Shannon Holstein v. Douglas A. Collins, Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
SHANNON HOLSTEIN,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1451
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-1660, Judge Scott Laurer.
______________________
Decided: January 30, 2026
______________________
K ENNETH D OJAQUEZ, Carpenter Chartered, Topeka,
KS, argued for claimant-appellant. Also represented by
K ENNETH M. C ARPENTER.
P ATRICK ANGULO, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by ELIZABETH MARIE HOSFORD, P ATRICIA M. MCCARTHY ,
BRETT SHUMATE; SHEKEBA M ORRAD, CHRISTA A. SHRIBER,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
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HOLSTEIN v. COLLINS 2
Before L OURIE, REYNA , and CUNNINGHAM , Circuit Judges.
L OURIE, Circuit Judge.
Shannon Holstein is an attorney who represented
Lester L. Dean, Jr. (“the veteran”) in the benefits adjudica-
tion process before the Department of Veterans Affairs
(“the VA”). Holstein appeals the decision of the Court of
Appeals for Veterans Claims (“the Veterans Court”), which
affirmed a decision of the Board of Veterans’ Appeals (“the
Board”), denying Holstein’s request for additional attor-
ney’s fees arising from her representation of the veteran.
Holstein v. McDonough, 2022 WL 10968003 (Vet. App. Oct.
19, 2022); J.A. 161–73 (Board Decision). For the following
reasons, we affirm.
BACKGROUND
In March 2007, the veteran filed a claim for compensa-
tion for a neck injury, which was denied by the VA Regional
Office (“the RO”) for lack of service connection. Holstein,
2022 WL 10968003, at *2; J.A. 33–37. In July 2008, the
veteran, with aid from a non-attorney representative, filed
a notice of disagreement (“NOD”) appealing the denial to
the Board. Holstein, 2022 WL 10968003, at *2; J.A. 38–40.
Several years later, in August 2012, while the neck claim
was still pending, the veteran retained Holstein to repre-
sent him in his effort to secure benefits. Holstein, 2022 WL
10968003, at *2; J.A 41–44. The veteran and Holstein en-
tered into a contingency fee agreement directing the VA to
pay Holstein twenty percent “of the gross amount of any
past due VA benefits recovered for [the] veteran[].” J.A 41;
Holstein, 2022 WL 10968003, at *2.
Soon after entering into the representation agreement,
Holstein filed an additional claim on behalf of the veteran,
seeking an award for compensation for service-connected
post-traumatic stress disorder (“PTSD”). Holstein, 2022
WL 10968003, at *2; J.A. 45. Additionally, Holstien sub-
mitted new evidence and argument to the Board in support
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HOLSTEIN v. COLLINS 3
of the veteran’s pending neck claim, including a claim for
total disability based on individual unemployability
(“TDIU”) based, inter alia, on the veteran’s neck injury and
PTSD. Holstein, 2022 WL 10968003, at *2; J.A. 45–55.
In July 2014, the Board issued a decision. J.A. 56–69.
It first found that the veteran’s neck injury was service con-
nected; the Board thus remanded the neck claim to the RO
for a rating decision. J.A. 58, 66–67. The Board then noted
the veteran’s claim for TDIU, but concluded that it did not
have jurisdiction over the claim because it had not yet been
addressed by the RO. J.A. 58. The Board thus “referred”
the TDIU claim to the RO to address it in the first instance.
J.A. 58.
Without any additional appeals, the RO eventually
granted the veteran $83,801.19 in past-due benefits for the
neck injury and PTSD, as well as TDIU, $28,767.65 of
which was solely based on the neck injury. See J.A. 121–
22.
In December 2014, the RO issued a decision regarding
attorney’s fees. J.A. 120–23. Pursuant to 38 U.S.C.
