[00:00:00] Speaker 01:
Our next case is Dojakis versus McDonough, 23-1045.

[00:00:04] Speaker 01:
Mr. Carpenter.

[00:00:05] Speaker 01:
May it please the court.

[00:00:10] Speaker 01:
Kenneth Carpenter appearing on behalf of Mr. Kenneth DeHawkes.

[00:00:14] Speaker 01:
The matter at issue in this appeal presents a question of statutory interpretation of the provisions of 38 USC 5904D, which pertains to the calculation of the amount of attorney fees based upon a final decision by the VA.

[00:00:34] Speaker 01:
The Veterans Court decision did not reach this question.

[00:00:37] Speaker 01:
And therefore, this court has the option of either addressing

[00:00:41] Speaker 01:
this matter in the first instance under its precedent on Linville, since it was presented below, or to remand the matter back for the Veterans Court to address the issue in the first instance.

[00:00:57] Speaker 02:
The question here is what the term past due benefits means, right?

[00:01:02] Speaker 01:
in the context of a final decision.

[00:01:06] Speaker 01:
And the final decision in this case was made but not published, not made final, until such time as the veteran was placed on notice.

[00:01:17] Speaker 01:
And it was that delay of one month that is the difference in the calculation of the award of passive benefits.

[00:01:25] Speaker 02:
How does the publication of the decision

[00:01:29] Speaker 02:
make any difference to the definition of what is past due and what is future benefits owed?

[00:01:36] Speaker 01:
Because even though there was a decision written, that decision was not final and could not be final until it was published, until the veteran received notice and Mr. DeHawkes received notice.

[00:01:52] Speaker 02:
Why?

[00:01:54] Speaker 01:
Why?

[00:01:54] Speaker 02:
Because I mean, it's a final decision from who made this decision.

[00:01:58] Speaker 02:
Was it the board or the RO?

[00:01:59] Speaker 01:
Oh, the RO.

[00:02:00] Speaker 01:
The RO.

[00:02:02] Speaker 02:
And why is it not final?

[00:02:04] Speaker 02:
If the RO makes it and you're not going to challenge it, it's a final decision.

[00:02:08] Speaker 01:
Well, but we are challenging it, Your Honor.

[00:02:10] Speaker 02:
No, you're not.

[00:02:11] Speaker 02:
That's not in the way.

[00:02:12] Speaker 02:
You're not challenging.

[00:02:14] Speaker 02:
You're challenging.

[00:02:15] Speaker 02:
Sorry.

[00:02:16] Speaker 02:
I'm not talking about the attorney's fees here.

[00:02:19] Speaker 02:
Oh, I'm talking Oh challenging the attorneys.

[00:02:21] Speaker 02:
Oh, yes the board or the RO ruled who ruled in the veterans favor on the underlying benefits claim Was it the RO or the board?

[00:02:30] Speaker 02:
It doesn't really matter.

[00:02:31] Speaker 02:
I just want to be accurate Let's just assume it was the RO the RO made a decision.

[00:02:36] Speaker 02:
I'm pretty sure it was the RO and said well

[00:02:39] Speaker 02:
Whatever we did before was wrong.

[00:02:41] Speaker 02:
Your effective date is actually this Rather than what you had and so you get past due benefits that were owed because of the extension of that date, right?

[00:02:51] Speaker 02:
Yes, that's the way it works in

[00:02:54] Speaker 02:
you know, all the thousands of VA cases you've handled, any of them successfully, they issue a decision and say, the VA screwed up.

[00:03:03] Speaker 02:
Actually, this is the effective date.

[00:03:05] Speaker 02:
So we're going to give you an award of past due benefit, and then going forward, you're going to get a change in your rate.

[00:03:11] Speaker 02:
You're going to get more.

[00:03:12] Speaker 01:
Well, actually, this was an increased claim and not been affected.

[00:03:16] Speaker 02:
Right, but it doesn't really matter the details, right?

[00:03:19] Speaker 02:
Well, you can dispute that, but let's just assume it doesn't.

[00:03:24] Speaker 02:
Sure.

