James J. Perciavalle v. Denis McDonough, Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
JAMES J. PERCIAVALLE,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
ROBERT J. FLEMING, JR.,
Respondent
______________________
2023-1117
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-5340, Judge Grant Jaquith.
______________________
Decided: May 9, 2024
______________________
K ENNETH M. CARPENTER , Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
ASHLEY AKERS , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by BRIAN M. BOYNTON, P ATRICIA M. MC CARTHY , L OREN
MISHA P REHEIM ; J ONATHAN K RISCH , CHRISTA A. SHRIBER,
Case: 23-1117 Document: 50 Page: 1 Filed: 05/09/2024

-- 1 of 17 --

PERCIAVALLE v. MCDONOUGH 2
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before T ARANTO, STOLL , and STARK, Circuit Judges.
T ARANTO, Circuit Judge.
In 2006, veteran Robert Fleming began applying to the
Department of Veterans Affairs (VA), under Title 38 of the
United States Code, for disability benefits for service-con-
nected injuries. In May 2016, Mr. Fleming entered into a
contingent-fee agreement with James Perciavalle for the
latter to serve as his accredited representative before VA.
Under the agreement, the fee was to be 20% of “arrearages
awarded to [Mr. Fleming] as a result of [Mr. Perciavalle]’s
representation before [VA] for [Mr. Fleming’s] service con-
nected conditions,” and VA was authorized to retain 20% of
arrearages to ensure payment of the fee. J.A. 50.
In March 2017, a VA regional office awarded Mr. Flem-
ing past-due benefits—the bulk consisting of compensation
reflecting an increased disability rating for service-con-
nected post-traumatic stress disorder (PTSD), and a small
portion consisting of special monthly compensation (SMC).
VA then ruled that Mr. Perciavalle was statutorily barred
from receiving fees on the non-SMC portion of the award.
The bar was the version of 38 U.S.C. § 5904(c)(1) that pre-
ceded its amendment by the Veterans Benefits, Health
Care, and Information Technology Act of 2006, Pub. L. No.
109-461, § 101, 120 Stat. 3403, 3405–09 (the “Act”) (en-
acted Dec. 22, 2006). Mr. Perciavalle is undisputedly
barred from receiving the non-SMC fees if the pre-Act ver-
sion, rather than the post-Act version, applies to this mat-
ter. VA found the pre-Act version applicable based on the
date on which Mr. Fleming had filed a particular notice of
disagreement with the regional office regarding his PTSD
benefits.
Case: 23-1117 Document: 50 Page: 2 Filed: 05/09/2024

-- 2 of 17 --

PERCIAVALLE v. MCDONOUGH 3
On Mr. Perciavalle’s appeal, the Board of Veterans’ Ap-
peals affirmed the fee denial, agreeing with the regional
office that the pre-Act version of the fee provision, not the
post-Act version, applies here. The United States Court of
Appeals for Veterans Claims (Veterans Court) affirmed the
Board’s decision. Perciavalle v. McDonough, No. 20-5340,
2022 WL 3016250 (Vet. App. July 29, 2022) (Decision). We
now conclude that the Veterans Court relied on an incor-
rect legal standard in determining which version of
§ 5904(c)(1) applies, and we also conclude that the post-Act
version is the applicable one, based on the material facts
that are not in dispute. We therefore reverse and remand.
I
A
The sole issue on appeal pertains to 38 U.S.C. § 5904,
which permits veterans to retain accredited agents or at-
torneys to present and prosecute VA benefit claims and
sets forth restrictions on, among other things, when agents
and attorneys may charge for their services. That provi-
sion changed over time. The dispute before us relates to
which version of this fee statute applies.
Between 1988 and 2007, veterans’ agents and attor-
neys were prohibited from charging fees “with respect to
services provided before the date on which the Board of
Veterans’ Appeals first makes a final decision in the case.”
38 U.S.C. § 5904(c)(1) (2000).1 In 2006, Congress modified
that prohibition, permitting veterans’ agents and attorneys
to charge for their services from an earlier point in the
1 The provision was originally enacted as 38 U.S.C.
§ 3404(c)(1) but was renumbered in 1991 as 38 U.S.C.
§ 5904(c)(1). See Veterans’ Judicial Review Act, Pub. L. No.
100-687, 102 Stat. 4105, 4108 (1988); Department of Vet-
erans Affairs Health-Care Personnel Act of 1991, Pub. L.
No. 102-40, 105 Stat. 187, 238–39.
Case: 23-1117 Document: 50 Page: 3 Filed: 05/09/2024

