The first case, the only case for argument this morning is 13.7105, a rustic precision decade. Before we begin, let me, I don't usually speak for the entire court, but I think I can speak for the entire court today in offering my congratulations to our new chief judge and it is a particular honor for us to sit with her and her first sitting as chief judge. We'll pour it to many more years with her presiding. Thank you. And if I may, I'm sure I'm the half-Mr. Goodman and myself, it's a privilege to be that your first appearance is... Thank you very much, Your Honor. May please the court. On a rustic appears on behalf of is represented by Kenneth Carpenter in this matter. Mrs. Russick appeals a decision of the veterans court, which we believe misinterpreted the provisions of both 38 U.S
.C. Section 51-21-A and 51-09-Capital-A-Small-B. Nothing in the plain language of either of these two statutory provisions precludes Mrs. Russick from fully benefiting from the board's finding of clear and un-must-aekable error in the 1983 decision. Could I back you up? Yes, Mr. Carpenter, because we have three statutes here which use this entitled to receive language 13-18, 13-11, and 51-21 for Ms. A. And they have received different interpretations as a result of our November decisions. The Veterans Administration has construed 13-11, and 13-18 as permitting the filing of a new claim by the without. But 51-21 for Ms. A. In Jones, and I guess perhaps other cases as well, has said, no, no, you can't file a new claim. It has to be a pending claim. Are you contending that there's a inconsistent theme between the interpretation of those three statutes? I am your honor, although in this particular case, this case arises out of the secretary's interpretation of the entitled to receive language in 13-18, which created 3
.22. Well, I understand the background. I was just speaking for myself. I'm not particularly convinced that that accident that there was a decision earlier under 13-18 affects the result here. What I'm put to the name and put that to one side, is there an inconsistency in the interpretation given to 13-11 and 13-18 as opposed to 51-21 for Ms. A. I mean, the language is similar, but not identical. I believe that there has been your honor and that this case demonstrates why the interpretation of entitled to receive should not preclude the qualifying survivor from proceeding based upon a request for revision. A request for revision has been described as a procedural device. It is not a separate claim. It is a means to correct a prior mistake, and that's precisely what happened in this case, albeit going down a slightly different track, and the end result was that the 1983 decision was revised. The question then remains is why would there be any reason to justify a bar to the widow receiving the same? You're arguing based on the quirk of fate that there was a 13-18 decision first. What I'm trying to get you to address is whether there is an inconsistency in the interpretation of identical statutory language or nearly identical statutory language in these provisions. I believe there is, and apparently I wasn't communicating clearly
. I believe that the interpretation needs to be consistent, and this case demonstrates why that consistency is important because Mrs. Russell should have been able to simply bring a direct claim under 51-21 using the procedural device of a request for revision under 51-09 capital A, because it relies upon the predicates that are set out in 51-21A, and existing decision and the evidence in the file at the time of death. I guess maybe I'm being too simplistic on that. It seems the problem you have is that 51-09 AC explicitly limits filing of claims under that provision to the claim entered the secretary. I believe you're under that what Congress envisioned in creating 51-21 was that the claimant, although a different person in fact, simply steps into the shoes of the veteran. We've got a number of cases that explicitly say the opposite. I don't believe that they do say that the survivor is not an eligible person. Well, what do you want on that? I know. I believe that those cases were decided under different circumstances in which, for instance, in Haynes, which was relied upon by the court below, the court was looking at whether or not the surviving spouse could continue a request for revision. And this court said that they couldn't because the remedy was under 51-21, and that remedy under 51-21 was simply to start a new. There was no prohibition based upon Haynes or 51-21 that would have prevented Mrs. Haynes from coming back before the agency and filing a new request for revision in the circumstances in Haynes. The other cases that we've dealt with, dealt with before Congress had made clear its intent relative to 51-21 by amending it to permit substitution. You mean in 51-21 cap? Cap? Well, now let me ask you about 51-21 cap
. That applies to and only to, as I understand it, cases in which the claimant dies while a claim for any benefit is pending. That's great. So if the statute 51-21 non-cap, had applied in a way that allowed someone to come in without regard to whether there was a pending claim or not, why would 51-21 capital A have been necessary? Because it seems to me that 51-21 capital A has a narrower scope of an exception to the general, you can't be substituted, rule, that would exclude Mrs. Russick. Because the agency interpretation of 51-21 small A, up until the time that Congress intervened, was to require A-Due over, was to require a start a new. And therefore, when there was a pending claim, the procedure required that the proceedings end with the death of the veteran and that they commence a new. Congress said, no, we don't want that to be the procedure, that clearly when there is a pending claim, that the process should not be automatically stopped, but a qualifying survivor under 51-21 A should be permitted to substitute. And they said, is your contention that 51-21 perenns A small A, is broader than 51-21 capital A? Yes, you're right. Because 51-21's capital A deals with the exclusive circumstance of 1-8 case is pending when there is a matter pending. And it permits substitution for that pending proceeding so that the qualifying survivor can step into the shoes without being forced to go back to the beginning and to start a new. 51-21 contemplates that there will be a new beginning for qualifying survivors if one of the three requirements are met. There's an existing rating, there's an existing position. But isn't it a little odd, as I think Judge Bryson is suggesting that they would have enacted 51-21 A, and limited it to pending claims and allowing this filing of a new claim under 51-21 perenns A? But no, Your Honor, because I believe that 51-21 capital A was in response to this court's decision in hand that wouldn't permit that, that required the qualifying survivor to start from the very beginning. And 51-21 capital A negates that process
