Gumpenberger v. McDonough

Case: 22-1887 Document: 46 Page: 1 Filed: 03/25/2024

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

ALLEN GUMPENBERGER,
Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________

2022-1887
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-4155, Judge Grant Jaquith,
Judge Joseph L. Falvey, Jr, Judge Michael P. Allen.
______________________

Decided: March 25, 2024
______________________

KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.

BRITTNEY M. WELCH, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD,
BORISLAV KUSHNIR, PATRICIA M. MCCARTHY; SHEKEBA
MORRAD, CHRISTA A. SHRIBER, Office of General Counsel,
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2 GUMPENBERGER v. MCDONOUGH

United States Department of Veterans Affairs, Washing-
ton, DC.
______________________

Before PROST, STOLL, and STARK, Circuit Judges.
STOLL, Circuit Judge.
This case is about attorney or agent fees. Allen
Gumpenberger, an agent, seeks fees for his representation
of veteran Arturo Valadez. Specifically, Mr. Gumpen-
berger seeks fees for past-due benefits the Department of
Veterans Affairs (VA) awarded Mr. Valadez for his trau-
matic brain injury (TBI). The Board of Veterans’ Appeals
denied Mr. Gumpenberger’s request for fees under
38 U.S.C. § 5904(c)(1) (2012) and the United States Court
of Appeals for Veterans Claims affirmed. Gumpenberger
v. McDonough, 35 Vet. App. 195 (2022) (Decision). We
agree with the Veterans Court’s interpretation of the fee
statute, and thus affirm.
BACKGROUND
Mr. Valadez served honorably in the United States Ma-
rine Corps and has received VA benefits for many condi-
tions related to his service. In June 2010, Mr. Valadez and
Mr. Gumpenberger entered into a fee agreement of “20 per-
cent of all past due benefits awarded to [Mr. Valadez] as a
result of winning [his] appeal.” J.A. 30. This agreement
“relates to any and all services provided on [Mr. Valadez’s]
behalf . . . with respect to an appeal . . . where a notice of
disagreement was filed.” Id.
In July 2010, Mr. Gumpenberger filed the fee agree-
ment with the VA and sought to establish service connec-
tion for TBI and entitlement to individual unemployability
(TDIU) for Mr. Valadez. In April 2013, a VA regional office
(RO) issued a rating decision granting Mr. Valadez a 70%
disability rating for TBI, as well as several TBI residuals,
and denying entitlement to TDIU. The RO denied TDIU
because Mr. Valadez was “considered capable of obtaining
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GUMPENBERGER v. MCDONOUGH 3

and maintaining gainful employment.” J.A. 53. In
May 2013, the RO sent Mr. Valadez a letter confirming the
70% disability rating for his service-connected TBI, grant-
ing service connection for other conditions like migraine
headaches, and denying service connection for his acquired
psychiatric disorder to include major depressive disorder
and depression with alcohol dependence.
Mr. Gumpenberger then filed a notice of disagreement
(NOD) for Mr. Valadez to appeal the denial of (1) entitle-
ment to TDIU and (2) service connection for acquired psy-
chiatric condition. In August 2014, the RO issued a
statement of the case listing TDIU and the service connec-
tion for acquired psychiatric condition as the only two is-
sues on appeal. In October 2014, Mr. Gumpenberger
completed Mr. Valadez’s appeal by filing a VA Form 9.
Then, in December 2015, Mr. Gumpenberger wrote to the
VA that Mr. Valadez is “seeking entitlement to [TDIU]
from July 27, 2010, to resolve all issues on appeal.”
J.A. 111. And because “the symptoms of psychiatric im-
pairments greatly overlap symptoms of TBI, at this point
[Mr. Gumpenberger is] withdrawing that issue from ap-
peal.” J.A. 111.
About seven months later, in July 2016, the VA in-
formed Mr. Valadez, cc’ing Mr. Gumpenberger, that it was
conducting a special review of TBI examinations in support
of disability compensation claims for TBI. “This review re-
vealed a number of initial TBI exams that were not con-
ducted by a neurologist, psychiatrist, physiatrist, or
neurosurgeon,” including Mr. Valadez’s initial TBI exam.
J.A. 112. The VA therefore offered Mr. Valadez the option
of undergoing a new TBI exam by an appropriate specialist.
Under this option, the VA could reprocess Mr. Valadez’s
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4 GUMPENBERGER v. MCDONOUGH

