[00:00:00] Speaker 02:
We will hear argument next in case number 23-1117.

[00:00:04] Speaker 02:
I don't know how to pronounce the name.

[00:00:08] Speaker 02:
Percivali.

[00:00:09] Speaker 02:
Percivali.

[00:00:10] Speaker 02:
Percivali against McDonough.

[00:00:12] Speaker 02:
Thank you.

[00:00:13] Speaker 02:
Mr. Carpenter.

[00:00:14] Speaker 00:
I would normally say good morning, Your Honors, but it is now past noon.

[00:00:20] Speaker 00:
And it's been a long week for all of us.

[00:00:22] Speaker 00:
I'm sure we're ready for the day and this session to end.

[00:00:27] Speaker 00:
But without further ado, Kenneth Carpenter appearing on behalf of Mr. James Percivali.

[00:00:33] Speaker 00:
This matter involves the interpretation of the fee authorizing statute for attorneys and accredited representatives at 38 USC 5904C1.

[00:00:46] Speaker 00:
Mr. Percivali asked that this court determine whether or not there is any permissible interpretation of this statute, which requires that the Veterans Court, as it did in this case, defer to a board determination that an NOD has no legal effect.

[00:01:04] Speaker 00:
The Veterans Court treated that as though it were a factual determination.

[00:01:10] Speaker 00:
We believe clearly that the record demonstrates that there was an existence

[00:01:16] Speaker 00:
of an NOD in the record that was recognized by the VA, accepted by the VA, and a statement of case under the old legacy system.

[00:01:28] Speaker 03:
I was just going to ask.

[00:01:29] Speaker 03:
I have to say, I don't think I saw that issue raised in your blue brief.

[00:01:34] Speaker 03:
I thought maybe the issue you were raising in the blue brief more involved, you know,

[00:01:40] Speaker 03:
statute, the 2006 version of 5904 or a pre-existing statute applied, but not, you know, did the board err as a legal matter when it found that the 2009 nod wasn't in fact a nod?

[00:02:00] Speaker 00:
Well, Your Honor, in all candor, the decision below is a little difficult to follow.

[00:02:09] Speaker 00:
Veterans Court recognized that Mr. Percivali disagreed with which version of the statute apply.

[00:02:16] Speaker 00:
And then it said that the board chose to apply a different version in this case, and at least our implication was, as opposed to the version that we asserted applied.

[00:02:29] Speaker 00:
The court then went on to say, but this choice by the board involves an answer to a question of fact as to which NNOD press

[00:02:40] Speaker 00:
precipitated the claim stream that led to the eventual March 2017 grant of benefits that was the event that resulted in the contingency fee trigger for the payment of fees.

[00:02:55] Speaker 00:
Therefore it seems to us that it's difficult to separate those because at the heart there was only one version of the statute

[00:03:07] Speaker 00:
to interpret.

[00:03:09] Speaker 00:
And that was the version of the statute in which there was, as is indisputable in this record, an existing NOD.

[00:03:18] Speaker 00:
If there was an existing NOD, then that's the end of the inquiry.

[00:03:24] Speaker 03:
What do you make of the footnote one on page 83 of the record, which is the Veterans Court's decision?

[00:03:32] Speaker 03:
Footnote one.

[00:03:33] Speaker 03:
And what it says, you're talking about the question they think you raised.

[00:03:37] Speaker 03:
And they say, in footnote one, this question is different from the one about whether a document is a nod, which is a question of law.

[00:03:47] Speaker 00:
That's right, Your Honor.

[00:03:48] Speaker 00:
But in that context, in this footnote and in the reference to the Borough decision below, that was a question about whether or not, for the purposes of obtaining review by the board, was there a document that initiated an appeal?

[00:04:08] Speaker 00:
That document is for an express purpose and the response in the legacy system when there was such a document was to issue a statement of the case.

[00:04:19] Speaker 03:
Do you agree that Public Law 109461, Section 101H, I think, that that is the thing that we should be looking for, the law on the effective date of whether the 2006 version of 5904 or the pre-2006 version would apply?

[00:04:44] Speaker 03:
And if you'd like, I'm happy to read the relevant language.

[00:04:47] Speaker 03:
It says something like,

[00:04:48] Speaker 03:
The amendments made by subsection C1 shall take effect on a date that is 180 days after the date of the enactment of this act and shall apply with respect to services of agents and attorneys that are provided with respect to cases in which notices of disagreement are filed or on or after that date.

[00:05:11] Speaker 03:
And I think you agree that applies.

[00:05:13] Speaker 03:
And that's why you want to make sure that you're arguing here

[00:05:16] Speaker 03:
that the May 2009 not is, in fact, a not.

[00:05:20] Speaker 03:
Do I have that right?

[00:05:21] Speaker 00:
That is correct.

[00:05:23] Speaker 00:
And the point of our appeal is that the Veterans Court, in contravention of that enacted language, and it's important to understand the kind of chronology here, because this NOD, what I'll refer to as the second NOD, was filed by the appellant

[00:05:44] Speaker 00:
when he was acting pro se.

