[00:00:07] Speaker 01: Good morning, Your Honor. [00:00:08] Speaker 01: May it please the Court. [00:00:09] Speaker 01: Kenneth Carpenter appearing on behalf of Mr. Alan Gumpenberger. [00:00:14] Speaker 01: Just as a preliminary matter, Your Honor, and to be sure that the Court understands the circumstances, Mr. Gumpenberger is what's called an accredited representative. [00:00:22] Speaker 01: He is accredited by the VA as a non-attorney practitioner. [00:00:27] Speaker 01: The statute applies to both non-attorney representatives as well as attorneys. [00:00:33] Speaker 01: So I may from time to time refer to attorney fees. [00:00:37] Speaker 02: He's actually receiving fees for the services rendered as a representative. [00:00:49] Speaker 01: I don't think they refer to them as attorney fees anywhere, just as fees. [00:00:59] Speaker 01: In this case, Your Honor, we're dealing only with a question of statutory interpretation. [00:01:03] Speaker 01: The lower court in this case relied upon reading into the statutory provisions a [00:01:12] Speaker 01: requirement that the triggering event of an NOD must be considered based upon the statutory criteria for what constitutes an NOD. [00:01:24] Speaker 01: It is our view that the Veterans Court erred and relied upon a misinterpretation by reading into the statute language that is not there. [00:01:35] Speaker 01: Can I ask you a question? [00:01:36] Speaker 03: Just one clarifying question. [00:01:38] Speaker 03: Is the emphasis on the meaning of the term the case? [00:01:43] Speaker 01: No, Your Honor. [00:01:44] Speaker 01: I believe it's only based upon the question of the triggering event in this case, in the second version of this statute, where the conquerors changed the triggering event from a first final board decision to a notice of disagreement, whether or not identifying that triggering event imposed some obligation on either the secretary or the court [00:02:11] Speaker 01: in determining entitlement to the receipt or payment of fees to the representative to inquire as to what the scope was of that particular document. [00:02:23] Speaker 03: And as I understand it, if no notice of disagreement has been yet filed, then we all agree no freeze will be awarded prior to that time. [00:02:33] Speaker 01: Absolutely. [00:02:35] Speaker 02: That's not an issue in this case. [00:02:39] Speaker 02: Is your view of construing some of the statutory language, and if so, what language is that that we're construing? [00:02:46] Speaker 01: Well, Your Honor, I believe you're reviewing the Veterans Court decision to expand the language of the statute to include the statutory provisions which define a notice of disagreement and how a notice of disagreement is to be understood under VA regulation. [00:03:07] Speaker 01: The Congress only referred to the document. [00:03:12] Speaker 01: The triggering event as this court referred to it in military veterans advocacy case at 7 F4 at 1110 and 1135. [00:03:27] Speaker 01: The nature of the inquiry is whether or not the Veterans Court exceeded the plain meaning of the statute by going into, if you will, the definition of or the scope of a notice of disagreement as a determinative disposition as to whether there's entitlement to fees. [00:03:50] Speaker 03: Congress only wrote- So you said we're only doing a statutory interpretation. [00:03:55] Speaker 03: So is that Section 5904C1? [00:03:58] Speaker 01: That's correct. [00:03:59] Speaker 03: OK. [00:04:00] Speaker 03: And what exactly do you think that we should interpret it as being? [00:04:04] Speaker 01: I believe that you should follow this court's precedent in NBA. [00:04:08] Speaker 01: That's the military veterans advocacy case. [00:04:11] Speaker 01: It was a rule-making challenge. [00:04:13] Speaker 01: In that case, this court found that what [00:04:20] Speaker 01: Congress did in 5104C was to identify triggering events that would be the event that before which you could not charge a fee and after which you could charge a fee. [00:04:34] Speaker 01: In the original version, it was a first final board decision. [00:04:38] Speaker 