[00:00:00] Speaker 04:
Today is 20-1973, Cameron versus McDonough.

[00:00:06] Speaker 04:
Mr. Carpenter, please proceed.

[00:00:09] Speaker 00:
Thank you very much, Your Honor.

[00:00:10] Speaker 00:
May it please the court, Count Carpenter pairing on behalf of Mr. Cameron.

[00:00:16] Speaker 00:
The matter at issue in this case is the interpretation of 38 USC, Section 5904C1, as it relates to the authority of the VA to limit

[00:00:30] Speaker 00:
the services performed by an attorney or an agent following a triggering event under that statute.

[00:00:39] Speaker 00:
The term case as used by Congress was not intended to limit an agent or an attorney's right to charge fees for services performed after the triggering event set out in the statute in order to charge and receive a fee.

[00:00:55] Speaker 00:
Put another way,

[00:00:56] Speaker 00:
There is no limitation on the services which are provided after the triggering event occurs.

[00:01:13] Speaker 00:
In the original Cameron case, the Veterans Court interpreted the term case to limit the attorney's right to charge a fee.

[00:01:25] Speaker 00:
The same is true in this court's case in Jackson v. Shinzaki in which this court relied upon an interpretation

[00:01:33] Speaker 00:
of the term case as used in 5904C1 to limit the attorney's right to charge a fee.

[00:01:40] Speaker 00:
The court in Jackson held that because Mr. Eastler's claim, that was the veteran, did not include the requisite evidence to support a claim before the Board of Veterans' Appeals at the time the matter was originally before the board.

[00:01:54] Speaker 05:
Well, how is this case in any way substantively different than Jackson?

[00:02:00] Speaker 00:
It is substantively different

[00:02:02] Speaker 00:
to Jackson in that there was an attempt by Mr. Cameron following the previous decision in his case to present to the court an interpretation of the statute relative to the limitation of the right to limit the fee charged.

[00:02:21] Speaker 00:
The holding in Jackson, we believe, was a factual determination by this court that the Veterans Court

[00:02:30] Speaker 00:
correctly made that determination under the statute.

[00:02:34] Speaker 00:
This court recently in military veterans advocacy versus the secretary of the Department of Veterans Affairs decided on July 30th, interpreted the same language that was involved in all of these cases and concluded that the language of the statute

[00:02:58] Speaker 00:
only restricts fees being charged with respect to the case before specific triggering events.

[00:03:06] Speaker 00:
And that is an issue that was addressed by this court in its prior decisions in both Stanley and in Carpenter.

[00:03:13] Speaker 00:
And it is that interpretation that was ignored by the Veterans Court.

[00:03:18] Speaker 05:
I'm really sorry, but I'm not understanding what you're trying to tell me.

[00:03:21] Speaker 05:
So can we go back to Jackson?

[00:03:23] Speaker 05:
Yes.

[00:03:24] Speaker 05:
In Jackson, we denied the fees because there had been no final board decision on the entitlement to TDIU.

[00:03:34] Speaker 05:
That's correct.

[00:03:36] Speaker 05:
And what we said is this case asked whether council presented a TDIU claim as part of the veterans case for purposes of 5904C at the time the board's final earlier decision.

[00:03:48] Speaker 05:
If TDIU was part of the veterans case, then they're entitled to attorney's fees.

[00:03:53] Speaker 05:
If not, the board has yet to make a final decision on the matter and Mr. Jackson has no entitlement to attorney's fees.

[00:04:01] Speaker 05:
If we flip the TDIU with the

[00:04:04] Speaker 05:
issue in play here.

[00:04:06] Speaker 05:
How is this in any way different than Jackson?

[00:04:10] Speaker 00:
The way that it is different is that this court in NVA, the military veterans advocacy rulemaking decision, interpreted the same statute

[00:04:22] Speaker 00:
in a different way, and focused on the totality of the language in the statute to determine that the... In that room, can I just... I'm sorry to interrupt, but for clarification.

[00:04:33] Speaker 05:
Yes.

[00:04:34] Speaker 05:
We're dealing with a re... that provision was... that was in the new Veterans Modernization Act, that case, right?