[00:05:47] Speaker 00:
It was more than five years later before Mr. Percivali was hired.

[00:05:52] Speaker 00:
And then the question becomes, what was the intent of Congress when it amended this statute?

[00:06:00] Speaker 00:
And we believe that this court in MVA clearly articulated

[00:06:04] Speaker 00:
that the purpose of all of the amendments to this statute were simply to identify different triggering events.

[00:06:13] Speaker 00:
And the triggering event that was described in this applicable provision of the statute was the existence of an NOD.

[00:06:24] Speaker 03:
Can I tell you my concern?

[00:06:26] Speaker 03:
My concern is this.

[00:06:28] Speaker 03:
You're saying now the issue on appeal is whether the board erred in finding as a matter of law

[00:06:33] Speaker 03:
that the later nod is not, in fact, a nod.

[00:06:37] Speaker 03:
But where is that discussed sufficiently in your brief that would allow me to make an informed decision on that issue?

[00:06:45] Speaker 03:
Like, where is the case law going to tell me when something is a nod versus not a nod?

[00:06:50] Speaker 03:
Where is this fleshed out?

[00:06:51] Speaker 03:
Because there's a lot of arguments in your brief, but I don't see that.

[00:06:54] Speaker 00:
With all due respect, Your Honor, we're not discussing the question that is in that footnote, whether it does or doesn't constitute

[00:07:02] Speaker 00:
a legally relevant NOD for the purposes of 7105 appeal.

[00:07:11] Speaker 00:
It is the question of whether or not the language used by Congress by identifying the event as an NOD, was there ever any intent expressed by Congress in the plain language used by that statute that would permit

[00:07:27] Speaker 00:
what the board did and what the veterans court affirmed.

[00:07:31] Speaker 00:
What the veterans court affirmed was to revisit, if you will, the question of the validity of that NOD.

[00:07:42] Speaker 00:
That's not in the statute.

[00:07:44] Speaker 00:
All that's in the statute is the presence of an NOD.

[00:07:48] Speaker 03:
Got it.

[00:07:49] Speaker 03:
So your point, I think, is that it doesn't matter whether it was legal or not.

[00:07:53] Speaker 03:
That's a side issue.

[00:07:55] Speaker 03:
What matters is that it was an N.O.D.

[00:07:57] Speaker 00:
That's correct.

[00:07:57] Speaker 03:
Let me throw something at you.

[00:07:59] Speaker 03:
Okay.

[00:07:59] Speaker 03:
Let's say there was a sham N.O.D.

[00:08:02] Speaker 03:
file.

[00:08:02] Speaker 03:
Let's just say so.

[00:08:03] Speaker 03:
I mean, just for hypothetical reasons.

[00:08:05] Speaker 03:
Why would Congress want to, given the clear language of when the effective date of the letter 5904 statute, why would they want to have a sham N.O.D.

[00:08:18] Speaker 03:
make it so that statute is effective?

[00:08:20] Speaker 00:
I don't think that's the logical extension of the argument that we're presenting.

[00:08:25] Speaker 00:
I believe that that is a reasoned hypothetical of what could happen if you only paid attention to whether there was or there wasn't an NOD in the record.

[00:08:37] Speaker 00:
But here, Your Honor, we're dealing with, if you will, two competing NODs, one of which the board decided, the one that granted the right to charge a fee,

[00:08:49] Speaker 00:
to be not lawful for the purpose of an appeal.

[00:08:54] Speaker 03:
Because the TDIU is subsumed within the PTS.

[00:08:57] Speaker 00:
That's correct, Your Honor.

[00:08:59] Speaker 00:
Now, I would direct the Court's attention to the fact that in the very document that created this litigation, the March 13, 2017 fee decision, which is in the appendix at 73 to 76,

[00:09:14] Speaker 00:
at Appendix 74 decided that this NOD that was filed in October 31, 2006 was not a valid NOD for the purposes of fees.

[00:09:32] Speaker 00:
But on the very next page, in dealing with the same decision

[00:09:37] Speaker 03:
It is you're looking at page 74.

[00:09:41] Speaker 00:
Page 74 of the appendix.

[00:09:42] Speaker 00:
Now moving on to page 75 and on the following page it deals with the grant in the same decision for special monthly compensation based upon house bound criteria having been met.

[00:09:56] Speaker 00:
There the same decision says upon review we've determined that the grant of SMC house bound is a downstream issue

[00:10:04] Speaker 00:
to both the NOD filed in October 2006 and the NOD filed in May of 2009.

[00:10:13] Speaker 00:
We submit, Your Honor, that that demonstrates that there was no basis for the board to query about the underlying, quote, validity

[00:10:27] Speaker 00:
of that second N.O.D.

[00:10:31] Speaker 03:
There can't be a, forget what the right word is, there can't be a dispositive nod.

[00:10:38] Speaker 00:
Operative.

[00:10:39] Speaker 03:
Operative nod.

[00:10:40] Speaker 03:
I was trying to remember what that was.