. Well, we say it required the person to start from the beginning. There's nothing in hand that I'm aware of that says that it's permissible to start from the beginning as the survivor with a Q claim that had not previously been raised, right? No, but in hand it was a pending favor. I understand, but your argument seems to be that in effect that Mrs. Russick is in better shape by virtue of their never having been a Q claim raised by Mr. Russick than she would be if she were coming in with a claim having been previously raised by Mr. Russick, because since he died before 2008, 51-09 capital A wouldn't apply to her anyone. Well, respectfully, I'm not making that kind of comparison. It's not a comparative advantage situation. But that gets us back to the question of what what did Congress think it was doing? Was it all it was doing in your view is saying we already have a situation where someone can raise a new Q claim. But if it so happens that there's a pending Q claim, 51-09 capital A will allow them to continue that pending Q claim, but they could start over and there'd be no statutory part of that. Yes, you are. Because those alternatives are available. You do not, you're not required to substitute. You can in fact go back to the beginning and start a new if you choose to do that
. You know, there is now a duality of options. Part of the problem here, unfortunately, is that the agency's not been forthcoming with its regulations interpreting 51-21 capital A. So we're there is no regulation. No, there are no regulates. There's a proposal. Is there a regulation 51-21 perennzay? Well, yes, there is, but not for capital A. What is the one for 51-21 perennzay say? Three that 1000. Yes, I've heard a variety of things that echoes the language of the standard. So they're a part of pending Q claim? In one section it does, yes, but in another section it talks about an existing decision or the evidence in the file at time of death. So I do not believe that the current interpretation in 3.1000 is excluded, exclusive or excludes the availability of the use of a procedural device of request for revision. Can you hear your inter-rebuttal time? I see that I have your own answer. Good morning, Your Honor. Good morning, Your Honor
. I'm pleased to report. I'd like to start with where Judge Dyke started and that's the difference between 1318, 1311 and 51-21 because they're not the same, not the same statutory language. Under 51-21 it says entitled at death under existing ratings or decisions. And that's an important distinction because the other two statutes just say entitled to receive and this court held that Congress intended, Congress clearly intended when they added that entitled to receive language, they were trying to include the ability to bring a Q claim. That's not the case of the accrued benefit statute which pre-existed that was already in place. If Congress wanted to change it for accrued benefits, they could have done so of course but they didn't. So there's a reason. I understand what you're saying and that makes sense as to the first part of the language in 51-21-21.A but the second part says, or evidence existing in the file at the time of the veteran's death, something like that. And do it unpaid. And Mr. Rucic is explicitly not making that. They argue that the second portion of 51-21 because there's nothing to do when it pays back to Judge Bryson's point because there was no claim here. The veteran never filed a Q claim
. So there has to have been a claim file by a veteran for that second portion to apply. So then Mr. Rucic's entire argument is the first portion. He was entitled at death under existing ratings or decisions. But there's been no existing rating or decision. His argument is, well, we can look back to the 1983 decision as changed and that's an existing rating or decision. But that's the lie of the... The answer is, Mr. Rucic, I think it's fair to say some of that language comes from the Federal Register comments made by the department which explicitly says, a CUE, then this quote, the statutory requirements of the veteran would have been entitled to benefit at the time of death would be satisfied. And that's interpreting the language entitled to receive in 1318 and 1311 in the court. And the VA was to consistently read those based on this court's command that they do so in NOVA. That's totally separate from the language in 51-20 more, which says entitled at death under existing ratings or decisions
. This court's precedent is... Well, but you're not reading the whole thing. It says entitled at death under existing rating or decisions or those based on evidence in the file at the date of death. And it goes on in the file at date of death and do an unpaid after the press. So if that... The do not unpaid has not been interpreted as requiring a final decision. Not a final decision, you're on it, it has to have a claim by the claimant. So the veteran had to have filed a claim for that second time. I guess what I would ask you isn't the language at least ambiguous as to what it means. As to everything following the OR in 51-21-8, it sounds like it's what you're focusing on, is that second provision, the second portion of the statute
. I have a couple of responses. First, that wasn't briefed because Mrs. Rusey didn't make that argument as to that portion. She explicitly said in the court below that that's not her argument. If this court thought further briefing on that was necessary, it would be happy to provide it. Our response to the argument is that that says do an unpaid. And this court said in Jones when interpreting this provision that that requires the veteran have actually submitted a claim. And here there's been no claim by the veteran. We agreed with something Mrs. Rusey's representative said, actually repeatedly said, that what 51-21 is to allow the survivor to step into the shoes of the veteran. Here there was no claim. The veteran had never filed a claim so stepping into the veteran's shoes doesn't get her anywhere. Entirely separate from that. So that's all approved benefits are all about. Stepping into the shoes of the veteran. Separate from that conversation is that of the DIC benefit. That's the survivor's own claim. And because it's the survivor's own claim, the survivor can use Q to attack the underlying basis for that claim. Because Q is all about correcting an error in your own claim. But here she's trying to extend that to use Q to correct an error in the veteran's claim. It will then ultimately benefit her. And that's just too far removed. That was not, there's nothing indicating that that's what Congress intended. What Congress is, if we read it consistently, the Q statute works so any claimants can correct an error underline errors that are affected their own personal claim. And the DIC is her own personal claim. Her own DIC, she is the claimant, notwithstanding that her claim depends on demonstrating that there was Q in his original claim. That's exactly right. So she
