Alexandra M. Jackson v. Douglas A. Collins, Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
ALEXANDRA M. JACKSON,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-2135
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-3528, Chief Judge Michael P.
Allen, Judge Grant Jaquith, Judge Scott Laurer.
______________________
Decided: June 26, 2026
______________________
ZACHARY STOLZ, Chisholm Chisholm & Kilpatrick,
Providence, RI, argued for claimant-appellant. Also repre-
sented by AMY F. O DOM .
N ELSON K UAN, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
CLAUDIA BURKE, P ATRICIA M. M CCARTHY , BRETT SHUMATE;
MEGHAN ALPHONSO, CHRISTA A. SHRIBER, Office of General
Counsel, United States Department of Veterans Affairs,
Washington, DC.
Case: 24-2135 Document: 47 Page: 1 Filed: 06/26/2026

-- 1 of 19 --

JACKSON v. COLLINS 2
______________________
Before REYNA, SCHALL , and CUNNINGHAM , Circuit Judges.
SCHALL , Circuit Judge.
Alexandra M. Jackson is an attorney. She represented
veteran John A. Lovier, Jr. before the Department of Vet-
erans Affairs (“VA”). She now appeals the June 25, 2024
decision of the United States Court of Appeals for Veterans
Claims (“Veterans Court”) that affirmed the May 22, 2022
decision of the Board of Veterans’ Appeals (“Board”) deny-
ing her request for attorney’s fees arising out of her repre-
sentation of Mr. Lovier. Jackson v. McDonough, 37 Vet.
App. 277 (2024), J.A. 2–36. For the reasons set forth below,
we affirm.
BACKGROUND
I
Relevant to the issue on appeal is an understanding of
(1) the statutory scheme relating to the VA’s administra-
tive appeals system and (2) the statutory scheme relating
to the payment of attorney’s fees for work performed during
the administrative appeals process. Accordingly, before
turning to the facts, we address these matters.
A
In 2017, Congress enacted the Veterans Appeals Im-
provement and Modernization Act of 2017 (“AMA”) to re-
form the VA’s existing administrative appeals system,
which is often referred to as the “legacy system.” See Pub.
L. No. 115-55, 131 Stat. 1105 (codified at scattered sections
of 38 U.S.C.); Mil.-Veterans Advoc. v. Sec’y of Veterans Affs.,
7 F.4th 1110, 1118 (Fed. Cir. 2021) (“MVA”). Under the
legacy system, a veteran claiming disability benefits had
one primary way to seek administrative review of an unfa-
vorable initial decision by the VA. A claimant initiated an
appeal by filing a notice of disagreement (“NOD”) with
Case: 24-2135 Document: 47 Page: 2 Filed: 06/26/2026

-- 2 of 19 --

JACKSON v. COLLINS 3
respect to the decision of the agency of original jurisdiction
(“AOJ”), in essence the relevant VA Regional Office. See
generally 38 U.S.C. § 7105 (2012). Then, after various
steps, the claimant could have his or her claim reviewed by
the Board. See id.; see also id. § 7104 (1996).
Under the AMA, however, claimants have multiple av-
enues for seeking review after an unfavorable initial deci-
sion. See 38 U.S.C. § 5104C (2018). If it is within one year
after the issuance of the unfavorable initial decision,
§ 5104C(a) provides three procedural options for a claim-
ant: (1) to file a supplemental claim based on additional ev-
idence; (2) to request a higher-level review within the VA
based on the same evidentiary record; or (3) to file an NOD
to directly appeal to the Board. MVA, 7 F.4th at 1117,
1119. Under 38 U.S.C. § 5104C(b), if it has been more than
one year since the unfavorable initial decision, a claimant
may file a supplemental claim. Id. at 1119–20. Both
§ 5104C(a) and (b) state that the filing of supplemental
claims by claimants is “under [§] 5108” of Title 38. Post-
AMA, § 5108 is titled “Supplemental claims” and provides,
in pertinent part:
If new and relevant evidence is presented or se-
cured with respect to a supplemental claim, the
Secretary shall readjudicate the claim taking into
consideration all of the evidence of record.
38 U.S.C. § 5108(a) (2018).1 Finally, the AMA defined
“supplemental claim” as follows:
1 Prior to the AMA, § 5108 was titled “Reopening dis-
allowed claims” and provided that, “[i]f new and material
evidence is presented or secured with respect to a claim
which has been disallowed, the Secretary shall reopen the
claim and review the former disposition of the claim.” 38
U.S.C. § 5108 (1991).
Case: 24-2135 Document: 47 Page: 3 Filed: 06/26/2026

