[00:00:00] Speaker 01:
Our first case is Jackson v. Collins, 24-2135.

[00:00:04] Speaker 01:
Mr. Stoltz, I understand that you have asked to reserve five minutes of your time for rebuttal.

[00:00:12] Speaker 01:
Yes, Your Honor.

[00:00:13] Speaker 01:
Is that correct?

[00:00:13] Speaker 03:
Yes, Your Honor.

[00:00:14] Speaker 01:
All right.

[00:00:15] Speaker 01:
You may proceed.

[00:00:16] Speaker 03:
Thank you very much.

[00:00:18] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:00:23] Speaker 03:
Under 38, USC, Section 5904C1, a representative

[00:00:29] Speaker 03:
may legally charge fees for services after a claimant has provided notice of the Agency of Original Jurisdiction's initial decision with respect to the case.

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The case here is compensation for the veteran's hip condition.

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The initial decision here is the March 2008 rating decision, and in September 2021, Attorney Jackson filed a supplemental claim for the veteran.

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MVA, this court's MVA decision, made clear

[00:00:57] Speaker 03:
that an accredited representative may charge fees for work performed by filing a supplemental claim, regardless of whether it was filed

[00:01:05] Speaker 01:
This case raises quite a few interesting questions and I'd like to get to a couple that I have anyway and I know my colleagues do as well.

[00:01:18] Speaker 01:
First of all, we have a statute that's in play here as well as a regulation.

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My first question is whether these two can coexist.

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or if it's necessary that one of these statutes be interpreted in a way as not being valid.

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That's my first question.

[00:01:40] Speaker 01:
The other is that aren't we, the basic issue is whether a claim for an increase in benefits is a new claim or a supplemental claim.

[00:01:56] Speaker 03:
To Your Honor's first question, in our opening brief and in our reply, we did discuss the interplay between the statutory framework and the bit of tension between particularly 38 CFR Section 3.1 P.1.2 and 14.636 B.1 little i, little one.

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And we do, in order, the most complete decision from this court would be to strike those regulations as not in accordance with the statutory framework.

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They're outside of the scope of what Congress intended and what the plain language of the statutes at play here say about the charging of fees.

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At the very least, they're unclear.

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The regulations are unhelpful in establishing the fee triggers in AMA cases.

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And to your honors,

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Second question, it is a supplemental.

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What was the answer to the first one?

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That they can coexist?

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They should be struck down.

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I'm sorry?

[00:02:57] Speaker 03:
The regulations.

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The regulations.

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The regulations should be struck down.

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The ones highlighted in our opening and reply briefs.

[00:03:05] Speaker 03:
As far as the supplemental claim, which brings us back to the statutory framework,

[00:03:09] Speaker 03:
And as we argued both below and here, this is a supplemental claim and not an increased rating claim, although the real analysis has to begin with 5904C1 and this court's line of cases up through.

[00:03:28] Speaker 02:
Does a supplemental claim require a disagreement with a prior VA decision?

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Disagreement is not found anymore for as far as the

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As far as for a fee trigger, there's really no disagreement anymore.

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It can be an administrative review, as articulated in MBA.

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And the key language in 101.36 for supplemental claims is it's the same or similar basis.

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And that was really highlighted in the dissent from the Veterans Court, that 101.36 is planned on its... Once you read 101.36 in connections with 5904C1,

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it becomes evident that at least in the fee triggering part of the now AMA process that VA benefits are in, at least in that it becomes very clear and very easy that the supplemental claim here came in, it was for the compensation

[00:04:19] Speaker 03:
for the veterans left hip, same or similar basis as was established back in the first time it came up as for compensation.

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The Veterans Court kind of contorted itself, and I think VA is really contorting itself a bit, to legacy-ize this in the fee context.

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And they're looking for a disagreement.

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It doesn't necessarily have to be a disagreement anymore.

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And Congress made that clear by furthering, backing up kind of the line, if you will, of when an accredited agent or attorney can legally charge a fee.

