Cameron v. Shinseki, docket no. 10-4168 (Vet. App. Nov. 28, 2012)
The CAVC held that an informal claim for an increased disability rating that arose after the record before the Board was closed was a second “case” – and not part of the initial claim for benefits still on appeal – even though the additional claim was related to the same disability as the initial claim. The Court found that the second “case” was a stand-alone claim for an increased rating – and that the veteran’s attorney was not entitled to a fee on this claim because no Notice of Disagreement had been filed.
In this case, the attorney represented the veteran in her appeal to the Court of a Board decision that denied an earlier effective date for an award of service connection for depression. (That appeal remains pending at the Court.) Before the attorney became involved with the case, but after the Board had issued its decision, the veteran was treated at a VA medical facility. The RO failed to recognize this as an informal claim for an increased rating. Several months later, the veteran, through her attorney, filed a request to reopen an increased-rating claim. The attorney submitted additional correspondences to the RO stating that it had failed to adjudicate the increased-rating claim and identifying the date of the medical treatment as an informal claim. The attorney petitioned the Court, expressly stating that the increased rating claim was separate from her initial claim. Following the petition, the RO awarded an increased rating of 100%, effective as of the date of the medical treatment. The RO declined to award an attorney fee, stating that this was a separate claim and that an NOD had not been filed on this claim.
The question before the Court was whether the veteran’s initial claim for service connection for depression, which was awarded in 1996 and is still on appeal to the Court, and subsequent claim for an increased rating for her service-connected depression constitute one “case” for purposes of 38 U.S.C. § 5904(c)(1). The Court found that the claim for an increased rating was a separate “case” under section 5904(c)(1) “because it involved evidence that was not part of her original claim and the 2001 Board decision that remains on appeal.”