispute be that mrs beck can make that claim to the the a for the forty one k or some part of that even though that money is no longer in the v a s possession but has been paid that's not really clear on it because then the question would be one of the forty does that the a have to then continue that proceeding when the only purpose of fifty one twenty one small as a has been accrued benefit claim is to pay the money to the survivor they don't have the monies anymore if they don't have the money is and therefore it would seem to me that that would be beyond the authority of the statutory authority granted by congress to  law and statements of general policy or interpretations of general a click ability formulated in adopted by the agency why isn't the v a council of opinion exactly the latter a statement of general policy or interpretation formulated in adopted by the agency because by five to eight one comes into play only through section five and two and so actually i'm going to have two sentences shall apply rather than the provisions of chapter seven of title v i i and this is where there is a distinction between splaying and i don't want to talk i want you to talk about the statute i don't want to talk about swain or p v a so this second s however if review is sought in connection with appeal doesn't that suggest that review could also be sought not in connection with appeal and isn't that in fact the way five o two first sentence has chit typically been read we have the ability to have two to hear a direct challenge to something that falls under five five to a one or five five three isn't that right here is that right yes or no i want to know if my understanding of five o two is right your honor and respectfully i don't think it is because there is a distinction between a general counsel's opinion which is issued in response for us from the war on light all i'm asking you is is it the case that we have direct review a storage under an action by the secretary under five five to a one do we have direct review authority of an action by the secretary which falls under five to a one yes or no yes except where that head where the appeal of the general counsel's opinion that was issued in response to a request from the board and a particular veteran's clane even if there is more than one reasonable interpretation of what section five and two means or what the second sentence of i go to means that was splaying are arguably inconsistent with each other which is why i tried very hard to get you to focus on the statutory language which you just keep refusing to do you want to hide behind p v a but you won't defend it in light of the language of the statute and you've got a conflicting case that came out before p v a so this is your problem you need to tell me why the statute gives or doesn't give us review authority you need to stop trying to hide behind a case because these two cases are in the board in the future how is that something other than a rule under fly fifty to  the distinction is that rather than acting in its rulemaking capacity was providing legal advice to the board on a pending appeal is issued unrelated to any proceeding from the board and then there's another kind that is related to a proceeding with the board but i guess for me the struggle i have is they have the same and result  it's true that one category of voters might directly impact the outcome of a proceeding before the board but in the end they're both blinding on the on the you can see they are binding but then the distinction is how and why they origina regulation thirty agency of four fourteen point five zero seven which actually lays out i think pretty clearly the two types of general counsel fenians that judge him was referring to a says they're advisory only opinions they have to be designated as such and b says there are presidential opinions which have to be designated as such and be goes on to say any written legal opinion designated as presidential shall be considered by the department of veterans affairs to be subject to the provisions of five i think that my understanding of the facts is pretty close to correct if not correct in terms of mr snyder having accepted the case work for only a period of months basically was true for representation the case went on for a full t additional years before the backs finally succeeded in their claim and then he kind of swoops in at the end with his request for twenty percent of all the money they got  initial decision from is it the board of the v a whoever made the initial decision and get did they consider all of this in deciding whether he was entitled to twenty percent or not i know that this case ultimately is about whether she his widow has the right to appeal or whether the claim ended with his life but but i'm curious what was the basis for the decision below to give them the forty million forty thousand dollars of the veterans money so the initial opinion and it's just that it's just and initial and yet not a final decision on the matter i have found that there is basically two issues under five nine o four eligibility meaning is this the agreement that structured the way at an agreement under five ninety nine a form of for under c two which permits for a reasonable next review and that may be raised by the board directly or by party and that was true at the time the two thousand and one bill you should do so and it found that and accrued benefits claimant would be able to bring a claim the pending claim here challenging reasonableness just as it would any other  pending claim and the distinction that council is trying to make between periodic monetary benefit this no longer being a periodic monetary benefit that's really just a right harridan because approved benefits are thank you ira i believe that the representative of the v a has misstated the law the initial decision obviously was just that it was a decision it was not an opinion and it was an opinion that the v a openly acted upon there is also been a suggestion by the government that the issue of reasonable this was raised yes the issue of reasonable is raised but was raised in the notice of disagreement on the question of eligibility or entitlement to charge a fee there is a specific statutory provision that requires the issue of reasonable list at that top to be raised directly to the board the issue of related because the government has suggested that this case has a separate status relative to reasonable others and it does not this case is limited to the question of eligibility and that question of eligibility was favorably decided upon and then acted upon and those funds were distributed to mr steiger now i thought we just have to figure out whether the g c s letter is if it relates to the question of what is pending before the agency what is this right but that's not the real is not bene for us right there right now nothing off but what is pending before you is whether or not this is or is not the attorney fees monies and accrued benefit it cannot be an accrued benefit and accrue benefit contrary to what the government said is not a derivative claim in the sense that you get the right to a derivative claim you only get the right to a derivative claim if there are periodic monetary benefits do and paid as you correctly observe judgeship these monies were not do not pay they were in fact paid