§ 5904(c)(1) (2012), which states that an attorney may not
collect fees from services provided to a veteran “before the
date on which a[n] [NOD] is filed with respect to the case,”
the RO stated that it would pay Holstein $5,753.53—
twenty percent of the past-due benefits relating to the neck
injury claim—the only claim appealed to the Board in an
NOD. J.A. 122; see also J.A. 150–51.
Holstein appealed the attorney’s fees decision to the
Board, seeking, in relevant part, fees arising out of the
work she did in securing the veteran benefits for his PTSD.
The Board affirmed the RO’s refusal to grant Holstein fees
relating to the PTSD claim. J.A. 169. Holstein then ap-
pealed to the Veterans Court, which again rejected her ar-
gument that she was entitled to fees relating to the PTSD
claim. Because the Veterans Court determined that the
July 2008 NOD appealing the denial of service connection
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HOLSTEIN v. COLLINS 4
for the veteran’s neck injury was unrelated to the veteran’s
PTSD claim, it concluded that the PTSD claim was not part
of the same “case” for which the July 2008 NOD was filed,
and thus affirmed the Board’s decision that Holstein could
not collect attorney’s fees relating to the PTSD claim under
§ 5904(c)(1) (2012). Holstein, 2022 WL 10968003, at *4–5.
Holstein timely appealed. We have jurisdiction under
38 U.S.C. § 7292(a).
D ISCUSSION
We have the authority to review “the validity of a deci-
sion of the [Veterans] Court on a rule of law or of any stat-
ute or regulation . . . or any interpretation thereof (other
than a determination as to a factual matter) that was relied
on by the Court in making the decision.” 38 U.S.C.
§ 7292(a). We may decide “all relevant questions of law”
and will “set aside any regulation or any interpretation
thereof,” if relied upon in the decision of the Veterans
Court, that is “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” Id. § 7292(d)(1).
Where no constitutional question is presented, we “may not
review (A) a challenge to a factual determination, or (B) a
challenge to a law or regulation as applied to the facts of a
particular case.” Id. § 7292(d)(2). No such question is pre-
sented here. We decide legal issues, including questions of
statutory interpretation, de novo. Blubaugh v. McDonald,
773 F.3d 1310, 1312 (Fed. Cir. 2014).
I
Holstein argues on appeal that the Veterans Court mis-
construed the term “case” as used in 38 U.S.C.
§ 5904(c)(1) (2012) in denying her attorney’s fees relating
to the PTSD claim. We disagree.
A
We start with a brief overview of the history of attorney
representation in the benefits adjudication process and
then turn to our caselaw construing the term “case” as used
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HOLSTEIN v. COLLINS 5
in § 5904(c)(1) (2012) and related provisions. Congress has
several times changed the point at which a veteran may
pay for attorney representation in the benefits adjudication
process, with each change moving the point earlier in the
process. See Mil.-Veterans Advoc. v. Sec’y of Veterans Affs.,
7 F.4th 1110, 1135–36 (Fed. Cir. 2021) (discussing the his-
tory of attorney representation in the benefits adjudication
process). At issue in this appeal is the version of
§ 5904(c)(1) enacted in the Veterans Benefits, Health Care,
and Information Technology Act of 2006, Pub. L. No. 109-
461, § 101, 120 Stat. 3403, 3405–09 (“the Act”) (Dec. 22,
2006), which permitted attorney payment only after an
NOD—an appeal of the Board’s final decision—has been
filed.1 Specifically, this version of § 5904(c)(1) provides, in
relevant part:
[A] fee may not be charged, allowed, or paid for ser-
vices of agents and attorneys with respect to ser-
vices provided before the date on which a[n] [NOD]
is filed with respect to the case.
38 U.S.C. § 5904(c)(1) (2012) (emphasis added). The ac-
companying legislative remarks explain that permitting
attorney involvement only after an NOD has been filed was
designed to preserve the non-adversarial nature of the ini-
tial part of the claims process while providing veterans
with the assistance of an attorney when the veteran is
faced with the complexities of appealing a prior adverse de-
cision. See Mil.-Veterans Advoc., 7 F.4th at 1136.