-- 3 of 19 --

JACKSON v. COLLINS 4
The term “supplemental claim” means a claim for
benefits under laws administered by the Secretary
filed by a claimant who had previously filed a claim
for the same or similar benefits on the same or sim-
ilar basis.
38 U.S.C. § 101(36) (2018). We consider next the statutory
scheme relating to the payment of attorney’s fees.
B
In 1988, Congress enacted the Veterans’ Judicial Re-
view Act (“VJRA”) to allow, for the first time, judicial re-
view of VA decisions. Congress also enacted 38 U.S.C.
§ 5904(c)(1) (formerly 38 U.S.C. § 3404(c)(1)) to relax exist-
ing limitations on the payment of attorney’s fees. MVA,
7 F.4th at 1135 (citing H.R. Rep. No. 100-963, at 16, 28;
S. Rep. No. 100-418, at 63–64). When first enacted,
§ 5904(c)(1)’s predecessor permitted attorney’s fees to be
charged only after “the [Board] first ma[de] a final decision
in the case.” Id. (citing 38 U.S.C. § 3404(c)(1) (1988)). In
2006, Congress amended § 5904(c)(1) to shift the triggering
event for allowing paid representation from a final Board
decision to when “a[n NOD] is filed with respect to the
case.” Id. at 1136 (citing 38 U.S.C. § 5904(c)(1) (2006)).
Subsequently, the AMA further expanded the availability
of fees for attorneys representing veteran claimants before
the VA. Under the AMA, pursuant to 38 U.S.C.
§ 5904(c)(1), attorneys can collect fees for work performed
after notice of the AOJ’s initial decision with respect to the
case. Compare 38 U.S.C. § 5904(c)(1) (2012), with 38
U.S.C. § 5904(c)(1) (2018). In its present form, and as rel-
evant to this case, the statute provides, in pertinent part,
as follows:
[I]n connection with a proceeding before the [VA]
with respect to benefits under laws administered
by the Secretary, a fee may not be charged, allowed,
or paid for services of agents and attorneys with re-
spect to services provided before the date on which
Case: 24-2135 Document: 47 Page: 4 Filed: 06/26/2026

-- 4 of 19 --

JACKSON v. COLLINS 5
a claimant is provided notice of the [AOJ]’s initial
decision under [§] 5104 of this title with respect to
the case.
38 U.S.C. § 5904(c)(1) (2018). With the relevant statutory
background in hand, we turn now to the facts relating to
Ms. Jackson’s claim for attorney’s fees.
II
Ms. Jackson’s client, Mr. Lovier,2 served in the United
States Army from February to June 1991 and in the United
States Navy from March 2004 to April 2007. In April 2007,
Mr. Lovier filed a claim for service connection for a bilat-
eral hip disability. The VA granted him service connection
with a 0% rating in March 2008. J.A. 4. In November 2009,
the VA increased Mr. Lovier’s rating to 10% for both hips,
effective as of his original April 2007 filing date. Mr. Lovier
continued to pursue a higher rating for both of his hips, and
the Board remanded his claim in September 2013 and
again in November 2017. Id. In January 2018, Ms. Jack-
son took over representing Mr. Lovier. Id. & n.15. The
Board ultimately denied Mr. Lovier’s claim for a higher in-
itial rating for his left hip in December 2018. J.A. 4–5, 59–
60, 69–70.3 Mr. Lovier did not appeal that decision, so the
December 2018 rating decision for his left hip became final.
J.A. 5; see 38 U.S.C. § 7105(c) (2018).
2 Although the record reflects that Ms. Jackson’s cli-
ent served as a physician specializing in obstetrics and gy-
necology, J.A. 42–43, before us Ms. Jackson refers to her
client as Mr. Lovier, as does the Secretary. The Veterans
Court also referred to him as Mr. Lovier. We follow that
approach.
3 Mr. Lovier underwent a right total hip replacement
in May 2015 and thus his rating by the VA with respect to
his right hip was considered separately and is not at issue
in this appeal. J.A. 65, 67–69.
Case: 24-2135 Document: 47 Page: 5 Filed: 06/26/2026