prior TBI claim. Mr. Valadez requested reprocessing un-
der the VA’s special TBI review. 1
Subsequently, in September 2016, the VA assigned a
100% schedular evaluation for Mr. Valadez’s TBI effective
from July 27, 2010. The VA also granted Mr. Valadez spe-
cial monthly compensation based on housebound criteria
and eligibility to Dependents’ Educational Assistance, ef-
fective from July 27, 2010. The evidence the VA considered
was: (1) a VA 21-0820 Report of General Information, re-
ceived on July 26, 2016; (2) a VA letter concerning
Mr. Valadez’s exam, dated July 29, 2016; and (3) a DBQ
NEURO TBI Initial, received on August 16, 2016.
Mr. Gumpenberger sought fees from the Septem-
ber 2016 rating decision that increased TBI rating from
70% to 100%. The RO denied fees, noting that
Mr. Gumpenberger specifically withdrew TBI from
Mr. Valadez’s appeal and that Mr. Valadez’s TBI claim was
reprocessed per Secretary of Veterans Affairs authority to
reward equitable relief. 2 The RO reasoned that the

1 In the briefing before our court, Mr. Gumpenberger
states that he requested reprocessing of Mr. Valadez’s
claim under the special TBI review. Appellant’s Br. 4 (cit-
ing J.A. 114). The Veterans Court and Board, however, de-
scribe the veteran as responding to the VA’s letter. J.A. 3
(Veterans Court), 175 (Board). Also, during oral argument
before the Veterans Court, Mr. Gumpenberger’s attorney
could not point to anything that Mr. Gumpenberger did to
assist Mr. Valadez in obtaining an increase in schedular
rating for TBI. We recite the facts as stated by the Veter-
ans Court.
2 The Veterans Court recognized that Mr. Gumpen-
berger “expressly withdrew the issue of the veteran’s psy-
chiatric claim from the appeal, not TBI, which
[Mr. Gumpenberger] did not include in his NOD.” Deci-
sion, 35 Vet. App. at 200 n.15 (emphasis added).
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GUMPENBERGER v. MCDONOUGH 5

“resultant favorable decision [was] not due to an appeal, so
direct payment of fees [was] denied.” J.A. 136.
Mr. Gumpenberger filed a NOD, explaining that the VA
misinterpreted his withdrawal letter and that the issue of
an increase in evaluation to total was still on appeal. The
RO issued a statement of the case, continuing to deny enti-
tlement to a fee. Mr. Gumpenberger then appealed to the
Board.
The Board concluded that fees were not warranted.
The Board reasoned that no NOD was filed for TBI, the
evaluation for TBI was “based on the VA’s own internal re-
view of TBI examinations,” and a grant of a 100 % for TBI
is not the same as a grant of TDIU in this case, which was
what was sought in the NOD. J.A. 176. Mr. Gumpen-
berger then appealed to the Veterans Court.
The Veterans Court affirmed the Board’s decision. De-
cision, 35 Vet. App. at 199. The court began by recognizing
that both parties agree 38 U.S.C. § 5904(c)(1) (2012) ap-
plies. Id. at 203. That statute states:
(c)(1) Except as provided in paragraph (4), in con-
nection with a proceeding before the Department
with respect to benefits under laws administered
by the Secretary, a fee may not be charged, al-
lowed, or paid for services of agents and attorneys
with respect to services provided before the date on
which a notice of disagreement is filed with respect
to the case. The limitation in the preceding sen-
tence does not apply to fees charged, allowed, or
paid for services provided with respect to proceed-
ings before a court.
§ 5904(c)(1) (2012) (emphases added). The Veterans Court
analyzed the scope of a NOD under 38 U.S.C. § 7105 and
38 C.F.R. § 20.201, general provisions governing NODs, be-
fore turning to 38 U.S.C. § 5904(c)(1) and the phrase “with
respect to the case.” Decision, 35 Vet. App. at 203–11.
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6 GUMPENBERGER v. MCDONOUGH

