court involved a matter concerning increased rating for an existing service connected disability below he developed evidence for a secondary condition which was granted and then additional evidence was developed and  the da granted a total rating based upon an employee billet the v a issued an eligibility decision determining that mr jackson was not entitled to a fee under the procedures in place mr jackson was required to appeal just as though he were a veteran and appeals that eligibility determination to the board for a decision the board's decision was that he was not entitled and that decision was affirmed by the court  record on that there were no additional direct benefits for schedule or increase for this service connected condition that was at issue in the board decision that was the trigger if you will for the representational agreement under fifty nine  four and then when it went back on appeal back to the board following the successful appeal at the court there was an award for secondary condition and the record does not disclose whether or not there was or was not an award before the board at that time in the issue here is not entitle it to an earlier effective date for the award of t d i you the issue here is how to interpret fifty nine o four see the words in the case whether or not the words in the case cover representation beyond the specific issues the specific issues the board is correct did not involve t v i q and could not have involved t d i you at that time because he didn't meet the qualifying requirements he met the qualifying requirements as a result of his continuing representation to accept the interpretation relied on below and relied on by the board you would limit the right to charge a fee based upon the narrowness of the specific issues issues are not the question under fifty nine zero four the question under fifty nine zero four is what was the case about the case in this case was about the teach you as an issue before the board as part of its adverse decision and the right to charge a fee for work subsequently done that developed the right to argue that key here is the language of fifty nine zero four c e we are not dealing with the marriage question of his in title meant to an earlier effective date for i knew if this were a question of earlier effective date on behalf of the veteran your point would be well take this is in the context however fifty nine zero four see we are dealing with the statutory requirements or eligibility requirements for an attorney to charge a fee in this court's decision in carpenter this court successful representation in getting an award of t v idea that you issue then was completely resolved he went back on a revision and the court found that that request for revision was part of the same case because it dealt with the same issues the holding in current or does not turn on the fact that the issues of t d i you were before the board the case before the war was the benefits saw the benefits sought here by mr east or was the right to additional compensation mr admits the benefits sought by everybody and in everything that's correct your honor and the only question here is the trigger for the right to charge a fee what you're doing and what the board did and what the court of firm the board doing well is to prevent the veteran from having the right to continue to have his representation under the fee agreement that was generated under fifty nine to four mr trump and let's let's from look at this from the other end of the spectrum so to speak and i i'm curious because it becomes so true currently the veterans cases involve a sequence over sometimes a very long period of time of writing of different claims some related some quite distinct when would you say the outer limit is for a case as you conceive that question that was before the board that trigger the right to representation in the first instance that issue in this case was the right to increase compensation is going to be and as judge will said that that's what the veteran invariably seeking is either compensation for a new disability or increased compensation for a previously count and that accurately frames the question here why would congress in ten there to be a limit on the right to charge a fee would congress say you can represent on one aspect of inquiries the specific schedule requirement but you can't represent and charge a fee for a secondary consideration or for t d i you that is simply an absurd interpretation there is the intention of congress as is articulated in the carpenter case was clear really to expand the opportunity for veterans to have representation talking about new scope would be agreement as has interpreted the phrase the case to talk about the matter that was first decided and the matter that was first decided in this case was the right to additional compensation well i can go back to my room example away his t d i you benefit some twenty years earlier of eventually he got representation got before the court got a successful representation before the court got it sent back and got his t b i and you reinstated pro then went back more than ten fifteen twenty years to get a request for revision on the other lawfulness of their having taken it away that was part of the same case seems like you're saying same case mean same better absolutely whatsoever to the head injury if they're totally unrelated then that can't be the same case because he was seeking compensation for the disability flowing from the head as opposed to any disability flowing from the is the difference between one case and another case has to do with the nature of the disability claim the nature of the benefit saw what was he trying to obtain was he trying to attain service connection for a specific condition was he trying to obtain service connection or scoobie increase compensation and i believe your honor that you're right that when you're dealing with increased compensation as judge lynn points out that frankly there are no  because anything that would result in increased compensation should be part of the skull of that case because that was the case that's what he was denied in that first final decision by the board and that's the properly concluded that there was no first final decision in the case regarding mr e s lawyers can't claim for t v i knew when that decision was made the statutory predicate for attorney fees therefore was not triggered moreover the  that the this court has reiterated numerous times what case means for the former version of fifty nine of course the one and as wrong as pointed out that definition is all potential claims raised by the evidence that was before the rating for low back disorder there was no evidence at that time that he was not working to the contrary as the record shows