-- 3 of 17 --

PERCIAVALLE v. MCDONOUGH 4
administrative process, no longer prohibiting such charg-
ing for work before a final Board decision. Veterans Bene-
fits, Health Care, and Information Technology Act of 2006,
§ 101(c)–(d), 120 Stat. at 3407–08; see Military-Veterans
Advocacy v. Secretary of Veterans Affairs, 7 F.4th 1110,
1135–36 (Fed. Cir. 2021) (reviewing the statutory history
of limitations on attorney’s fees for VA benefits claims). As
amended, the statutory prohibition applies only “with re-
spect to services provided before the date on which a notice
of disagreement is filed with respect to the case.” 38 U.S.C.
§ 5904(c)(1) (2006).2 Under the post-Act statute, charging
is thus permitted for services from when an appeal to the
Board is initiated, because a “notice of disagreement” is a
filing that initiates a veteran’s effort to seek Board review
of a decision by an agency of original jurisdiction (regional
office). 38 U.S.C. § 7105(a) (“Appellate review shall be ini-
tiated by the filing of a notice of disagreement in the form
prescribed by the Secretary” of Veterans Affairs.).
It is undisputed that there was no final Board decision
in Mr. Fleming’s case. See Perciavalle’s Opening Br. at 8;
Secretary’s Response Br. at 7 n.2; J.A. 74. It is therefore
also undisputed that, if the pre-Act version of the statute
applies, Mr. Perciavalle is not entitled to the fees in dis-
pute. In contrast, if the post-Act version applies, the tim-
ing rule of § 5904(c)(1) does not bar fees. Other possible
constraints on fees (e.g., that the fees awarded reflect the
contribution to and responsibility for benefits awarded),
which are not before us, are immaterial if the pre-Act ver-
sion’s time bar applies.
2 This subsection was amended again in 2017. See
Veterans Appeals Improvement and Modernization Act of
2017, Pub. L. No. 115-55, 131 Stat. 1105, 1110; 38 U.S.C.
§ 5904(c)(1) (2018). Neither party argues that the 2017
amendments apply to this case.
Case: 23-1117 Document: 50 Page: 4 Filed: 05/09/2024

-- 4 of 17 --

PERCIAVALLE v. MCDONOUGH 5
B
1
In 2006, Robert Fleming, a veteran who had served
during the Vietnam era, filed a claim with VA seeking dis-
ability-compensation benefits under 38 U.S.C. § 1110 for
PTSD, among other conditions. In a September 2006 deci-
sion, VA determined that Mr. Fleming had PTSD that was
connected to his military service and granted a 30% disa-
bility rating, while also addressing several other condi-
tions, including a shrapnel fragment in his left wrist and
injury to muscle group XVII (both of which were service
connected). J.A. 16. In October 2006, Mr. Fleming filed a
notice of disagreement with the PTSD rating decision. J.A.
17.
In August 2007, while the PTSD appeal was pending,
Mr. Fleming filed a new claim for benefits for additional
disabilities. In November 2008, Mr. Fleming requested a
total disability rating based on individual unemployability
(TDIU), citing PTSD and residuals of a traumatic brain in-
jury as the service-connected disabilities that prevented
him from securing substantially gainful employment. J.A.
18–19; see also J.A. 112. In March 2009, VA issued a deci-
sion addressing the TDIU request raised in Mr. Fleming’s
November 2008 filing and thirteen additional “claims not
currently on appeal.” J.A. 20–33. In relevant part, VA de-
nied Mr. Fleming’s request for entitlement to a TDIU, de-
termining that Mr. Fleming did not meet schedular
requirements (i.e., he did not have either (1) one service-
connected disability evaluated at 60% disabling or (2) two
or more service-connected disabilities, one of which was
evaluated at 40% disabling and which together had a com-
bined evaluation of 70% or more), and that the evidence
failed to show that his service-connected disabilities alone
precluded all forms of substantially gainful employment.
J.A. 32. VA also declined to submit Mr. Fleming’s case for
extraschedular consideration. J.A. 32. In the same ruling,
Case: 23-1117 Document: 50 Page: 5 Filed: 05/09/2024