[00:04:40] Speaker 00:
That's correct.

[00:04:41] Speaker 05:
So has the provision changed?

[00:04:43] Speaker 00:
No, Your Honor.

[00:04:45] Speaker 05:
I thought the language of this provision that we're looking at had changed.

[00:04:48] Speaker 00:
All the change

[00:04:50] Speaker 00:
as noted in the decision, was the triggering event.

[00:04:54] Speaker 00:
The decision in NBA

[00:04:56] Speaker 00:
goes through the history of this statute, 5904C, and clarifies that all the change between the three substantive iterations was the triggering event.

[00:05:10] Speaker 00:
It went from a first final board decision to a notice of disagreement to a decision.

[00:05:14] Speaker 05:
So what else does that case say that is different and should convince us that the principles that I think are pretty clear in Jackson do not hold and were not correct?

[00:05:25] Speaker 05:
which we can't overturn precedent in any event.

[00:05:27] Speaker 05:
But nonetheless, I just wanted to say.

[00:05:29] Speaker 00:
No, Your Honor.

[00:05:30] Speaker 00:
But in fact, this court must recognize that in NVA, the panel in NVA looked at both the underlying decisions in Carpenter and in Stanley and concluded that the decisions in Carpenter and Stanley warranted the interpretation of the statute as it related to rulemaking.

[00:05:51] Speaker 00:
to limit the circumstances in which a fee could be charged.

[00:05:56] Speaker 00:
The difference is that Jackson is an outlaw, and this panel may be required as a result to refer this matter to the full court to resolve any conflict which may exist between this court's decisions in Stanley, Carpenter, and now MVA, which interpret the statute differently.

[00:06:20] Speaker 00:
particular this decision.

[00:06:22] Speaker 05:
I'm sorry.

[00:06:26] Speaker 05:
What we said in the most recent decision would change the result in Jacksonville?

[00:06:32] Speaker 00:
Yes, Your Honor.

[00:06:34] Speaker 00:
Because the interpretation made was is that the only limitation that exists in that statute is the prohibition from charging a fee before the triggering event.

[00:06:49] Speaker 00:
That is the bar that existed.

[00:06:53] Speaker 00:
All that the changes in the statute did was to move the triggering event from a board decision to a NOD to a first decision of the VA.

[00:07:05] Speaker 00:
And that the only statutory bar created by Congress was that before that triggering event took place, no fee could be charged.

[00:07:16] Speaker 00:
And the decision in NVA makes that very clear by repeated references to the previous decisions in Stanley and Carpenter, which resulted in the opposite result, as was reached in Jackson.

[00:07:32] Speaker 05:
And did the Jackson court distinguish Stanley and Carpenter?

[00:07:36] Speaker 05:
I mean, I'm not a professional.

[00:07:37] Speaker 00:
No.

[00:07:38] Speaker 00:
As a matter of fact, they relied upon Stanley and Carpenter for support.

[00:07:43] Speaker 00:
And Stanley and Carpenter do not support that result.

[00:07:47] Speaker 00:
And this court's decision in NBA makes it clear as to why they do not support it.

[00:07:53] Speaker 00:
Because the Jackson case reads the statute to create a requirement that there must be some issue raised within the decision that was the subject matter of the triggering event.

[00:08:10] Speaker 00:
And that is simply not the language of the statute.

[00:08:14] Speaker 00:
The language of the statute only prohibits the charging of a fee prior to, in any services that are performed, prior to that triggering event.

[00:08:31] Speaker 04:
So you think that these could be?

[00:08:33] Speaker 04:
Excuse me.

[00:08:34] Speaker 04:
fees could be sought and awarded on completely and utterly unrelated subsequent claims?

[00:08:43] Speaker 00:
Yes, Your Honor.

[00:08:44] Speaker 00:
On anything that was related, or any proceeding that took place thereafter, specifically noted in the MVA decision was that the court's decisions in both Stanley and Carpenter recognized the intent of Congress

[00:09:00] Speaker 00:
to design a statute to provide paid counsel in connection with all VA proceedings once the board had rendered its adverse decision to the claimant on the merits, observing that that was when there was the need for counsel, because it was after the fact that counsel could assist the veteran

[00:09:24] Speaker 00:
And Stanley, I'm sorry.