-- 5 of 19 --

JACKSON v. COLLINS 6
In February 2021, Mr. Lovier had surgery to replace
his left hip. J.A. 5; J.A. 75. Subsequently, in September
2021, Ms. Jackson assisted Mr. Lovier in filing an Applica-
tion for Disability Compensation and Related Compensa-
tion Benefits form. J.A. 5. On December 27, 2021, the VA
granted a 100% rating for Mr. Lovier’s left hip, effective
from February to August 2021, based on his hip replace-
ment, and a 30% rating for the period thereafter. J.A. 79–
82. This ruling resulted in an award of $16,264.53 of past-
due benefits to Mr. Lovier. J.A. 5. In January 2022, with
the assistance of Ms. Jackson, Mr. Lovier appealed his hip
ratings to the Board, where he requested a hearing. J.A.
84.4
Because Mr. Lovier had previously filed a direct-pay
fee agreement requesting direct payment of 20% of his
award of past-due benefits to his attorney and because he
had appointed Ms. Jackson as his counsel, the VA consid-
ered whether Ms. Jackson should be paid fees from Mr.
Lovier’s $16,264.53 award. J.A. 85–86; see 38 C.F.R.
§ 14.636(g)–(i). In a decision dated December 29, 2021, i.e.,
before Mr. Lovier filed his January 2022 Board appeal
noted above, the VA concluded that the award “warrant[ed]
no direct payment of fees” because the “VA never received
a qualifying request to review this decision.” J.A. 85–86.
When it said that it had not received “a qualifying re-
quest to review this decision,” the VA was stating that Ms.
Jackson was not entitled to fees because, under 38 U.S.C.
§ 5904(c)(1), she could only receive fees for legal work per-
formed after the December 27, 2021 rating decision, and
the VA had not received a request for fees for legal work
performed after that decision. J.A. 86; see J.A. 5. Thus, in
the VA’s view, Ms. Jackson was not owed fees for work
4 Mr. Lovier’s appeal was pending as of the filing of
the Secretary’s brief in this case in November 2024. Appel-
lee’s Br. 9.
Case: 24-2135 Document: 47 Page: 6 Filed: 06/26/2026

-- 6 of 19 --

JACKSON v. COLLINS 7
performed prior to December 27, 2021. Ms. Jackson filed
an NOD with respect to the December 29, 2021 decision.
The Board’s May 2022 decision followed.
In its May 2022 decision, the Board declined to award
Ms. Jackson attorney’s fees. J.A. 89–92. The Board stated
that the December 2021 rating decision granting Mr. Lov-
ier benefits was “an initial decision on an increased rating
claim” and therefore was “the initial decision in th[e] mat-
ter.” J.A. 92. Since, as just noted, Ms. Jackson had not
sought attorney’s fees for work performed after the Decem-
ber 2021 rating decision (“the initial decision in th[e] mat-
ter”), however, the Board reasoned that Ms. Jackson was
not entitled to fees under § 5904(c)(1). Id. (citing 38 C.F.R.
§ 14.636(c)(1)(i), an invalidated regulation).5
5 Like 38 U.S.C. § 5904(c)(1), 38 C.F.R.
§ 14.636(c)(1)(i) provided for attorney’s fees after an AOJ
issued notice of an initial decision on a claim. The regula-
tion also provided, however, for different treatment for sup-
plemental claims, based on whether they were filed within
one year of a prior decision. That is, for a supplemental
claim continuously pursued under § 5104C(a), an attorney
could charge for fees under § 14.636(c)(1)(i). But, for a sup-
plemental claim that was not continuously pursued within
one year of a prior decision, fees could only be charged for
work performed after “an initial decision on [the] supple-
mental claim” itself. 38 C.F.R. § 14.636(c)(1)(i).
MVA involved several rulemaking challenges under 38
U.S.C. § 502 to VA regulations, including § 14.636(c)(1)(i).
In MVA, this court invalidated the regulation, concluding
that “§ 14.636(c)(1)(i)’s differential treatment of § 5104C(b)
supplemental claims clearly contravenes § 5904(c)(1)’s re-
quirement that paid representation be available for all
forms of administrative review under the AMA.” 7 F.4th
at 1139–41.
Case: 24-2135 Document: 47 Page: 7 Filed: 06/26/2026