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So, Counsel, one of my concerns is, with respect to your argument, would every claim after a claimant's first claim be considered a supplemental claim?

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If it's part of the same case,

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Yes, it's a supplemental claim.

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It's the same or similar basis.

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It's going to come back and relate back to that initial claim as articulated in the statute.

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And so it is in the AMA, these are all supplemental claims that come in.

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There are two flavors of supplemental claim, as the court talked about in the MBA decision.

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There's a supplemental claim that kind of comes in within the year.

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It's a continuously prosecuted claim.

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And there's a supplemental claim that comes in after a year.

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But in a case like this, where you've got one compensation award already and service connection established, what's going to come in after that has to do with that particular case is going to be a supplemental claim.

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Can you give me an example of when you think it would not be, it would not cost you a supplemental claim?

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I'm not sure that I can think of anything in the AMA context that would not really be as far as how VA is going to see this.

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Actually, I can't.

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If it's a different case entirely, and that's what I think distinguishes where we are in this case from kind of the Percia Valley

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and Carpenter and those types of cases that are cited in the briefing by both parties is that if a claim comes in and it is for a new disability outside of the very broad scope that Jackson articulates for a case, that would not be a supplemental claim.

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That would be a new initial claim.

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even though it's based on the injury that's service-connected?

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If it's based on the injury that's service-connected and there's already compensation established for that, that, I believe, Your Honor, I would suggest would be construed as a supplemental claim, both for the veteran's benefit and for the fee triggering.

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part of the AMA.

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And so the VA and the courts would have to still conduct the analysis of what, again, all roads lead really to 5904C1.

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Whether it's part of the same case, you're going to have something coming in that's a supplemental claim.

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If it's a new thing altogether, that's going to be an initial claim to Judge Cunningham's point.

[00:07:14] Speaker 05:
So, Mr. Zoltz, you'd agree that something can be a supplemental claim as defined in

[00:07:19] Speaker 05:
one oh one thirty six but not necessarily part of the case under fifty one oh four c one it could be i mean you say that's not the not use the word case again here but you say that's not the case here right it correct your honor that's absolutely but you'll acknowledge there could be a situation where

[00:07:39] Speaker 05:
In other words, not every supplemental claim is part of the case for purposes of the 51-4C1.

[00:07:47] Speaker 03:
You would have to read the statutes, right?

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And so yes, I agree with your honor's point.

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But again, in this system, the way the AMA is, the 101-36 is kind of the

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the fix-all for how to keep these claims alive and how to get the proper effective date.

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And so the majority of them, I think, are going to be supplemental claims.

[00:08:12] Speaker 05:
Well, that may be, but it's still, in order for your client to prevail, it has to be both a supplemental claim and part of the case, right?

[00:08:24] Speaker 03:
I think that's the easiest way for us to prevail.

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That's the way that I would see the case.

[00:08:30] Speaker 03:
Looking at how broadly this court has continued to define case, I don't know that it needs to be a supplemental claim for the fee-triggering part of it, but that's the way that the lower court really thought about this.

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So there's two steps here.

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Yes.

[00:08:44] Speaker 03:
Yes, Your Honor.

[00:08:45] Speaker 02:
But it sounds like inherent in how you just answered, are you saying we don't have to find to be a supplemental claim in order for your client to prevail?

[00:08:53] Speaker 03:
You do not have to if it follows the line of cases that keeps articulating that a case is very broad.

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The reason really that that argument, and it's an easier path home and probably cleaner, frankly,

[00:09:07] Speaker 03:
To say that this is a supplemental claim and easier, really, for VA to implement this is the 101-36 line of argument.

[00:09:16] Speaker 03:
But what we kind of articulated on opening brief, Your Honor, to clarify the point, is just that under the line of going back to Jackson and Carpenter, up through this, of course, very recent decision that's not cited, but that came out on Friday, the Holstein decision,

[00:09:30] Speaker 03:
You know, cases has continued to be defined broadly.