[00:03:24] Speaker 02:
So this was an increase, but it still hasn't affected date before the actual decision.

[00:03:32] Speaker 02:
Right, and our position is- So the veteran gets cut a check for that period that he should have been getting, or she should have been, I forget.

[00:03:40] Speaker 01:
Yes.

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This is a he.

[00:03:42] Speaker 02:
This is a he.

[00:03:44] Speaker 02:
That he should have been getting those benefits because he was entitled under the statute of something to a higher rating.

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And then going forward, he will continue to get those benefits.

[00:03:54] Speaker 02:
Correct.

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And so there's past due benefits.

[00:03:57] Speaker 02:
And there's, I don't know what we call them, present benefits, future benefits.

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Future benefits.

[00:04:01] Speaker 02:
Future benefits.

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And so all we have to determine is what constitutes past due benefits.

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Why would the date of receipt of the decision make any difference to what's due in the past?

[00:04:13] Speaker 02:
They're making a decision saying, as of X date, the effective date of this decision, you should have had an increase all the way back to this date.

[00:04:23] Speaker 02:
So anything in that period is past, and anything forward is future.

[00:04:28] Speaker 01:
Because, Your Honor, the disposition of the merits of the entitlement to an increase was what was in that decision.

[00:04:37] Speaker 01:
That decision was then implemented with the notice that included the calculation of the amount of benefits that was passed due.

[00:04:51] Speaker 02:
But I don't understand why any of this matters.

[00:04:53] Speaker 02:
Where in the statute, or anything that suggests that it actually has to be implemented, you're essentially saying, until you cut, issue a decision that calculates it, it's all past due benefits.

[00:05:05] Speaker 01:
Well, how are the parties, how?

[00:05:09] Speaker 01:
Does the parties, how does the secretary know how to implement 5904 to calculate passive benefits until there is a calculation?

[00:05:18] Speaker 01:
And it is the calculation of that benefits which was in the notice.

[00:05:22] Speaker 02:
It's confusing the calculation with the effective date.

[00:05:24] Speaker 02:
It's very easy.

[00:05:25] Speaker 02:
They do what they've been doing, I think, all along, which is look at the effective date of the decision that changed what is owed to the veteran.

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And anything before that effective date is past due benefits.

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And so when they do the calculation, they'll look at that as past due benefits.

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They'll give you or your colleague the 20% they're entitled to under their fees.

[00:05:46] Speaker 02:
Anything else is future benefits.

[00:05:49] Speaker 02:
If that calculation happens a month from now, six months from now, two years from now, hopefully the VA doesn't take that long to do it, it's still past due is everything prior to the decision changing the amount.

[00:06:03] Speaker 01:
But with all due respect, Your Honor, this past due refers to the difference between the date of entitlement and the date of receipt.

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And the receipt cannot be obtained until there is a notice that makes the calculation of what the new amount of benefits is.

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And the first time that either Mr. Slaughter or Mr. DeHawkes were aware of when

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I just don't understand how the date of receipt of the decision by the veteran or his counsel affects the definition of what past due is.

[00:06:43] Speaker 02:
How does receipt of that decision affect what's past due?

[00:06:46] Speaker 01:
because that's the only time that there is any final decision by the secretary on what the amount is that is past due.

[00:06:58] Speaker 01:
Prior to the publication of that notice, there is no document in the file that says this is the dollar amount of those past due benefits.

[00:07:08] Speaker 02:
Why does it have to actually show the dollar amount

[00:07:11] Speaker 02:
rather than just what's past due.

[00:07:13] Speaker 02:
Once the VA issues that first decision on entitlement, past due is just a calculation, right?

[00:07:19] Speaker 02:
There's no discretion here.

[00:07:20] Speaker 02:
It's as of this date, you should have gotten this rate.

[00:07:25] Speaker 02:
The difference in past due is what you got for this period versus what you were entitled to.

[00:07:30] Speaker 01:
And I have no dispute with that, Your Honor.

[00:07:33] Speaker 01:
I am in complete agreement.