01: In the version that's at issue in this case, it was the filing of a notice of disagreement. [00:04:44] Speaker 01: There is no factual dispute in this matter that a notice of disagreement was filed. [00:04:49] Speaker 01: What the Veterans Court did was to go beyond the filing of the notice of disagreement because the board had relied upon [00:04:58] Speaker 01: The fact that the agency was the initiating reason for the eventual grant of passive benefits. [00:05:07] Speaker 01: That's not at all what Congress discussed when they created 5904C1. [00:05:13] Speaker 02: I guess I'm not really calling. [00:05:17] Speaker 02: The statute says fees may not be charged. [00:05:20] Speaker 02: before the date on which a notice of disagreement is filed. [00:05:24] Speaker 01: That's correct. [00:05:25] Speaker 02: OK, the notice of disagreement here involved TDMU. [00:05:30] Speaker 01: And our position is the basis of that notice of disagreement is not relevant. [00:05:36] Speaker 01: That's what the court below did by relying upon how a notice of disagreement is defined. [00:05:42] Speaker 02: So it is your view that they misread the statute because in your view, [00:05:46] Speaker 02: This notice of disagreement thing does not mean that any services provided to matters of which a notice of disagreement was never filed still make you eligible for fees. [00:06:02] Speaker 01: Yes, Your Honor, because the representative's responsibility, once engaged by a claimant, is to determine all benefits to which the veteran was entitled to. [00:06:13] Speaker 01: The veteran was seeking an increase in his TBI and entitlement to a TDIU rating. [00:06:21] Speaker 02: The issue... But the statute says you can't get fees for services provided [00:06:27] Speaker 02: before the date on which the notice of disagreement is filed. [00:06:31] Speaker 01: And he is not seeking that. [00:06:33] Speaker 01: What happened happened after the notice of disagreement was filed. [00:06:37] Speaker 03: But the services provided with respect to the TBI were before the notice of disagreement was filed. [00:06:46] Speaker 04: If there were any services here provided with respect to TBI, do you contend there were any services that Mr. Gupinperger provided to Mr. Valadez with respect to TBI? [00:06:59] Speaker 01: Not before, Your Honor. [00:07:00] Speaker 04: Or even after? [00:07:02] Speaker 01: Well, afterwards, because he filed a notice of disagreement asserting that the increase in the TBI should have included a TDIU rating. [00:07:15] Speaker 01: uh... the veterans court with mister group in burger filed such a notice mister gump a burger file that notice of disagreement on behalf of mister right but it didn't say anything about tb i didn't no it did not your honor and i'm saying that we should be the statute increase in the tb i stop happen after this well i think he didn't get an increase or he got an earlier effective date what happened was the war [00:07:44] Speaker 01: no after. [00:07:46] Speaker 01: They made the grant and assigned an effective date. [00:07:50] Speaker 01: At that point, a notice of disagreement was filed on the TDIU issue in order to get additional compensation. [00:07:59] Speaker 01: The fact that the additional compensation came by means of a later conclusion by the agency that upon a special review, they determined that this effective date should have gone back a number of years earlier. [00:08:15] Speaker 01: That was the source of the payment of past due benefits. [00:08:20] Speaker 01: There is no reference in 5904C to the source of or the reason for the award. [00:08:30] Speaker 04: So your view, to be clear, is once the agent or attorney files the notice of decision, [00:08:36] Speaker 04: Anything beneficial that happens for the veteran after that point gives rise to a 20% claim for fees by the agent, even if it wasn't part of what led to the benefits increasing and even if no services whatsoever were provided by the agent. [00:08:57] Speaker 01: I'm not going that far. [00:08:59] Speaker 01: He did provide services because in pursuing the issue of entitlement