. Stepping into the shoes of the veteran. Separate from that conversation is that of the DIC benefit. That's the survivor's own claim. And because it's the survivor's own claim, the survivor can use Q to attack the underlying basis for that claim. Because Q is all about correcting an error in your own claim. But here she's trying to extend that to use Q to correct an error in the veteran's claim. It will then ultimately benefit her. And that's just too far removed. That was not, there's nothing indicating that that's what Congress intended. What Congress is, if we read it consistently, the Q statute works so any claimants can correct an error underline errors that are affected their own personal claim. And the DIC is her own personal claim. Her own DIC, she is the claimant, notwithstanding that her claim depends on demonstrating that there was Q in his original claim. That's exactly right. So she... If you understand the tension here, right? I mean that there's, once she's been, there's been a finding of a CUE in her contact, a legal fiction that's created generically for CUEs, is that it becomes what it should have been. Sure. And there is that tension there, but that's the tension that is inherent in a system that where Congress said, for your own claim, we're going to give you this extra benefit of attacking this final decision collaterally. If the veteran wanted to attack a final decision, his claim collaterally, he could have done so. And if he had filed a Q claim prior to his death, she could have stopped the decision on that under 51-21-1 big A. Well, actually not, right? Because he died before 2008. That's correct. If we were... But if he had died in 2009, then she would be able to substitute once he filed this claim, but you say, not if he hadn't filed. Correct
... If you understand the tension here, right? I mean that there's, once she's been, there's been a finding of a CUE in her contact, a legal fiction that's created generically for CUEs, is that it becomes what it should have been. Sure. And there is that tension there, but that's the tension that is inherent in a system that where Congress said, for your own claim, we're going to give you this extra benefit of attacking this final decision collaterally. If the veteran wanted to attack a final decision, his claim collaterally, he could have done so. And if he had filed a Q claim prior to his death, she could have stopped the decision on that under 51-21-1 big A. Well, actually not, right? Because he died before 2008. That's correct. If we were... But if he had died in 2009, then she would be able to substitute once he filed this claim, but you say, not if he hadn't filed. Correct. Because it's, and that's, that's a fundamental point here, it's his claim. I thought you said what a claim. What a claim. It's his. Excuse me. So under your view, is there any difference between 51-21-1-4NZ in capitalized? Aren't they addressed exactly the same category of cases? No. No. Because in each case, we're talking about pending claims for a CUEs manifest. In both cases, we're talking about pending claims for a CUEs manifest. What big A did was allow substitution. So in Haines explicitly, or specifically, what that case was addressing was where a veteran filed a Q claim and then a survivor wants to substitute on that claim. Before 51-21-1 big A, this court held in Haines, and correctly, there would be no possibility of substitution because a Q claim can't be brought back. I understand that one of all substitution in one doesn't, but is a practical matter, is there any difference between the two of them? Well, that's all 51-21 big A about a substitution. 51-21
. Because it's, and that's, that's a fundamental point here, it's his claim. I thought you said what a claim. What a claim. It's his. Excuse me. So under your view, is there any difference between 51-21-1-4NZ in capitalized? Aren't they addressed exactly the same category of cases? No. No. Because in each case, we're talking about pending claims for a CUEs manifest. In both cases, we're talking about pending claims for a CUEs manifest. What big A did was allow substitution. So in Haines explicitly, or specifically, what that case was addressing was where a veteran filed a Q claim and then a survivor wants to substitute on that claim. Before 51-21-1 big A, this court held in Haines, and correctly, there would be no possibility of substitution because a Q claim can't be brought back. I understand that one of all substitution in one doesn't, but is a practical matter, is there any difference between the two of them? Well, that's all 51-21 big A about a substitution. 51-21. Why would, let me put it this way, why would Congress and the Act of Statute say it's to a pending claim for CUEs manifest, the widow can be substituted for the veteran, and have another provision that says in pending claims for a CUEs manifest, the wife can file her own claim. What difference does it make? Is that, is it, is it, what, 51-21-1, and he isn't just doing that himself? I'm sorry, is that addressing exactly the same problem? There are, there is currently, there are two methods, somebody can get a CUEs manifest. It's true they can file their own CUEs manifest claim, or they can speak to be substituted. The substitution came in after, because Congress was addressing the problem that the court addressed in Paget, and the very other cases about, about the substance, not allowing substitution in certain contexts, and how that flows down the process. So 51-21-1A is a procedural addition that you can substitute in addition to file your own claim, and in some ways it is broader, because it's not just about a CUE manifest claim, it says substitution in the case of any claim for any benefit. So potentially there are, there are categories that that could reach that 51-21-1A is not about, it's not just a CUEed benefit. But in other ways it's narrow, because it's only about substitution. It has nothing, it's not about a CUEed benefit at large. 51-21 is just about a CUEed benefit, and it's the only CUEed benefit statute that we look to. The European Review with the Department has the authority and the regulations to expand this to cover a situation like this, but that'd be within there for us. To say we've done this on DIC, so whether it's regulations under 51-21, to say that there's an exception, and that exception is created by those eligible for CUEed and the 13. Looking at the language, under existing ratings or decisions, that looks difficult. I don't know that the Secretary could interpret that language in such a way as to say that that would include a CUE claim going back. I don't want to tie their hands, perhaps they could