-- 5 of 17 --

PERCIAVALLE v. MCDONOUGH 6
VA addressed many other conditions, including the shrap-
nel fragment in his left wrist and injury to muscle group
XVII. J.A. 23–25.
In May 2009, Mr. Fleming filed a notice of disagree-
ment with the March 2009 decision. J.A. 37. In that notice
of disagreement, Mr. Fleming argued, among other things,
that he was entitled to a TDIU because his “evaluation per-
centage for PTSD should be at 70% minimum” and that “in-
dividual unemployability clearly is met.” J.A. 37. The
Board, when it addressed the appeal, recognized that the
May 2009 notice of disagreement sought to place before it
the TDIU issue as well as numerous other matters, includ-
ing the left-wrist shrapnel fragment and muscle group
XVII matters. See J.A. 40–41.
All claims raised by Mr. Fleming remained on appeal
before the Board for several years, until in January 2013
the Board remanded all of Mr. Fleming’s claims to VA. See
J.A. 40–47. On May 9, 2016, while these claims remained
pending, Mr. Perciavalle entered into a contingent fee
agreement with Mr. Fleming. J.A. 50. As permitted by 38
U.S.C. § 5904(d), the fee agreement set Mr. Perciavalle’s
rate at “20% (twenty percent) of any arrearages awarded
. . . as a result of [his] representation before the Depart-
ment of Veterans Affairs for [Mr. Fleming’s] service[-]con-
nected conditions.” J.A. 50.
On March 2, 2017, VA increased its evaluation of Mr.
Fleming’s PTSD to 100% disabling, effective April 11, 2008.
J.A. 56–61. VA also granted Mr. Fleming entitlement to
special monthly compensation, under 38 U.S.C. § 1114(s),
based on his being housebound. J.A. 61–62; see also id. at
62 (also recognizing eligibility for Dependents’ Educational
Assistance under 38 U.S.C. ch. 35). Given the 100% PTSD
rating assignment, Mr. Perciavalle withdrew Mr. Flem-
ing’s TDIU appeal the same day. J.A. 225.
Case: 23-1117 Document: 50 Page: 6 Filed: 05/09/2024

-- 6 of 17 --

PERCIAVALLE v. MCDONOUGH 7
2
VA then had to decide whether to pay to Mr. Per-
ciavalle the 20% of the award referred to in the fee agree-
ment he had with Mr. Fleming, which had been filed with
VA. On March 13, 2017, VA issued a decision (correcting a
March 10 decision) on that issue. J.A. 73–76. VA granted
Mr. Perciavalle a fee consisting of 20% of the SMC amount
but denied him any fee from the non-SMC amount.
In making that decision, VA looked to whether a notice
of disagreement was filed on or after June 20, 2007. J.A.
74. VA cited 38 C.F.R. § 14.636(c)(2), which refers to that
date. The date itself derives from the 2006 Act’s “effective
date” provision, which says that the relevant amendments
“shall take effect” 180 days after the enactment date—June
20, 2007, is 180 days after the enactment date of December
22, 2006—and
shall apply with respect to services of agents and
attorneys that are provided with respect to cases in
which notices of disagreement are filed on or after
that date.
§ 101(h), 120 Stat. at 3408.
VA granted fees in the amount of 20% of the SMC
award because entitlement to special monthly compensa-
tion was “a downstream issue to both the NOD filed on Oc-
tober 31, 2006[,] and the NOD filed on May 12, 2009.” J.A.
75. In so deciding, VA treated the filing of the May 2009
notice of disagreement—after June 20, 2007—as sufficient
to apply the post-Act statutory provision to the SMC por-
tion of the fee request. But VA denied fees for the past-due
benefits based on the increased PTSD rating because “[t]he
NOD in this case was filed on October 31, 2006”—before
June 20, 2007—which, VA concluded, meant that the pre-
Act version of the statutory provision was the applicable
one for that portion of the fee request. J.A. 74. As is un-
disputed, if the pre-Act version applies, Mr. Perciavalle
Case: 23-1117 Document: 50 Page: 7 Filed: 05/09/2024