[00:07:34] Speaker 01:
where I'm in disagreement is, is that the secretary by regulation says that the amount of past due paid is a single non-recurring payment.

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And the calculation of that single non-recurring payment has to be based upon an objective statement from the secretary as to what that amount is.

[00:07:55] Speaker 01:
The first time that that is disclosed to the universe, but in particular to Mr. Slaughter and Mr. DeHawkis,

[00:08:04] Speaker 01:
for the purposes of determining what the 20 percent will be of is when that notice is published.

[00:08:11] Speaker 01:
Prior to that time there is no calculation that is in the public domain and puts the parties on notice.

[00:08:19] Speaker 01:
It's simply a matter of whether or not Congress intended that that calculation be made as the triggering event, if you will, for the actual determination of 20% of what past due benefits.

[00:08:36] Speaker 01:
Unless there's further questions by the panel.

[00:08:38] Speaker 01:
Thank you.

[00:08:55] Speaker 03:
Good morning, Your Honors, and may it please the court.

[00:08:58] Speaker 03:
The issue, as the court has identified it, is what constitutes past due benefits awarded.

[00:09:04] Speaker 03:
And the end date, as this court has held in Snyder, is the date of award.

[00:09:10] Speaker 03:
Here, that was in March of 2019, when the RO implemented the board's decision awarding Mr. Slaughter, the veteran, an increased rating of 40%.

[00:09:26] Speaker 00:
Does the claimant get the benefits on the date of notice, or when do those benefits actually get received?

[00:09:33] Speaker 03:
Sure.

[00:09:34] Speaker 03:
So the claimant here, Mr. Slaughter, had been receiving benefits and continues to receive benefits.

[00:09:41] Speaker 03:
He gets an increased amount of the benefits going forward.

[00:09:45] Speaker 03:
We call them recurring benefits rather than future benefits.

[00:09:49] Speaker 03:
And then he gets a check for past due benefits.

[00:09:51] Speaker 03:
He gets it at some point after the calculation has been made.

[00:09:56] Speaker 03:
Here it was on April 26, 2019.

[00:09:58] Speaker 03:
I'm not sure if it was done by check or if it was some sort of direct deposit, but at some point after he gets that lump sum.

[00:10:09] Speaker 03:
But for purposes of the calculation... We're just talking about where the

[00:10:16] Speaker 02:
pinpoint the date for what's passed and what's recurring, right?

[00:10:22] Speaker 03:
That's correct.

[00:10:22] Speaker 02:
Do you think we've already decided this in Snyder?

[00:10:25] Speaker 02:
Yes.

[00:10:25] Speaker 02:
That the award is the date for past few benefits?

[00:10:28] Speaker 03:
Yes, Your Honor.

[00:10:30] Speaker 02:
Because that, the award says we're increasing your entitlement as a X date and

[00:10:41] Speaker 02:
Your effective date for that goes back some period.

[00:10:44] Speaker 02:
Sometimes the effective date will be the date of the award, depending on what kind of claim it is.

[00:10:48] Speaker 02:
Sometimes, based on what the statute or when you submitted the claim or the evidence, it can be earlier.

[00:10:54] Speaker 02:
And that's what happened here.

[00:10:55] Speaker 02:
That's correct.

[00:10:56] Speaker 02:
You had an award date and said, it's increased by this much.

[00:11:01] Speaker 02:
And the effective date is some months earlier.

[00:11:05] Speaker 03:
Some years earlier in this case.

[00:11:06] Speaker 02:
Some years, OK.

[00:11:07] Speaker 03:
Yes.

[00:11:07] Speaker 03:
Here in Mr. Slaughter was initially receiving a 10% disability rating for this right ulnar nerve entrapment.

[00:11:16] Speaker 03:
He, in 2012, said he filed a notice of disagreement.

[00:11:19] Speaker 03:
And it took its time going through.

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And in 2018, in December of 2018, the board said, you should have received a 40% rating going back to 2012.

[00:11:32] Speaker 03:
In March of 2019, the RO implemented that board decision and said, we are giving you an increased rating starting in August of 2012 going forward.

