[00:00:42] Speaker 03:
Next case is Keith Snyder versus the Secretary of Veterans Affairs 2015-7012.

[00:00:49] Speaker 03:
Mr. Carpenter, good morning.

[00:00:51] Speaker 03:
Good morning, Your Honor.

[00:00:55] Speaker 00:
May it please the Court, Ken Carpenter appearing on behalf of Mr. Keith Snyder.

[00:00:59] Speaker 00:
This case involves a

[00:01:01] Speaker 00:
questioned concerning eligibility to charge a fee in a fixed period during the course of a continuously prosecuted claim following successful representation before the court below in an appeal of an adverse board decision.

[00:01:17] Speaker 00:
In this record, it is clear that Mr. Snyder was continuously representing Mr. Brook

[00:01:24] Speaker 00:
during the entirety of the appeal procedure as it continued below before the agency, following his successful representation at court.

[00:01:34] Speaker 00:
There was an anomalous event which took place as a result of some confusion on the part of Mr. Brooke.

[00:01:40] Speaker 03:
You mean a termination?

[00:01:44] Speaker 00:
No, there was not a termination, Your Honor.

[00:01:47] Speaker 00:
There was, by the VA, a revocation of the VA's recognition of Mr. Snyder.

[00:01:53] Speaker 00:
because the VFW, a service organization, sorry, Veterans of Foreign Wars, filing of a 22A, or a recognition form, and they were recognized by the VA, which automatically under VA procedures revoked Mr. Snyder's representation.

[00:02:15] Speaker 00:
During the course of that brief representation, they made a claim relative to the matter that was continuing before the agency.

[00:02:23] Speaker 00:
within the one-year appeal period of the initial decision on the initial rating.

[00:02:29] Speaker 00:
As a consequence, that was part and parcel of the continuing case for Mr. Brooke.

[00:02:35] Speaker 00:
Under the correct interpretation of 5904, Mr. Brooke's representation by Mr. Snyder was uninterrupted.

[00:02:45] Speaker 00:
This goes not to whether or not the VA recognized him for a brief period of time or failed to recognize him, but whether or not he had a continuing relationship under the fee agreement that was properly entered into under 5904.

[00:03:01] Speaker 02:
Suppose that instead of coming back into the case, however you want to characterize what happened here,

[00:03:10] Speaker 02:
Mr. Brook had effectively fired Mr. Snyder in October or September, let's say, of 2002, and then a new lawyer had, let's say Mr. Carpenter, just to pick a name, had filed a...

[00:03:28] Speaker 02:
increased benefits claim that was filed by the VFW in October.

[00:03:32] Speaker 02:
What would Mr. Snyder's interest in that claim and the benefits flowing from that claim be under those circumstances?

[00:03:41] Speaker 00:
Well, Your Honor, I think it's important to distinguish whether this is part of a separate claim or a new claim.

[00:03:48] Speaker 02:
Right, but that's important for our purposes as well, right?

[00:03:52] Speaker 02:
The question of whether that 2002, October 2002, as opposed to July 2002, was a separate claim, right?

[00:04:01] Speaker 00:
Well, that was...

[00:04:03] Speaker 00:
That is not the correct analysis.

[00:04:05] Speaker 00:
That was the analysis that was made by the court below.

[00:04:08] Speaker 00:
A correct analysis is whether or not under 5904 this is the same case.

[00:04:13] Speaker 00:
And it is the same case because even under your hypothetical, even if a new attorney had come in, if, as in this case, Mr. Brooke went back to Mr. Snyder... No, no, let's assume he never goes back.

[00:04:25] Speaker 00:
Oh, if he never goes back, then that ends the representation.

[00:04:29] Speaker 02:
Well, but you need to see for the second

[00:04:33] Speaker 02:
application, the one that's filed in October 2002, and all benefits that flow from that.

[00:04:39] Speaker 02:
Does Mr. Snyder get any of that?

[00:04:41] Speaker 00:
Yes, Mr. Snyder gets all of that.

[00:04:42] Speaker 02:
He gets all of it, even though Mr. Carpenter did all the work?

[00:04:45] Speaker 02:
Well, even though Mr. Carpenter came in and filed... Suppose he not only filed, but he got all the evidence, and he prosecuted it through the board and the Court of Appeals for Leonard's claims.

[00:04:57] Speaker 02:
Mr. Carpenter gets nothing out of that?

[00:05:00] Speaker 00:
He may have a cause of action back against Mr. Brook for the work that he did, but under the fee agreement that was entered into under 5904, all past due benefits arising out of that case go to Mr. Snyder.

[00:05:15] Speaker 00:
But that is not the facts in this case.