-- 7 of 17 --

PERCIAVALLE v. MCDONOUGH 8
was not entitled to charge fees because there had been no
final Board decision. J.A. 74.
On March 14, 2017, the day after VA’s fee ruling, Mr.
Perciavalle filed a notice of disagreement with the decision
denying fees based on the non-SMC part of the compensa-
tion award. J.A. 77–79. In April 2020, the Board issued a
decision agreeing with VA’s fees denial. J.A. 108–17. The
Board determined that the May 2009 notice of disagree-
ment—after June 20, 2007—did not support the disputed
fee request because “the submission of the May 2009 notice
of disagreement did not trigger [Mr. Perciavalle’s] eligibil-
ity to receive attorney fees based on [Mr. Fleming’s] TDIU
claim.” J.A. 115; see also J.A. 114–17. The Board explained
that it “must find that the TDIU claim [which was part of
what was covered by the May 2009 notice of disagreement]
only arose from the initial January 2006 rating decision
and the October 2006 notice of disagreement that initiated
an appeal of the rating.” J.A. 115. The Board stated that
the May 2009 notice of disagreement “did not have the le-
gal effect of a notice of disagreement for purposes of per-
fecting an appeal” because the issue of entitlement to a
TDIU was already “before the Board for consideration pur-
suant to Rice v. Shinseki, 22 Vet. App. 447, 454–55 (2009).”
J.A. 114–15.
Mr. Perciavalle appealed to the Veterans Court, which
issued a decision in July 2022. Citing its decision in Cam-
eron v. Shinseki, the Veterans Court stated that the
amendment made to § 5904(c)(1) “‘only applies to cases
where the NOD was filed after June 19, 2007.’” Decision,
2022 WL 3016250, at *2 (quoting 26 Vet. App. 109, 113
(2012), aff’d, 561 F. App’x 922 (Fed. Cir. 2014)). The court
then determined that it found no “clear error in the Board’s
determination that the October 2006 NOD initiated the
claim stream that led to grant of benefits in March 2017.”
Id. Finally, the court noted that “the record does not show
any [evidence], outside of the October 2006 letter, that
Case: 23-1117 Document: 50 Page: 8 Filed: 05/09/2024

-- 8 of 17 --

PERCIAVALLE v. MCDONOUGH 9
could be construed as an NOD challenging the PTSD rat-
ing.” Id. at *3.
The Veterans Court entered its final judgment on Au-
gust 22, 2022, and Mr. Perciavalle timely filed his appeal
on October 20, 2022. We have jurisdiction under 38 U.S.C.
§ 7292(a), (c).
II
Our authority to review decisions of the Veterans Court
is limited by statute. We have the authority to review “the
validity of a decision of the [Veterans] Court on a rule of
law or of any statute 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); Flores-Vazquez v. McDonough, 996 F.3d
1321, 1325 (Fed. Cir. 2021). 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.” 38
U.S.C. § 7292(d)(1)(A). But where (as here) no constitu-
tional question is presented, we “may not review (A) a chal-
lenge to a factual determination, or (B) a challenge to a law
or regulation as applied to the facts of a particular case.”
38 U.S.C. § 7292(d)(2). We decide legal issues, including
statutory interpretations, de novo. Stanley v. Principi, 283
F.3d 1350, 1354 (Fed. Cir. 2002); Blubaugh v. McDonald,
773 F.3d 1310, 1312 (Fed. Cir. 2014).
A
The Veterans Court erred as a matter of law in its un-
derstanding of the legal standard that governs the deter-
mination of whether the post-Act or pre-Act version of 38
U.S.C. § 5904(c)(1) applies in a case.
Where Congress has provided clear instructions as to
the effective date of a statutory amendment and has speci-
fied the cases to which the amendment applies, those
Case: 23-1117 Document: 50 Page: 9 Filed: 05/09/2024