[00:10:42] Speaker 03:
An operative nod.

[00:10:43] Speaker 00:
Yes, yes.

[00:10:44] Speaker 00:
That the question of the, if you will, the operativeness of the nod is not placed at issue by the language used by Congress.

[00:10:53] Speaker 00:
If Congress wanted that kind of inquiry,

[00:10:56] Speaker 00:
If Congress was concerned to have the VA do what it's doing, which is to police the record to decide whether or not there is a basis to undo this fee agreement.

[00:11:08] Speaker 00:
The reality here is, Your Honor, the veteran entered into a fee agreement agreeing that he would pay a contingent fee to Mr. Percivali.

[00:11:16] Speaker 00:
Mr. Percivali did the work that he did with the anticipation that he would receive a fee.

[00:11:23] Speaker 00:
Then he essentially gets a split decision

[00:11:26] Speaker 00:
by the VA.

[00:11:27] Speaker 00:
And an appeal has to be taken by Mr. Percivali because he's been denied the right to charge a fee based upon an inquiry that could never have been contemplated by Congress.

[00:11:39] Speaker 02:
Can I ask you this?

[00:11:40] Speaker 02:
Yes.

[00:11:40] Speaker 02:
Suppose, contrary to your position, that the validity for any purpose of a nod is irrelevant.

[00:11:52] Speaker 02:
Suppose it's relevant.

[00:11:57] Speaker 02:
And at least as I read the fourth observation on this at 135 to 138 or something of the appendix, it says the 2009 Nod, even though we said some stuff when we remanded it before that points the other way, it was actually invalid because its subject matter was the same subject matter as was already covered by the 2006 Nod.

[00:12:29] Speaker 02:
I guess two questions.

[00:12:32] Speaker 02:
Is that exactly what the Veterans Court said?

[00:12:38] Speaker 02:
That position doesn't require one to say that there is one and only one operative

[00:12:45] Speaker 02:
There could be two and I think ultimately the board said there were two because the special monthly compensation was different enough from the underlying PTSD that for that purpose the 2009 nod counted.

[00:13:03] Speaker 02:
And all you need is one valid nod post whatever this 2007 date is.

[00:13:10] Speaker 02:
It doesn't matter whether there were also

[00:13:13] Speaker 02:
valid nods before.

[00:13:15] Speaker 02:
But where would we stand in terms of something within our jurisdiction, some legal error, if that view of the matter were accepted?

[00:13:26] Speaker 02:
That inquiry into the validity of a nod based on this case law that says, is it raising a different issue?

[00:13:37] Speaker 02:
Where would that leave us?

[00:13:44] Speaker 00:
My difficulty in responding, of course, is those aren't the facts of this case.

[00:13:47] Speaker 00:
But with that qualification, even the court.

[00:13:50] Speaker 02:
This is what the board said.

[00:13:52] Speaker 00:
I understand.

[00:13:53] Speaker 02:
2009 is invalid.

[00:13:55] Speaker 02:
So there's only one nod, and it's too early.

[00:13:57] Speaker 02:
Done.

[00:13:58] Speaker 02:
It gets to the Veterans Court.

[00:14:00] Speaker 02:
The Veterans Court doesn't quite say that, I don't think.

[00:14:04] Speaker 02:
It says, this is on the appendix page 4, the record doesn't show any outside of the 2006 letter.

[00:14:11] Speaker 02:
that could be construed as a nod challenging the PTSD rating.

[00:14:18] Speaker 02:
And then the TDIU was ultimately withdrawn.

[00:14:22] Speaker 02:
I'm not quite sure whether that says that the board, that the Veterans Court is agreeing that the 2009 was invalid.

[00:14:34] Speaker 02:
So I guess I can't understand that.

[00:14:35] Speaker 00:
I have no way of knowing what was in the mind of the author

[00:14:40] Speaker 00:
but let me do point the court's attention to Appendix 186 to 224.

[00:14:50] Speaker 00:
That is the statement of case and that statement of the case identifies as did the original rating decision which is at Appendix 20 to 33 that denied not just TDIU but I believe it was 13 other issues.

[00:15:10] Speaker 00:
The point of this statute, 5904C1, is to identify when it is permissible for an attorney or an agent to charge a fee.

[00:15:25] Speaker 00:
It's the starting point.

[00:15:30] Speaker 00:
That NOD was what triggered the right to address all of those issues in the NOD.

[00:15:40] Speaker 00:
in addition to the issue that had been pending relative to the rating of PTSD.

[00:15:46] Speaker 00:
And the question of TDIU would have applied not just to the PTSD, but would have applied equally to the six other service-connected disabilities to which the veteran was seeking increased compensation.

[00:16:02] Speaker 00:
So as a consequence,

[00:16:05] Speaker 00:
we've gone far afield of what congress was writing to simply describe when these were permitted to be charged and that was the only issue before the veterans court

[00:16:25] Speaker 03:
of these cases.

[00:16:26] Speaker 03:
So I'm just trying to understand.

[00:16:27] Speaker 03:
We have this old case.