[00:09:33] Speaker 03:
Really the trip up for being able to charge a fee even outside of a, and this is just theoretical, we're not in this world, we're in the AMA world and this is a supplemental claim.

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But theoretically, what tripped the lower court up on finding against Ms.

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Jackson in this case was the Cameron decision.

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And that is their jurisprudence.

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We've dealt with it in our opening brief and talked about how it was rule 36 in this court.

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But there is a way to read this, if Cameron doesn't exist, that this doesn't necessarily have to be a supplemental claim in order for Ms.

[00:10:04] Speaker 03:
Jackson to prevail.

[00:10:06] Speaker 03:
But to Judge Schall's point, that's the cleanest, best, I think, way to think about it in this case.

[00:10:12] Speaker 05:
Let me ask you.

[00:10:14] Speaker 05:
10136 says the term supplemental claim means a claim for benefits.

[00:10:20] Speaker 05:
And I think the government makes the argument here, maybe I'm wrong, that we're talking about something different here for additional compensation.

[00:10:29] Speaker 05:
How do you view generally benefits in terms of that statute?

[00:10:34] Speaker 05:
Benefits?

[00:10:35] Speaker 05:
I'm sorry.

[00:10:35] Speaker 05:
Does it encompass both the original entitlement, determination of an injury that's compensable,

[00:10:41] Speaker 03:
And does it or does it include also compensation flowing there from the inclusive company again the way I think about it and I know that I keep saying this but it helps me to clarify in my head that if it's that 101 36 can be read in complete harmony with 5904.

[00:11:01] Speaker 03:
And so once it's part of that same case, the case under the bog standard is the compensation for a disability.

[00:11:09] Speaker 03:
And so what comes in after that in the supplemental claim are more benefits, but not a different benefit or a different basis.

[00:11:17] Speaker 03:
I hope that answers your honor's question.

[00:11:18] Speaker 05:
But compensation is a benefit.

[00:11:20] Speaker 05:
Would you say compensation is a benefit?

[00:11:22] Speaker 05:
Because in the briefing you cited to various statutory headings and other

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So it seems to me you take the position that compensation is a benefit.

[00:11:33] Speaker 03:
Yes, compensation is a benefit.

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An increase of compensation is a benefit.

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But again, what triggers it is that same or similar basis, especially for the entitlement to fees.

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At its heart, this is a bit of a threshold case.

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an attorney or accredited agent legally charge that fee.

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And that's in the analysis that we put forth.

[00:11:57] Speaker 01:
So what is the AMA statute when it cites a similar basis on similar benefits or the same or similar basis?

[00:12:08] Speaker 01:
Setting aside the benefits, just a similar basis, are we talking about the compensable injury?

[00:12:16] Speaker 03:
Yes.

[00:12:18] Speaker 01:
Yes.

[00:12:19] Speaker 03:
Yes, Your Honor.

[00:12:20] Speaker 01:
This is a left hip condition.

[00:12:21] Speaker 01:
We're not talking about submission and same evidence?

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In order to meet the standard, there would need to be some new and relevant evidence to come in in order to trigger this.

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And that's what happened here.

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And that's why he was entitled to increase compensation.

[00:12:37] Speaker 02:
But why doesn't the February 2021 hip surgery, due to a worsening condition, provide a different factual basis than the 2007 one?

[00:12:46] Speaker 03:
Because it still relates back to the case.

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And that's the broad view.

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Whether the factual scenario changes now that there's the supplemental claim avenue, which is why I talked about how it's a little cleaner and better, I think, to think about this as an AMA case, it comes in under that broad definition.

[00:13:02] Speaker 03:
of case, Your Honor.

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It doesn't matter that there was, he had a worsening condition.

[00:13:07] Speaker 03:
The supplemental claim came in in accordance with the MBA decision outside of the year for the purposes of triggering a fee or the entitlement to a fee.

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That's all that is necessary here.

[00:13:20] Speaker 03:
Again, you have to kind of conduct that 5904 analysis in order to get there.