[00:09:26] Speaker 04:
That's because the Congress wanted the veterans to have counseled assistance after that fact with regard to those issues in that case.

[00:09:38] Speaker 04:
I feel like you're advocating for a rule that could allow completely disparate, completely unrelated subsequent allegations and claims which have gone through none of the initial process.

[00:09:50] Speaker 04:
to now be counseled and paid for.

[00:09:52] Speaker 04:
I don't feel like that was Congress's intent.

[00:09:55] Speaker 00:
Well, with due respect, Your Honor, I believe that that's incorrect.

[00:09:59] Speaker 00:
That Congress's intent, as expressed by this court in NVA.

[00:10:03] Speaker 03:
What does the statute say specifically?

[00:10:06] Speaker 00:
I beg your pardon, Your Honor?

[00:10:07] Speaker 03:
What specifically does the statute say?

[00:10:10] Speaker 00:
The statute says that no fee shall be charged for services performed

[00:10:19] Speaker 00:
on behalf of a veteran in proceedings before the event that is described in the statute.

[00:10:27] Speaker 00:
In this case... I'm sorry.

[00:10:29] Speaker 04:
I didn't want you to paraphrase.

[00:10:30] Speaker 04:
I wanted you to actually read me the section of the statute.

[00:10:33] Speaker 00:
Oh, I'm sorry.

[00:10:34] Speaker 04:
I mean, I don't want Mr. Carpenter's version of what he thinks the statute means.

[00:10:38] Speaker 04:
I want to know what the statute says and why you think it specifically allows for fees for completely unrelated

[00:10:48] Speaker 04:
claims that could be subsequently filed.

[00:10:58] Speaker 04:
We're talking about 5904C1, is this correct?

[00:11:01] Speaker 00:
Yes, and it says, oh no I'm sorry that's not the statute, it says in connection with proceedings before

[00:11:13] Speaker 00:
the department with respect to benefits under the laws administered by the secretary.

[00:11:19] Speaker 00:
A fee may not be charged, allowed, or paid for services of agents or attorneys with respect to the services before the date of the Board of Veterans' Appeals first makes a final decision in a case.

[00:11:37] Speaker 00:
So it is clearly referring

[00:11:40] Speaker 00:
only to, as was clearly found in MVA's recent decision, to the prohibition from the charging of fees for services that were prior to that date.

[00:11:56] Speaker 00:
And that once the board decision was made, as was observed and referenced to,

[00:12:03] Speaker 04:
uh... in the nba uh... at uh... page sixteen of the slip opinion in westlaw uh... that the statute was designed to provide paid counsel just want to make sure i'm really clear on this you represent a veteran on hearing loss and you uh... a statement of the case and uh... notice of disagreement is filed with regard to that the veteran tells you in addition to hearing loss i also have

[00:12:34] Speaker 04:
a foot problem completely unrelated to hearing loss, unrelated to the event, you file what amounts to a new claim for the veteran on his foot injury.

[00:12:44] Speaker 04:
You're saying Congress intended in this statute for counsel to be paid for a new claim completely unrelated to the earlier claim simply because the veteran has gotten one statement of case and filed one NOD on one kind of claim.

[00:13:00] Speaker 00:
Well, if Your Honor is making reference to the intermediate triggering event of an NOD as the event that triggers the right to charge a fee, then the answer is yes, Your Honor.

[00:13:14] Speaker 00:
That's precisely what I'm saying.

[00:13:16] Speaker 04:
That can't possibly be what Congress intended for veterans to have paid counsel at a point at which it appears like the VA is going to be unfavorable to them on a claim.

[00:13:28] Speaker 04:
Not if the VA is unfavorable to them on one claim, they now get paid counsel to cover absolutely everything for every future claim they may ever have for the rest of their life.

[00:13:37] Speaker 00:
With all due respect, Your Honor, the statute doesn't use the term claim.