[00:11:43] Speaker 03:
And the only reason that this pinpoint, as you said, Judge Hughes, matters is for calculating the attorney's fees.

[00:11:50] Speaker 03:
Because the attorney's fees can only be made out of the past due benefits.

[00:11:53] Speaker 03:
They can't be made out of recurring benefits.

[00:11:57] Speaker 02:
Do you have any support beyond the case you decided that the date of award, not the date of calculation, is the dividing line for what's past due and what's recurring?

[00:12:10] Speaker 03:
I think Snyder is the most relevant case on point.

[00:12:14] Speaker 03:
There's been cases from the Veterans Court.

[00:12:18] Speaker 03:
There's also Jackson, which is a non-presidential decision from this court.

[00:12:22] Speaker 03:
Also, the regulation that the VA

[00:12:26] Speaker 03:
passed at 38 CFR 14.636 supports the Secretary's reading as well.

[00:12:37] Speaker 03:
And just the date of the statutory language itself,

[00:12:42] Speaker 03:
past due benefits awarded.

[00:12:45] Speaker 03:
Mr. Hawquist's argument is akin to saying that this court's decisions aren't considered final until they're published in the Federal Reporter.

[00:12:54] Speaker 03:
And that's not a reasonable interpretation of statutory language.

[00:12:59] Speaker 03:
If this court has no further questions, we respectfully request that you approve.

[00:13:03] Speaker 03:
Thank you.

[00:13:09] Speaker 02:
Mr. Carpenter, do you have a response to Snider?

[00:13:11] Speaker 02:
I mean, I'm sure you do.

[00:13:13] Speaker 02:
It says, we hold that the total amount of any past due benefits is the sum of each month's unpaid compensation beginning on the effective date and continuing through the date of the award.

[00:13:28] Speaker ?:
Yes.

[00:13:28] Speaker 02:
Do you think that the award is the calculation decision or the initial award?

[00:13:35] Speaker 01:
It has to be the calculation decision, Your Honor, because the rating decision that grants, or in this case, the board decision that found, and then the VA decision that implemented that board decision, simply said he was entitled to a rating of 40% as opposed to the previous rating.

[00:13:54] Speaker 01:
Until such time as administratively the secretary makes that calculation and puts it into the notice, there is no award of past due benefits.

[00:14:06] Speaker 01:
The award of past due benefits occurs at the time in which

[00:14:10] Speaker 01:
There is a final decision on what the amount of past two benefits is, because that's what's calculated as the basis for the attorney fee under 5904.

[00:14:21] Speaker 00:
But doesn't Snyder say, at least on page 1219, that the award is clear and unambiguous in the prevalence of veterans' benefits?

[00:14:30] Speaker 00:
It means the amount stated as the award for success in pursuit of a claim for benefits.

[00:14:35] Speaker 00:
That to me seems contrary to what you were just arguing.

[00:14:40] Speaker 01:
It is only if you assume that the date of the award, as referred to in Snyder, refers to a rating decision.

[00:14:52] Speaker 01:
It doesn't actually say that.

[00:14:54] Speaker 01:
The date of the award is when the secretary tells the veteran how much that award is in real money, in actual

[00:15:06] Speaker 01:
increase in the difference between what he was previously being paid and what he's being paid after the finding of entitlement to additional compensation.

[00:15:18] Speaker 01:
In other words, there's no discussion of money at any time in the adjudicatory process.

[00:15:25] Speaker 01:
The adjudicatory process is only about the entitlement to or the right to that higher level of rating.

[00:15:32] Speaker 01:
And it is only in the notice when

[00:15:36] Speaker 01:
The public, Mr. Slaughter and Mr. DeHawkis in this case, were placed on notice by the VA of what that final award of past due benefits amounted to.

[00:15:49] Speaker 01:
And it is the amount of that total and the reference in 5904 is to the total award of past due benefits.

[00:15:57] Speaker 01:
That total award of past due benefits is not measurable until the date of the notice.

[00:16:03] Speaker 01:
Unless there's further questions from the panel, I thank the panel for its attention.

[00:16:08] Speaker 01:
Thank you, Mr. Collender.