[00:05:17] Speaker 02:
Would that also be true if, for example, in October there had been, supposing in July there was a PTSD claim, if there was.

[00:05:26] Speaker 02:
In October there was a claim for injury to a left knee.

[00:05:30] Speaker 02:
Some other physical.

[00:05:31] Speaker 02:
But also service related is the claim.

[00:05:33] Speaker 02:
Would that still be part of the same case that Mr. Snyder, because it was within a year?

[00:05:38] Speaker 00:
No.

[00:05:39] Speaker 00:
That Mr. Snyder initiated?

[00:05:40] Speaker 00:
because it wasn't part of the board's decision that was the predicate for the representation.

[00:05:46] Speaker 00:
Under the prior version of 5904, which was in place at the time that the fee agreement was entered into in this case, there had to be a first final board decision on a case.

[00:05:56] Speaker 00:
That case was limited to the psychiatric disability for post-traumatic stress disorder.

[00:06:01] Speaker 00:
And in that context, then no other cases or no other claims

[00:06:07] Speaker 00:
would be part of that representational agreement or the entitlement for Mr. Snyder to collect a fee.

[00:06:13] Speaker 02:
But if there had been a board decision, let's say, without representation by anyone back in years earlier, on the need, and then the filing was made, a new filing for the RO was made in October 2002 by Mr. Carpenter,

[00:06:29] Speaker 00:
That would be a new claim.

[00:06:31] Speaker 02:
It would still be a new claim?

[00:06:32] Speaker 02:
Why would that be a new claim if the one that was filed in this case in October was not a new claim for increased benefits?

[00:06:39] Speaker 02:
Because it's the same subject matter on the PTSD?

[00:06:42] Speaker 00:
Well, because it's not the same subject matter.

[00:06:44] Speaker 00:
And I'm sorry, if you're saying that the new claim that was filed was for the physical conditions, that's what I'm saying would be a new claim.

[00:06:51] Speaker 00:
If it related to the post-traumatic stress disorder, it would not be a new claim.

[00:06:54] Speaker 02:
Even though there are different benefits.

[00:06:57] Speaker 02:
In this case, an increased benefit as opposed to back compensation.

[00:07:01] Speaker 00:
Correct, Your Honor.

[00:07:03] Speaker 00:
And that's the important distinction here is that Mr. Brooks' case was about his entitlement to past due benefits for his award of compensation for post-traumatic stress disorder.

[00:07:16] Speaker 00:
There was no ending of that case that would have justified, even though they framed it as a claim for increase, there was no claim for increase because the rating had not become final.

[00:07:29] Speaker 00:
Because the rating had not become final, that continued as part of the appeal that Mr. Snyder correctly and timely introduced in November of 2003 that continued the case that had begun with the initial board denial that was successfully overturned by the Veterans Court and sent back for re-adjudication and Mr. Brook was granted benefits

[00:07:53] Speaker 00:
as a result of that successful representation and that case continued until he received the maximum benefits and that case has been continuing through 2015 and there have been two subsequent awards after the initial award when Mr. Snyder was paid, this interim award of a relatively short period of time and then two subsequent periods that go all the way back to 1996 for a total rating.

[00:08:23] Speaker 00:
All of those are part of the case that commenced with the first answer.

[00:08:28] Speaker 01:
But what if we disagree hypothetically in saying that the VFW letter seeking a claim for increase is something different, separate, different claim than the claim originally filed in 1993.

[00:08:42] Speaker 00:
I think that would be at odds with this court's case.

[00:08:46] Speaker 01:
OK, but what if we go renegade and we just do that?

[00:08:49] Speaker 01:
So then what?

[00:08:51] Speaker 01:
What happens to your case here?

[00:08:54] Speaker 00:
Well, then I would request in Bonk Review to reconcile the differences between the existing court cases.

[00:09:00] Speaker 01:
So basically your position predicated on whatever the VFW did in October 2002, that letter, it is somehow part and parcel of the claim that Snyder had been pursuing years prior.

[00:09:17] Speaker 00:
It was part of Mr.

[00:09:19] Speaker 00:
Brooks continuing case and case has been defined by this court in several cases that have interpreted the term case under 5904.

[00:09:31] Speaker 00:
It was part of that case.

[00:09:35] Speaker 00:
The action taken for what the BFW referred to as reopen for increase was not in fact either a reopening or a claim for increase.

[00:09:47] Speaker 00:
It was a challenge to whether or not the correct rating had been decided.

[00:09:52] Speaker 00:
And the proper action was the action that Mr. Snyder took, which was the filing of a notice of disagreement with the initial rating.