[00:16:29] Speaker 03:
It's called Skates.

[00:16:31] Speaker 03:
And in the case, it says.

[00:16:33] Speaker 00:
I'm sorry.

[00:16:33] Speaker 00:
It's called what, yeah?

[00:16:34] Speaker 00:
Skates.

[00:16:35] Speaker 00:
Oh, Skates.

[00:16:36] Speaker 00:
Oh, yes.

[00:16:36] Speaker 00:
I'm very familiar with Skates.

[00:16:37] Speaker 03:
That's the one where it says an attorney may receive a fee only if it fairly and accurately reflects his contribution and respond to the benefits received.

[00:16:46] Speaker 03:
All right.

[00:16:47] Speaker 03:
I'm wondering.

[00:16:48] Speaker 03:
I don't know anything about it.

[00:16:49] Speaker 03:
You're saying that this is just telling us when an attorney can be hired and start

[00:16:55] Speaker 03:
receiving a fee.

[00:16:57] Speaker 03:
Are there other boundaries on the kind of fee that an attorney may receive?

[00:17:02] Speaker 00:
There are, Your Honor, and Congress specifically provided independently by statute the right for both the secretary as well as the appellant to seek review of the

[00:17:16] Speaker 00:
agreed to in the fee agreement to determine whether that amount should be reduced as being either excessive or unreasonable.

[00:17:25] Speaker 00:
But that is a separate statutory track and a separate statutory appeal process independent from the right to the fee.

[00:17:38] Speaker 00:
And the right to the fee is covered by 5904C1.

[00:17:44] Speaker 03:
So purposes of educating me, what is the other statutory, what is the statute?

[00:17:49] Speaker 03:
Do you know it off the top of your head?

[00:17:52] Speaker 00:
Well, it's in 5904, but the precise number, I'm afraid.

[00:17:57] Speaker 00:
But it is in 5904.

[00:17:58] Speaker 00:
It is in 5904, yes.

[00:17:59] Speaker 00:
And it is also in the Secretary's regulation interpreting that statute at

[00:18:08] Speaker 00:
1634 I. Now you're really testing me.

[00:18:18] Speaker 01:
Have you handled some of these cases before?

[00:18:19] Speaker 01:
One or two.

[00:18:20] Speaker 00:
Thank you.

[00:18:25] Speaker 04:
Good afternoon, and may it please the court.

[00:18:27] Speaker 04:
Your Honor, to your Honor's last question, if it's helpful, I believe it's 38 CFR 14.636.

[00:18:35] Speaker 04:
and 38 USC 5904A5.

[00:18:39] Speaker 04:
I'll start first, Your Honors, with the question regarding the statutory fee scheme that applies for the PTSD compensation

[00:18:47] Speaker 04:
a claim here.

[00:18:48] Speaker 04:
Congress explicitly set forth that the 2006 amendments apply based on the date of the Notice of Disagreement.

[00:18:58] Speaker 04:
If the Notice of Disagreement was filed after or on June 20, 2007, the Veterans Benefit Act applies.

[00:19:04] Speaker 04:
If it was filed before, the predecessor applies.

[00:19:07] Speaker 02:
So the way you've just framed it presupposes that there's only one.

[00:19:11] Speaker 02:
Correct.

[00:19:12] Speaker 02:
Why is that true?

[00:19:13] Speaker 04:
That's true, Your Honor, because the purpose of a notice of disagreement means there's an initiation of an appeal.

[00:19:20] Speaker 04:
So once an appeal is initiated, it's initiated.

[00:19:23] Speaker 04:
A veteran can certainly submit additional information and supplement that appeal, but once the appeal is initiated, there's nothing further to do there.

[00:19:34] Speaker 04:
This Court's opinions, I believe in

[00:19:36] Speaker 04:
the Grantham case and the Barrera case, both of which are cited on page 14 of our brief, provide that there can be one notice of disagreement per element.

[00:19:46] Speaker 02:
And it makes- Per element.

[00:19:47] Speaker 02:
Correct.

[00:19:48] Speaker 02:
But the 101H provision talks about a notice of disagreement or notices of disagreement in cases.

[00:19:57] Speaker 02:
And I thought you actually, near the end of your brief, you acknowledged that there can be more than one notice of

[00:20:07] Speaker 02:
Absolutely.

[00:20:08] Speaker 02:
So why is this not that?

[00:20:10] Speaker 04:
Sure, because what we're dealing with here is the element of compensation for PTSD.

[00:20:16] Speaker 04:
Compensation is one of the five elements of a case.

[00:20:19] Speaker 04:
So certainly there can be a notice of disagreement as to each element, but the only thing that we're dealing with here is PTSD compensation.

[00:20:27] Speaker 02:
Just remind me, in Grantham and Barrera and whatever else, did we say one per element or one per issue?

[00:20:37] Speaker 04:
I believe both words are used depending on the case.

[00:20:41] Speaker 02:
So why is TDIU not a different issue?

[00:20:47] Speaker 04:
I think the first thing to keep in mind there is the benefits that came about here were related to PTSD.