[00:13:27] Speaker 05:
Thanks, first.

[00:13:28] Speaker 05:
I have just one question.

[00:13:29] Speaker 05:
You say we should overrule or strike down, I guess, the regulation at 3.1p, 1 little 2y.

[00:13:37] Speaker 05:
But I wonder, the regulation says initial claim.

[00:13:40] Speaker 05:
Initial claim is any complete claim other than a supplemental claim.

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Initial claims include.

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So the regulation is talking about initial claims.

[00:13:50] Speaker 05:
carving it out from a supplemental claim, why, assuming for the moment we rule in your favor, would we have to then strike down that regulation?

[00:13:58] Speaker 03:
Because it seems... I think that it can be read that way, Your Honor.

[00:14:03] Speaker 03:
The way that the lower court and VA read it is what led us to saying that, to the extent that that regulation is not in harmony with the statutory scheme.

[00:14:11] Speaker 05:
I see.

[00:14:12] Speaker 05:
Okay.

[00:14:13] Speaker 03:
But if it is in one minute, it's OK.

[00:14:14] Speaker 03:
I had a similar thought, Your Honor.

[00:14:16] Speaker 01:
I had a similar thought.

[00:14:17] Speaker 01:
OK.

[00:14:17] Speaker 01:
We'll let you rebuttal time.

[00:14:19] Speaker 01:
And we'll restore some of your time, OK?

[00:14:21] Speaker 01:
Thank you so much.

[00:14:22] Speaker 01:
Thank you.

[00:14:26] Speaker 01:
Counselor Kuhn.

[00:14:29] Speaker 00:
Good morning, Your Honor.

[00:14:30] Speaker 00:
May it please the court.

[00:14:32] Speaker 00:
And Dr. Lovier's 2021 surgery could not have been a basis that was included in his 2007 claim.

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And Dr. Lovier's

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September 2021 claim was therefore his initial claim based on his surgery earlier that year.

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When my friend on the other side mentioned that it relates back, there is no basis for having that relation back.

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It is a new event.

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It's a new reason for that claim.

[00:15:05] Speaker 00:
And so 2021 claim, that's its own initial claim.

[00:15:11] Speaker 00:
That claim was granted by VA in the December 2021 initial decision.

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And under VA's non-adversarial system, if a veteran has a good claim, VA should grant it.

[00:15:23] Speaker 00:
And the veteran gets to keep the home.

[00:15:24] Speaker 01:
So what are you arguing?

[00:15:25] Speaker 01:
That there's no similar basis here?

[00:15:28] Speaker 00:
Well, that is not a similar basis because that surgery never occurred previously.

[00:15:33] Speaker 00:
It never occurred any time during the pendency of the 2007 claim.

[00:15:38] Speaker 00:
And so it's an entirely new event.

[00:15:41] Speaker 01:
Isn't that, by definition, what a supplement claim is, something that occurs after the initial or the operative period?

[00:15:50] Speaker 00:
And Your Honor is right.

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So supplemental claim, by itself, the terminology can be brought.

[00:15:57] Speaker 00:
One thing that's missing in my friend on the other side's argument is to go back to section 5108.

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is entitled supplemental claim.

[00:16:08] Speaker 00:
So the whole section is devoted to supplemental claim.

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And the history of 5108, first of all, on the face of 5108 as it stands today, it requires a supplemental claim to be re-adjudicated.

[00:16:23] Speaker 00:
That means the claim, it's supplemental too, has to be previously adjudicated so that a supplemental claim would be a re-adjudication.

[00:16:35] Speaker 00:
The surgery was never part of any previous adjudication.

[00:16:39] Speaker 01:
If you have a claim for an increase in benefits due to a worsening condition, that can't be a supplemental claim?

[00:16:50] Speaker 00:
That is not a supplemental claim because that worsening happens subsequent to the previous claim.

[00:16:57] Speaker 00:
So if that worsening was never part of the previous claim, that is a new claim.