In interpreting 38 U.S.C. § 5904(c)(1), the Veterans
Court acknowledged that it was “not writing on a blank
slate.” Id. at 208. It relied on a Veterans Court case, Cam-
eron v. Shinseki, 26 Vet. App. 109 (2012), aff’d,
561 F. App’x 922 (Fed. Cir. 2014), as well as Carpenter
v. Nicholson, 452 F.3d 1379 (Fed. Cir. 2006) and Jackson
v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). Decision,
35 Vet. App. at 208–09. The Veterans Court held that, in
this matter, the schedular rating for TBI and TDIU are
separate cases. The NOD Mr. Gumpenberger filed defined
the “case” and, here, the award of a 100% schedular rating
for TBI—which was the result of the VA’s independent re-
view of TBI cases—was not related to the development of
the appeal for TDIU. Id. at 209–11. Additionally, the Vet-
erans Court “cannot help but note that [Mr. Gumpen-
berger] fails to establish what, if any, services he provided
as it relates to the award of the veteran’s TBI schedular
rating.” Id. at 211.
Mr. Gumpenberger appeals. We have jurisdiction un-
der 38 U.S.C. § 7292(a),(c).
DISCUSSION
Our review is limited by statute. We may only review
decisions of the Veterans Court related to the interpreta-
tion of constitutional and statutory provisions. 38 U.S.C.
§ 7292(c). Unless a constitutional issue is presented, we
lack jurisdiction to review questions of fact or the applica-
tion of law to fact. Id. § 7292(d)(2). We review legal deter-
minations of the Veterans Court de novo. Blubaugh
v. McDonald, 773 F.3d 1310, 1312 (Fed. Cir. 2014).
The sole issue raised by Mr. Gumpenberger on appeal
is whether the Veterans Court erred in its interpretation of
the phrase “the case” in 38 U.S.C. § 5904(c)(1) (2012). Spe-
cifically, whether the Veterans Court erred in interpreting
§ 5904(c)(1) when it decided that Mr. Gumpenberger is not
entitled to fees for Mr. Valadez’s increased schedular rat-
ing of TBI because the NOD he filed did not encompass a
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GUMPENBERGER v. MCDONOUGH 7

TBI rating claim and thus the TBI rating claim was not
part of “the case.” We hold that the Veterans Court did not
err.
We begin with a brief history of restrictions on agents’
and attorneys’ fees for VA benefits claims, as well as our
caselaw. “Congress has thrice changed the triggering
event for when attorneys’ fees may be charged, each time
shifting the entry point for such fees—and thus a claim-
ant’s ability to retain paid representation—earlier in the
administrative appeals process.” Mil.-Veterans Advoc.
(MVA) v. Sec’y of Veterans Affs., 7 F.4th 1110, 1135
(Fed. Cir. 2021). Section 5904(c)(1)’s predecessor permit-
ted attorneys’ fees only after a Board made a final decision
in the case. See id. (citing 38 U.S.C. § 3404(c)(1) (1988)).
In this way, the statute “intended to ‘preserve the non-ad-
versarial initial benefits process, while providing the vet-
eran with the assistance of an attorney when that process
has failed and the veteran is faced with the complexities of
appealing, reopening, and/or correcting prior adverse deci-
sions.’” Id. at 1135–36 (quoting Carpenter, 452 F.3d
at 1383).
In 2006, Congress amended § 5904(c)(1) to shift the
triggering event from a final Board decision to filing a
NOD. See § 5904(c)(1) (2006). Thus, the amended statute
expanded a claimant’s ability to retain representation of an
unsatisfactory initial decision by the RO. See 152
Cong. Rec. H8981, at H9018 (2006) (Rep. Miller) (“Unfor-
tunately, the claims process has become very complex and
can be very overwhelming to some claimants. This provi-
sion would give veterans the option of hiring an attorney
earlier in the process if the veterans believe they need as-
sistance with their claim.”).
Later, Congress shifted the triggering event for
§ 5904(c)(1) to allow paid representation after a claimant
receives “notice of the agency of original jurisdiction’s ini-
tial decision.” See § 5904(c)(1) (2017). We have acknowl-
edged that such “shift was part of a continuing
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8 GUMPENBERGER v. MCDONOUGH