[00:09:59] Speaker 01:
Right, but for at least a period of time.

[00:10:02] Speaker 01:
Let's assume for the moment Mr. Snyder did not have a valid hour of attorney to represent Mr. Brooks.

[00:10:09] Speaker 00:
That's correct.

[00:10:10] Speaker 00:
Okay.

[00:10:11] Speaker 00:
And in that window, he could not take action that would be recognized by the VA, but that has nothing to do with whether or not he had a valid and enforceable speed agreement.

[00:10:21] Speaker 01:
But what happens if a lawyer number two, say Mr. Carpenter, during that whole intervening period,

[00:10:27] Speaker 01:
is reopening a claim, is submitting evidence, and is somehow convincing the VA to upgrade the rating from 30% to 100%.

[00:10:41] Speaker 01:
So now it becomes crystal clear that it's really the efforts of lawyer number two that have succeeded in convincing the VA to increase the rating.

[00:10:54] Speaker 00:
With all due respect, Your Honor, the efforts of Mr. Carpenter in the second instance are irrelevant to whether or not there is a valid fee agreement under 5904.

[00:11:04] Speaker 00:
There is no new claim, no new action, because it's part of a continuously prosecuted claim.

[00:11:12] Speaker 00:
It is Mr. Brook's ongoing case.

[00:11:15] Speaker 00:
And even if Mr. Carpenter did all of that work, that is a matter between he and Mr. Brook, not a matter relative to 5904, which mandates, based upon the fee agreement between Mr. Brook and Mr. Snyder,

[00:11:27] Speaker 00:
that the VA would hold from all past due benefits.

[00:11:31] Speaker 00:
The statute is crystal clear.

[00:11:33] Speaker 00:
Any and all past due benefits.

[00:11:36] Speaker 01:
Then the result would be that Mr. Brooke would likely have to pay two lawyers for that.

[00:11:44] Speaker 01:
Potentially he would under your scenario.

[00:11:46] Speaker 02:
I felt that the VA procedures didn't allow that.

[00:11:49] Speaker 02:
Didn't allow any more than 20% to go to lawyers, right?

[00:11:54] Speaker 02:
Isn't that... In other words, if Mr. Carpenter came in and said, well, you've paid 20% to Mr. Snyder, but you also owe me 20%.

[00:12:02] Speaker 02:
They wouldn't allow that, would they?

[00:12:04] Speaker 00:
Well, what would not be allowed would be a second withholding.

[00:12:08] Speaker 02:
Right.

[00:12:09] Speaker 00:
That has nothing to do with whether or not Mr. Carpenter would be entitled, as a matter of quantum meruit, to the work that he performed on behalf of Mr. Brooks.

[00:12:18] Speaker 02:
Where would the money come from?

[00:12:19] Speaker 02:
It would come from Mr. Brooks.

[00:12:21] Speaker 02:
But I thought that was the thing that the VA didn't allow, which is to say, whether on the basis of quantum meruit, or on the basis of a second contract, or on any other basis,

[00:12:32] Speaker 02:
You can't, the veteran can't be in a position to have to pay more than 20% as an attorney fee, isn't that right?

[00:12:38] Speaker 00:
That is not, there has been no judicial interpretation.

[00:12:42] Speaker 00:
in that fashion, Your Honor.

[00:12:45] Speaker 02:
Is there any kind of regulatory provision?

[00:12:47] Speaker 02:
No, and there is no regulatory provision.

[00:12:49] Speaker 02:
No, Your Honor.

[00:12:50] Speaker 02:
Am I making this up and just imagining this 20% cap in the regulations or statute?

[00:12:56] Speaker 00:
I had the impression there was.

[00:12:57] Speaker 00:
The 20% cap, Your Honor, relates only to the amount that will be withheld, and that the amount of the fee must be less than

[00:13:07] Speaker 00:
20%.

[00:13:08] Speaker 00:
If it's 20% or less, then the amount of that fee will be withheld.

[00:13:13] Speaker 02:
If the veteran... But you're going to side deal with the veteran and say, it's only 20% is going to be withheld, but you're going to owe me another 20% because my contingent fee rate is 40%?

[00:13:23] Speaker 02:
Well, no, Your Honor.

[00:13:24] Speaker 00:
As a matter of fact, my practice, not your hypothetical, Mr. Carpenter, but this real Mr. Carpenter, my fee agreements are non-withholding fee agreements and my fee agreements are 30%.

[00:13:35] Speaker 00:
So the VA does not withhold my fee at all.

[00:13:38] Speaker 00:
All of the money goes to my client, and then my client is obligated to pay me.