-- 7 of 19 --

JACKSON v. COLLINS 8
III
On appeal to the Veterans Court, Ms. Jackson argued
that she was entitled to attorney’s fees under 38 U.S.C.
§ 5904(c)(1) because she provided legal services after the
AOJ’s “initial decision . . . with respect to the case.” Appel-
lant’s Br. 6, Jackson v. Collins, No. 22-3528 (Vet. App. Dec.
22, 2022) (quoting 38 U.S.C. § 5904(c)(1)). In making this
argument, she contended that the “initial decision . . . with
respect to the case” pursuant to § 5904(c)(1) was the March
2008 rating decision noted above, not the December 2021
rating decision, as the Board determined. Id. at 16. In as-
serting that the “initial decision . . . with respect to the
case” was the March 2008 rating decision, Ms. Jackson
sought to have the work she did in connection with Mr. Lov-
ier’s September 2021 submission (which was subsequent to
the March 2008 rating decision but prior to the AOJ’s De-
cember 2021 rating decision) be treated as work performed
in connection with an AMA supplemental claim. According
to Ms. Jackson, Mr. Lovier’s September 2021 submission
was not the initial claim, but rather a supplemental claim
under the AMA as defined in 38 U.S.C. § 101(36) because
it was “a claim for benefits . . . filed by a claimant who had
previously,” in March of 2008, “filed a claim for the same or
similar benefits on the same or similar basis.” See id. at 7.
In Ms. Jackson’s view, it therefore qualified for filing under
38 U.S.C. § 5104C(b) and thus made her eligible for attor-
ney’s fees under 38 U.S.C. § 5904(c)(1).
The Veterans Court rejected Ms. Jackson’s arguments.
According to the Veterans Court, prior to the AMA, courts
interpreted the phrase “with respect to the case” in 38
U.S.C. § 5904(c)(1) such that a subsequent claim for an in-
creased rating was a new claim and part of a different
“case” than the initial claim. J.A. 7–10. The court rejected
Ms. Jackson’s argument that 38 U.S.C. § 101(36)’s defini-
tion of “supplemental claim” broadened the meaning of
“with respect to the case” in § 5904(c)(1) to encompass
later-filed claims for increased ratings like Mr. Lovier’s
Case: 24-2135 Document: 47 Page: 8 Filed: 06/26/2026

-- 8 of 19 --

JACKSON v. COLLINS 9
September 2021 submission.6 J.A. 15–20. The court also
stated that Mr. Lovier’s September 2021 claim requested a
higher rating and so was “distinct” from his April 2007
claim. It therefore was “a request for a different benefit
that wasn’t the focus of the first claim.” Id. Lastly, the
court stated that “[t]he basis for the claims was distinct.”
Id. This was so because “[g]iven the factual changes—Mr.
Lovier’s hip surgery—VA’s decision in September 2021
wasn’t on the same or similar basis from the last time VA
assessed his hip rating.” Id.
In its decision, the Veterans Court relied on Fenderson
v. West, 12 Vet. App. 119, 125 (1999), as holding that “[a]
claim for an increased rating is a new claim,” and the court
stated that it “presume[d] Congress knew” of this caselaw
when it enacted the AMA. J.A. 18. On this basis, the Vet-
erans Court concluded that Ms. Jackson had “failed to
show that [its] understanding of the phrase ‘with respect to
the case’ under § 5904(c)(1) change[d] as a result of Con-
gress creating the supplemental claim” in the AMA. J.A.
21. Therefore, the court reasoned, its decision in Cameron
v. Shinseki, 26 Vet. App. 109, 116 (2012), that a claim for
an increased rating isn’t the same “case” as the initial claim
for service connection, “answer[ed] the legal question un-
der the AMA, much as it did under the legacy system.” J.A.
21. Having concluded that Mr. Lovier’s September 2021
claim was not a claim “with respect to” the same “case” as
his April 2007 claim under 38 U.S.C. § 5904(c)(1), the court
affirmed the decision of the Board. J.A. 21–23. The court
said that the Board arrived at the correct legal outcome,
even though the Board’s decision “ideally wouldn’t have
6 As seen above, § 101(36) defines a “supplemental
claim” as “a claim for benefits under laws administered by
the Secretary filed by a claimant who had previously filed
a claim for the same or similar benefits on the same or sim-
ilar basis.” 38 U.S.C. § 101(36).
Case: 24-2135 Document: 47 Page: 9 Filed: 06/26/2026