congressional effort to enlarge the scope of activities for
which attorneys can receive compensation for assisting vet-
erans.” MVA, 7 F.4th at 1136.
At issue here is the 2012 version of § 5904(c)(1) which
specifies the filing of a NOD as the triggering event for
when fees may thereafter be awarded. Our caselaw on
§ 5904(c)(1)’s predecessor—which has a later triggering
event in the claims process—guides our understanding of
the statutory language at issue here.
In Carpenter, we addressed the meaning of the “in the
case” in the context of the pre-2006 § 5904(c)(1). The VA
originally awarded the veteran there 100% disability rat-
ing for service-connected thrombophlebitis. Carpenter,
452 F.3d at 1380. Later, the RO reduced the disability rat-
ing and the veteran sought to reestablish the total disabil-
ity rating on the ground that his condition prevented him
from obtaining employment, i.e., he sought TDIU. Id. In
1990, after various proceedings, the Board denied the vet-
eran’s request and he sought representation by counsel,
Mr. Kenneth M. Carpenter. Id. at 1380–81. Mr. Carpen-
ter appealed the 1990 Board’s decision to the Veterans
Court which vacated the Board’s decision for error. Id.
at 1381. In 1993, on remand, the Board awarded the vet-
eran 100% disability rating, but the RO assigned a later
effective date. Id. Mr. Carpenter raised the issue of the
effective date, eventually appealing the issue to the Board.
Id. The Board accepted Mr. Carpenter’s position such that
the veteran obtained the 100% disability rate retroactive to
and continuous from the initial, earlier effective date. Id.
The veteran obtained complete relief. Id.
With respect to attorney’s fees, the Board informed
Mr. Carpenter that he was not entitled to a fee for services
performed prior to the later, 1993 Board decision establish-
ing the earlier effective date as that was the “first . . . final
decision in the case.” Id. at 1381–82. The Veterans Court
agreed, rejecting the position that the “case” began when
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GUMPENBERGER v. MCDONOUGH 9

the earlier, 1990 Board denied the veteran’s claim for 100%
disability. We reversed.
Specifically, we clarified that a veteran’s claim based
on a specific disability does not become a different “case” at
each stage of what are often lengthy and complex proceed-
ings at the VA. Id. at 1384. We explained that “the degree
of disability and the effective date of disability were issues
within the same case, for the claim for benefits includes the
issues emanating from the disability or injury that led to
the claim.” Id. Thus, the claim for an earlier effective date
was part of the same “case” seeking the increased disability
rating. Id.
A few years later, in Jackson, we again addressed the
interpretation of “in the case” in pre-2006 § 5904(c)(1). The
VA there granted the veteran a 40% rating for a lower back
disorder and denied a supplemental claim seeking an in-
creased rating and a new disability rating for a cervical
spine disorder. Jackson, 587 F.3d at 1107–08. In 2000, af-
ter the Board rejected the veteran’s requests, the veteran
hired Mr. Francis M. Jackson to represent him. Id.
at 1108. Mr. Jackson appealed to the Veterans Court,
which vacated and remanded the Board’s opinion. On a
subsequent remand, the veteran filed a separate claim for
depressive disorder, which the RO eventually granted, as-
signing a 30% disability rating. Id. Mr. Jackson then in-
quired about qualifying for TDIU based on the depressive
disorder. Id. The RO granted TDIU and Mr. Jackson
sought fees for past-due benefits relating to TDIU. Id. The
RO informed Mr. Jackson he was ineligible for those fees
because the TDIU issue was not subject to a final Board
decision, as required in § 5904(c). Id. The Board affirmed
the RO’s decision, noting that at the time of the 2000 Board
decision (the triggering event) the evidence of record did
not support a finding of unemployability, a necessary ele-
ment of TDIU. Id. The Veterans Court affirmed. We did
too.
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10 GUMPENBERGER v. MCDONOUGH