[00:13:43] Speaker 00:
The cap under the statute is that it must be reasonable.

[00:13:46] Speaker 00:
And by regulation, the VA has said that a fee agreement that calls for more than one-third of the amount of pass-through benefits is presumptively unreasonable.

[00:13:58] Speaker 03:
Would you like to?

[00:13:58] Speaker 00:
I would like to retain the rest of my rebuttal.

[00:14:02] Speaker 03:
Mr. Billingham.

[00:14:05] Speaker 04:
Good morning, Your Honor, and may it please the Court.

[00:14:08] Speaker 04:
Mr. Snyder suggests an unworkable standard.

[00:14:13] Speaker 04:
Mr. Cleverner has reiterated that today, referring to terms such as continuing relationship, uninterrupted relationship, but relationship is nowhere in the rules.

[00:14:25] Speaker 04:
First of all, we do not deny that if Mr. Snyder were to establish service connection, for example, even using the VFW's Civilian Psychological Assessment that won him an increased award in 2003, if he were to use that,

[00:14:41] Speaker 04:
and established that that assessment in 2003 and other medical records in 2003 should have applied logically related back to 1993 and he gets an increase say to 100% in 1993, he owns that claim.

[00:14:55] Speaker 04:
All we're talking about here is a tiny slice of time.

[00:14:58] Speaker 04:
In October 2002, the Veterans of Foreign Wars submitted a psychological assessment

[00:15:04] Speaker 04:
and dated, well a little bit later than October 2002, dated February 2003.

[00:15:11] Speaker 04:
By May 2003, lightning quick by the standards of this case, the VA regional office recognized that Mr. Snyder's, Mr. Brooks condition rather, had increased severely.

[00:15:25] Speaker 04:
They also examined other records of the VA that were 2003, the 2003 timeframe.

[00:15:31] Speaker 04:
and recognizing that he then had suffered an increase, they determined that between October 2002 when the EFW filed that claim on his behalf and May of 2003 when they had judged him to be 100% within that time frame, he received past two benefits.

[00:15:49] Speaker 04:
These are past due benefits measured by the 100% the Veterans Administration awarded in 2003 minus the 30% he had already been getting times the approximately nine months it took for him to get that award.

[00:16:03] Speaker 04:
That nine months times that delta is what we're fighting about here.

[00:16:08] Speaker 04:
And we're not saying there's a de minimis rule in play.

[00:16:11] Speaker 04:
We're simply saying that is the bright line between the very small area we're carving out here as being a separate claim

[00:16:18] Speaker 04:
that was won on the account or by the good efforts of the DFW and therefore for that period Mr. Brook is entitled to keep all of the money.

[00:16:27] Speaker 02:
So Mr. Carpenter says that that's simply a separate, it's simply part of the same case for purposes of the fee statute as the July 2002 claim.

[00:16:40] Speaker 02:
And why, what is it that tells us that he's wrong in saying it's the same case?

[00:16:45] Speaker 04:
Well, this case, and this court rather, and the Court of Veterans Claims has long associated the word case with claim, and that makes sense.

[00:16:53] Speaker 04:
Lawyers are recognized for their work on claims.

[00:16:55] Speaker 04:
They're paid for their work on board decisions involving issues.

[00:17:00] Speaker 04:
But this court has never suggested that a case means something other than a claim.

[00:17:05] Speaker 04:
In this court's colloquy with Mr. Carpenter, the premise seemed to be, the premise was,

[00:17:09] Speaker 04:
that this is a different claim.

[00:17:11] Speaker 04:
Mr. Carpenter has not provided any reason for suggesting this was a different claim.

[00:17:16] Speaker 04:
This court has explained, in Jackson and other cases, that what you do, in parsing out whether a claim belongs to one case or another, you examine the benefits sought.

[00:17:28] Speaker 04:
In this case, it was a claim for increased benefits.

[00:17:31] Speaker 04:
And you examine the essential elements.

[00:17:33] Speaker 04:
I think this court called them the necessary elements.

[00:17:37] Speaker 04:
The Cameron case and the case we're reviewing today called them essential elements.

[00:17:41] Speaker 04:
So for example, in the Carpenter case, Mr. Carpenter's own case,

[00:17:45] Speaker 04:
The court said that it was wrong for the Veterans Administration to parse out or separate out a dispute over an effective date where what was at stake was a disability claim.

[00:17:56] Speaker 04:
And the court explained that a disability claim has actually five necessary elements, but the two key ones were an effective date and a disability.

[00:18:04] Speaker 04:
And so the Q claim at issue in that case was not a new claim because it concerned a very disability claim that had been issued all along, which included an effective date and a rating.

