The case was published on March 13, 2025.

This case matters to veterans even though the appellate party isn’t the disabled veteran.

This is one of those cases that is really messy and leaves those who argue law for a living with more questions than the case resolves.

The Foundation: The facts of the case are few and the parties did not dispute them at the court. The veteran has been service-connected for decades. In Nov 2019, the veteran filed for higher ratings for two service-connected disabilities. VA denied higher ratings in Feb 2020. The veteran then hired counsel (CCK), and counsel within a year filed an HLR. DROC again denied the increase in April 2021.

This is where it gets interesting. Within a year the veteran submitted new and relevant evidence of being unemployable due to the exact same service connected conditions he had filed for an increase. He submitted a detailed personal statement which explained how his disabilities prevent employment, and submitted a 21-8940 form. In April 2022, the veteran was assigned higher ratings for the two contentions causing unemployability, awarded TDIU, and assigned P&T.

This case takes a twist because CCK had filed a withholding agreement; therefore, if the accredited representative met the requirements of law, VA had to pay the representative a portion of the veteran’s retroactive benefits for their work. VA denied that CCK’s work met the requirements of law for them to be paid in May of 2022. Mr. Chisholm didn’t appreciate not getting paid for his work and appealed to the Board.

It’s important to understand this finer point: the case in this controversy is not the veteran’s benefits directly, but rather the attorney’s payment from the veteran’s benefits due to how the benefits were won. The veteran isn’t the plaintiff, the accredited representative is.

Strap in, this is where it gets confusing. The Board determined that CCK could have been entitled to fees related to the HLR, but because benefits were denied by DROC in April 2021, no fees were due. They further determined fee eligibility was extinguished when that HLR was decided because it was not appealed to the Board within a year and the timeline to appeal ran out. This led the Board to reason that the TDIU application was a “new” claim, separate from the previous HLR, and not a supplemental; therefore, fees were barred.

This gets more convoluted because CCK increased the ratings of several other contentions using other filings and was awarded fees based on those contentions, which they were not entitled to while this appeal was pending.

The Analysis:

Can the Court hear the merits?

The court cannot hear the merits of the case unless two things are true: 1. The court has jurisdiction; and 2. There is a case or controversy.

The Secretary first argued that the case was moot because CCK was paid; therefore, there was no case or controversy. If found true by the court, they must dismiss without hearing the merits.

Moistness can only be found if there is no potential remedy for the plaintiff. If all of the money was paid, there is no remedy for Mr. Chisholm to acquire. Mr. Chisholm argued that part of the money he was paid by VA was for claims where he was not entitled to receive payment and therefore he kept the money in the firm's trust account and did not distribute it to their operations account (as such it is not income; it is held in trust for the veteran).

The Court disagreed with the Secretary and said there was in fact a case and controversy. The Court noted that the Secretary’s accounting for payments had numerous errors and the Secretary’s brief stated what the representative’s decision letter should have said, not what it actually said.

The Court explicitly found: “To recap: VA gave Mr. Chisholm his client’s money based on decisions that we all agree do not entitle [Mr. Chisholm] to that money. And now VA tells him to keep that money while insisting that he is not entitled to it. Unsurprisingly, Mr. Chisholm does not want to do that.” It’s illegal for Mr. Chisholm to do that.

Because the court found it had jurisdiction and a case in controversy, the Court was then allowed to turn to the merits of the case.

The Merits

Mr. Chisholm made two distinct arguments on the merits.

First, that by providing new and relevant evidence within one year of the decision for an increase, the increase claim remained pending. Second, that when he filed a 21-8940 (TDIU application) for the veteran that it was in fact also a supplemental appeal because the TDIU was based on the same contentions. The TDIU application should have been inferred to be a supplemental claim because it was a claim to increase his existing disabilities (the exact same disabilities that he was recently denied an increase for).

And this second argument is why this case matters to veterans. It is not just about the attorney’s fees; it is also about effective dates and what a TDIU application can be in law.

The Secretary argued a unified theory which rejected Mr. Chisholm’s argument. The Secretary argued after the initial decision that a veteran has three options: a supplemental, HLR, or a Board appeal. The veteran did not do any of these and therefore the appeal became final. A TDIU application being none of these; therefore, "Tough luck Mr. Chisholm!"

The Court cited the recently decided Phillips v. McDonough, 37 Vet.App. 394, 401 (2024), “TDIU is not a separate claim. It is one way to get an appropriate rating for a disability.” Stop and think about that a minute.

The veteran filed for an increase for two contentions and was denied; the veteran then filed for TDIU and claimed the exact same contentions were the bases for his TDIU; thus, under the statute, the veteran had “previously filed a claim for the same or similar bases, and was denied.” 38 USC §101(36). In other words he filed a supplemental claim (In the words of the court).

The Court in the decision takes its time to dissect the alliteration used by Congress and VA in the applicable written laws over many paragraphs, ultimately coming to the conclusion that VA says a form must be used to file a supplemental appeal, but that VA did not specify that the 21-0995 be the sole form that must be used, which means that a 21-8940 form can also meet the requirements for a supplemental appeal.

Mr. Chisholm won, but this decision is so much more than his win.

The Holding Extrapolated: If a veteran filed a claim for an increase and was denied and then filed for TDIU based on those exact same contentions and had it granted, the effective date is not the date the TDIU form was filed or the exam was done, but when the initial filing for an increase was filed and potentially a year earlier than that if proof of employment difficulties existed in the record prior a year earlier directly attributable to the exact same contentions.

And if a CUE is found where employment issues were of record encompassing the same contentions and a TDIU form was filed without a 21-0995, it’s game on.

This decision does leave unanswered questions though, like what if service connection had not yet been established for the conditions which cause TDIU and after a denial a TDIU form was used vs. a supplemental appeal form, can a TDIU form be used as a supplemental then? The court order says it does, but that is a different set of facts and the court was clear that each set of facts is unique, so maybe not.

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