United States Court of Appeals for the Federal Circuit
2009-7015
FRANCIS M. JACKSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for
claimant-appellant.
Lauren A. Weeman, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-
appellee. On the brief were Michael F. Hertz, Deputy Assistant Attorney General,
Jeanne E. Davidson, Director, Kirk T. Manhardt, Assistant Director, and Scott D. Austin,
Senior Trial Attorney. Of counsel on the brief were David R. McLenachen, Deputy
Assistant General Counsel, and Amanda R. Blackmon, Attorney, Office of the General
Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Robert N. Davis
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
2009-7015
FRANCIS M. JACKSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-0823, Judge
Robert N. Davis.
___________________________
DECIDED: November 25, 2009
___________________________
Before RADER, BRYSON, and LINN, Circuit Judges.
RADER, Circuit Judge.
The United States Court of Appeals for Veterans Claims (the “Veterans Court”)
held that attorney Francis M. Jackson was not entitled to fees for his representation of
veteran Gerald Easler in connection with a service disability claim, which ultimately
included a total disability rating based on individual unemployability (“TDIU”). Because
Mr. Easler’s claim did not include the requisite evidence to support a TDIU claim before
the Board of Veterans Appeals (the “Board”), Mr. Easler’s claim was not a part of the
“case” as defined in 38 U.S.C. § 5904(c). For that reason, Mr. Jackson does not qualify
for fees and this court therefore affirms.
I.
In January 2000, a Department of Veterans Affairs regional office (the “RO”)
granted Mr. Easler an increased rating from twenty to forty percent for his lower back
disorder. Mr. Easler then filed a supplementary claim seeking an increased rating on
his lower back disorder and a new disability rating for a cervical spine disorder. The
Board rejected both requests in July 2000.
Mr. Easler then hired Mr. Jackson on a contingency fee basis to prosecute his
appeal to the Veterans Court. Under that contingency fee agreement, Mr. Jackson
would receive a fee of twenty percent of “the total amount of any past-due benefits
awarded on the basis of [Mr. Easler’s] claim before [the Veterans Administration (the
‘VA’)].” The VA would pay Mr. Jackson directly from the benefits recovered by Mr.
Easler.
Mr. Jackson then filed an appeal to the Veterans Court on Mr. Easler’s behalf.
The Veterans Court shortly thereafter granted a joint motion to vacate the Board’s
opinion and remand. During the ensuing proceedings, Mr. Easler and Mr. Jackson
entered into a second contingency fee agreement covering all future representations
before the Veterans Court and subsequent remands to the Board and RO. The second
agreement also provided for an automatic deduction of Mr. Jackson’s fee from any past-
due benefits recovered by Mr. Easler.
On a subsequent remand to the RO, Mr. Easler filed a separate claim for
depressive disorder. The RO eventually granted that claim assigning a thirty percent
disability rating. Mr. Jackson then contacted the RO to inquire about Mr. Easler’s
prospect of qualifying for TDIU benefits as a result of this depressive disorder and its
2009-7015 2
accompanying disability rating. The RO adopted Mr. Jackson’s suggestion and granted
TDIU.
Under Mr. Jackson’s contingency fee agreements, the VA withheld $7,412.95—
twenty percent of the past-due benefits collected—from Mr. Easler. But before
disbursal of that amount, the VA informed Mr. Jackson that he was not eligible to
receive any past-due benefits relating to TDIU because that issue had not been the
subject of a final Board decision per 38 U.S.C. § 5904(c). Mr. Jackson appealed to the
Board, which affirmed the RO’s decision:
In this case, there has been no final Board decision on the issue for which
the appellant seeks payment, i.e., entitlement to a TDIU. The Board’s
decision of July 2000 addressed the veteran’s appeal on the issues of
service connection for a cervical spine disorder and increased ratings for a
low back disability.
The Board also noted that “the evidence of record [did] not support a finding of
unemployability”—a necessary element of TDIU—at the time of the Board’s July 2000
decision.
On appeal to the Veterans Court, Mr. Jackson argued that he had presented Mr.
Easler’s TDIU claim to the Board prior to the July 2000 decision because it was
reasonably and inherently related to Mr. Easler’s increased rating claim for lower back
disorder. The Veterans Court rejected that argument:
To raise an informal TDIU-rating claim, the veteran must make a claim for
the highest rating possible, submit evidence of medical disability, and
submit evidence of unemployability. The Court concludes that although
the veteran made a claim for the highest rating possible and submitted
evidence of a medical disability, he did not submit evidence of
unemployability. . . . Here, evidence does not suggest the veteran was
unemployable. Indeed, it suggests the opposite.