[00:18:16] Speaker 04:
In this case, the effective date and the rating is unique to the period 2003, late 2002, early 2003, and forward.

[00:18:25] Speaker 02:
And that is because of the claim for increased benefits, i.e.

[00:18:29] Speaker 02:
his condition has gotten worse as opposed to a claim for back benefits, which a Q claim would be, and an E claim, new material evidence claim would be, or assertion would be.

[00:18:40] Speaker 04:
The statute at 1001

[00:18:42] Speaker 04:
recognizes three kinds of claims.

[00:18:45] Speaker 04:
An original claim, which this clearly is not, a claim for increased benefits, and a claim for reopening after final adjudication, which the case is also not.

[00:18:54] Speaker 04:
And for example, 5001 says so much.

[00:19:00] Speaker 04:
fifty one fifty one fifty one three three which requires the veterans administration give notice so the notice must be given with respect to and taking into account the type of claim at issue so sort of the atomic particles of all cases are claims and underneath those issues and underneath those

[00:19:21] Speaker 04:
evidence.

[00:19:22] Speaker 01:
What about the bond versus Shunseki case, which suggests that any time there's new material evidence and there's multiple claims pending, then the VA needs to consider how that new material evidence relates to

[00:19:39] Speaker 01:
all pending claims.

[00:19:41] Speaker 04:
Right.

[00:19:41] Speaker 04:
There the court was considering 38 CFR 3.156, the new material evidence standard, which says the new evidence comes in, it must be associated with a pending claim.

[00:19:51] Speaker 04:
So as the court said here, it was associated with a pending claim and that was the claim

[00:19:56] Speaker 04:
for the 2003 increase to 100 percent and there is nothing that prevents it and the court has considered it in connection with the other pending claim as well.

[00:20:07] Speaker 04:
The one starting in 1993?

[00:20:09] Speaker 04:
1993, right.

[00:20:11] Speaker 04:
And so Mr. Snyder could very well have taken that 2003 evidence

[00:20:15] Speaker 04:
And he has.

[00:20:16] Speaker 04:
And by the filing of his June 2014 notice of disagreement, he said, well, I'll take the 100%, but I think it ought to be effective all the way back to 1993.

[00:20:25] Speaker 04:
So it has been effectively associated with that case.

[00:20:28] Speaker 04:
The blind case simply stands for the proposition that even though a new immaterial evidence may give rise to a new claim,

[00:20:34] Speaker 04:
The board must at least consider it with respect to any pending claim.

[00:20:39] Speaker 04:
And here, based on its very terms, that is, it was based on a 2003 examination of the veteran per force.

[00:20:47] Speaker 04:
It's not material.

[00:20:48] Speaker 04:
to what his condition was in 1993.

[00:20:52] Speaker 04:
That's especially true where he was examined by the VA in 2002 and found to have only mild impairments.

[00:20:57] Speaker 01:
Let's assume for a moment there was no October 2002 opening of a new claim and then in April of 2003 there was that examination assessment that then led to the May 2003 award of 100% rating.

[00:21:16] Speaker 01:
Then under those circumstances

[00:21:19] Speaker 01:
that would relate back to the 1993 claim, right?

[00:21:23] Speaker 01:
It would be part of the 1993 claim.

[00:21:26] Speaker 04:
The VA would have to consider whether it does relate to the VA claim.

[00:21:30] Speaker 04:
And it has considered that and is not found to this day to my knowledge that 2003 examination demonstrates anything with respect

[00:21:36] Speaker 04:
to the veteran's condition back in 1993.

[00:21:38] Speaker 04:
So simply associating and considering it with the claim does not necessarily make it material or dispositive.

[00:21:44] Speaker 01:
A likely effective date of that reading would have been the April examination date, right?

[00:21:49] Speaker 01:
The April 2003 examination date.

[00:21:51] Speaker 01:
Right.

[00:21:51] Speaker 04:
In fact, in November 27, 2012, the decision of the board said that by its analysis, it was, I think, February 28, 2003 really was the effective date.

[00:22:00] Speaker 04:
But recognizing that the RO had granted an earlier service connection date,

[00:22:05] Speaker 04:
effective date rather to October 2002 because that's when the VFW submitted the document.

[00:22:12] Speaker 04:
The board recognized that it would acknowledge October 2002.

[00:22:15] Speaker 01:
Was that the right time to make the effective date?

[00:22:18] Speaker 01:
The date of the VFW's letter?

[00:22:20] Speaker 01:
Rather than the date of the medical assessment?

[00:22:26] Speaker 04:
I think that was sort of a benefited out thing.