[00:20:54] Speaker 04:
There was no TDIU award.

[00:20:56] Speaker 02:
Why should that matter?

[00:20:57] Speaker 02:
What resulted?

[00:20:58] Speaker 04:
Sure, because the appellant is seeking a fee based on the benefits that were awarded.

[00:21:03] Speaker 04:
So he's seeking a fee based on PTSD.

[00:21:06] Speaker 04:
And so whether there was a different NOD on a completely different issue.

[00:21:13] Speaker 02:
I'm not sure where the benefit

[00:21:14] Speaker 02:
awarded comes into the language of 101H, which just says NNOD in a case after the 2007 date is enough.

[00:21:25] Speaker 02:
At that point, we can talk about whether fees were unreasonable or excessive under the whatever that provision is, A5.

[00:21:35] Speaker 02:
Sure.

[00:21:36] Speaker 02:
But we're done talking about which of the two versions of the statute applies.

[00:21:40] Speaker 04:
Sure.

[00:21:40] Speaker 04:
So if there's one NOD, and there's only one NOD per element, and the element is PTSD compensation, that was filed in October of 2006.

[00:21:50] Speaker 04:
And the appellant agrees that that was an NOD.

[00:21:53] Speaker 04:
So that is the one.

[00:21:54] Speaker 04:
Any subsequent filings regarding PTSD could be supplements to that appeal, but they don't solicit it.

[00:22:07] Speaker 02:
request be in the same case?

[00:22:12] Speaker 04:
Yes, Your Honor.

[00:22:13] Speaker 04:
And the board found that if you look to appendix 114 and 115, the board explained that there was actually no need for a notice of disagreement as to TDIU because it was actually part of the original PTSD claim, and that's under the Rice v. Shinseki

[00:22:29] Speaker 04:
TDIUs raised with the original claim.

[00:22:32] Speaker 04:
There was actually no need for that subsequent NOD on TDIU because TDIU initiated in January 2006 when the PTSD claim was initially filed.

[00:22:44] Speaker 02:
The fact that there was... I'm sorry, was the May 2009 NOD nevertheless

[00:22:56] Speaker 02:
authorized for other aspects of the case?

[00:23:00] Speaker 02:
Not the PTSD, but for other aspects of the case.

[00:23:04] Speaker 04:
Presumably yes, Your Honor, because it referenced the March 2009 VA decision, which related to 14 other issues, not PTSD.

[00:23:13] Speaker 02:
Why isn't that enough under 101H?

[00:23:16] Speaker 02:
I mean, I think everything you're doing, which the board's, the Veterans Court opinion does as well, is to focus on just

[00:23:29] Speaker 02:
And I'm confused about how that fits with the seemingly broader language of 101H, which is about having one NOD in the case after 2007.

[00:23:43] Speaker 04:
Sure, Your Honor.

[00:23:45] Speaker 04:
So there's one NOD for PTSD.

[00:23:51] Speaker 04:
There could be another NOD for the 14 other issues, for example.

[00:23:55] Speaker 04:
But the appellant here is seeking fees

[00:23:58] Speaker 04:
for PTSD.

[00:24:00] Speaker 04:
So the relevant question was for the Veterans Court.

[00:24:03] Speaker 04:
We would argue here it's outside of this court's jurisdiction.

[00:24:05] Speaker 04:
But the relevant question here is, what was the NOD for PTSD?

[00:24:10] Speaker 03:
Because that's what the fees are coming from.

[00:24:12] Speaker 03:
What do we do about the fact that the statute just says A NOD in the case?

[00:24:18] Speaker 03:
It doesn't say the attorney is entitled to fees or this statute will become effective when NOD

[00:24:29] Speaker 03:
a NOD for the benefit received has been filed or something like that.

[00:24:33] Speaker 03:
It seems to me that perhaps you're reading something in.

[00:24:37] Speaker 03:
Am I misunderstanding?

[00:24:39] Speaker 04:
Yeah, I would disagree, Your Honor.

[00:24:40] Speaker 04:
It does say an NOD.

[00:24:42] Speaker 04:
But again, if there can only be one and an NOD was filed in May.

[00:24:46] Speaker 03:
Why can there only be one NOD in a case?

[00:24:49] Speaker 04:
There can only be one NOD per element of the case.

[00:24:52] Speaker 03:
Where does the statute talk about that?

[00:24:54] Speaker 03:
an N.O.D.

[00:24:56] Speaker 03:
on that element instead of an N.O.D.

[00:24:58] Speaker 03:
in that case.

[00:24:59] Speaker 04:
The statute does speak, I guess, more broadly.

[00:25:02] Speaker 04:
This court's precedent has long acknowledged, as has the Veterans Court, there is one N.O.D.

[00:25:08] Speaker 04:
per element.

[00:25:10] Speaker 04:
And again, that makes sense.

[00:25:11] Speaker 04:
If you've already filed, essentially, a notice of appeal,

[00:25:14] Speaker 04:
Why would you need to file another one?