-- 9 of 17 --

PERCIAVALLE v. MCDONOUGH 10
instructions govern. See Landgraf v. USI Film Products,
511 U.S. 244, 280 (1994); Schaeffler Group USA, Inc. v.
United States, 786 F.3d 1354, 1360 (Fed. Cir. 2015). Con-
gress gave such an instruction in enacting the Veterans
Benefits, Health Care, and Information Technology Act of
2006. Congress explicitly prescribed the effective date of
the statutory amendments, explaining that they “shall
take effect on [June 20, 2007,] and shall apply with respect
to services of agents and attorneys that are provided with
respect to cases in which notices of disagreement are filed
on or after that date.” § 101(h), 120 Stat. at 3408.
That language has a clear “ordinary meaning” on its
face. See Transpacific Steel LLC v. United States, 4 F.4th
1306, 1319 (Fed. Cir. 2021) (starting analysis with ordinary
meaning). The language makes it a sufficient condition to
trigger application of the post-Act fee provision that a no-
tice of disagreement was filed in a veteran’s case on or after
June 20, 2007. That condition is not qualified according to
whether another notice of disagreement also was filed in
the same case before June 20, 2007. We have been shown,
and have uncovered, no legislative history that contradicts
that meaning, much less in a way that would control over
what the words mean.
We have previously addressed the meaning of the term
“case” as used in the post-Act version of § 5904(c)(1). We
have taken a broad view of the term, stating that “a ‘case’
within the meaning of Section 5904(c) encompasses ‘all po-
tential claims raised by the evidence, applying all relevant
laws and regulations, regardless of whether the claim is
specifically labeled . . . .’” Jackson v. Shinseki, 587 F.3d
1106, 1109 (Fed. Cir. 2009) (emphasis and alteration in
original) (quoting Roberson v. Principi, 251 F.3d 1378, 1384
(Fed. Cir. 2001)). Given the similarities between the text
of the effective-date provision and § 5904(c)(1), we see no
basis for departing from that definition of the term in in-
terpreting § 101(h). See § 101(h), 120 Stat. at 3408 (stating
the 2006 amendments shall apply “with respect to cases in
Case: 23-1117 Document: 50 Page: 10 Filed: 05/09/2024