[00:22:28] Speaker 04:
I think the board properly held that what matters with respect to effective date is what the evidence suggests.

[00:22:35] Speaker 04:
And they found that the evidence suggested that it was in the February 2003 time frame that this onset to actually read the evidence is not precise, but that's getting into sort of medical fact finding.

[00:22:47] Speaker 04:
But then the board simply allowed that because the Veterans Administration or the regional office had already granted a connection

[00:22:55] Speaker 04:
as of the October 2002 date, which is artificial to be sure.

[00:23:01] Speaker 04:
They sort of went along with that.

[00:23:03] Speaker 04:
But in terms of medical facts, it appears that it was found to be 2003, which is when his condition worsened.

[00:23:08] Speaker 01:
Is it your view, the government's view, that when it comes to attorneys being able to collect fees for services in these types of VA benefits cases,

[00:23:18] Speaker 01:
that there can be circumstances where two different lawyers can collect the same benefit, maybe because an argument could be made that each of the two lawyers at a certain point in time somehow contributed and the flow from their efforts led to the benefits decision?

[00:23:43] Speaker 04:
What I understand, and this is not part of this case,

[00:23:46] Speaker 04:
I think the answer to that question may suggest that the policy that Mr. Carpenter suggests here is a horrible policy and it's unworkable because of precisely that problem.

[00:23:56] Speaker 04:
But my understanding is that it is, well I know for sure, that the Veterans Administration has control over the administration of fees and they must be reasonable, as Mr. Carpenter alluded to, and therefore if, for whatever reason, the Veterans Administration were to determine there was an unreasonable fee afoot,

[00:24:13] Speaker 04:
They certainly would control that.

[00:24:16] Speaker 04:
There was this quantum merry wit, I've come to learn about this week, procedure, whereby the, which Mr. Carver speaks about much more eloquently for sure and much more knowledgably than I, whereby the Veterans Administration attempts to discern who is entitled to the path to benefit and could notify the veteran, for example, that we determine or we suggest that

[00:24:38] Speaker 04:
It appears that your lawyer is eligible for 20% of the past two benefit.

[00:24:43] Speaker 04:
And if there was a question about how it should be parsed out, for example, the veteran says, he did no work.

[00:24:48] Speaker 04:
I did all the work.

[00:24:49] Speaker 04:
He simply signed an agreement.

[00:24:50] Speaker 04:
And after that, he did nothing.

[00:24:52] Speaker 04:
Or I had another lawyer that did the work, or whatever.

[00:24:55] Speaker 04:
Presumably, there can be this quantum area

[00:24:57] Speaker 04:
dividing up of the 20 percent as it were.

[00:25:00] Speaker 04:
But that question is not presented in this case.

[00:25:03] Speaker 04:
But the 20 percent is not a hard cap then?

[00:25:06] Speaker 04:
I take Mr. Carpenter's word that it's not.

[00:25:08] Speaker 04:
He is correct.

[00:25:09] Speaker 02:
I know this to be sure.

[00:25:10] Speaker 02:
I had always assumed, and I may well be wrong in this, but I had always assumed or understood that the reason that the Veterans Administration has this 20 percent maximum on the fee agreements that it will

[00:25:27] Speaker 02:
adjudicator administering effect by making the payment.

[00:25:30] Speaker 02:
That was intended to say 20% is all that we're going to allow attorneys to charge the veterans.

[00:25:36] Speaker 02:
You can't have 20% from us and another 30% from the veteran based on a side deal.

[00:25:44] Speaker 02:
But you're not taking issue with Mr. Carpenter's representation at least up to 33 and a third percent.

[00:25:52] Speaker 02:
That's permissive.

[00:25:55] Speaker 04:
I'm off the record here, Your Honor, and so the agency council is suggesting to me this isn't exactly right.

[00:26:00] Speaker 04:
Mr. Carboner suggests that 30 percent has been deemed to be not unreasonable.

[00:26:03] Speaker 04:
It is true, though, that what we're talking about here is the Veterans Administration's direct payment of past two benefits.

[00:26:10] Speaker 04:
pursuant to fee agreements, which will be deemed reasonable if they are for no more than 20%.

[00:26:15] Speaker 04:
So certainly you can get 20% directly from the Veterans Administration.

[00:26:19] Speaker 04:
And as I understand, there is this quantum area procedure by the Veterans Administration that perhaps could carve up to 20%.