[00:25:17] Speaker 04:
The appeal process has been initiated.

[00:25:19] Speaker 04:
That's what an NOD is.

[00:25:20] Speaker 04:
It just initiates the appeal process.

[00:25:22] Speaker 04:
So if I've initiated the appeal process and then three years later decided to initiate the appeals process, we've already done that.

[00:25:30] Speaker 04:
There's only one NOD per element of the claim.

[00:25:33] Speaker 01:
That's all true.

[00:25:34] Speaker 01:
But I think where we're struggling is 101H says cases.

[00:25:39] Speaker 01:
So how are you squaring your argument with?

[00:25:43] Speaker 01:
101H saying that the new provisions shall apply with respect to services that are provided with respect to cases in which notices agreement are filed on or after June 20, 2007.

[00:25:56] Speaker 04:
If, Your Honor, if the court were to read this so that there can only, I mean, if we're reading it as a case rather than specific elements, then that would essentially mean that the first NOD filed, in any case, that's the effective.

[00:26:14] Speaker 02:
No, no, no, no, no.

[00:26:15] Speaker 02:
Absolutely.

[00:26:16] Speaker 02:
I think you've got it upside down.

[00:26:19] Speaker 02:
All it takes to be in the new regime is an NOD after 2007.

[00:26:24] Speaker 02:
You could have had seven earlier.

[00:26:26] Speaker 02:
Wouldn't matter.

[00:26:28] Speaker 02:
And the Veterans Court decision that was cited in the Veterans Court, I think, also turned it upside down.

[00:26:36] Speaker 02:
Cameron said, you have to have one before.

[00:26:40] Speaker 02:
That's not what the statute says.

[00:26:41] Speaker 02:
It says, to get the benefit of the new statute, all it takes is one after.

[00:26:46] Speaker 04:
I think a helpful case for Your Honor is the Barrera case.

[00:26:51] Speaker 04:
In that case, there were two NODs related to two different elements.

[00:26:56] Speaker 04:
And it dealt with the same issue of there was an effective date.

[00:27:00] Speaker 04:
So I'm just going to call it June 20, 2007, but it was a different date.

[00:27:03] Speaker 04:
And one NOD was filed before that date.

[00:27:06] Speaker 04:
And one NOD on a different element was filed after that date.

[00:27:10] Speaker 04:
And this court held that for the element filed before, that was under the predecessor statute.

[00:27:17] Speaker 04:
And for the NOD with the element filed after, that was in the subsequent statute.

[00:27:22] Speaker 04:
So this court has broken it down.

[00:27:24] Speaker 04:
Is it Ferrera?

[00:27:25] Speaker 02:
Ferrera.

[00:27:25] Speaker 02:
Ferrera.

[00:27:26] Speaker 04:
I believe it's 14 on our response brief.

[00:27:29] Speaker 02:
Was this a police case?

[00:27:30] Speaker 04:
Yes, Your Honor.

[00:27:31] Speaker 04:
And it was a different statutory scheme, because as Your Honors are aware, the veterans

[00:27:37] Speaker 04:
Statutory schemes have changed quite a lot.

[00:27:38] Speaker 04:
So this was under not the Veterans Benefit Act, the predecessor, but a different one.

[00:27:42] Speaker 01:
Did it have language like 101H that referred to notices of disagreement being filed in a case?

[00:27:50] Speaker 04:
I don't know that it was, I'm not sure, Your Honor, if it was that specific.

[00:27:54] Speaker 04:
I don't know that it wasn't.

[00:27:56] Speaker 04:
But the concept is the same here.

[00:27:59] Speaker 04:
It's not the latest NOD filed brings the entire case into the different statutory scheme.

[00:28:06] Speaker 04:
It's which NOD for that element, and that depends which statutory scheme you're in.

[00:28:11] Speaker 04:
It dictates which statutory scheme you're in.

[00:28:14] Speaker 04:
And that makes sense, Your Honors, because

[00:28:16] Speaker 04:
If, for example, in this case, the notice of disagreement was filed in 2006, this fee agreement was entered in 2016.

[00:28:26] Speaker 04:
Mr. Percival did no work whatsoever on this case.

[00:28:32] Speaker 03:
I heard Mr. Perpenter say he was representing a pro bono.

[00:28:36] Speaker 03:
I don't know.

[00:28:36] Speaker 03:
And I was about to say the same thing as Judge Schrodinger.

[00:28:39] Speaker 03:
I'm not sure that matters because there's these other, to the extent that it's unreasonable or something like that, maybe there's a different proceeding that could be undertaken on different parts of this case that could be relied on, right?

[00:28:55] Speaker 03:
I mean, you're asking us to make a judgment call, right, on the quality of the amount of work done.

[00:29:03] Speaker 04:
No, Your Honor.

[00:29:04] Speaker 04:
I was going to point out that it would make no sense under the appellant's argument that depending on which state they file a subsequent notice of notice NOD, that determines which statutory scheme they're in.

[00:29:18] Speaker 04:
It would mean that anyone could be in the new statutory scheme, because they would just file another notice of disagreement.