-- 9 of 19 --

JACKSON v. COLLINS 10
cited 38 C.F.R. § 14.636(c)(1)(i),” which, as noted, our court
invalidated in MVA. J.A. 22.
Judge Jaquith dissented. According to Judge Jaquith,
Mr. Lovier’s September 2021 claim satisfied the statutory
definition of a supplemental claim under 38 U.S.C.
§ 101(36) since it was a claim for the exact same benefit
(disability compensation) and on a similar basis (the vet-
eran’s left hip condition) as asserted in Mr. Lovier’s April
2007 claim. J.A. 27–29.
D ISCUSSION
I
We have jurisdiction to decide an appeal from the Vet-
erans Court insofar as it presents a challenge to the court’s
decision regarding a rule of law that the court relied on,
including a decision about the interpretation or validity of
any statute or regulation. 38 U.S.C. § 7292(a), (d)(1). We
have jurisdiction over Ms. Jackson’s appeal because it
turns on issues of statutory interpretation. We decide legal
issues, including questions of statutory interpretation, de
novo. Blubaugh v. McDonald, 773 F.3d 1310, 1312 (Fed.
Cir. 2014).
II
Ms. Jackson makes two arguments on appeal.
First, she contends that the definition of “supplemental
claim” in 38 U.S.C. § 101(36) “plainly includes” requests for
increased compensation based on an already service-con-
nected disability. Appellant’s Br. 5. Ms. Jackson asserts
that this understanding of the meaning of § 101(36) is sup-
ported by changes made by the AMA to 38 U.S.C. §§ 5103
and 5110. Id. at 18–23.7 Accordingly, and because in MVA
7 Specifically, the AMA removed the terms “a claim
for reopening a prior decision on a claim” and “claim for an
Case: 24-2135 Document: 47 Page: 10 Filed: 06/26/2026

-- 10 of 19 --

JACKSON v. COLLINS 11
our court held that “supplemental claims belong to the
same ‘case’ as the initial decision being reviewed, regard-
less of when they are filed,” Ms. Jackson argues that we
should reverse the Veterans Court’s holding that she was
not entitled to fees under § 5904(c)(1). Id. at 8 (quoting
MVA, 7 F.4th at 1139).
Ms. Jackson’s second argument is that, even if Mr. Lov-
ier’s request for additional compensation was not a supple-
mental claim and was instead a new claim, his September
2021 claim was still part of the same “case” as his April
2007 claim under 38 U.S.C. § 5904(c)(1), because both
claims pertained to compensation for Mr. Lovier’s left hip
condition. Ms. Jackson argues that the Veterans Court
erred when it relied on Cameron’s meaning of “case,” since
our court has “taken a broad view of the term” as “encom-
pass[ing] all potential claims raised by the evidence.” Id. at
30–31 (quoting Perciavalle v. McDonough, 101 F.4th 829,
836 (Fed. Cir. 2024)).
The Secretary responds that, under 38 U.S.C. § 5104C,
“supplemental claims” are claims that are either (a) contin-
uously pursued and preserve the original application date,
or (b) contest a prior decision. According to the Secretary,
because Mr. Lovier’s September 2021 claim was not contin-
uously pursued and did not contest a prior decision, it can-
not be a supplemental claim. Appellee’s Br. 18–19. The
Secretary also argues that Mr. Lovier’s February 2021 hip
surgery means that his September 2021 claim is premised
on a different, dissimilar factual basis than his April 2007
increase in benefits” and added the term “supplemental
claim” in § 5103(a)(2)(B)(i). Compare 38 U.S.C.
§ 5103(a)(2)(B)(i) (2012), with 38 U.S.C. § 5103(a)(2)(B)(i)
(2018). The AMA also replaced the terms “a claim reo-
pened after final adjudication” and “claim for increase”
with “supplemental claim” in § 5110(a). Compare 38
U.S.C. § 5110(a) (2012), with 38 U.S.C. § 5110(a) (2018).
Case: 24-2135 Document: 47 Page: 11 Filed: 06/26/2026

-- 11 of 19 --

JACKSON v. COLLINS 12
claim and thus is not a supplemental claim under
§ 101(36). Appellee’s Br. 20.
In response to Ms. Jackson’s second argument, the Sec-
retary argues that Congress intended for the settled under-
standing of the phrase “with respect to the case” in
§ 5904(c)(1), as set forth in Cameron, to continue post-
AMA. Appellee’s Br. 28. The Secretary also argues that
Mr. Lovier’s increased rating claim is not part of the same
“case” as his initial 2007 claim because it relies on new and
different evidence, namely, the evidence of Mr. Lovier’s left
hip replacement. Appellee’s Br. 29–30.
III
For the reasons that follow, we conclude that Mr. Lov-
ier’s September 2021 submission and the resulting Decem-
ber 2021 rating decision were not, for purposes of 38 U.S.C.
§ 5904(c)(1), part of the same “case” as his April 2007 claim
and the resulting March 2008 rating decision. We there-
fore affirm the decision of the Veterans Court that affirmed
the decision of the Board denying Ms. Jackson’s application
for attorney’s fees.
A
There are several decisions from our court that are rel-
evant to determining whether the legal services Ms. Jack-
son provided in connection with Mr. Lovier’s September
2021 submission were “with respect to the case” for pur-
poses of 38 U.S.C. § 5904(c)(1). The first of these, we be-
lieve, is Roberson v. Principi, 251 F.3d 1378 (Fed. Cir.
2001), which was not a case involving attorney’s fees. In-
stead, it addressed the VA’s duty to determine what poten-
tial claims were made by a veteran’s submission. Id. at
1384. We explained that, when a veteran submits evidence
of a medical disability and makes a claim, the VA “must
determine all potential claims raised by the evidence, ap-
plying all relevant laws and regulations, regardless of
[how] the claim is specifically labeled.” Id. This duty, we
Case: 24-2135 Document: 47 Page: 12 Filed: 06/26/2026