. Why would, let me put it this way, why would Congress and the Act of Statute say it's to a pending claim for CUEs manifest, the widow can be substituted for the veteran, and have another provision that says in pending claims for a CUEs manifest, the wife can file her own claim. What difference does it make? Is that, is it, is it, what, 51-21-1, and he isn't just doing that himself? I'm sorry, is that addressing exactly the same problem? There are, there is currently, there are two methods, somebody can get a CUEs manifest. It's true they can file their own CUEs manifest claim, or they can speak to be substituted. The substitution came in after, because Congress was addressing the problem that the court addressed in Paget, and the very other cases about, about the substance, not allowing substitution in certain contexts, and how that flows down the process. So 51-21-1A is a procedural addition that you can substitute in addition to file your own claim, and in some ways it is broader, because it's not just about a CUE manifest claim, it says substitution in the case of any claim for any benefit. So potentially there are, there are categories that that could reach that 51-21-1A is not about, it's not just a CUEed benefit. But in other ways it's narrow, because it's only about substitution. It has nothing, it's not about a CUEed benefit at large. 51-21 is just about a CUEed benefit, and it's the only CUEed benefit statute that we look to. The European Review with the Department has the authority and the regulations to expand this to cover a situation like this, but that'd be within there for us. To say we've done this on DIC, so whether it's regulations under 51-21, to say that there's an exception, and that exception is created by those eligible for CUEed and the 13. Looking at the language, under existing ratings or decisions, that looks difficult. I don't know that the Secretary could interpret that language in such a way as to say that that would include a CUE claim going back. I don't want to tie their hands, perhaps they could. I know, I'm talking about the part of the language that you like, but how far are you going to lie? I think the answer is no, but maybe I'm not fully thought through that for today. It's possible that they often award benefits that are above and beyond what Congress seems to have intended and nobody can blame, so it never comes to this course. Well, you did it in DIC, and I was a result of that. In DIC, they said it was clear when Congress added the language there entitled to receive. When Congress did so, they explicitly said in legislative history it was clear we're doing this so that CUE is applicable to DIC benefits. Logically, that makes sense to the reasons we explained earlier. They didn't do that for proof-in-fifth, and there's nothing in legislative history of 51-21 that suggests that it includes CUE. I'd note that Jones and Haynes are after this language in 51-21 was already in place. It's already very clear that Miss Roussick, if she hadn't had a DIC claim, if she just came forward that I want to prove benefits, the answer is no because there's no claim pending. That's well established under Jones, and she can't use CUE as a basis because that's well established under Haynes. What she's trying to do is use this separate DIC pathway that's entirely different. It's never been intended. Well, it's entirely different except the analysis of CUE, the investigation of CUE, and everything about CUE. There's one CUE, and that CUE is the same as the CUE we're talking about 51-21 and 13-18
. I know, I'm talking about the part of the language that you like, but how far are you going to lie? I think the answer is no, but maybe I'm not fully thought through that for today. It's possible that they often award benefits that are above and beyond what Congress seems to have intended and nobody can blame, so it never comes to this course. Well, you did it in DIC, and I was a result of that. In DIC, they said it was clear when Congress added the language there entitled to receive. When Congress did so, they explicitly said in legislative history it was clear we're doing this so that CUE is applicable to DIC benefits. Logically, that makes sense to the reasons we explained earlier. They didn't do that for proof-in-fifth, and there's nothing in legislative history of 51-21 that suggests that it includes CUE. I'd note that Jones and Haynes are after this language in 51-21 was already in place. It's already very clear that Miss Roussick, if she hadn't had a DIC claim, if she just came forward that I want to prove benefits, the answer is no because there's no claim pending. That's well established under Jones, and she can't use CUE as a basis because that's well established under Haynes. What she's trying to do is use this separate DIC pathway that's entirely different. It's never been intended. Well, it's entirely different except the analysis of CUE, the investigation of CUE, and everything about CUE. There's one CUE, and that CUE is the same as the CUE we're talking about 51-21 and 13-18. It's the same CUE. Yes and no. It's the same analysis to whether there's been an almost like a error yet. But what 13-18 does is not say you can bring a CUE claim. What it says is you can bring a DIC claim. If CUE is necessary to achieve that end for you to demonstrate that you're entitled to DIC, then you can do that. But it's just a DIC claim. It's not a CUE claim. But CUE analysis is that the veteran was entitled therefore, as of the missing since 1983, he was eligible in entitled to receive the benefits. So that's been dispositively filed. The veteran wasn't entitled. If he had filed a claim before it was done, then she would likely be able to substitute that claim and get benefits. Under the current scheme, because of the dates we're dealing with, the answer to that would still be no, because that's actually been exist yet. But so, time is up and not