[00:17:04] Speaker 00:
And that is the case in the old system, too.

[00:17:07] Speaker 01:
How can that be?

[00:17:08] Speaker 01:
If you have veterans who have a service-connected injury, and over time, that injury or the conditions that are brought on by that injury worsen to a point to, for example, here, there's a hip replacement.

[00:17:25] Speaker 01:
And you're saying that that hip replacement is not connected, is not similar,

[00:17:31] Speaker 01:
to the initial disability?

[00:17:35] Speaker 00:
It is not because, again, these events happen after that initial claim, that original claim.

[00:17:44] Speaker 00:
So under the old system, a claim for increase in benefits would be a new claim as well.

[00:17:51] Speaker 00:
It would not have been a reopened claim.

[00:17:54] Speaker 00:
So that goes to the history of 5108.

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Prior to the AMA, 5108

[00:18:00] Speaker 00:
addressed a claim for reopening.

[00:18:03] Speaker 00:
And back then, if Your Honor looked at the actual changes in 5108 from pre-AMA to AMA or through AMA, we can see that previously, 5108 was addressing

[00:18:29] Speaker 00:
First, reopening disallowed claim.

[00:18:32] Speaker 00:
That was an old 5108.

[00:18:33] Speaker 00:
And back then, it said, if new and relevant evidence is presented or secured with respect to a claim which has been disallowed, the secretary shall reopen the claim and review the former disposition of the claim.

[00:18:52] Speaker 00:
So back then, under that regime,

[00:18:58] Speaker 00:
a claim for increased benefit would not have been a claim for real bank.

[00:19:03] Speaker 00:
And as this court recognized in the MVA case, supplemental claim is meant to replace

[00:19:12] Speaker 00:
a claim for reopening.

[00:19:14] Speaker 05:
Mr. Quinn, let me ask you just two questions.

[00:19:16] Speaker 05:
What's interesting is, in her briefing, Ms.

[00:19:20] Speaker 05:
Jackson placed a significant reliance upon the Boggs decision.

[00:19:26] Speaker 05:
Is there, honor?

[00:19:26] Speaker 05:
Interestingly, I could have missed it, but it didn't appear to me that either the majority

[00:19:32] Speaker 05:
or the minority in the Veterans Court cited Boggs.

[00:19:37] Speaker 05:
Maybe I'm wrong.

[00:19:37] Speaker 05:
I could have missed it.

[00:19:38] Speaker 05:
But I know you didn't cite Boggs.

[00:19:42] Speaker 05:
But I want to give you a chance to respond to Ms.

[00:19:46] Speaker 05:
Jackson's Boggs argument.

[00:19:50] Speaker 05:
What is your response to her reliance on Boggs?

[00:19:52] Speaker 00:
First of all, the reliance on Boggs is

[00:19:58] Speaker 00:
misplaced in this case because Boggs was addressing section 7104 about the jurisdiction for the board.

[00:20:06] Speaker 00:
And the language that's at issue in Boggs is, I believe, the phrase based upon the same factual basis.

[00:20:19] Speaker 00:
That is not the same statutory language at issue here.

[00:20:23] Speaker 00:
The statutory language at issue here is from

[00:20:26] Speaker 00:
Section 101, paragraph 36, same or similar bases.

[00:20:30] Speaker 00:
So if we compare those two, we can see immediately the difference in the statutory language.

[00:20:36] Speaker 00:
And what's also apparent is that Ms.

[00:20:40] Speaker 00:
Jackson is inserting the word factual bases into the word bases at issue here, which is in Section 101, paragraph 36.

[00:20:51] Speaker 00:
So Boss doesn't apply.

[00:20:53] Speaker 05:
Let me ask you one other question.

[00:20:56] Speaker 05:
Assume for the moment that one were to agree with Mr. Stolz that we do have a supplemental claim here.