2009-7015 3
After the Veterans Court denied a subsequent motion for reconsideration, Mr. Jackson
timely appealed.
II.
This court’s jurisdiction to review decisions of the Veterans Court is limited. This
court may only review questions relating to the interpretation of constitutional and
statutory provisions. 38 U.S.C. § 7292(c). This court has no jurisdiction to review
questions of fact, or the application of law to a particular set of facts, unless a
constitutional issue is presented. Id. § 7292(d)(2).
Section 5904(c) provides in pertinent part:
[A] fee may not be charged, allowed, or paid for services of agents and
attorneys with respect to services provided before the date on which the
Board of Veterans' Appeals first makes a final decision in the case. Such a
fee may be charged, allowed, or paid in the case of services provided after
such date only if an agent or attorney is retained with respect to such case
before the end of the one-year period beginning on that date.
38 U.S.C. § 5904(c)(1) (2000) (emphasis added). This court has explained that a
“case” within the meaning of Section 5904(c) encompasses “all potential claims raised
by the evidence, applying all relevant laws and regulations, regardless of whether the
claim is specifically labeled . . . .” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir.
2001) (emphasis added). In that vein, this court has repeatedly endorsed liberal and
broad constructions of veterans’ claims. See, e.g., Gambill v. Shinseki, 576 F.3d 1307,
1316 (Fed. Cir. 2009) (“Like the regional office, the Board is required to construe all of
the veteran's arguments in a liberal manner.” (citations and internal quotation marks
omitted)). Indeed, 38 C.F.R. § 20.202 expressly requires the Board to construe an
appellant’s arguments “in a liberal manner for purposes of determining whether they
raise issues on appeal.”
2009-7015 4
This case asks whether Mr. Jackson presented a TDIU claim as part of Mr.
Easler’s “case” for purposes of Section 5904(c) at the time of the Board’s July 2000
decision. If TDIU was a part of Mr. Easler’s case, then Mr. Jackson is entitled to
attorney’s fees related to the payment of TDIU benefits. If it was not, the Board had yet
to make “a final decision” on the matter and Mr. Jackson has no entitlement to
attorney’s fees.
Before the Veterans Court and on appeal to this court, Mr. Jackson
acknowledges that Mr. Easler did not expressly raise a claim for TDIU. Nonetheless,
according to Mr. Jackson, a TDIU claim was encompassed by or inherent in the original
two claims presented to the Board before the July 2000 decision. In other words, Mr.
Jackson contends that a TDIU claim is implicitly raised before the Board where a
veteran seeks an increased rating based on either a previous service connection injury
or a new disability claim.
While this court accepts that a TDIU claim may under certain circumstances
necessarily be encompassed in a veteran’s claim for increased benefits despite not
being expressly raised, those circumstances are absent here. To raise an informal
TDIU claim, a veteran must make a claim for the highest rating possible, submit
evidence of medical disability, and submit evidence of unemployability. See Roberson,
251 F.3d at 1384 (“Once a veteran submits evidence of a medical disability and makes
a claim for the highest rating possible, and additionally submits evidence of
unemployability, the ‘identify the benefit sought’ requirement of 38 C.F.R. § 3.155(a) is
met and the VA must consider TDIU.”). In this case, as the Board determined before
the July 2000 ruling, Mr. Easler’s claim included no evidence of unemployability.
2009-7015 5
Indeed, as the Veterans Court explained, the evidence on record “suggest[ed] the
opposite”—i.e., that Mr. Easler was employed. This court may not review that factual
finding. 38 U.S.C. § 7292(d)(2). Without any modicum of evidence suggesting Mr.
Easler’s unemployability, and with the record suggesting the opposite, this court cannot
say that TDIU was part of the “case” before the Board’s July 2000 decision. Thus, the
Board was entirely correct to refuse to disburse the attorney’s fees to Mr. Jackson, but
instead to send the full amount to the veteran.
The decisions relied on by Mr. Jackson do not support his argument. In Stanley
v. Principi, 283 F.3d 1350, 1352 (Fed. Cir. 2002), the RO denied the veteran’s claim for
service connection of a cervical spine disability. The veteran did not appeal, resulting in
a final decision. Id. The RO then denied the veteran’s application to reopen the claim
without the submission of new and material evidence. Id. The veteran then hired an
attorney, Mr. James Stanley, to prosecute his claims on a contingency fee basis. Id. at
1353. On appeal, the Board vacated its finding because new and material evidence
had been submitted by the veteran. Id. In its decision, the Board did not address TDIU.