to additional compensation during the time in which he was performing services on the issue of entitlement to additional compensation, he received additional compensation. [00:09:16] Speaker 04: Mr. Guffenberger, the agent, only provided services seeking TDIU, correct? [00:09:21] Speaker 01: That's correct, Your Honor. [00:09:23] Speaker 04: And there was no additional, the client didn't get TDIU, there were no increased benefits achieved on the TDIU. [00:09:31] Speaker 01: And that's why I'm asking this Court to focus on what Congress wrote. [00:09:35] Speaker 02: But can I, I just need clarification, it's not a minor point of fact, but I really misread something if you're right. [00:09:43] Speaker 02: I thought when whatever happened outside of the notice of disagreement, his, I thought [00:09:49] Speaker 02: he got an increase in TBI from 70% to 100%. [00:09:53] Speaker 01: The 100% was based upon the TDIU. [00:09:56] Speaker 02: You said it was an effective date. [00:10:00] Speaker 02: The change that happened that we're fighting over here, that's a dispute here, in terms of what happened down below to his TBI rating. [00:10:09] Speaker 02: I thought what happened down below was based on a re-evaluation and a re-examination, he got an increase from 70% to 100%. [00:10:16] Speaker 02: I didn't mean [00:10:19] Speaker 02: happen in 2016 as being an effective agent? [00:10:24] Speaker 01: The agency increased the scheduler rating from 70 to 100 in lieu of assigning the TDIU rating. [00:10:38] Speaker 03: So it's based on a new examination. [00:10:41] Speaker 03: That's correct. [00:10:42] Speaker 03: That occurred only within the VA, right? [00:10:46] Speaker 02: not as a result of the end of the year i think that's a pretty basic question uh... reflects that yes your honor but the inquiry [00:11:03] Speaker 01: by the Veterans Court was to examine the nature of the NOD to determine under the statutory definition of an NOD. [00:11:13] Speaker 03: I understand I'm just asking you a factual question. [00:11:15] Speaker 01: Yes, Your Honor. [00:11:16] Speaker 01: Well, I can't say because I do not recall clearly off the top of my head whether or not that was in fact the case. [00:11:24] Speaker 01: So let me just [00:11:49] Speaker 01: The fee agreement was entered into in 2010. [00:11:51] Speaker 01: The application was submitted at the same time that the notice of disagreement. [00:12:10] Speaker 01: The claim was made after the agreement went into effect. [00:12:15] Speaker 01: And then a rating decision was issued denying TDIU. [00:12:20] Speaker 01: And that decision was in 2013. [00:12:22] Speaker 01: And then the notice of disagreement happened in May of 2013. [00:12:26] Speaker 01: The later grant, I believe it's in 2016, just double check. [00:12:39] Speaker 01: Yes. [00:12:40] Speaker 03: I'm just asking whether the award of 100% disability rating for TBI was based on the VA's own internal review. [00:12:50] Speaker 03: That's what my question is. [00:12:51] Speaker 03: Whether this is something that just occurred, there was additional new review that was done within the VA only. [00:13:02] Speaker 04: of a wide, wide class of TBI claimants, I think. [00:13:06] Speaker 01: Right? [00:13:08] Speaker 01: But that issue doesn't go to rating. [00:13:11] Speaker 01: But the answer is yes, right? [00:13:13] Speaker 03: I'm asking the question to make sure I understand the facts of the case. [00:13:16] Speaker 01: And I'm looking at the examination, or excuse me, [00:13:22] Speaker 01: Appendix 116 under evidence that there was an examination initiated by the VA on April 16, 2016. [00:13:31] Speaker 01: And that was the decision, excuse me, that was the evidence upon which the scheduler rating was assigned. [00:13:40] Speaker 01: no the answer is no because that wasn't something that happened before the end of the that was something oh i'm sorry i thought that that's what you were asking whether the increase for the tbd [00:13:56] Speaker 03: was a result of whether that occurred within the VA. [00:14:01] Speaker 03: That's all. [00:14:02] Speaker 01: Oh, yeah. [00:14:02] Speaker 01: I'm sorry. [00:14:03] Speaker 01: Of course it did within the VA. [00:14:04] Speaker 01: I apologize, Your Honor. [00:14:06] Speaker 01: I was not attempting to be up to. [00:14:09] Speaker 02: Why don't we make your almost done with your rebuttal time. [00:14:12] Speaker 02: Thank you, Your Honor. [00:14:21] Speaker 00: Good morning, and may it please the court. [00:14:24] Speaker 00: Mr. Gumpenberger provided no services in connection with the benefits awarded to the veteran in this case. [00:14:30] Speaker 00: The VA did something of its own accord in reconsidering the veteran's entitlement to a higher TBI rating. [00:14:35] Speaker 00: Agents can only recover fees when their services relate to the case in which the notice of disagreement was filed. [00:14:42] Speaker 04: That kind of makes sense to me, but how do you map that onto the statute here? [00:14:47] Speaker 04: It doesn't really say that. [00:14:49] Speaker 00: Your Honor, we map that under the statute by looking at this court's precedent. [00:14:52] Speaker 00: This court's precedent in the Jackson case specifically read the language of disagreement filed with respect to the case. [00:15:01] Speaker 00: And in that case, no evidence of unemployability had been submitted before the board. [00:15:05] Speaker 00: So the increased disability claim didn't include TDIU. [00:15:13] Speaker 00: So they didn't have, there were two different claim streams, two different evidence streams in Jackson. [00:15:18] Speaker 00: And in that case, this court read specifically with respect to the case, notice of disagreement with respect to the case, has to do with a specific claim that was raised by either the agent or by the veteran. [00:15:34] Speaker 00: So that's how you read it. [00:15:36] Speaker 00: It comes from both this court's president in Jackson, as well as just reading the statute by its terms. [00:15:42] Speaker 00: The term notice of disagreement is a term of art, and you read that in relation to the case. [00:15:47] Speaker 00: So reading notice of disagreement along with the case is how you assess the reading of that. [00:15:52] Speaker 03: Are there other provisions in the statute that talk about limiting the fee to a reasonable amount in light of the work done? [00:16:04] Speaker 00: Your Honor, in this case, [00:16:08] Speaker 00: I'm not aware of, we weren't looking at other provisions of the statute in terms of limiting. [00:16:15] Speaker 00: We are looking specifically at how notice of disagreement impacts the language of the case in this statute, and the terms of this statute are what are important and what's relevant, and that was interpreted in Jackson specifically. [00:16:27] Speaker 00: It was the predecessor statute, but it was still the language of [00:16:31] Speaker 00: 50590-04. [00:16:33] Speaker 00: So you read it specifically just in this statute. [00:16:37] Speaker 00: We don't need to look to other interpretations of the case. [00:16:43] Speaker 00: We can look to the other pictures. [00:16:45] Speaker 03: I was just wondering, for example, there's different parts of this statute, 5904, that refers to [00:16:52] Speaker 03: you know, ordering a reduction if a fee is excessive or unreasonable. [00:16:57] Speaker 03: I was just wondering if that was part of the argument at all. [00:16:59] Speaker 00: No, Your Honor. [00:17:00] Speaker 00: We would rest it on the language, both in notice of disagreement and in the case, which is why both the lower court and why we agree with the lower court looking at both 2201 and the regulatory principle, the 5105. [00:17:15] Speaker 00: So those both help interpreting the notice of disagreement language. [00:17:19] Speaker 00: But we don't need to look to other parts for when fees come in. [00:17:22] Speaker 00: We're specifically interpreting this with relation to notice of disagreement. [00:17:25] Speaker 02: I may not be understanding TDIU well enough. [00:17:28] Speaker 02: And I'm not talking about this case, because he already, when they filed the NOD, he already had 70% for the TDI. [00:17:34] Speaker 02: Yes. [00:17:35] Speaker 02: But couldn't there be a circumstance [00:17:38] Speaker 02: where the evidence for the TDIU claim would also implicate an increase in the scheduler rating, for example, where the rating given before the NOD was under the threshold for TDIU. [00:17:52] Speaker 02: So if you got the increase even below with the RO, that could affect the TDIU rate. [00:18:00] Speaker 00: So it depends on whether or not evidence of unemployability was raised. [00:18:04] Speaker 00: The touchstone of TDIU is both a disability related to it, but evidence of unemployability. [00:18:10] Speaker 00: In this case, [00:18:11] Speaker 00: The court or the veterans of the board did not find specifically any evidence of unemployability. [00:18:17] Speaker 00: In fact, found that Mr. Valadez was employable. [00:18:20] Speaker 00: So the reason why his TDIU was denied in the first instance was because he was employable and why they would file a notice of disagreement on that. [00:18:27] Speaker 00: But the touchstone would be unemployability. [00:18:29] Speaker 00: So there could be situations. [00:18:31] Speaker 02: There's some credit kicked in terms of the secular rating for TDIU. [00:18:37] Speaker 02: You have a 20% rating, it seems. [00:18:42] Speaker 00: Yes, you wouldn't reach that issue. [00:18:44] Speaker 00: You would have to... So what's the threshold? [00:18:47] Speaker 00: The threshold would be 107 on employability for TEIU. [00:18:53] Speaker 04: Does this appeal require us to define, for purposes of statute, the meaning of the case? [00:19:01] Speaker 04: And if so, do we look to the definition we gave in Carpenter, or you say we should go to Jackson, it looks like? [00:19:07] Speaker 04: Is there a difference? [00:19:08] Speaker 00: There's no difference, Your Honor. [00:19:10] Speaker 00: We would use Jackson for the definition of the case specifically to interpret in terms of notice of disagreement with respect to the case. [00:19:18] Speaker 00: The Carpenter case, the reason why that's different [00:19:20] Speaker 00: is because that dealt with an earlier effective date. [00:19:22] Speaker 00: So it was from the same claim stream, the same evidence. [00:19:25] Speaker 00: So that's why, in that case, that was still part of the same case. [00:19:29] Speaker 00: So Jackson is not in any way overturning or undoing what Carpenter did. [00:19:34] Speaker 00: It is reading the case within what the court had already done in Carpenter. [00:19:38] Speaker 04: So do we have to adopt a definition in order to resolve this appeal, adopt a definition of the case? [00:19:47] Speaker 00: No, Your Honor. [00:19:49] Speaker 00: This court can simply rest on its own precedent in how the case has been interpreted before in Jackson. [00:19:53] Speaker 00: And military veterans, which my colleague cited, does not displace the understanding of what the case meant in Jackson. [00:20:01] Speaker 04: You would just have us reiterate that the definition of the case for purposes of this version of this statute can be found in Jackson. [00:20:09] Speaker 02: Yes, correct, Your Honor. [00:20:10] Speaker 02: And he spent a lot of time in his freedom and otherwise talking about military veterans. [00:20:14] Speaker 02: So why do you think he made an inclusive statement that it doesn't dislodge Jackson? [00:20:21] Speaker 00: Yes, absolutely. [00:20:22] Speaker 00: Military veterans doesn't dislodge Jackson because it plays in the same space as Jackson in terms of interpreting what the case is. [00:20:29] Speaker 00: It never says that the case is anything but what happened in Jackson. [00:20:33] Speaker 00: It doesn't cite Jackson, but Jackson sets out what the case means. [00:20:38] Speaker 00: And Military Veterans was not en banc. [00:20:39] Speaker 00: It didn't undo what happened in Jackson. [00:20:41] Speaker 00: There was no decision specifically stating, we are reinterpreting what the case means. [00:20:47] Speaker 00: It was playing in the same field in interpreting what this statutory provision meant. [00:20:53] Speaker 00: So that's why Military Veterans wouldn't dislodge anything