[00:26:28] Speaker 04:
in any event we don't have the issue of more than twenty percent right thankfully that's not the further complication of this case your honor so our bottom line here is that cases are associated with claims that does not appear to be an issue and I won't address that further what we do object to is Mr. Carpenter's or Mr. Snyder an agreeable statement of what he believes is a proper standard and that is quoting from page five of his reply

[00:26:57] Speaker 04:
He argues that because all of his services were performed after the board's January 1998 adverse decision, that success established entitlement to a fee for all past due benefits, regardless of whether he continues his representation.

[00:27:11] Speaker 04:
That is overly broad and it would be horrible and unworkable policy.

[00:27:18] Speaker 04:
If what Mr. Carpenter literally means is post hoc ergo proctor hoc, because it's happened after my work, it must have been as a result of my work, that's not logic and that's not the law.

[00:27:28] Speaker 04:
If, however, he's saying, if he earns a success at the Court of Appeals, and he did here in 1999, and if that success is sufficient for a subsequent pass-through benefit claim, then he's entitled to that pass-through benefit claim, setting aside the quantum area discussion we've had, we agree with him.

[00:27:46] Speaker 04:
But he goes farther.

[00:27:48] Speaker 04:
He says, even if my success before the Court of Veterans Claims in 1999 was not sufficient for the 2010 claim, I still lay claim to those benefits subsequently earned.

[00:28:01] Speaker 04:
And here it was not sufficient because all he established by his success in 1999 was first that there was service connection back to 1993.

[00:28:10] Speaker 04:
And second, that there was a 30% service connection back to 1993.

[00:28:14] Speaker 04:
He did not establish, and he could not have established, what the veteran's condition would be in 2003, because that was years in the future.

[00:28:23] Speaker 04:
Well, actually, his decision was in 2002.

[00:28:25] Speaker 04:
It was slightly in the future.

[00:28:26] Speaker 04:
And it reminds, of course, of the case in Shinseki, where the veteran's condition, where the veteran's attorney met 5904 conditions, was decided, and ultimately concerned

[00:28:39] Speaker 04:
condition in 2001, shortly thereafter she went into a hospital and there was a new condition, new evidence, hospitalization records, which could not have been known to the board in 2001.

[00:28:49] Speaker 04:
And so even that slight difference in time was enough for the court to conclude where the records could simply not be known to the board in their initial decision, they cannot be connected to that decision.

[00:28:58] Speaker 04:
Which case was that?

[00:29:00] Speaker 04:
This was Jackson.

[00:29:04] Speaker 02:
Jackson, yeah.

[00:29:06] Speaker 02:
Now, in a

[00:29:08] Speaker 02:
case that's close in many respects.

[00:29:14] Speaker 02:
Chen mentioned the bond case.

[00:29:16] Speaker 02:
There was a remand in the situation that's somewhat akin to this.

[00:29:20] Speaker 02:
There was a claim for increased benefits while there was another claim pending and the claim for increased benefits was made within a year.

[00:29:27] Speaker 02:
The court sent that back for a determination as to whether there was new and material evidence that was part of the presentation that was made in support of the claim for increased benefits.

[00:29:40] Speaker 02:
Your argument, if I understand your response to Judge Chen later earlier, and I want to make sure this is right, is that that remand determination that the bond court called for has already been done in this case in effect by the board?

[00:29:56] Speaker 02:
Is that your position?

[00:29:58] Speaker 04:
Yes.

[00:29:59] Speaker 04:
I don't think there's ever been any suggestion that the evidence submitted by the DFW has

[00:30:05] Speaker 04:
has not been considered or never been considered in connection with service connection for earlier dates.

[00:30:11] Speaker 02:
Well, but the question that the court was asking was, does it constitute, among other things, new and material evidence in support of the July 2002 claim?

[00:30:24] Speaker 02:
And are you saying that, no, it's simply not pertinent to that claim?

[00:30:29] Speaker 02:
Or are you saying, well, there's no suggestion that they didn't consider it new and material evidence?

[00:30:34] Speaker 04:
I don't know that there has ever been a decision that discreetly considered whether that evidence was new and material evidence, but it certainly was part of the very lengthy November 27, 2012 board decision in which all the evidence was discussed.

[00:30:48] Speaker 04:
New and material evidence is defined in 3.156.

[00:30:51] Speaker 04:
Material evidence means existing evidence that by itself, when considered with previous evidence, relates to an unestablished fact necessary to substantiate the claim.

[00:31:01] Speaker 04:
that 2003 evidence, the 2003 civilian psychological assessment was not necessary to the establishment of the 1993 claim or 100% with respect to that claim.

[00:31:12] Speaker 04:
And the definition goes on to say this evidence must raise a reasonable possibility of substantiating that claim.

[00:31:19] Speaker 04:
There's no reasonable possibility that 2003 investigation in Veterans Health and 2003 related whatsoever to 1993.