. It's the same CUE. Yes and no. It's the same analysis to whether there's been an almost like a error yet. But what 13-18 does is not say you can bring a CUE claim. What it says is you can bring a DIC claim. If CUE is necessary to achieve that end for you to demonstrate that you're entitled to DIC, then you can do that. But it's just a DIC claim. It's not a CUE claim. But CUE analysis is that the veteran was entitled therefore, as of the missing since 1983, he was eligible in entitled to receive the benefits. So that's been dispositively filed. The veteran wasn't entitled. If he had filed a claim before it was done, then she would likely be able to substitute that claim and get benefits. Under the current scheme, because of the dates we're dealing with, the answer to that would still be no, because that's actually been exist yet. But so, time is up and not. But the take home message really is that 13-18, where they say that you can use CUE, that's a procedure to get DIC benefit. It's not a CUE claimant's own right. CUE claimant in their own right are 51-09A can only be brought by the claimants. That's consistent here. In a DIC claim, she's the claimant. In a CUE benefits claim, she's not. She's substituting in and she's stepping into the shoes in Mr. Ruzek's language of the veteran. Without anything pre-existing for her to step into the shoes of, there's no CUE benefit claim. For a further question, thank you very much. Please, according to seems that the government is committed to the creation of both obstacles and impediments to undoing their own CUE fight. They made the CUE fight. The board found that the 1983 decision contained CUE. That corrected decision is a decision that once corrected, if you will, rings the bell under 51-21 small A, because 51-21 small A, as the government has conceded, is about stepping into the shoes of the veteran
. But the take home message really is that 13-18, where they say that you can use CUE, that's a procedure to get DIC benefit. It's not a CUE claimant's own right. CUE claimant in their own right are 51-09A can only be brought by the claimants. That's consistent here. In a DIC claim, she's the claimant. In a CUE benefits claim, she's not. She's substituting in and she's stepping into the shoes in Mr. Ruzek's language of the veteran. Without anything pre-existing for her to step into the shoes of, there's no CUE benefit claim. For a further question, thank you very much. Please, according to seems that the government is committed to the creation of both obstacles and impediments to undoing their own CUE fight. They made the CUE fight. The board found that the 1983 decision contained CUE. That corrected decision is a decision that once corrected, if you will, rings the bell under 51-21 small A, because 51-21 small A, as the government has conceded, is about stepping into the shoes of the veteran. It's not the survivor's claim. It is the veterans claim. And the veterans claim was that there was CUE. Let me ask you this question. There are some persons, I guess, who would be entitled to pursue the accrued benefits claim, which attending accrued benefits claim of a veteran who would not independently be entitled to the DIC, correct? That's correct. So, are you saying that someone who was not a DIC beneficiary or potential DIC beneficiary could file a new claim, where the veteran had not previously filed a CUE claim, filing a new CUE claim, and then if that CUE were found, and of course, that proceeding could then get all the accrued benefits that would have been available to the veteran. Which would seem to be broader position than you are arguing for here, but logically consistent with and even compelled by the position you are arguing for. And I agree with that with the one caveat that we cannot and should not be using the word claim. A request for a revision is a procedural device. There is nothing in the statutory scheme that recludes the use of this procedural device to just claim it. But somebody who is not a DIC claimant could come in and say, okay, there was a decision in deceased veterans case back in 1953, which I think was CUE, I want to pursue the CUE claim, and I want all the accrued benefits since then. And you say that would be permissible. Yes, Your Honor. Because the result is that if CUE is established as this case demonstrates, then there is an entitlement at death because there is an existing decision based upon the evidence that was a record at time of death
. It's not the survivor's claim. It is the veterans claim. And the veterans claim was that there was CUE. Let me ask you this question. There are some persons, I guess, who would be entitled to pursue the accrued benefits claim, which attending accrued benefits claim of a veteran who would not independently be entitled to the DIC, correct? That's correct. So, are you saying that someone who was not a DIC beneficiary or potential DIC beneficiary could file a new claim, where the veteran had not previously filed a CUE claim, filing a new CUE claim, and then if that CUE were found, and of course, that proceeding could then get all the accrued benefits that would have been available to the veteran. Which would seem to be broader position than you are arguing for here, but logically consistent with and even compelled by the position you are arguing for. And I agree with that with the one caveat that we cannot and should not be using the word claim. A request for a revision is a procedural device. There is nothing in the statutory scheme that recludes the use of this procedural device to just claim it. But somebody who is not a DIC claimant could come in and say, okay, there was a decision in deceased veterans case back in 1953, which I think was CUE, I want to pursue the CUE claim, and I want all the accrued benefits since then. And you say that would be permissible. Yes, Your Honor. Because the result is that if CUE is established as this case demonstrates, then there is an entitlement at death because there is an existing decision based upon the evidence that was a record at time of death. Unless there's further questions from the panel. Thank you very much, Your Honor. Thank you. Congratulations, Your Honor. The case should then be let conclude by the statement for this morning.