-- 10 of 17 --

PERCIAVALLE v. MCDONOUGH 11
which notices of disagreement are filed” after June 20,
2007); 38 U.S.C. § 5904(c)(1) (2006) (allowing agents and
attorneys to charge fees after “a notice of disagreement is
filed with respect to the case”). Therefore, as long as a no-
tice of disagreement was filed on or after June 20, 2007, in
the same “case” in which counsel is seeking fees as the term
is defined in Jackson, the post-Act version of 38 U.S.C.
§ 5904(c)(1) applies.
Significantly, this understanding does not foreclose ap-
plication of a limitation, consistent with the text and com-
pelled by purpose and context, on what constitutes a filing
of a notice of disagreement in a case (on or after June 20,
2007). See Transpacific Steel, 4 F.4th at 1323 (discussing
context and purpose within textual limits); Utility Air Reg-
ulatory Group v. Environmental Protection Agency, 573
U.S. 302, 320 (2014) (reiterating the “fundamental canon
of statutory construction that the words of a statute must
be read in their context and with a view to their place in
the overall statutory scheme” (internal quotation marks
omitted)). Thus, a frivolous or “sham” notice of disagree-
ment, for instance, or one that serves no function in ad-
vancing the adjudication of entitlement to benefits and is
filed solely for the purpose of permitting recovery of fees,
may not trigger eligibility for fees. This limitation reflects
a background legal principle, familiar from many areas of
law, that filings are properly denied legal recognition or
protection (i.e., are not cognizable) for various purposes if
they are sufficiently devoid of substance. See, e.g., Ex parte
Davenport, 31 U.S. (6 Pet.) 661, 664 (1832) (per Story, J.)
(interpreting statute to prevent giving effect to a party’s
“contrivances”: “He should not by sham pleadings, or by
other pretended defences, be allowed to avail himself of a
postponement of judgment . . . .”); Professional Real Estate
Investors, Inc. v. Columbia Pictures Industries, Inc., 508
U.S. 49 (1993) (sham filings denied antitrust immunity);
BE & K Construction Co. v. National Labor Relations
Board, 536 U.S. 516 (2002) (sham litigation subject to
Case: 23-1117 Document: 50 Page: 11 Filed: 05/09/2024

-- 11 of 17 --

PERCIAVALLE v. MCDONOUGH 12
NLRB injunctions). Application of that principle here is
required by the plain purpose of § 101(h). Allowing any fil-
ing of a notice of disagreement on or after June 20, 2007,
even one having no legitimate purpose in the VA benefit
system, to change which version of the fee provision ap-
plies—that is, allowing naked manipulation of the effective
date—would defeat the self-evident function of temporally
limiting availability of the new version of the fee provision.
The Veterans Court in this case did not cite or quote
the § 101(h) effective-date provision, and its reasoning de-
parts from the clear meaning of the provision. The Veter-
ans Court quoted its earlier decision’s statement that “the
December 2006 amendment to 38 U.S.C. § 5904(c)(1) pro-
vided that the ‘change only applies to cases where the NOD
was filed after June 19, 2007.’” Decision, 2022 WL
3016250, at *2 (emphasis added) (quoting Cameron, 26 Vet.
App. at 113). But the Veterans Court cannot be understood
to have meant that there is only one notice of disagreement
per “case,” which is the word used in § 101(h). The Secre-
tary recognizes that there can be more than one. Secre-
tary’s Response Br. at 14 (stating that “there can be
multiple NODs as VA successively addresses the five dif-
ferent elements of a case, Collaro v. West, 136 F.3d 1304,
1308 (Fed. Cir. 1998) (veteran status, disability, nexus to
service, compensation level, and effective date)”). The Sec-
retary cites decisions of ours also so recognizing.3
3 In arguing that there can be only one notice of dis-
agreement for each “element” of a case, the Secretary cites
Grantham v. Brown, 114 F.3d 1156, 1158–59 (Fed. Cir.
1997), and Barrera v. Gober, 122 F.3d 1030, 1031–32 (Fed.
Cir. 1997). See Secretary’s Response Br. at 14. In both de-
cisions, Grantham, 114 F.3d at 1158–59; Barrera, 122 F.3d
at 1032, we recognized that there could be multiple notices
of disagreement in a case and held that the new chapter 72
Case: 23-1117 Document: 50 Page: 12 Filed: 05/09/2024