Although the point at which a veteran may pay an at-
torney to represent him or her in the benefits adjudication
process has changed several times, our decisions have
1 Although the provision was enacted in 2006, it was
only added to the United States Code in 2012. Accordingly,
we refer to the provision as “the 2006 version,” but cite its
section in the United States Code as 38 U.S.C. § 5904(c)(1)
(2012).
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HOLSTEIN v. COLLINS 6
consistently taken a broad view of what the term “case”
means as used in § 5904(c)(1) (2012) and related provi-
sions. In Jackson v. Shinseki, we construed the term as
used in the 2006 version’s predecessor, which prohibited
payment of attorney’s fees for services performed “before
the date on which the Board[] first makes a final decision
in the case.” 587 F.3d 1106, 1109 (Fed. Cir. 2009); 38
U.S.C. § 5904(c)(1) (2000). In light of the “liberal manner”
in which the VA must construe a veteran’s claim, we con-
cluded that a “case” is defined by “all [the] potential claims
raised by the evidence, applying all relevant laws and reg-
ulations, regardless of whether the claim is specifically la-
beled.” Jackson, 587 F.3d at 1109 (second emphasis added)
(citations omitted); see also 38 C.F.R. § 3.103(a) (“[I]t is the
obligation of VA to assist a claimant in developing the facts
pertinent to the claim and to render a decision which
grants every benefit that can be supported in law while pro-
tecting the interests of the Government.”).
In Perciavalle v. McDonough, we construed the term
“case” in the context of deciding whether the 2006 version
of § 5904(c)(1) or its predecessor governed an attorney’s re-
quest for fees. 101 F.4th 829, 836 (Fed. Cir. 2024). We ac-
cordingly looked to the Act’s effective date provision, id.,
which stated that the 2006 version would take effect 180
days after enactment and “shall apply with respect to ser-
vices of agents and attorneys that are provided with respect
to cases in which notices of disagreement are filed on or af-
ter that date.” § 101(h), 120 Stat. at 3408 (emphasis
added). Because the effective date provision used almost
identical language—“with respect to cases”—as the prede-
cessor provision at issue in Jackson, we determined that
Jackson’s construction applied to the effective date provi-
sion. Perciavalle, 101 F.4th at 836. We thus explained
that “as long as a notice of disagreement was filed [on or
after 180 days after enactment], in the same ‘case’ in which
counsel is seeking fees as the term is defined in Jackson,
the [2006] version of 38 U.S.C. § 5904(c)(1) [requiring an
NOD to be filed] applies.” Id.
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HOLSTEIN v. COLLINS 7
Furthermore, we explicitly rejected the Veterans
Court’s construction of the effective date provision—“iden-
tif[ying]” the particular NOD “that led to the grant of ben-
efits” and applying the 2006 version of § 5904(c)(1) only to
those NODs filed on or after the effective date. We rea-
soned that such a requirement would contravene Jackson’s
admonition of defining a case by how it is “specifically la-
beled.” Id. at 836. Rather, we reiterated that the effective
date provision “simply asks if there was any (cognizable)
notice of disagreement filed on or after [the effective date]
in the case for which the veteran’s . . . attorney seeks fees.
If so, the amended statute applies.” Id. at 837 (emphasis
in original).
B
Both Holstein and the Government seem to agree that
Jackson’s construction of the term “case” applies here. See
Open. Br. 9, Reply Br. 7; Resp. Br. 13–14. We likewise
agree and see no reason to depart from our prior interpre-
tation given the similarities between the 2006 version of
§ 5904(c)(1) and its predecessor. As just noted, such an ap-
proach was taken in Perciavalle when construing the effec-
tive date provision of the Act. The sole issue here is thus
whether the Veterans Court construed the term “case” in
accord with Jackson. We conclude that it did.
In denying Holstein attorney’s fees relating to the
PTSD claim, the Veterans Court stated that for a separate
claim to be considered part of a “case in the context of sec-
tion 5904,” the separate claim requires “some connection”
to a matter already “adjudicated and appealed” in an NOD.