Id. The Board then remanded to the RO where the veteran added a claim for TDIU. Id.
The RO eventually granted the veteran’s claim for service connection and his
accompanying claim for TDIU benefits. Id. The Veterans Court, nonetheless, denied
Mr. Stanley any attorney’s fees finding that no “final decision” had been issued by the
Board on either the cervical spine or TDIU claims. Id.
This court vacated because: “attorneys' fees are available in connection with the
proceedings associated with reopening a claim after the Board first makes a final
decision with respect to a particular issue in the reopening proceedings, even if the
2009-7015 6
decision is not appealable.” Id. at 1359. Despite Stanley’s reference to the broad
implications behind Section 5904(c), the decision was limited to only the cervical spine
claim. It did not include the claim for TDIU benefits. As to that issue, this court
expressly found no entitlement to attorney’s fees because it had not been properly
raised by the veteran prior to the appeal to the Board. Id. This case presents facts
similar to the TDIU claim in Stanley. No doubt, the TDIU claim in Stanley, as here, was
directly related to and stemmed from the veteran’s service connection claim.
Notwithstanding that fact, Mr. Stanley, like Mr. Jackson, was not entitled to attorney’s
fees.
In Carpenter v. Nicholson, 452 F.3d 1379, 1380 (Fed. Cir. 2006), the veteran
originally received a one hundred percent disability rating, which was later reduced by
the RO to sixty percent. The veteran then twice brought claims to adjust his disability
rating back to one hundred percent. Id. Both claims were denied by the Board. Id.
Kenneth Carpenter was then hired as counsel. Id. at 1381. On appeal to the Veterans
Court, the case was remanded for error based on a joint motion filed by the parties. Id.
Mr. Carpenter’s efforts on remand were successful and the veteran was again awarded
a one hundred percent disability rating. Id. The veteran then brought a separate claim
seeking an earlier effective date on the ground that the earlier RO decision contained
clear and unmistakable error. Id. The RO denied that claim, but on appeal the Board
reversed and granted the veteran his requested effective date. Id. Despite his efforts,
the Board informed Mr. Carpenter that he was not entitled to attorney’s fees for services
rendered relating to the earlier effective date because “no final decision” had been
made by the Board on that issue. Id. at 1382.
2009-7015 7
In reversing the Board’s decision, this court found that the Board had already
squarely decided the question of effective date because it was necessarily
encompassed in the veteran’s service connection claim. Id. at 1384. In other words,
because proving an effective date is a necessary component of establishing a disability
rating, the effective date of disability was an issue presented in the “case” when the
Board considered the overall question of disability. Unlike Carpenter, however,
establishing entitlement to TDIU is not a prerequisite to obtaining an increased disability
rating. Significantly, there is an essential element of TDIU setting it separate and apart.
That element is unemployability—the very element that Mr. Easler’s claim lacked.
Last, in Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009), this court held
that “a claim to TDIU benefits is not a free-standing claim that must be pled with
specificity.” But, as further clarification, this court went on to explain that it could only be
implicitly raised where “a pro se veteran, who presents cogent evidence of
unemployability, seeks to obtain a higher disability rating.” Id. (emphasis added).
Similarly, in Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001), a decision
heavily cited in Comer, this court further instructed the VA to consider any implicit TDIU
claim but only where the veteran “submits evidence of unemployability.” Together,
Comer and Roberson make clear that a claim for TDIU can be implicitly raised only
where the veteran proffers some evidence of unemployability. The record in this case
contains no such evidence before the Board’s July 2000 decision. As such, TDIU was
not a part of the “case” as required by Section 5904(c).
2009-7015 8
III.
For the above-stated reasons, the decision of the Veterans Court to deny Mr.
Jackson attorney’s fees in connection with Mr. Easler’s TDIU claim is affirmed.
Because no evidence of Mr. Easler’s unemployability was submitted before the Board’s
July 2000 decision, the “case” before the Board at that time did not include a claim for
TDIU benefits and thus was not a compensable fee under Section 5904(c).
AFFIRMED
COSTS
Each party shall bear its own costs.
2009-7015 9
Jackson v. SHINSEKI
Court: Court of Appeals for the Federal Circuit
Date filed: 2009-11-25
Citations: 587 F.3d 1106
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