-- 12 of 19 --

JACKSON v. COLLINS 13
reasoned, stems from the VA’s duty to develop a claim “to
its optimum.” Id. (quoting Hodge v. West, 155 F.3d 1356,
1362 (Fed. Cir. 1998)).
Subsequently, in Stanley v. Principi, 283 F.3d 1350
(Fed. Cir. 2002), we addressed the meaning of the “case” in
the context of attorney’s fees under the previous version of
§ 5904(c)(1). That version of the statute restricted the
availability of attorney’s fees to legal services provided af-
ter the “first . . . final decision in the case.” Id. at 1352.
The issue in Stanley was whether an attorney could collect
fees for work he performed on a legacy reopening claim that
was filed after a final AOJ decision. We held that the fees
were permissible. We reasoned that it was clear from the
legislative history of § 5904(c)(1) that the statute was de-
signed to allow attorney’s fees in connection with proceed-
ings to reopen a claim on the basis of new and material
evidence or clear and unmistakable error (“CUE”), which
were then the two “grounds for attack” on a final decision.
Id. at 1352, 1356–57 (citing 38 U.S.C. §§ 5108, 5109A
(2000)). In reaching this decision, we stated that “[t]he re-
opening proceeding was itself a separate ‘case’” and thus
the veteran’s attorney could obtain fees after the “final de-
cision” in the reopening case. Id. at 1358.
In Carpenter v. Nicholson, 452 F.3d 1379 (Fed. Cir.
2006), we clarified Stanley’s reasoning, explaining that “a
veteran’s claim based on a specified disability does not be-
come a different ‘case’ at each stage of the often lengthy
and complex proceedings, including remands as well as re-
opening,” and we cited Roberson’s “all potential claims
raised by the evidence” definition for “the case.” Id. at
1384; see MVA, 7 F.4th at 1141. We stated that, “[i]n the
[veteran’s] proceedings the degree of disability and the ef-
fective 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.” Carpen-
ter, 452 F.3d at 1384. We also explained, with reference to
38 U.S.C. § 5904(c), that “[t]he statute was designed to
Case: 24-2135 Document: 47 Page: 13 Filed: 06/26/2026

-- 13 of 19 --

JACKSON v. COLLINS 14
authorize compensation for attorney services rendered af-
ter the initial proceedings, undertaken by the veteran,
have failed.” Id.
We applied Roberson’s “all potential claims raised by
the evidence” understanding of “case” for purposes of attor-
ney’s fees in Jackson (Francis M.) v. Shinseki, 587 F.3d
1106 (Fed. Cir. 2009). There, we held that a veteran’s orig-
inal claim did not include the requisite evidence to support
a total disability based on individual unemployability
(“TDIU”) claim, so the veteran’s attorney’s later presenta-
tion of a TDIU claim was not part of the veteran’s original
“case” for purposes of § 5904(c)(1). 587 F.3d at 1109–11.
In Perciavalle, we again addressed the meaning of the
term “case,” this time in the context of determining if an
attorney could receive fees for legal work after an NOD,
when the veteran’s NOD was submitted in October 2006,
i.e., prior to the June 20, 2007 effective date of the changes
to § 5904(c)(1) permitting fees only for work after submis-
sion of an NOD. 101 F.4th at 833–34. We held that a sep-
arate NOD filed by the veteran in May 2009 served to
invoke the 2006 changes to § 5904(c)(1) (effective June 20,
2007) and render the attorney eligible to receive fees for the
veteran’s claim because the later NOD was part of the
same “case” for which the fees at issue were sought. Id. at
838. Significantly, we noted that the Secretary did not ar-
gue that the May 2009 NOD concerned conditions not suf-
ficiently evident in the record to have been part of the
“case” that included the original claim. Id.
Finally, we recently revisited the meaning of “case” as
used in § 5904(c)(1) in Holstein v. Collins, 166 F.4th 155
(Fed. Cir. 2026). In that case, we affirmed a decision by the
Veterans Court concluding that a veteran’s PTSD claim
was not part of the same “case” under § 5904(c)(1) as a July
2008 claim for the veteran’s neck injury. Id. at 157, 160.
We stated:
Case: 24-2135 Document: 47 Page: 14 Filed: 06/26/2026