Holstein, 2022 WL 10968003, at *5 (quotations and citation
omitted). And because it determined that the PTSD claim
had no such connection to the denial of service connection
for the neck injury appealed in the July 2008 NOD, the Vet-
erans Court concluded that Holstein was correctly refused
fees relating to the PTSD claim. Id.
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HOLSTEIN v. COLLINS 8
The Veterans Court’s determination that the PTSD
claim had no connection to the July 2008 NOD demon-
strates that it properly construed “case” under
§ 5904(c)(1) (2012) in accord with Jackson. If the evidence
underlying the July 2008 NOD had raised a PTSD claim, it
is axiomatic that there would have been “some connection”
between the two. See id. Therefore, by concluding that no
such connection existed, the Veterans Court necessarily de-
termined that the evidence before the Board at the time it
adjudicated the July 2008 NOD did not raise the PTSD
claim, a conclusion entirely consistent with Jackson’s evi-
dence-focused construction of the term “case.”
Holstein makes two arguments in support of her con-
tention that the Veterans Court misconstrued the term
“case” as defined in Jackson. First, relying on Perciavalle’s
statement that the effective date provision “simply asks if
there was any (cognizable) notice of disagreement filed on
or after [the effective date] in the case for which the vet-
eran’s agent or attorney seeks fees,” see Perciavalle,
101 F.4th at 837, she contends that the “only predicate” for
collecting fees relating to the services performed in secur-
ing a veteran benefits is the filing of an NOD. Open. Br. 9
(emphasis omitted). That is, Holstein asserts that once any
NOD is filed, a veteran’s case “expand[s]” to include all
other claims subsequently brought before the VA.
Open. Br. 14. Thus, in Holstein’s view, she is entitled to
collect fees relating to the PTSD claim because the PTSD
claim was filed after the July 2008 NOD. Open. Br. 16.
We disagree. Perciavalle explicitly stated that the
NOD must be filed in “the same ‘case’ in which counsel is
seeking fees as the term is defined in Jackson.” 101 F.4th
at 836 (emphasis added). And as just noted above, the Vet-
erans Court conducted such an analysis, concluding that
the PTSD claim was necessarily not “raised by the evi-
dence” at the time the July 2008 NOD was filed, and thus
was not part of the same “case.” See Holstein, 2022 WL
10968003, at *5.
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HOLSTEIN v. COLLINS 9
Second, Holstein points to an additional statement in
the Veterans Court’s decision that she asserts demon-
strates its misconstruction of “case.” Specifically, she
points to the Veterans Court’s statement that “a valid NOD
must specify the issue a claimant is appealing” for a claim
to be considered part of the “case” under § 5904(c)(1). Hol-
stein, 2022 WL 10968003, at *3 (emphasis added); see
Open. Br. 12. In Holstein’s view, that additional statement
indicates that the Veterans Court contravened Jackson’s
and Perciavalle’s admonition of a requirement that a claim
must be “specifically labeled” as such for it to be considered
part of the “case” under § 5904(c)(1). Open. Br. 12 (“The
decision of the Veterans Court erroneously imposed a spec-
ificity requirement on the NOD.”).
We again disagree. Indeed, while those statements,
taken in isolation, could be read to suggest that the Veter-
ans Court imputed a specific labeling requirement into the
construction of “case,” which is prohibited by Jackson, such
dissection of the Veterans Court’s decision ignores, as just
recounted above, its proper construction (and application)
of the term “case” in § 5904(c)(1) (2012) as containing no
such specificity requirement, consistent with our caselaw.
We accordingly see no basis to disturb the Veterans Court’s
decision.
CONCLUSION
We have considered Holstein’s remaining arguments
but find them unpersuasive. For the reasons provided, we
affirm the Veterans Court’s decision.
AFFIRMED
COSTS
No costs.
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