The first case, the only case for argument this morning is 13.7105, a rustic precision decade. Before we begin, let me, I don't usually speak for the entire court, but I think I can speak for the entire court today in offering my congratulations to our new chief judge and it is a particular honor for us to sit with her and her first sitting as chief judge. We'll pour it to many more years with her presiding. Thank you. And if I may, I'm sure I'm the half-Mr. Goodman and myself, it's a privilege to be that your first appearance is... Thank you very much, Your Honor. May please the court. On a rustic appears on behalf of is represented by Kenneth Carpenter in this matter. Mrs. Russick appeals a decision of the veterans court, which we believe misinterpreted the provisions of both 38 U.S.C. Section 51-21-A and 51-09-Capital-A-Small-B. Nothing in the plain language of either of these two statutory provisions precludes Mrs. Russick from fully benefiting from the board's finding of clear and un-must-aekable error in the 1983 decision. Could I back you up? Yes, Mr. Carpenter, because we have three statutes here which use this entitled to receive language 13-18, 13-11, and 51-21 for Ms. A. And they have received different interpretations as a result of our November decisions. The Veterans Administration has construed 13-11, and 13-18 as permitting the filing of a new claim by the without. But 51-21 for Ms. A. In Jones, and I guess perhaps other cases as well, has said, no, no, you can't file a new claim. It has to be a pending claim. Are you contending that there's a inconsistent theme between the interpretation of those three statutes? I am your honor, although in this particular case, this case arises out of the secretary's interpretation of the entitled to receive language in 13-18, which created 3.22. Well, I understand the background. I was just speaking for myself. I'm not particularly convinced that that accident that there was a decision earlier under 13-18 affects the result here. What I'm put to the name and put that to one side, is there an inconsistency in the interpretation given to 13-11 and 13-18 as opposed to 51-21 for Ms. A. I mean, the language is similar, but not identical. I believe that there has been your honor and that this case demonstrates why the interpretation of entitled to receive should not preclude the qualifying survivor from proceeding based upon a request for revision. A request for revision has been described as a procedural device. It is not a separate claim. It is a means to correct a prior mistake, and that's precisely what happened in this case, albeit going down a slightly different track, and the end result was that the 1983 decision was revised. The question then remains is why would there be any reason to justify a bar to the widow receiving the same? You're arguing based on the quirk of fate that there was a 13-18 decision first. What I'm trying to get you to address is whether there is an inconsistency in the interpretation of identical statutory language or nearly identical statutory language in these provisions. I believe there is, and apparently I wasn't communicating clearly. I believe that the interpretation needs to be consistent, and this case demonstrates why that consistency is important because Mrs. Russell should have been able to simply bring a direct claim under 51-21 using the procedural device of a request for revision under 51-09 capital A, because it relies upon the predicates that are set out in 51-21A, and existing decision and the evidence in the file at the time of death. I guess maybe I'm being too simplistic on that. It seems the problem you have is that 51-09 AC explicitly limits filing of claims under that provision to the claim entered the secretary. I believe you're under that what Congress envisioned in creating 51-21 was that the claimant, although a different person in fact, simply steps into the shoes of the veteran. We've got a number of cases that explicitly say the opposite. I don't believe that they do say that the survivor is not an eligible person. Well, what do you want on that? I know. I believe that those cases were decided under different circumstances in which, for instance, in Haynes, which was relied upon by the court below, the court was looking at whether or not the surviving spouse could continue a request for revision. And this court said that they couldn't because the remedy was under 51-21, and that remedy under 51-21 was simply to start a new. There was no prohibition based upon Haynes or 51-21 that would have prevented Mrs. Haynes from coming back before the agency and filing a new request for revision in the circumstances in Haynes. The other cases that we've dealt with, dealt with before Congress had made clear its intent relative to 51-21 by amending it to permit substitution. You mean in 51-21 cap? Cap? Well, now let me ask you about 51-21 cap. That applies to and only to, as I understand it, cases in which the claimant dies while a claim for any benefit is pending. That's great. So if the statute 51-21 non-cap, had applied in a way that allowed someone to come in without regard to whether there was a pending claim or not, why would 51-21 capital A have been necessary? Because it seems to me that 51-21 capital A has a narrower scope of an exception to the general, you can't be substituted, rule, that would exclude Mrs. Russick. Because the agency interpretation of 51-21 small A, up until the time that Congress intervened, was to require A-Due over, was to require a start a new. And therefore, when there was a pending claim, the procedure required that the proceedings end with the death of the veteran and that they commence a new. Congress said, no, we don't want that to be the procedure, that clearly when there is a pending claim, that the process should not be automatically stopped, but a qualifying survivor under 51-21 A should be permitted to substitute. And they said, is your contention that 51-21 perenns A small A, is broader than 51-21 capital A? Yes, you're right. Because 51-21's capital A deals with the exclusive circumstance of 1-8 case is pending when there is a matter pending. And it permits substitution for that pending proceeding so that the qualifying survivor can step into the shoes without being forced to go back to the beginning and to start a new. 51-21 contemplates that there will be a new beginning for qualifying survivors if one of the three requirements are met. There's an existing rating, there's an existing position. But isn't it a little odd, as I think Judge Bryson is suggesting that they would have enacted 51-21 A, and limited it to pending claims and allowing this filing of a new claim under 51-21 perenns A? But no, Your Honor, because I believe that 51-21 capital A was in response to this court's decision in hand that wouldn't permit that, that required the qualifying survivor to start from the very beginning. And 51-21 capital A negates that process. Well, we say it required the person to start from the beginning. There's nothing in hand that I'm aware of that says that it's permissible to start from the beginning as the survivor with a Q claim that had not previously been raised, right? No, but in hand it was a pending favor. I understand, but your argument seems to be that in effect that Mrs. Russick is in better shape by virtue of their never having been a Q claim raised by Mr. Russick than she would be if she were coming in with a claim having been previously raised by Mr. Russick, because since he died before 2008, 51-09 capital A wouldn't apply to her anyone. Well, respectfully, I'm not making that kind of comparison. It's not a comparative advantage