[00:21:07] Speaker 05:
That means that in order to prevail, I think, if I understand things correctly, you have to establish that, yes, that was a supplemental claim, but not with respect to, quote,

[00:21:22] Speaker 05:
the case, close quote, in 5104C1.

[00:21:26] Speaker 05:
In other words, you would be saying, well, a supplemental claim isn't always part of the case.

[00:21:37] Speaker 05:
What is your best argument for the proposition that Ms.

[00:21:42] Speaker 05:
Jackson doesn't make or meet the case requirement of 5104C1?

[00:21:49] Speaker 00:
First, Your Honor, again, we can point back to Boggs.

[00:21:52] Speaker 00:
Because in Boggs, the court in Boggs said that the two conditions, one type of hearing loss in an earlier claim and another type of hearing loss in a later claim, they're not in the same case because the later one cannot deprive the board's jurisdiction of the earlier claim.

[00:22:16] Speaker 00:
And so that's the same here.

[00:22:17] Speaker 00:
These two are not the same case.

[00:22:20] Speaker 00:
In Boggs, the Federal Circuit, this court.

[00:22:24] Speaker 05:
Well, see, you had a change of circumstances here.

[00:22:27] Speaker 05:
I'm sorry, Your Honor?

[00:22:27] Speaker 05:
You had a change of circumstances here in the sense that there'd been the original determination with respect to the hip condition.

[00:22:37] Speaker 05:
And then subsequently, there had been the surgery, so you had new circumstances.

[00:22:41] Speaker 05:
Does that make a difference?

[00:22:42] Speaker 00:
Yes, absolutely, Your Honor.

[00:22:43] Speaker 00:
It's an entirely new basis.

[00:22:49] Speaker 00:
same or similar.

[00:22:50] Speaker 00:
And that's what the Veterans Court had found, that it was not same or similar.

[00:22:55] Speaker 00:
And it's entirely new, because that's a surgery.

[00:22:59] Speaker 02:
And when there is a surgery... So, Counsel, I do understand how you're making the argument that it's not the same basis, but I do want you to expand on your viewpoint that it's not a similar basis, because I think of similar obviously as broader than same basis.

[00:23:13] Speaker 00:
Yes, Your Honor.

[00:23:14] Speaker 00:
And this is

[00:23:15] Speaker 00:
goes back to the textual argument I was making in pointing out Ms.

[00:23:19] Speaker 00:
Jackson's argument by inserting a factual basis.

[00:23:23] Speaker 00:
Now, the statutory language requires same or similar basis.

[00:23:27] Speaker 00:
That includes both legal and factual.

[00:23:29] Speaker 00:
And this is what the Veterans Court pointed out in their opinion, discussing both legal and factual basis.

[00:23:37] Speaker 00:
So the legal basis for a service connection is different from the legal basis

[00:23:45] Speaker 00:
for increasing benefits.

[00:23:46] Speaker 02:
OK, so it sounds like your argument boils down to the fact that because it's basis, not factual basis, it needs to be both the same or similar factual and legal basis?

[00:23:56] Speaker 00:
That's part of it.

[00:23:57] Speaker 00:
And so the legal basis is different.

[00:24:00] Speaker 00:
The factual basis is also not similar either, because a hip symptom back in 2007 or before that

[00:24:13] Speaker 00:
was different than the hip symptom now.

[00:24:16] Speaker 00:
And that's, if we follow Boggs, the overlapping symptoms of mentology is not enough to make them the same case.

[00:24:25] Speaker 02:
And then just following up on what Judge Shaw asked you in terms of the case argument, do you agree that you need to win on either the case argument, the argument that I think Judge Shaw presented to you, or on the supplemental basis argument?

[00:24:41] Speaker 00:
I think we can win on either.

[00:24:43] Speaker 00:
But we want to point out that the regulatory definition of supplemental condition is the correct definition because the VA took into account Section 5108, as I pointed out earlier.

[00:25:01] Speaker 00:
And I believe that is the weakest link in Ms.