[00:13:42] Speaker 00:
Claim is not mentioned.

[00:13:44] Speaker 04:
It uses the term case.

[00:13:45] Speaker 00:
No, it uses the term with respect to the case.

[00:13:50] Speaker 00:
And the case that is brought by the veteran,

[00:13:53] Speaker 00:
that triggers the right to charge a fee in the first iteration, and in the statute as it existed in this case, was a first final board decision.

[00:14:04] Speaker 04:
And after that date... And you would like completely unrelated cases to be eligible for fee payment?

[00:14:14] Speaker 00:
I would not phrase it that way, Your Honor.

[00:14:16] Speaker 00:
Of course you wouldn't.

[00:14:17] Speaker 04:
But that's what you're asking for.

[00:14:19] Speaker 00:
Well, I believe that's what the statute and this court has said in three panel decisions.

[00:14:24] Speaker 05:
Let's go back to those decisions, and maybe the government could correct me or you can if I'm wrong.

[00:14:28] Speaker 05:
But just looking back at the briefing with respect to those two cases, didn't those cases deal with drawing a distinction between when you're reopening a previous claim based on new material evidence

[00:14:40] Speaker 05:
or whether you're alleging clear and unmistakable error with respect to that claim.

[00:14:46] Speaker 05:
So it's the same thing.

[00:14:47] Speaker 05:
It's not, as the chief suggested, something that wasn't involved or at issue in that subsequent claim.

[00:14:54] Speaker 05:
Am I misstating what Stanley and Carpenter were about and what the distinctions wrong in those cases were?

[00:15:00] Speaker 00:
I believe you are misunderstanding what happened in both of those cases.

[00:15:05] Speaker 00:
Let's take Stanley first.

[00:15:07] Speaker 00:
In Stanley, there was no

[00:15:10] Speaker 00:
first adverse decision by the board.

[00:15:14] Speaker 00:
There was only a first decision by the board, which is what the statute then said.

[00:15:20] Speaker 05:
Was Stanley involved in a claim for reopening based on new material evidence or clear and unmistakable error?

[00:15:28] Speaker 00:
It was the former.

[00:15:30] Speaker 00:
It was the reopener.

[00:15:31] Speaker 05:
In our case, it doesn't involve reopening an existing case or claim.

[00:15:37] Speaker 05:
It was a brand new claim, correct?

[00:15:41] Speaker 00:
no it was not it was a continuing claim that had been continuously prosecuted from 2006 that was eventually overturned by two visits to the veterans court but the threshold question is when does an attorney have the right

[00:16:00] Speaker 00:
under the statute to charge a fee for any and all services provided thereafter.

[00:16:07] Speaker 02:
Mr. Cardinger, I'd like to ask you about MVA, like the same kind of questions as Judge Promstance, which when I read MVA, I think that it says that it was for a supplemental claim seeking the same or similar benefits on the same or similar basis as the original claim.

[00:16:23] Speaker 02:
That seems different than the situation here, too, where

[00:16:26] Speaker 02:
you know, that initial or the first decision of the board was related to two claims and then there was this other claim related to, I believe, depression.

[00:16:37] Speaker 02:
It was a claim that had not been considered in the board's first decision, right?

[00:16:43] Speaker 00:
Well, yes, Your Honor, with this caveat.

[00:16:47] Speaker 00:
You can't get to a supplemental claim, and you cannot get the right to charge a fee unless there was a prior decision on that issue or that claim.

[00:17:00] Speaker 02:
That's what I think is the distinction, though.

[00:17:02] Speaker 02:
I mean, in that case, there was a decision, right, that impacted that there was some earlier claim to which the supplemental claim related.

[00:17:15] Speaker 00:
Yes, Your Honor.

[00:17:17] Speaker 00:
And that was the basis for the invalidation of that regulation.

[00:17:24] Speaker 00:
But the predicate was the right to charge a fee.

[00:17:29] Speaker 00:
The VA wrote a regulation saying there was no right to charge a fee even if there had been a previous decision that triggered the right to charge a fee.