situation. But that gets us back to the question of what what did Congress think it was doing? Was it all it was doing in your view is saying we already have a situation where someone can raise a new Q claim. But if it so happens that there's a pending Q claim, 51-09 capital A will allow them to continue that pending Q claim, but they could start over and there'd be no statutory part of that. Yes, you are. Because those alternatives are available. You do not, you're not required to substitute. You can in fact go back to the beginning and start a new if you choose to do that. You know, there is now a duality of options. Part of the problem here, unfortunately, is that the agency's not been forthcoming with its regulations interpreting 51-21 capital A. So we're there is no regulation. No, there are no regulates. There's a proposal. Is there a regulation 51-21 perennzay? Well, yes, there is, but not for capital A. What is the one for 51-21 perennzay say? Three that 1000. Yes, I've heard a variety of things that echoes the language of the standard. So they're a part of pending Q claim? In one section it does, yes, but in another section it talks about an existing decision or the evidence in the file at time of death. So I do not believe that the current interpretation in 3.1000 is excluded, exclusive or excludes the availability of the use of a procedural device of request for revision. Can you hear your inter-rebuttal time? I see that I have your own answer. Good morning, Your Honor. Good morning, Your Honor. I'm pleased to report. I'd like to start with where Judge Dyke started and that's the difference between 1318, 1311 and 51-21 because they're not the same, not the same statutory language. Under 51-21 it says entitled at death under existing ratings or decisions. And that's an important distinction because the other two statutes just say entitled to receive and this court held that Congress intended, Congress clearly intended when they added that entitled to receive language, they were trying to include the ability to bring a Q claim. That's not the case of the accrued benefit statute which pre-existed that was already in place. If Congress wanted to change it for accrued benefits, they could have done so of course but they didn't. So there's a reason. I understand what you're saying and that makes sense as to the first part of the language in 51-21-21.A but the second part says, or evidence existing in the file at the time of the veteran's death, something like that. And do it unpaid. And Mr. Rucic is explicitly not making that. They argue that the second portion of 51-21 because there's nothing to do when it pays back to Judge Bryson's point because there was no claim here. The veteran never filed a Q claim. So there has to have been a claim file by a veteran for that second portion to apply. So then Mr. Rucic's entire argument is the first portion. He was entitled at death under existing ratings or decisions. But there's been no existing rating or decision. His argument is, well, we can look back to the 1983 decision as changed and that's an existing rating or decision. But that's the lie of the... The answer is, Mr. Rucic, I think it's fair to say some of that language comes from the Federal Register comments made by the department which explicitly says, a CUE, then this quote, the statutory requirements of the veteran would have been entitled to benefit at the time of death would be satisfied. And that's interpreting the language entitled to receive in 1318 and 1311 in the court. And the VA was to consistently read those based on this court's command that they do so in NOVA. That's totally separate from the language in 51-20 more, which says entitled at death under existing ratings or decisions. This court's precedent is... Well, but you're not reading the whole thing. It says entitled at death under existing rating or decisions or those based on evidence in the file at the date of death. And it goes on in the file at date of death and do an unpaid after the press. So if that... The do not unpaid has not been interpreted as requiring a final decision. Not a final decision, you're on it, it has to have a claim by the claimant. So the veteran had to have filed a claim for that second time. I guess what I would ask you isn't the language at least ambiguous as to what it means. As to everything following the OR in 51-21-8, it sounds like it's what you're focusing on, is that second provision, the second portion of the statute. I have a couple of responses. First, that wasn't briefed because Mrs. Rusey didn't make that argument as to that portion. She explicitly said in the court below that that's not her argument. If this court thought further briefing on that was necessary, it would be happy to provide it. Our response to the argument is that that says do an unpaid. And this court said in Jones when interpreting this provision that that requires the veteran have actually submitted a claim. And here there's been no claim by the veteran. We agreed with something Mrs. Rusey's representative said, actually repeatedly said, that what 51-21 is to allow the survivor to step into the shoes of the veteran. Here there was no claim. The veteran had never filed a claim so stepping into the veteran's shoes doesn't get her anywhere. Entirely separate from that. So that's all approved benefits are all about. Stepping into the shoes of the veteran. Separate from that conversation is that of the DIC benefit. That's the survivor's own claim. And because it's the survivor's own claim, the survivor can use Q to attack the underlying basis for that claim. Because Q is all about correcting an error in your own claim. But here she's trying to extend that to use Q to correct an error in the veteran's claim. It will then ultimately benefit her. And that's just too far removed. That was not, there's nothing indicating that that's what Congress intended. What Congress is, if we read it consistently, the Q statute works so any claimants can correct an error underline errors that are affected their own personal claim. And the DIC is her own personal claim. Her own DIC, she is the claimant, notwithstanding that her claim depends on demonstrating that there was Q in his original claim. That's exactly right. So she... If you understand the tension here, right? I mean that there's, once she's been, there's been a finding of a CUE in her contact, a legal fiction that's created generically for CUEs, is that it becomes what it should have been. Sure. And there is that tension there, but that's the tension that is inherent in a system that where Congress said, for your own claim, we're going to give you this extra benefit of attacking this final decision collaterally. If the veteran wanted to attack a final decision, his claim collaterally, he could have done so. And if he had filed a Q claim prior to his death, she could have stopped the decision on that under 51-21-1 big A. Well, actually not, right? Because he died before 2008. That's correct. If we were... But if he had died in 2009, then she would be able to substitute once he filed this claim, but you say, not if he hadn't filed. Correct. Because it's, and that's, that's a fundamental point here, it's his claim. I thought you said what a claim. What a claim. It's his. Excuse me. So under your view, is there any difference between 51-21-1-4NZ in capitalized? Aren't they addressed exactly the same category of cases? No. No. Because in each case, we're talking about pending claims for a CUEs manifest. In both cases, we're talking about pending claims for a CUEs manifest. What big A did was allow substitution. So in Haines explicitly, or specifically, what that case was addressing was where a veteran filed a Q claim and then a survivor wants to substitute on that claim. Before 51-21-1 big A, this court held in Haines, and correctly, there would be no possibility of substitution because a Q claim can't be brought back. I understand that one of all substitution in one doesn't, but is a practical matter, is there any difference between the two of them? Well, that's all 51-21 big A about a substitution. 