-- 12 of 17 --

PERCIAVALLE v. MCDONOUGH 13
Rather, the Veterans Court took an approach that re-
flects a search for what the Secretary labels the single “op-
erative NOD” for fee purposes. Secretary’s Response Br. at
10–16. Specifically, it approved the Board’s focus on iden-
tifying “which NOD precipitated the claim stream” that
“led to grant of benefits.” Decision, 2022 WL 3016250, at
*2; see also id. at *1 (explaining that “the Board refused to
pay [Mr. Perciavalle] any fees from Mr. Fleming’s past-due
PTSD benefits because the award arose from an NOD filed
in October 2006” and that “VA informed Mr. Perciavalle
that he was not entitled to any fees related to the PTSD
grant because that appeal stemmed from an NOD that was
submitted prior to June 2007”). But that approach departs
from the statute.
The language of § 101(h) states that the amended ver-
sion of the statute shall apply “with respect to cases in
which notices of disagreement are filed on or after” June
20, 2007. § 101(h), 120 Stat. at 3408. It does not presup-
pose that there is only one notice of disagreement in a case.
It does not call for identifying a notice of disagreement for
a particular “element” in a case. It does not call for disre-
garding all notices of disagreement except one (or perhaps
more than one) that can be identified as initiating an ap-
peal that led to the grant of benefits. It simply asks if there
was any (cognizable) notice of disagreement filed on or af-
ter June 20, 2007, in the case for which the veteran’s agent
or attorney seeks fees. If so, the amended statute applies.
of Title 38, creating the Veterans Court and its jurisdiction,
applied to cases in which, where there were two notices of
disagreement, one was filed on or after the enactment of
the Veterans’ Judicial Review Act, Pub. L. No. 100-687, 102
Stat. 4105 (enacted Nov. 18, 1988). See § 402, 102 Stat. at
4122 (providing that new “Chapter 72 . . . shall apply with
respect to any case in which a notice of disagreement is
filed . . . on or after the date of the enactment of this Act”).
Case: 23-1117 Document: 50 Page: 13 Filed: 05/09/2024

-- 13 of 17 --

PERCIAVALLE v. MCDONOUGH 14
B
The foregoing analysis means that the Veterans
Court’s decision must, at a minimum, be set aside because
it rests on a legally incorrect understanding of the standard
that governs which version of the fee provision (pre-Act or
post-Act) applies to this case. But it is permissible, and
useful, for us to go further and address this case in partic-
ular. This is so whether or not we adopt the Veterans
Court’s statement, in an earlier case, that “[w]hether a doc-
ument is an NOD is a question of law.” Beyrle v. Brown, 9
Vet. App. 24, 28 (1996). “‘[W]here adoption of a particular
legal standard dictates the outcome of a case based on un-
disputed facts, we may address that issue as a question of
law.’” Kelly v. Nicholson, 463 F.3d 1349, 1352–53 (Fed. Cir.
2006) (quoting Halpern v. Principi, 384 F.3d 1297, 1306
(Fed. Cir. 2004)); see Sellers v. Wilkie, 965 F.3d 1328, 1338
(Fed. Cir. 2020); Robinson v. O’Rourke, 891 F.3d 976, 979
(Fed. Cir. 2018); Comer v. Peake, 552 F.3d 1362, 1366 (Fed.
Cir. 2009); Groves v. Peake, 524 F.3d 1306, 1309–10 (Fed.
Cir. 2008). The Secretary has not shown that the facts that
are material under the correct standard are in dispute, and
on those facts, the post-Act version of the fee statute ap-
plies.
The veteran in this case filed a notice of disagreement
on or after June 20, 2007—namely, the May 2009 notice of
disagreement challenging VA’s March 2009 decision. Un-
der the correct legal standard of § 101(h), that notice of dis-
agreement cannot be disregarded, as the Veterans Court
and the Board thought, based simply on a determination
that it did not lead to the award of past-due benefits for
disability based on PTSD or was unnecessary to put issues
related to PTSD, including entitlement to TDIU on that ba-
sis, before the Board.
It is undisputed that the May 2009 notice of disagree-
ment, far from being a sham, was a legitimate notice of dis-
agreement serving a legitimate function in the VA
Case: 23-1117 Document: 50 Page: 14 Filed: 05/09/2024