[00:29:23] Speaker 03:
That's why I asked my sham question before.

[00:29:25] Speaker 03:
If there were a sham NOD, what would be the impact?

[00:29:29] Speaker 04:
The impact under the Appellants' Argument would be, well, you filed an NOD, and you are after 2006 or 2007, June 20, 2007.

[00:29:38] Speaker 04:
So therefore, you get the benefit of the Veterans Benefit Act.

[00:29:42] Speaker 04:
So it's essentially forum shopping, but for statutory schemes that you're under.

[00:29:50] Speaker 03:
You agree, I think, that here the 2009 NOD did have some impact.

[00:29:56] Speaker 03:
for some claims, right?

[00:29:58] Speaker 03:
It wasn't a sham, right?

[00:30:01] Speaker 04:
I don't think that it had any impact, Your Honor, because there was a remand to the board, and then the full benefits were awarded to the veteran.

[00:30:11] Speaker 03:
What about the language at pages A74 to A75 that was cited by Mr. Carpenter?

[00:30:19] Speaker 04:
Pitch A-74, Your Honor, speaks exactly to the argument that we're making here, that there was a notice of disagreement filed before the June 2007 date.

[00:30:30] Speaker 04:
And therefore, I guess I'd back up.

[00:30:35] Speaker 03:
Maybe Pitch A-75 talks about it.

[00:30:38] Speaker 03:
I think his point was that while the position was taken that with respect to PTSD,

[00:30:48] Speaker 03:
2009 nod might not have been necessary.

[00:30:51] Speaker 03:
The A75 in the top paragraph shows that there was some credit in some work, I guess, that was being done by the May 2009 nod for other things like SMC that's

[00:31:04] Speaker 03:
why Mr. Percy and Valerie is able to recover some fees, right?

[00:31:08] Speaker 04:
Perhaps, Your Honor.

[00:31:09] Speaker 04:
I think that the appellant overstates what's being said here.

[00:31:12] Speaker 04:
There's a reference to the May 12, 2009 NOD.

[00:31:17] Speaker 04:
It doesn't say specifically that

[00:31:19] Speaker 04:
that had any legal effect.

[00:31:21] Speaker 04:
It's just a reference.

[00:31:22] Speaker 04:
There's also a reference to the October 2006 NOD.

[00:31:25] Speaker 04:
And the ability of the Mr. Percy Billy to obtain fees for the SMC, that is wholly aside from what he's seeking here.

[00:31:35] Speaker 04:
Here he's seeking fees for PTSD.

[00:31:38] Speaker 04:
and the nod for PTSD was filed in October 2006.

[00:31:45] Speaker 04:
He agrees.

[00:31:46] Speaker 04:
The only distinction between the parties here is he thinks there can be two nods for the same element, and there can't under this court's precedent.

[00:31:53] Speaker 03:
Why was Mr. Percy Valley allowed to have fees for SMC?

[00:32:01] Speaker 03:
Why is that?

[00:32:03] Speaker 03:
Was there a final board decision that allowed that?

[00:32:06] Speaker 04:
No, Your Honor, and it's because there was never an appeal by the veteran and the VA can't appeal that.

[00:32:11] Speaker 03:
So why is it that the post-2006 5904 version applies to SMC?

[00:32:20] Speaker 04:
I'm not sure, Your Honor, it's not in the record.

[00:32:22] Speaker 04:
It might be because there's 14 other claims that are implicated that aren't relevant to the PTSD claim.

[00:32:30] Speaker 03:
But there's some nod somewhere that was filed that makes it so the 2006 version of 5904 can apply.

[00:32:40] Speaker 04:
I mean, presumably, because there was the award.

[00:32:42] Speaker 04:
And the fact that the page before, VA said the PTSD was filed in October 2006.

[00:32:49] Speaker 04:
Therefore, you're under the predecessor scheme.

[00:32:51] Speaker 04:
And then the very page later, they say SMC is different.

[00:32:54] Speaker 04:
You're under the different scheme.

[00:32:56] Speaker 04:
Reflects that there was some acknowledgment that the June 20, 2007 date is the line in the sand that needs to be drawn.

[00:33:04] Speaker 04:
And before I'm finished, Your Honor, I think that Your Honors,

[00:33:06] Speaker 04:
that the court doesn't even need to get here.

[00:33:10] Speaker 04:
This is an inherently factual determination when an appeal is initiated during the process.

[00:33:17] Speaker 02:
Well, except that a different view would be that the Veterans Court committed a legal error

[00:33:33] Speaker 02:
there would be a legal error, a question about whether it's a legal error, to limit the inquiry to what fees were for PTSD and which the operative NOD is.

[00:33:50] Speaker 02:
That that's just incorrect under 101H.

[00:33:54] Speaker 04:
I think your honor, 101H speaks to

[00:33:58] Speaker 04:
the date, the line in the sand that determines which statutory fee scheme you're under.

[00:34:03] Speaker 04:
But there's never been a dispute, and there still isn't on appeal, that the October 2006 NOD was un-NOD for PTSD.