51-21. Why would, let me put it this way, why would Congress and the Act of Statute say it's to a pending claim for CUEs manifest, the widow can be substituted for the veteran, and have another provision that says in pending claims for a CUEs manifest, the wife can file her own claim. What difference does it make? Is that, is it, is it, what, 51-21-1, and he isn't just doing that himself? I'm sorry, is that addressing exactly the same problem? There are, there is currently, there are two methods, somebody can get a CUEs manifest. It's true they can file their own CUEs manifest claim, or they can speak to be substituted. The substitution came in after, because Congress was addressing the problem that the court addressed in Paget, and the very other cases about, about the substance, not allowing substitution in certain contexts, and how that flows down the process. So 51-21-1A is a procedural addition that you can substitute in addition to file your own claim, and in some ways it is broader, because it's not just about a CUE manifest claim, it says substitution in the case of any claim for any benefit. So potentially there are, there are categories that that could reach that 51-21-1A is not about, it's not just a CUEed benefit. But in other ways it's narrow, because it's only about substitution. It has nothing, it's not about a CUEed benefit at large. 51-21 is just about a CUEed benefit, and it's the only CUEed benefit statute that we look to. The European Review with the Department has the authority and the regulations to expand this to cover a situation like this, but that'd be within there for us. To say we've done this on DIC, so whether it's regulations under 51-21, to say that there's an exception, and that exception is created by those eligible for CUEed and the 13. Looking at the language, under existing ratings or decisions, that looks difficult. I don't know that the Secretary could interpret that language in such a way as to say that that would include a CUE claim going back. I don't want to tie their hands, perhaps they could. I know, I'm talking about the part of the language that you like, but how far are you going to lie? I think the answer is no, but maybe I'm not fully thought through that for today. It's possible that they often award benefits that are above and beyond what Congress seems to have intended and nobody can blame, so it never comes to this course. Well, you did it in DIC, and I was a result of that. In DIC, they said it was clear when Congress added the language there entitled to receive. When Congress did so, they explicitly said in legislative history it was clear we're doing this so that CUE is applicable to DIC benefits. Logically, that makes sense to the reasons we explained earlier. They didn't do that for proof-in-fifth, and there's nothing in legislative history of 51-21 that suggests that it includes CUE. I'd note that Jones and Haynes are after this language in 51-21 was already in place. It's already very clear that Miss Roussick, if she hadn't had a DIC claim, if she just came forward that I want to prove benefits, the answer is no because there's no claim pending. That's well established under Jones, and she can't use CUE as a basis because that's well established under Haynes. What she's trying to do is use this separate DIC pathway that's entirely different. It's never been intended. Well, it's entirely different except the analysis of CUE, the investigation of CUE, and everything about CUE. There's one CUE, and that CUE is the same as the CUE we're talking about 51-21 and 13-18. It's the same CUE. Yes and no. It's the same analysis to whether there's been an almost like a error yet. But what 13-18 does is not say you can bring a CUE claim. What it says is you can bring a DIC claim. If CUE is necessary to achieve that end for you to demonstrate that you're entitled to DIC, then you can do that. But it's just a DIC claim. It's not a CUE claim. But CUE analysis is that the veteran was entitled therefore, as of the missing since 1983, he was eligible in entitled to receive the benefits. So that's been dispositively filed. The veteran wasn't entitled. If he had filed a claim before it was done, then she would likely be able to substitute that claim and get benefits. Under the current scheme, because of the dates we're dealing with, the answer to that would still be no, because that's actually been exist yet. But so, time is up and not. But the take home message really is that 13-18, where they say that you can use CUE, that's a procedure to get DIC benefit. It's not a CUE claimant's own right. CUE claimant in their own right are 51-09A can only be brought by the claimants. That's consistent here. In a DIC claim, she's the claimant. In a CUE benefits claim, she's not. She's substituting in and she's stepping into the shoes in Mr. Ruzek's language of the veteran. Without anything pre-existing for her to step into the shoes of, there's no CUE benefit claim. For a further question, thank you very much. Please, according to seems that the government is committed to the creation of both obstacles and impediments to undoing their own CUE fight. They made the CUE fight. The board found that the 1983 decision contained CUE. That corrected decision is a decision that once corrected, if you will, rings the bell under 51-21 small A, because 51-21 small A, as the government has conceded, is about stepping into the shoes of the veteran. It's not the survivor's claim. It is the veterans claim. And the veterans claim was that there was CUE. Let me ask you this question. There are some persons, I guess, who would be entitled to pursue the accrued benefits claim, which attending accrued benefits claim of a veteran who would not independently be entitled to the DIC, correct? That's correct. So, are you saying that someone who was not a DIC beneficiary or potential DIC beneficiary could file a new claim, where the veteran had not previously filed a CUE claim, filing a new CUE claim, and then if that CUE were found, and of course, that proceeding could then get all the accrued benefits that would have been available to the veteran. Which would seem to be broader position than you are arguing for here, but logically consistent with and even compelled by the position you are arguing for. And I agree with that with the one caveat that we cannot and should not be using the word claim. A request for a revision is a procedural device. There is nothing in the statutory scheme that recludes the use of this procedural device to just claim it. But somebody who is not a DIC claimant could come in and say, okay, there was a decision in deceased veterans case back in 1953, which I think was CUE, I want to pursue the CUE claim, and I want all the accrued benefits since then. And you say that would be permissible. Yes, Your Honor. Because the result is that if CUE is established as this case demonstrates, then there is an entitlement at death because there is an existing decision based upon the evidence that was a record at time of death. Unless there's further questions from the panel. Thank you very much, Your Honor. Thank you. Congratulations, Your Honor. The case should then be let conclude by the statement for this morning