-- 14 of 17 --

PERCIAVALLE v. MCDONOUGH 15
system—at least because it included a variety of issues sep-
arate from PTSD issues. The Board did not disagree; in-
deed, it recognized that thirteen such issues listed in the
March 2009 VA decision, see J.A. 34–36, were before it on
appeal as a result of the May 2009 notice of disagreement.
J.A. 40–41; see also J.A. 53 (VA acknowledging that the
Board interpreted the May 2009 notice of disagreement as
“inclusive of all determinations” in VA’s March 2009 deci-
sion). The Secretary, in this court, did not disagree on this
point either. Oral Arg. at 22:45–23:13.
There is also no dispute about the facts determining
whether, under the definition set forth in Jackson, the May
2009 notice of disagreement was part of the “case” for
which the fees at issue were sought. As to the request for
TDIU based on PTSD made in that notice of disagreement,
the Board, in its fee-denial decision, disregarded the May
2009 notice on the ground that the October 2006 notice was
the operative one for the TDIU issue. J.A. 115–16. At oral
argument, government counsel stated that at least Mr.
Fleming’s entitlement to a TDIU is properly considered
part of the same “case” as the PTSD claim. Oral Arg. at
34:49–35:30.
Even setting aside the TDIU-entitlement issue, the
Secretary has not disputed that the May 2009 notice of dis-
agreement comes within the “case” language of § 101(h) as
that language is understood based on Jackson. In particu-
lar, the Secretary has not argued that all thirteen addi-
tional issues raised in the May 2009 notice of disagreement
concern conditions not sufficiently evident in the record be-
fore VA at the time of the September 2006 decision to have
been part of the “case” that included the PTSD claim.4
4 As we have noted, at least two of the conditions cov-
ered by the May 2009 notice of disagreement—the shrapnel
fragment in Mr. Fleming’s left wrist and injury to muscle
Case: 23-1117 Document: 50 Page: 15 Filed: 05/09/2024

-- 15 of 17 --

PERCIAVALLE v. MCDONOUGH 16
Rather, the Secretary’s only arguments relating to the
scope of the case focus on claim “elements” and single out
an “operative” notice of disagreement. Those arguments do
not create a disputed issue under the Jackson standard for
“case” in § 101(h).
For the foregoing reasons, we conclude as a matter of
law, based on the material facts that are not disputed, that
the May 2009 notice of disagreement is a notice of disagree-
ment that, under the § 101(h) effective-date provision,
makes applicable to Mr. Perciavalle’s fee request the post-
Act version of 38 U.S.C. § 5904(c)(1). We reverse the Vet-
erans Court’s ruling to the contrary.
C
The appeal before us relates solely to Mr. Perciavalle’s
ability to charge a fee for his services under 38 U.S.C.
§ 5904(c)(1). Congress has imposed other constraints on
fee awards. See 38 U.S.C. § 5904(a)(5), (c)(3)(A); 38 C.F.R.
§ 14.636(e)–(f), (h); see also Scates v. Principi, 282 F.3d
1362, 1366 (Fed. Cir. 2002) (explaining that “an attorney
with a contingent fee contract . . . may receive only a fee
that fairly and accurately reflects his contribution to and
responsibility for the benefits awarded”). Nothing about
those constraints, including whether they have been raised
or may yet be raised, is before us in this appeal.
III
We have considered the government’s additional argu-
ments and find them unpersuasive. Because we conclude
that the Veterans Court erred in concluding that the 2006
amendment to 38 U.S.C. § 5904(c)(1) does not apply to Mr.
group XVII, see J.A. 40–41 (2013 Board listing of issues
raised by May 2009 notice of disagreement)—were actually
addressed in the September 2006 VA decision that gave
rise to the October 2006 notice of disagreement, J.A. 16.
Case: 23-1117 Document: 50 Page: 16 Filed: 05/09/2024

-- 16 of 17 --

PERCIAVALLE v. MCDONOUGH 17
Perciavalle’s fee-entitlement claim, we reverse the Veter-
ans Court’s decision and remand the matter for further
proceedings consistent with this opinion.
Costs awarded to Mr. Perciavalle.
REVERSED AND REMANDED
Case: 23-1117 Document: 50 Page: 17 Filed: 05/09/2024

-- 17 of 17 --