mysteries or at the time was employed he actually was employed up until november of two thousand which is that in fact is in the whether x amount of damages ought to be associated with a particular cause of action the cause of action would define the case in the damages would not mean increased damages  degree of benefits to be accorded the particular disability that is the quite this court has defined that the case as being related to the evidence that has been presented t d i you is separate from the underlying injury disability because hires an additional showing by the veterans pacifically that the veteran is not able to follow substantially gainful employment so that is what makes it separate one can conceive of the situation in which a veteran could get one hundred percent disability rating could be a veteran he was unfortunately confined to a wheelchair for us some sort of a leg injury however bad veteran is able to follow gainful employment as an attorney in that particular instance the veteran would be a hundred percent disabled but would not be eligible for t r u and so t d i is separate from the underlying injury disability because of the additional showing that they cannot follow substantially gainful employment and in fact i  believe this very case is answered by the court's holding in stanley a very similar factual situation was presented the attorney in that case saw its benefits and there are very similar circumstances where i the issue of t d i you came up after the board had issued its first first final decision and this court very plainly stated that the attorney in that case was not entitled to fees for the t d i you claim because you could not conceive of a situation in which the t d i you defined the essential elements of the disability rating as being different from a claim for t b i you and the five such elements as i started to explain include the rate so that is an essential part of the veterans case is their rating and so fluctuations in that would be part of that attorney feet remain however t r u is separate i veteran change how their disability rating fluctuate as happened in mr carpenter's case he went from one hundred percent disabled down to sixty percent i believe back up trying to get back up to one hundred percent the t v he was separate and now requires additional evidence of unemployed bill to my understanding a veteran is seeking to have t b i even edition two hundred percent disability rating because that is extra insurance if their disability rating fluctuates they will still be collecting the maximum amount of benefits under t d i view and not necessarily predicated upon their or their actual disability rating is that there is a decision which is adverse to the veteran on the merits and in this particular case the the board never had an opportunity to tell mr insular you are not entitled to t r u because it was never presented with to depression was then developed at the time that again the mr easter was seeking benefits before the board the only two issues were cervical spine and low back there was no mention of depression i was certainly not at all that issue had not been raised family i don't think there's anything to reconcile with stanley stanley involved a situation in which the disposition of t d r you had already been resolved the disposition of p d i was not resolved in this case once until after excuse me the fear that was in place and after the representation was on go mr stanley's representation involved the right to charge a fee after the reopening which the court said he could and the right to charge a fee as to t d r you which had already been granted they said no because that was not part of an issue that had been subject to a board decision that's fundamentally different than what happened here the case here was about mr eastlands right to additional compensation for his service connected disability he eventually got additional compensation in two different ways first by establishing that he had an additional disability under thirty eight c f r three point three want to weigh for the depression and the those two conditions combine triggered the requirements for a total rating based upon unemployability that's part of the same case they all flow from the same matter that was presented the question is not what did the board decide in the facts that were presented in stanley that was  after the reopening that would have been an entirely different facts that service connection must have been related to the high you dislike here again that that's correct your honor but but all that mr stanley was entitle to charge a fee for in that case were any past few benefits that flowed from the reopened case the t d i you will order meant quite frankly but the likelihood of there being any past who benefits was over because he had been awarded the maximum benefit available that's not the facts in this case mr easter was receiving substantially less than the total rating for the rating on his back condition as a result of the successful efforts of his attorney under the feet agreement that he entered into after the first final decision and let's get clear what the government represented as adverse decision is not in the statute the word adverse decision does not appear in fifty nine and for what appears in fifty nine zero four is a first final decision was there a first final decision on the rating to be assigned mr east or service connected disability in the answer is yes after that there were additional  issues that were developed and resulted in an award of past two benefits that's the clear congressional intent of fifty nine zero for the suggest that this interpretation is overly broad it is simply absurd it hurts no one for this to be overly broad mr eastwood is not complaining about a feed being charged by mr jackson the only alleged interested party is the department of veterans  floor has not joined this case he was given an opportunity to load to join the case he declined and said i have no problem with my attorney getting paid for getting need the pass to benefits that was awarded by the v a it is the v a who has decided that this is wrong and the board decided it was wrong and the court decided it was wrong based upon a fundamental misinterpretation of fifty nine of which this is this is our situation because it does inherently put the attorneys into a direct conflict situation with a client i mean i suppose it wouldn't be impossible it's adverse to the crime having been there for more than two decades there are sure that is the case however the point is what was the intent of congress and i think the intent of congress is clearly articulated in carpenter and there's nothing in adopting the broader interpretation that conflicts with that intent ok thank you very much