Appeal from the United States Court of Appeals for Veterans Claims in 06-0823, Judge Robert N. Davis.
The opinion of the court was delivered by: Rader, Circuit Judge.
Before RADER, BRYSON, and LINN, Circuit Judges.
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.
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 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. . . . ...