In Jackson, we stated: “This court has explained that
a ‘case’ within the meaning of Section 5904(c) encompasses
‘all potential claims raised by the evidence, applying all rel-
evant laws and regulations, regardless of whether the
claim is specifically labeled . . . .’” Id. at 1109 (quoting Rob-
erson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001)). We
explained that a TDIU claim may, under certain circum-
stances, necessarily encompass a veteran’s claim for in-
creased benefits even when not expressly raised. Id. But
those circumstances were not present there. Because there
was no evidence of unemployability before the Board’s 2000
decision, i.e., no evidence to support a necessary part of a
TDIU claim, TDIU was not part of the “case” at the time of
the 2000 Board decision. Id. at 1109–10.
With that backdrop, we return to the statute at issue
here, § 5904(c)(1) (2012). Unlike the pre-2006 § 5904(c)(1)
statute—for which the triggering event is “the date on
which the [Board] first makes a final decision in the case”—
the triggering event for the statute here is “the date on
which a [NOD] is filed with respect to the case.” The trig-
gering event changed, but our understanding of what con-
stitutes “the case” has not. Both parties seem to agree that
we could adopt the interpretations of the phrase “the case”
in our pre-2006 § 5904(c)(1) caselaw. 3 We agree and see no

3 Mr. Gumpenberger refers to his interpretation of
the “case” as consistent with the definition that encom-
passes “all potential claims raised by the evidence, apply-
ing all relevant laws and regulations, regardless of
whether the claim is specifically labeled.” Appellant’s
Br. 22 (quoting Carpenter, 452 F.3d at 1384). The govern-
ment cites the same definition of a “case” in its briefing but
as quoted in Jackson. Appellee’s Br. 15 (citing Jackson,
587 F.3d at 1109); see also Oral Arg. at 19:10–19:38,
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=2
2-1887_03062024.mp3 (government attorney stating that
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GUMPENBERGER v. MCDONOUGH 11

reason to depart from our prior interpretation of “the case”
given the similarities between pre-2006 § 5904(c)(1) and
the version of the statute at issue. Thus, the issue before
us is whether the Veterans Court’s interpretation of
§ 5904(c)(1) (2012) is consistent with our caselaw interpret-
ing “the case” for pre-2006 § 5904(c)(1). Mr. Gumpen-
berger argues that the Veterans Court misinterpreted the
statute “because the Veterans Court essentially abandoned
the claimed understanding of the definition of the phrase
‘with respect to the case.’” Appellant’s Br. 24. We disagree.
The Veterans Court began its discussion of the mean-
ing of “with respect to the case” in § 5904(c)(1) (2012) by
recognizing that precedent provides context for how to in-
terpret “the case.” Decision, 35 Vet. App. at 208. The Vet-
erans Court recognized, for example, that its decision in
Cameron held that “the case” would include “all potential
claims raised by the evidence during the processing of the
claim in question.” Id. at 208–09 (quoting Cameron, 26
Vet. App. at 115). The Veterans Court also considered both
Carpenter and Jackson. The Veterans Court also found
that “the 100% schedular rating for TBI was the result of
VA’s independent review of TBI cases and had nothing to
do with the appeal of TDIU.” Id. at 209–10. We lack juris-
diction to review this fact finding on appeal; nor have we
been asked to review this fact finding.
We read the Veterans Court as following the interpre-
tation of “the case” as set forth in Jackson. In Jackson, the
necessary evidence for TDIU (the claim the attorney sought
fees for) was missing at the time of the trigger event (the
Board decision), meaning TDIU was not raised by the evi-
dence at the time that the increased benefits claim was
raised to the Board. Thus, TDIU was not part of “the case”
in Jackson. So too here: the VA’s independent review of

our court could adopt the definition of the “case” as used in
Jackson).
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12 GUMPENBERGER v. MCDONOUGH