because of the fact that it [00:20:57] Speaker 00: there was nothing stated in that case that said, we are redoing what Jackson said, we're reiterating, we're overturning, et cetera. [00:21:05] Speaker 00: That was just a three-digit panel, it was not on block. [00:21:08] Speaker 04: So if we apply the definition of the case from Jackson here, it was at least possible, this is meant to be a question, but tell me where you disagree, it's at least possible that the TBI claim as well as the TDIU claim could have been part of the case [00:21:25] Speaker 04: at the notice of disagreement stage and thereafter. [00:21:28] Speaker 04: It could have been, right? [00:21:30] Speaker 00: Yes, if he filed a notice of disagreement. [00:21:32] Speaker 00: But in this case specifically in 2013, he filed a notice of disagreement that was specifically on a psychological disorder and on TDIU. [00:21:40] Speaker 04: And not TBI. [00:21:41] Speaker 00: Correct. [00:21:41] Speaker 00: TBI became final a year later. [00:21:43] Speaker 00: That was never appealed. [00:21:45] Speaker 04: But there is nothing in the definition of Jackson that precluded him from including the TBI claim in the NOD, and then if things played out the same way as they did, he may have a valid argument that Mr. Gruberberger is entitled to fees, correct? [00:22:03] Speaker 00: Yes, Your Honor, if he had included in the notice of disagreement, actually included the TBI claim, then he would have an argument. [00:22:09] Speaker 00: But that's a different case. [00:22:10] Speaker 02: Do you understand there would have been a strategic reason why one would not want to appeal both the TBI and the TBIU, or is that just the case? [00:22:19] Speaker 00: I perhaps, that would just have been Mr. Gumpenberger's litigation decision. [00:22:24] Speaker 00: Perhaps he thought there was a better chance of getting a higher rating with TDIU because of the fact that he only got, Mr. Veladez only had 70% on TBI. [00:22:32] Speaker 00: Perhaps he thought he wasn't going to get any more on that. [00:22:34] Speaker 00: But I can't really speak to his litigation decision beyond the fact that he probably looked at it and decided, and I think that's really important in this case. [00:22:41] Speaker 00: Mr. Gumpenberger specifically decided, I'm not going to appeal the TBI decision. [00:22:46] Speaker 00: And Mr. Valadez was the one who submitted to the VA when the VA set the letters to Espante asking, we've had this reevaluation. [00:22:53] Speaker 00: We would like to reevaluate these TBI claims. [00:22:56] Speaker 02: Would this case be different if in fact this attorney was all over it? [00:23:01] Speaker 02: back at the RL, having filed an NOD just on the TVIU, if he was still on a routine basis, you know, jamming the RL and the VA and saying, you should provide a new evaluation for my client, Yang and I, and he was really intimately involved in the VA's decision to re-evaluate. [00:23:23] Speaker 00: No, Your Honor, because the operative language at the time of a notice of disagreement had to be filed. [00:23:27] Speaker 00: In fact, in the Jackson case, what happened was the [00:23:30] Speaker 00: attorney agent in that case talked to the VA and then he said, hey, I think that maybe a TDIU claim might be a good idea here. [00:23:38] Speaker 00: The VA decided, okay, we will give him TDIU. [00:23:41] Speaker 00: Then this court determined that, well, he didn't actually file a notice of disagreement on the TDIU claim, so he could not receive the benefits for that. [00:23:48] Speaker 00: This would be the same scenario. [00:23:49] Speaker 00: Even if he wasn't the one who submitted the letter to the VA, but even if Mr. Gumpenberger had submitted the letter, he still wouldn't have filed a notice of disagreement, so it still wouldn't trigger the operative language in the statute. [00:24:00] Speaker 02: But in terms of the amount of the fees that are awarded, does that include pre-NOD time and effort incurred? [00:24:10] Speaker 02: Just in terms of when you're computing the time, I understand you're saying these are threshold things