[00:25:04] Speaker 00:
Jackson's argument when they're defining supplemental claims so broadly

[00:25:10] Speaker 00:
that it's anything but the very first claim, because 5108 requires adjudication.

[00:25:17] Speaker 01:
Doesn't your position render the statute superfluous?

[00:25:21] Speaker 01:
I'm sorry?

[00:25:22] Speaker 01:
Doesn't your position render the statute superfluous?

[00:25:26] Speaker 00:
No, Your Honor.

[00:25:27] Speaker 00:
Actually, it's quite the opposite.

[00:25:28] Speaker 00:
Our position is consistent with both we are matching up 101 paragraph 36 and 5108, because those are both

[00:25:38] Speaker 00:
they should take full effect.

[00:25:40] Speaker 00:
And our reading gives them full effect.

[00:25:43] Speaker 00:
In fact, Ms.

[00:25:44] Speaker 00:
Jackson's argument also creates conflict, as the Veterans Court correctly explained, between 5110A2 and B3.

[00:25:53] Speaker 00:
And Ms.

[00:25:54] Speaker 00:
Jackson cites the Ariano case from the Supreme Court, saying that subsection B creates a general exception to subsection A. That is incorrect, because the Ariano case

[00:26:08] Speaker 00:
was really limited to subsection A1, because subsection A1 includes the caveat that unless otherwise provided in this section.

[00:26:17] Speaker 00:
But A2 doesn't do that.

[00:26:19] Speaker 00:
And so we urge the court to read the Arellano case carefully and not follow Ms.

[00:26:27] Speaker 00:
Jackson's argument to say that subsection B

[00:26:31] Speaker 00:
as it creates a general exception to subsection 8.

[00:26:34] Speaker 00:
Ariana was much narrower than that.

[00:26:35] Speaker 01:
The statute reads, excuse me, the regulation at 3.1 P 1 little i 2 i. That only reads, an initial claim is any complete claim other than a supplemental claim.

[00:26:53] Speaker 01:
Does the complete claim, does that definition have any impact on this?

[00:26:59] Speaker 00:
The complete claim in this case, I don't think, has any impact in this case.

[00:27:05] Speaker 00:
But it is part of a reasonable reading of the word initial claim.

[00:27:15] Speaker 02:
Do you believe that all supplemental claims are compensable under Section 5904C?

[00:27:21] Speaker 00:
No, Your Honor.

[00:27:22] Speaker 00:
I believe this 5904C still needs to go through all the terms in that statute to be awarded fees.

[00:27:36] Speaker 00:
And that is what's also missing in this case, is that, again, it was not an initial decision relating to this case.

[00:27:45] Speaker 00:
And that's in 5904C.

[00:27:48] Speaker 00:
That is going to, Your Honor's argument,

[00:27:52] Speaker 00:
thought process about Ms.

[00:27:54] Speaker 00:
Jackson needing to prevail to show that, to win on the argument, both on the supplemental claim and the case argument.

[00:28:04] Speaker 02:
What is your best argument that it's not part of the same case?

[00:28:08] Speaker 00:
Again, so as we pointed out earlier, the surgery is an entirely new event.

[00:28:15] Speaker 00:
And VA's practice has always been that if there

[00:28:21] Speaker 00:
is a hip replacement surgery, that's automatically 100% disability, at least during that time being hospitalized for the hip surgery.

[00:28:31] Speaker 00:
So that is an entirely new basis.

[00:28:34] Speaker 00:
Even under box, it would be an entirely new case.

[00:28:38] Speaker 00:
And prior to AMA, that hip surgery was never previously decided upon, and now

[00:28:48] Speaker 00:
it was also not previously adjudicated.

[00:28:51] Speaker 00:
So it is not a supplemental claim, because the new basis that was never previously adjudicated.

[00:29:01] Speaker 01:
OK.

[00:29:01] Speaker 01:
Thank you, Your Honor.

[00:29:05] Speaker 01:
Thank you, Ferrari.

[00:29:05] Speaker 01:
Counsel, we will restart in five to four minutes.