[00:31:25] Speaker 04:
So it certainly was not.

[00:31:27] Speaker 03:
Thank you very much, Your Honor.

[00:31:32] Speaker 00:
Thank you.

[00:31:35] Speaker 00:
With all due respect to my colleague, he is wrong.

[00:31:39] Speaker 00:
The VA is wrong here because the VA overlooks two critical factors.

[00:31:44] Speaker 00:
One, the claim stream.

[00:31:46] Speaker 00:
The claim stream of this case is uninterrupted.

[00:31:51] Speaker 00:
It involves the appeal of the initial rating assigned after the grant.

[00:31:57] Speaker 00:
That's what's in play in this case.

[00:31:59] Speaker 00:
And the reason that that claim stream is uninterrupted is one of finality, which goes directly to your point, Your Honor, about Bob.

[00:32:08] Speaker 00:
There is no finality here in Mr. Brooks' case.

[00:32:14] Speaker 00:
It never came to an end.

[00:32:16] Speaker 00:
That is why reopening was not appropriate and that's why a claim for increase was not appropriate.

[00:32:22] Speaker 00:
Even though there was evidence from the medical record that justified a higher rating.

[00:32:28] Speaker 00:
And the reason that it's part of the claim stream is when the board granted the benefit and sent it back for an initial rating

[00:32:35] Speaker 00:
the VA only assigned a 30% rating.

[00:32:39] Speaker 00:
At issue then in Mr. Brooks' claim stream was the appropriate rating from 1993 in excess of 30%.

[00:32:48] Speaker 00:
The VA creates or attempts to subdivide the case of Mr. Brooks into one of effective date and rating.

[00:32:58] Speaker 00:
While those are issues

[00:33:00] Speaker 00:
in the rating more than 30 percent.

[00:33:04] Speaker 00:
Those are not new claims.

[00:33:06] Speaker 00:
They cannot be subdivided.

[00:33:09] Speaker 00:
Mr. Brooks' case cannot be subdivided.

[00:33:12] Speaker 02:
Would you say then that, whether you want to say it's claim or case, you can answer with respect to both if it's a different answer.

[00:33:21] Speaker 02:
But would you say that where you have a claim for

[00:33:27] Speaker 02:
back benefits based on an argument that there was actually a higher level of disability originally, say in this case 1993, and also a claim for increased benefits where the argument is I've gotten worse as of October 2002 and therefore regardless of what happened between 1993 and 2002, now I'm 100%.

[00:33:51] Speaker 02:
What is the best, you would say I take it that both of those are the same claim or at least the same case.

[00:33:58] Speaker 00:
They are certainly the same case your honor and they cannot be a new claim until there is finality on the initial rating aside from 1993

[00:34:10] Speaker 00:
to whatever the ultimate present is.

[00:34:12] Speaker 02:
What's your best case?

[00:34:14] Speaker 02:
What's your best authority from this court for the proposition that where you have an increased benefits claim and a back benefits claim that they're the same as long as the former was filed within one year of the filing of the law?

[00:34:30] Speaker 00:
The bond case and the most recent interpretation of bond by this court in Barad.

[00:34:35] Speaker 00:
Both of those cases involve what happens during the course of the prosecution.

[00:34:42] Speaker 03:
What was that last case?

[00:34:44] Speaker 00:
B-E-R-A-U-D, I believe is how it's spelled, Barad.

[00:34:50] Speaker 00:
And it's, I think, a 2015 case, but it may be a late 2014 case.

[00:34:56] Speaker 00:
And it relies and clarifies this court's holding in bond.

[00:35:04] Speaker 00:
No, they were not cited by either party, I do not believe, in this case, Your Honor.

[00:35:10] Speaker 00:
And that's because we are not dealing with something that happened during the course of the proceeding.

[00:35:18] Speaker 00:
What we're dealing with here is the entitlement to

[00:35:21] Speaker 00:
compensation under 5904 for an award of past due benefits which takes place during the claim stream.

[00:35:29] Speaker 00:
There is no finality to Mr. Brooks' claim stream.

[00:35:33] Speaker 00:
And it may in fact still be open.

[00:35:36] Speaker 00:
The April 2015 most recent decision granted a total rating back to 1996.

[00:35:44] Speaker 00:
So there's the window between 1993 and 1996 where the rating currently is merely 50%.

[00:35:52] Speaker 00:
I do not know what the status is of that part of it, but I do know that Mr. Sider, on behalf of Mr. Brook, has been successful as late as April of 2015 in getting Mr. Brook an award back to 1996 for a total rating.