[00:34:13] Speaker 02:
And so to... OK, so the second piece of the legal dispute is whether it was incorrect to translate 101H into the question whether there was one before 2007, which it doesn't say.

[00:34:28] Speaker 02:
a camera on set, or whether the question is whether there was one after.

[00:34:35] Speaker 02:
And as long as it was in the same case, that would be enough.

[00:34:40] Speaker 02:
That would be the legal issue.

[00:34:44] Speaker 04:
Understood, Your Honor.

[00:34:44] Speaker 04:
We respectfully disagree, but I understand your point here.

[00:34:48] Speaker 02:
I'm not sure we... Do you think that the 2009 NOD was in the same

[00:34:59] Speaker 02:
term cases.

[00:35:01] Speaker 02:
I don't remember that being disputed here.

[00:35:04] Speaker 04:
The 2009 NOD was in response to a March 2009 decision regarding different claims and the VA made that very clear.

[00:35:14] Speaker 04:
It was addressing claims that were not already appealed.

[00:35:16] Speaker 02:
What about the case question?

[00:35:18] Speaker 02:
Is it in the same case?

[00:35:24] Speaker 04:
Yes, I think so, Your Honor, and that's TDIU portion was, but as the board found, there was no need for an NLD for the TDIU portion because it was actually subsumed into the PTSD already.

[00:35:38] Speaker 04:
And even if the court addresses this issue and finds it to be a legal issue, I would point, Your Honors, to the four reasons in our brief

[00:35:48] Speaker 04:
why the May 2009 NOD can't actually be the operative NOD here.

[00:35:53] Speaker 04:
For example, the PTSD determination was in September 2006.

[00:36:01] Speaker 04:
The veteran has one year to file the NOD, one year.

[00:36:06] Speaker 04:
He filed the NOD, what he's claiming is the operative NOD, in May 2009.

[00:36:10] Speaker 04:
It would be untimely.

[00:36:12] Speaker 04:
He can't rely on the May 2009 NOD for the PTSD claim, and those are the fees that he's seeking, PTSD.

[00:36:21] Speaker 04:
We've explained three other bases why the May 2009 can't also be operative here.

[00:36:27] Speaker 04:
And for all those reasons, Your Honor, we ask that the Court affirm the Veterans Court.

[00:36:32] Speaker 04:
Thank you.

[00:36:39] Speaker 00:
Mr. Carpenter.

[00:36:39] Speaker 00:
May it please the Court, I'd like to start with the misrepresentation of the notion that there is one NOD per element.

[00:36:49] Speaker 00:
A, there is no case law that says that.

[00:36:52] Speaker 00:
Period.

[00:36:53] Speaker 00:
The second portion is that the Barrera case was not a C case.

[00:36:59] Speaker 00:
It was a jurisdictional case.

[00:37:01] Speaker 00:
And it was a question of whether or not under the then existing statute that only allowed for judicial review with a then called jurisdictionally conferring NOD that was on or after the date of enactment of the VJRA.

[00:37:17] Speaker 00:
In Mr. Barrera's case, there was one NOD, I can't remember if it was PTSD, and then the second was on depression or vice versa, but one was filed before the jurisdictionally conferring date and one was filed after.

[00:37:31] Speaker 00:
The resolution in Barrera was, is that there was a second NOD, very comparable to this circumstance, that was filed after the effective date of the statute.

[00:37:43] Speaker 00:
And under that analysis, we must prevail.

[00:37:48] Speaker 00:
The other thing that is important to understand is that when the secretary muddies the water by one NOD per element, they are overlooking the fact that the respect to the case language is in the statute under 5904 C1.

[00:38:09] Speaker 00:
And it specifically refers to with respect to the case.

[00:38:15] Speaker 00:
And this court, in the Carpenter case,

[00:38:17] Speaker 00:
and in the Stanley case have clearly identified with respect to the case refers to the Roberson definition of a case, anything that is reasonably raised either by the veteran or the appellant.

[00:38:34] Speaker 00:
And another critical piece in this case is that the TDIU application that was filed by Mr.

[00:38:45] Speaker 00:
Fleming, excuse me, was filed within one year of the original rating assigned.

[00:38:54] Speaker 00:
So the element, as the government refers to it, was for that NOD for the right to additional compensation, more compensation that was originally awarded.

[00:39:06] Speaker 00:
And within that one year period, a TDIU application was made.

[00:39:14] Speaker 00:
That means the issue of TDIU was pending from that date until the time in which TDIU was actually adjudicated.

[00:39:23] Speaker 00:
It wasn't adjudicated until the 2009 decision, and that was the decision with which Mr. Fleming filed an NOD.

[00:39:34] Speaker 00:
And that was the NOD that made the fees that were ultimately, excuse me, the award of passive benefits that were ultimately granted to Mr. Fleming, subject to withholding under 5904 treaty.

[00:39:47] Speaker 00:
Unless there's further questions from the panel, appreciate your time.

[00:39:51] Speaker 02:
Thank you.