[00:29:19] Speaker 03:
Thank you, Your Honor.

[00:29:20] Speaker 03:
Just to briefly address some points.

[00:29:26] Speaker 03:
It's telling, in listening to my friend present the government's case here, that he started really diving into and explaining how fee triggers worked in the legacy system.

[00:29:40] Speaker 03:
And that, to me, is really where the Department of Veterans Affairs and the Veterans Court has gone so wrong in its decisions

[00:29:50] Speaker 03:
in its decision in this case, is that we are not in that legacy system anymore.

[00:29:55] Speaker 03:
We are under the AMA, where Congress has again, as we pointed out in our reply brief, has again moved the line back and liberalized how an attorney or an accredited agent can charge fees.

[00:30:08] Speaker 03:
And so starting the argument there is telling, in my opinion, and I think that it can inform the way the court thinks about this case, that we are now in this new system,

[00:30:20] Speaker 03:
It's the 5904 line of cases was trending in that direction because of Jackson, Carpenter, et cetera, talking about the liberal case.

[00:30:30] Speaker 03:
And that's necessary here.

[00:30:31] Speaker 03:
It's a linchpin of our argument, but it's not the whole thing.

[00:30:34] Speaker 03:
And that's why we talked about Boggs, because of the same factual basis.

[00:30:38] Speaker 03:
And here, Boggs helps guide that inquiry to Judge Shaw's point, which is why we cited that in our briefing.

[00:30:45] Speaker 03:
And read as a whole.

[00:30:47] Speaker 03:
And in the context of the liberalized world of the AMA and in the liberalized way in which Congress really encouraged the use of supplemental claims to simplify this system and got away from that notice of disagreement and all of the esoteric things that really were built up over the course of the third plus year.

[00:31:09] Speaker 05:
Mr. Sore, let me just ask you, I want to make sure, because we don't have much time at this point.

[00:31:16] Speaker 05:
Let's assume you're correct that you have a supplemental claim as it's defined.

[00:31:22] Speaker 05:
Then we have to determine, though, whether it was part of the original case, right?

[00:31:26] Speaker 05:
Yes, Your Honor.

[00:31:27] Speaker 05:
Would you agree with the general proposition that something can be a supplemental claim, but not always part of the original case?

[00:31:37] Speaker 05:
There can be situations where a supplemental claim exists,

[00:31:41] Speaker 05:
but it's not part of the original case for purposes of 5104C1.

[00:31:46] Speaker 05:
I'm just asking the general proposition there.

[00:31:49] Speaker 03:
The general proposition, I believe it can make some sense as to whether it's a supplemental claim.

[00:31:54] Speaker 05:
I know you would contest it here in your case.

[00:31:57] Speaker 05:
Yes, Your Honor.

[00:31:58] Speaker 05:
But I'm just talking about the general proposition.

[00:32:00] Speaker 03:
Yes, though I think that would be rare because of the same or similar

[00:32:06] Speaker 03:
language that is in 10136.

[00:32:07] Speaker 03:
I think that would be rare.

[00:32:09] Speaker 05:
Possible but rare.

[00:32:10] Speaker 03:
Possible but quite rare.

[00:32:11] Speaker 03:
And rightly so.

[00:32:15] Speaker 03:
The supplemental claim is a way for veterans to be able, and I was also struck

[00:32:21] Speaker 03:
There's really no question that supplemental claims that are continuously pursued are a fee-triggering event.

[00:32:29] Speaker 03:
But MBA made clear that it doesn't have to come in within that year.

[00:32:32] Speaker 03:
And so the supplemental claim here, this is a supplemental claim in the same case.

[00:32:38] Speaker 03:
And so I think that's the more likely scenario that we're going to see as the AMA winds its way forward.

[00:32:44] Speaker 03:
But I do acknowledge your honors point.

[00:32:52] Speaker 01:
Thanks to parties for the argument.

[00:32:53] Speaker 01:
The case will now go to submission.