Summary
The United States Court of Appeals for the Federal Circuit affirmed the decision of the Court of Appeals for Veterans Claims denying attorney's fees to Alexandra M. Jackson for services provided in connection with a veteran's later increased-rating submission. The court held that the September 2021 submission and resulting December 2021 rating decision were not part of the same "case" as the veteran's 2007 claim and 2008 rating decision for purposes of 38 U.S.C. § 5904(c)(1). The court explained that the scope of a "case" is defined by the potential claims raised by the evidence before the VA during processing of the claim.
Topics
Practice areas
Questions Presented
- Whether the veteran's September 2021 submission and resulting December 2021 rating decision were part of the same "case" as his April 2007 claim and resulting March 2008 rating decision for purposes of 38 U.S.C. § 5904(c)(1).
- Whether the September 2021 submission qualified as a supplemental claim under 38 U.S.C. §§ 101(36), 5104C, and 5108, such that it belonged to the same case as the original claim.
- Whether the Board's citation to 38 C.F.R. § 14.636(c)(1)(i), a regulation previously invalidated in part, was harmless error.
Holdings
- For purposes of attorney's-fee eligibility under 38 U.S.C. § 5904(c)(1), "case" means all potential claims that could be raised by the evidence before the VA during the processing of the claim in question. A later submission based on a change in circumstances after the earlier case became final may constitute a separate case.
- The September 2021 submission was not a supplemental claim under 38 U.S.C. § 101(36) and § 5108 because it sought benefits based on a change in circumstances, the veteran's left hip replacement, rather than readjudication of the earlier claim based on new and relevant evidence. It therefore was not part of the same case as the 2007 claim.
- The Board's citation to 38 C.F.R. § 14.636(c)(1)(i) was harmless error because the Board reached the correct legal result for the independent reason that Jackson was not entitled to attorney's fees under § 5904(c)(1).
Key quotations
“We agree with the Veterans Court’s reasoning and conclude that “case” in § 5904(c)(1) means all the potential claims that could be raised by the evidence before the VA during the processing of the claim in question.” (at 16)
“Mr. Lovier’s September 2021 claim was a request for a benefit due to a change in circumstances—his left hip replacement—and did not require “readjudicat[ion]” of his April 2007 claim based upon “new and relevant evidence.”” (at 17)
“For the foregoing reasons, we affirm the decision of the Veterans Court affirming the decision of the Board denying Ms. Jackson’s application for attorney’s fees.” (at 19)
Factual background
The veteran initially sought service connection for a bilateral hip disability in 2007, received a rating in 2008, and later pursued higher ratings. After the veteran's left hip replacement in February 2021, Jackson assisted him with a September 2021 submission, which resulted in a December 2021 rating decision awarding increased benefits. Jackson sought attorney's fees from the award, but the VA, the Board, and the Veterans Court concluded that the 2021 submission and decision concerned a separate case from the earlier claim and that she was not entitled to fees for the services at issue.
Procedural history
Jackson represented a veteran in connection with VA disability-benefit claims and sought direct payment of attorney's fees from the veteran's past-due benefits. The Board denied fees, concluding that the relevant December 2021 rating decision was the initial decision in the case and that Jackson had not sought fees for services performed after that decision. The Veterans Court affirmed, and the Federal Circuit affirmed the Veterans Court.