[00:17:40] Speaker 00:
And it is that basis upon which the panel relied

[00:17:45] Speaker 00:
in interpreting the language of the statute, C1.

[00:17:52] Speaker 02:
So you really like, in this case, the interpretation of the word case.

[00:17:57] Speaker 02:
Right?

[00:17:58] Speaker 02:
In MVA, you like the interpretation of the word case.

[00:18:00] Speaker 02:
Because in your view, it means it encompasses all potential claims raised by the evidence, even if those claims hadn't yet been raised at the time of the first board decision.

[00:18:10] Speaker 00:
Yes.

[00:18:10] Speaker 00:
But MVA is even broader than that, Your Honor, because MVA explains both the history of this statute and the evolutions in which it's been through, recognizing that Congress did not clearly define the term case.

[00:18:27] Speaker 00:
And then recognizing when this court applied it in Stanley, and this court applied it again in, or excuse me, interpreted it again in Carpenter, that they were consistently using the notion that there was no bar in the language of the statute

[00:18:47] Speaker 00:
to the charging of the fee for services rendered after.

[00:18:51] Speaker 02:
But only services... Do I understand correctly that it's your view that the decision in MVA undermines cases like Jackson and Stanley?

[00:19:00] Speaker 02:
It should change the outcome in them?

[00:19:02] Speaker 00:
No, it undermines only the decision in Jackson.

[00:19:06] Speaker 02:
It does not undermine... How can it?

[00:19:10] Speaker 02:
It's not an in-bank decision.

[00:19:12] Speaker 02:
So how can it overrule Jackson?

[00:19:16] Speaker 00:
Because the only way that NVA could have invalidated the regulation was finding that the regulation was inconsistent with the plain language of the statute, the statute in this case being the attorney fee statute.

[00:19:31] Speaker 00:
And because it was inconsistent with that statute, it was not possible to have that regulation just as it is not possible to have the result in Jackson.

[00:19:44] Speaker 04:
OK, Mr. Carpenter.

[00:20:19] Speaker 01:
May it please the court?

[00:20:21] Speaker 01:
Three main points.

[00:20:22] Speaker 01:
First, this court has already defined the term case for the purpose of 59 or 4C.

[00:20:29] Speaker 01:
And the Veterans Court simply applied that definition to the facts of Mr. Cameron's case, which is our jurisdictional argument, too, on the facts that 2005 board decision is completely unrelated

[00:20:42] Speaker 01:
the triggering event in this case, the 2005 board decision which dealt with the stroke and the TDIU claims is completely unrelated to Mr. Houston's 2006 claim for depression which was ultimately granted based on evidence that didn't exist until April 2007.

[00:21:00] Speaker 01:
So it's a completely different claim on a completely different basis.

[00:21:06] Speaker 02:
Would you say it's a completely different case?

[00:21:10] Speaker 01:
I would say

[00:21:11] Speaker 01:
It is a completely different case based on this court's previous definition of case, which the Veterans Court simply applied to the facts here.

[00:21:21] Speaker 01:
And then as a matter of policy, Mr. Houston's depression claim was resolved through non-adversarial proceedings, which were precisely the kind of proceedings that the statute was passed to protect from attorney's fees.

[00:21:38] Speaker 01:
I mean, those are my three main points I can answer questions.

[00:21:40] Speaker 05:
But why don't you get to the substance of most of the discussion and exchange we had with Mr. Carpenter, which is about the three other cases that he referenced.

[00:21:50] Speaker 02:
How would you respond to MVA, for example?

[00:21:53] Speaker 01:
Yes, Your Honor.

[00:21:54] Speaker 01:
So I will respond to MVA the same way that I did in the 28-day letter, basically.

[00:21:59] Speaker 01:
MVA, first of all, MVA makes no change to the definition

[00:22:06] Speaker 01:
case under the statute.

[00:22:07] Speaker 01:
In fact, it relies, it quotes the same language defining case that this court quoted in Jackson.