for whether you're entitled to fees. [00:24:16] Speaker 02: But if you're entitled to fees, can you claw back the fees to the pre-NOD activity that the attorney or the representative incurred that engagement? [00:24:30] Speaker 03: You're not entitled to anything prior to the Notice of Disagreement, right? [00:24:35] Speaker 00: No, no. [00:24:36] Speaker 03: And it's just a straight up 20%? [00:24:38] Speaker 00: Yes, correct. [00:24:40] Speaker 00: Yes. [00:24:41] Speaker 00: So from my understanding is if it related to the Notice of Disagreement, it was services provided in relation to the Notice of Disagreement, they would receive the fee. [00:24:51] Speaker 04: And Mr. Carpenter's reply brief has a three-page block quote of a Rice decision from the Veterans Court. [00:24:59] Speaker 04: If we're going to even consider that argument, what's your response to it? [00:25:05] Speaker 00: My first response would be that it is a pre-Jackson case. [00:25:09] Speaker 00: So Jackson is also of this court. [00:25:11] Speaker 00: That's just a veteran's court decision. [00:25:13] Speaker 00: So just on principle, the Rice case is not controlling precedent. [00:25:16] Speaker 00: It's pre-Jackson. [00:25:18] Speaker 00: Also in that case, there was an underlying disability rating, underlying entitlement to TDIU. [00:25:23] Speaker 00: So there is a difference there. [00:25:24] Speaker 00: The veteran had submitted evidence of unemployability. [00:25:27] Speaker 00: There was, again, here in this case, [00:25:30] Speaker 00: The board did not find any evidence of unemployability. [00:25:32] Speaker 00: So the touchstone here is to go back again to the difference between actually having evidence of unemployability and not having it. [00:25:39] Speaker 00: So that, Your Honor, is why Rice is fully distinguishable. [00:25:42] Speaker 00: This court doesn't need to rely on Rice to make its decision. [00:25:47] Speaker 00: Thank you. [00:25:47] Speaker 00: If there are no further questions? [00:25:49] Speaker 00: Thank you, Your Honor. [00:26:05] Speaker 01: Rice deals with the legal proposition that a claim for increase includes a claim for TDIU. [00:26:18] Speaker 01: So when the TDIU issue was appealed, he was appealing the rating or the rate of compensation. [00:26:26] Speaker 01: The fact that the compensation was increased on a scheduler basis [00:26:32] Speaker 01: is indistinguishable under the holding in rights, because both seek a total rate of compensation. [00:26:42] Speaker 01: Furthermore, you have to look at the rating criteria for a 100% scheduler rating. [00:26:49] Speaker 01: A rating criteria for 100% scheduler rating is based upon a total impairment of earning capacity. [00:26:57] Speaker 01: But what about Jackson? [00:26:59] Speaker 01: Jackson, Your Honor, [00:27:02] Speaker 01: was a case in which the attorney had done what was representing before the agency on another matter and then filed the TDIU app. [00:27:16] Speaker 01: In this case, he filed the TDIU app or the TDIU app was part of the notice of disagreement that was filed that was the basis for his right to charge and receive a fee. [00:27:31] Speaker 01: And when the decision was made that Mr. Valdez was entitled to a total rating on a scheduler basis, that under Rice is a distinction without a difference, because it's all part of his claim for increased compensation. [00:27:50] Speaker 01: And if you look at the 8940, and it's in the record at Appendix 35, the title is Veterans Application for Increased Compensation. [00:28:03] Speaker 01: Now, it's based upon unemployability, but that is not the only basis. [00:28:09] Speaker 01: And the secretary had the alternative choice to either grant TDIU based upon the increase in severity or to grant it on a scheduler basis. [00:28:22] Speaker 01: The result was the same. [00:28:24] Speaker 01: The amount of past due benefits would have been the same. [00:28:27] Speaker 01: And therefore, Mr. [00:28:31] Speaker 01: Gumpenberger should have been entitled to a fee without an inquiry about the nature of the NOD. [00:28:41] Speaker 02: Thank you very much.