-- 14 of 19 --

JACKSON v. COLLINS 15
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. Therefore, by concluding that no such connec-
tion existed, the Veterans Court necessarily deter-
mined that the evidence before the Board at the
time it adjudicated the July 2008 NOD did not
raise the PTSD claim, a conclusion entirely con-
sistent with Jackson[ (Francis M.)]’s evidence-fo-
cused construction of the term “case.”
Id. at 159–60 (citation omitted).
This line of cases makes clear that the scope of the term
“case,” as used in § 5904(c)(1), is defined by the evidence
that is before the VA when it considers a veteran’s claim.
This was made most clear in Jackson (Francis M.), where
we held that the veteran’s claim for TDIU, which was not
raised by the evidence at the time that the increased bene-
fits claim was raised to the Board, was not part of the orig-
inal “case.” 587 F.3d at 1109–11. This is also evident in
our reasoning in Holstein, where we looked to what evi-
dence was “before the Board at the time it adjudicated the
July 2008 NOD,” in determining what was the “case.” 166
F.4th at 159–60 (emphasis added); see also Perciavalle, 101
F.4th at 833–34, 838 (noting that the Secretary did not ar-
gue that conditions were not sufficiently evident in the rec-
ord to have been part of the “case” that included the
original claim). And this understanding of “case” tracks
the Veterans Court’s approach in Cameron, which the Vet-
erans Court relied upon when it concluded that Mr. Lov-
ier’s claim for an increased rating is not the same “case” as
his initial claim for service connection. J.A. 21. In Cam-
eron, the Veterans Court read Carpenter and Jackson
(Francis M.) to define “case” to mean “all potential claims
raised by the evidence during the processing of the claim in
question.” 26 Vet. App. at 115–16 (emphasis added), aff’d,
561 F. App’x 922 (Fed. Cir. 2014) (nonprecedential).
Case: 24-2135 Document: 47 Page: 15 Filed: 06/26/2026

-- 15 of 19 --

JACKSON v. COLLINS 16
We agree with the Veterans Court’s reasoning and con-
clude that “case” in § 5904(c)(1) means all the potential
claims that could be raised by the evidence before the VA
during the processing of the claim in question. See Jackson
(Francis M.), 587 F.3d at 1111 (“Because no evidence of [the
veteran]’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 [§] 5904(c).”);
Gumpenberger v. McDonough, No. 2022-1887, 2024 WL
1252327, at *5–6 (Fed. Cir. Mar. 25, 2024) (nonpreceden-
tial) (concluding that an increased traumatic brain injury
rating was not raised by the evidence at the time of the
veteran’s NOD and thus was not part of “the case” for
which the attorney could be entitled to fees). We note that,
for a veteran who continuously pursues a claim before the
VA such that finality never attaches, later in time events
related to the appeal may be part of the initial claim––mak-
ing those events part of the same case. However, that is
not the situation in the matter before us now. Mr. Lovier’s
2007 submission and the March 2008 rating decision were
part of a “case” that ended when Mr. Lovier did not appeal
the December 2018 rating decision and it became final. Mr.
Lovier’s September 2021 submission relied on evidence of
a change in circumstances, specifically, an increase in the
level of disability that occurred after the record before the
Board had closed when the Board rendered its final deci-
sion in December 2018: his February 2021 left hip replace-
ment. Mr. Lovier’s September 2021 submission and the
AOJ’s resulting December 2021 rating decision thus were
“with respect to [a] case” separate and distinct from the
case represented by the earlier April 2007 claim and the
resulting March 2008 rating decision. Ms. Jackson’s ap-
peal does not present a claim for legal services provided af-
ter the December 2021 rating decision. Accordingly, the
Veterans Court did not err in ruling that she was not enti-
tled to attorney’s fees under § 5904(c)(1).
Case: 24-2135 Document: 47 Page: 16 Filed: 06/26/2026