[00:22:18] Speaker 01:
And then also on the facts, as this court has already pointed out, the NBA dealt with a

[00:22:26] Speaker 01:
supplemental claim that was on the same, it was a supplemental claim for the same or similar benefits on the same or similar basis.

[00:22:36] Speaker 01:
That's definitely not the case here.

[00:22:38] Speaker 04:
Was it based on the same evidence that was raised?

[00:22:42] Speaker 01:
Your Honor, no it was not.

[00:22:44] Speaker 01:
It was, I believe it was based on, it was a

[00:22:48] Speaker 01:
I believe that there was new material evidence.

[00:22:51] Speaker 01:
Well, NBA is interpreting regulation, so I don't believe that there was a specific set of facts at issue there.

[00:22:58] Speaker 01:
And it was that the VA had put out a regulation that was distinguishing between supplemental claims raised a year after or within that first year.

[00:23:12] Speaker 05:
So is the distinction to be drawn sort of in our

[00:23:15] Speaker 05:
framework that if we're talking about a case that went up and was rejected, and you want to reopen that case because you have new evidence or because you say there was an error, you would agree that that comes within the statutory language allowing attorney's fees.

[00:23:35] Speaker 05:
But if it's an entirely new claim and different case,

[00:23:42] Speaker 05:
Then it's not.

[00:23:43] Speaker 05:
Is that how we're supposed to parse through these different cases?

[00:23:46] Speaker 01:
That's correct, Your Honor.

[00:23:48] Speaker 01:
In the Carpenter case, it was made the court use language that was emanating.

[00:23:55] Speaker 01:
All of the different cases that came up or all the iterations of that case were related to the original decision that reduced the compensation level.

[00:24:06] Speaker 01:
And then Carpenter was specifically dealing with a Q claim, as you pointed out.

[00:24:12] Speaker 01:
related to the initial compensation date.

[00:24:17] Speaker 01:
So that is the distinction, Your Honor.

[00:24:21] Speaker 01:
Correct.

[00:24:22] Speaker 05:
And here you characterize this as an entirely different case and new claim.

[00:24:27] Speaker 01:
Absolutely, Your Honor.

[00:24:29] Speaker 01:
It's a new... He's seeking benefits for a new disability and based on new evidence that was not part of the case.

[00:24:44] Speaker 01:
If the court doesn't have any other questions.

[00:24:47] Speaker 04:
Thank you, Mr. Singley.

[00:24:48] Speaker 04:
Let's restore two minutes of rebuttal time for Mr. Kruppender, please.

[00:25:04] Speaker 00:
Your Honor, it is Mr. Cameron's position that the decision in NVA clarifies the understanding

[00:25:11] Speaker 00:
and the interpretation of the statute and that it clearly interprets the statute to have only one purpose and that purpose is to prevent the charging of a fee for services performed before the triggering event identified in the statute.

[00:25:33] Speaker 00:
It has no other purpose.

[00:25:35] Speaker 00:
The court said that clearly which is why when a

[00:25:40] Speaker 00:
When the VA wrote a regulation that said the filing of a supplemental claim would not be affected by the previous decision in which the right to charge a fee had been established, then the prohibition from charging a fee was invalid because it was attempting to impose a bar that does not exist in the statute.

[00:26:06] Speaker 00:
I recognize that there is a clear

[00:26:10] Speaker 00:
problem with the decision in Jackson because the decision in Jackson relies upon the notion that the term case is about a specific claim or theory of the claim.

[00:26:27] Speaker 00:
And that was what was articulated in the original Cameron decision.

[00:26:33] Speaker 00:
That is

[00:26:34] Speaker 00:
now that NBA has been published, a misinterpretation of the statute.

[00:26:40] Speaker 00:
And it misinterprets the statute because it creates a limitation that does not exist.

[00:26:46] Speaker 00:
If this court does not agree that it can do as NBA did and render a decision on this, then I urge the panel to refer this to the full court for resolution.

[00:26:59] Speaker 00:
Thank you very much, Ernest.

[00:27:00] Speaker 04:
OK.

[00:27:00] Speaker 04:
Thank both counsel.

[00:27:01] Speaker 04:
The case is taken under submission.