TBI cases and resultant new medical examination evidence
(which resulted in an increased schedular rating for TBI)
was missing at the time of the triggering event, the filing
of the NOD. See Decision, 35 Vet. App. at 209–10 (“[T]he
100% schedular rating for TBI was the result of VA’s inde-
pendent review of TBI cases and had nothing to do with the
appeal of TDIU.”); J.A. 115–22 (listing evidence the VA
considered in the RO decision increasing the schedular rat-
ing of TBI, including a “DBQ NEURO TBI Initial” received
in 2016). The increased schedular TBI rating was there-
fore not raised by the evidence at the time of the NOD and
thus not part of “the case” for which Mr. Gumpenberger
could be entitled to fees.
We recognize that while both parties encourage us to
adopt the same interpretation of “the case” for the 2012
version of the fee statute as in our precedent. But each
party nonetheless interprets “the case” and our caselaw dif-
ferently.
Mr. Gumpenberger argues that there need only be
“some connection” between the increased rating for TBI
and entitlement to TDIU for the claims to be part of the
same “case.” Appellant’s Br. 24–25. Here, Mr. Gumpen-
berger argues “some connection” exists because both an in-
crease in TBI and entitlement to TDIU result in the same
amount of compensation for Mr. Valadez. Id. This is not
consistent with the interpretation of “the case” in our prec-
edent. For example, in Jackson, we acknowledged that the
TDIU claim was “directly related to and stemmed from” the
veteran’s service connection claim, meaning there was
some connection. Jackson, 587 F.3d at 1110. But we held,
“[n]otwithstanding that fact,” Mr. Jackson was not entitled
to attorney’s fees for the TDIU claim. Id.
For its part, the government argues that whether two
claims are part of “the case” depends on the claims’ eviden-
tiary requirements. Appellee’s Br. 15. But Jackson fore-
closed this argument. In Jackson we explained that “a
TDIU claim may under certain circumstances necessarily
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GUMPENBERGER v. MCDONOUGH 13

be encompassed in a veteran’s claim for increased benefits
despite not being expressly raised,” but the circumstances
there—with no evidence of a necessary component for
TDIU—extinguished such possibility. Jackson, 587 F.3d
at 1109–10 (emphasis added). The VA denied Mr. Jackson
fees for the TDIU claim not because TDIU and the claim
for increased benefits have different evidentiary stand-
ards, but because the evidence required for a TDIU claim
was not present at the time of the triggering event. See id.
at 1111 (“Because no evidence of [the veteran]’s unemploy-
ability was submitted before the Board’s July 2000 deci-
sion[, the triggering event], 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).”).
We address the parties’ interpretations of “the case”
and understanding of our caselaw to make clear that we do
not read the Veterans Court’s opinion, which we affirm, as
adopting either party’s interpretation. While dissecting
portions of the Veterans Court’s opinion and reading it out
of the context of its discussion of our caselaw might possi-
bly support alternative interpretations of the meaning of
“the case” for § 5904(c)(1) (2012), we must read the opinion
as a whole. And reading the opinion as a whole and in con-
text, we find the Veterans Court’s interpretation consistent
with our pre-2006 § 5904(c)(1) caselaw. Accordingly, we af-
firm.
CONCLUSION
We have considered Mr. Gumpenberger’s remaining
arguments and find them unpersuasive. For the reasons
above, we affirm.
AFFIRMED
COSTS
No costs.