-- 16 of 19 --

JACKSON v. COLLINS 17
B
We are also not persuaded by Ms. Jackson’s argument
that the AMA’s creation of the concept of a supplemental
claim, see 38 U.S.C. §§ 101(36), 5104C(a), (b), changed the
meaning of “with respect to the case” in 38 U.S.C.
§ 5904(c)(1) so that, without qualification, the term “clearly
includes requests for increased compensation based on al-
ready service-connected conditions.” Appellant’s Br. 22–
23.
The problem is that Ms. Jackson neglects that the AMA
requires that supplemental claims not only meet the defi-
nition in § 101(36), but also that they be filed “under”
§ 5108 pursuant to 38 U.S.C. § 5104C(a)(1)(B), (b). Under
§ 5108, the VA must “readjudicate” a previously filed claim
when a claimant files a “supplemental claim” that presents
the VA with “new and relevant evidence.” 38 U.S.C.
§ 5108(a). Mr. Lovier’s September 2021 claim was a re-
quest for a benefit due to a change in circumstances—his
left hip replacement—and did not require “readjudi-
cat[ion]” of his April 2007 claim based upon “new and rele-
vant evidence.” See J.A. 75 (stating “[l]eft total hip
replacement” under “claim information”). It therefore was
not, under § 5108, a claim “supplemental” to his April 2007
claim.
This result is consistent with our reasoning in MVA.
MVA addressed challenges to certain regulations promul-
gated to implement the AMA, including 38 C.F.R.
§ 14.636(c)(1)(i). As noted above, that regulation allowed
attorneys to charge fees for supplemental claims continu-
ously pursued within one year of a prior decision under 38
U.S.C. § 5104C(a), but prohibited fees for supplemental
claims filed more than a year after the date on which the
Board had issued a decision under 38 U.S.C. § 5104C(b).
7 F.4th at 1137. We struck down the regulation as incon-
sistent with § 5904(c)(1), which does not restrict attorney’s
Case: 24-2135 Document: 47 Page: 17 Filed: 06/26/2026

-- 17 of 19 --

JACKSON v. COLLINS 18
fees arising from a supplemental claim based on the timing
of the filing of the supplemental claim. Id. at 1138–41.
In reaching our decision in MVA, we addressed the Sec-
retary’s argument that a § 5104C(b) supplemental claim
filed more than a year after a prior decision is not part of
the same “case” as the earlier decision. We applied the
Roberson test and concluded that “[j]ust as a CUE claim
belongs to the same ‘case’ as a veteran’s original claim for
benefits, . . . so too does a § 5104C(b) supplemental claim
seeking the ‘same or similar benefits on the same or similar
basis’ as the original claim” belong to the same “case” under
38 U.S.C. § 5904(c)(1). Id. at 1141 (quoting § 101(36)). We
stated that this conclusion, and our statement that “[l]ogic
dictates that § 5104C(b) supplemental claims, . . . should
be construed as part of the same ‘case’ as the initial AOJ
decision being reviewed,” supported the conclusion that a
supplemental claim must always be part of the same “case”
as the original claim. Id. at 1138. Here, however, the evi-
dence Mr. Lovier submitted to the VA with his 2021 sub-
mission changed the “potential claims raised by the
evidence.” See Roberson, 251 F.3d at 1384. Therefore, the
“case” for purposes of § 5904(c)(1) could not be said to be
the same case as the case presented by his 2007 claim and
the case before the Board during the processing of that
claim before it became final in December 2018. We there-
fore are not persuaded by Ms. Jackson’s attempt to shoe-
horn Mr. Lovier’s September 2021 claim into the same
“case” as his original April 2007 claim and the subsequent
March 2008 rating decision that became final in December
2018 by claiming that his September 2021 claim was a sup-
plemental claim under 38 U.S.C. § 101(36).
C
Finally, we agree with the Veterans Court that the
Board’s citation to 38 C.F.R. § 14.636(c)(1)(i) was harmless
error. Further, having concluded that Mr. Lovier’s Novem-
ber 2021 claim was not part of the same “case” as his April
Case: 24-2135 Document: 47 Page: 18 Filed: 06/26/2026

-- 18 of 19 --

JACKSON v. COLLINS 19
2007 claim, we do not address the challenges brought by
Ms. Jackson to the regulatory provisions she alleges are in-
consistent with 38 U.S.C. § 101(36), specifically, 38 C.F.R.
§§ 3.1(p)(1)(ii) and § 14.636(c)(1)(i).
CONCLUSION
For the foregoing reasons, we affirm the decision of the
Veterans Court affirming the decision of the Board denying
Ms. Jackson’s application for attorney’s fees.
AFFIRMED
COSTS
No costs.
Case: 24-2135 Document: 47 Page: 19 Filed: 06/26/2026

-- 19 of 19 --