United States Court of Appeals 

for the Federal Circuit ______________________ 

MILITARY-VETERANS ADVOCACY,

Petitioner

v.

SECRETARY OF VETERANS AFFAIRS,

Respondent

______________________ 

2019-1600

______________________ 

Petition for review pursuant to 38 U.S.C. Section 502.

------------------------------------------------

NATIONAL ORGANIZATION OF VETERANS' 

ADVOCATES, INC.,

Petitioner

PARALYZED VETERANS OF AMERICA,

Intervenor

v.

SECRETARY OF VETERANS AFFAIRS,

Respondent

______________________ 

2019-1680

______________________ 

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Petition for review pursuant to 38 U.S.C. Section 502.

-------------------------------------------------

CARPENTER CHARTERED,

Petitioner

v.

SECRETARY OF VETERANS AFFAIRS,

Respondent

______________________ 

2019-1685

______________________ 

Petition for review pursuant to 38 U.S.C. Section 502.

-------------------------------------------------

PHILLIP BOYD HAISLEY, NATIONAL VETERANS 

LEGAL SERVICES PROGRAM,

Petitioners

v.

SECRETARY OF VETERANS AFFAIRS,

Respondent

______________________ 

2019-1687

______________________ 

Petition for review pursuant to 38 U.S.C. Section 502.

______________________ 

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Decided: July 30, 2021 

______________________ 

ROBBIE MANHAS, Orrick, Herrington & Sutcliffe LLP, 

Washington, DC, argued for petitioner Military-Veterans 

Advocacy. Also represented by MELANIE L. BOSTWICK;

JOHN B. WELLS, Law Office of John B. Wells, Slidell, LA. 

 MICHAEL BERN, Latham & Watkins LLP, Washington, 

DC, argued for petitioner National Organization of Veterans’ Advocates, Inc. and intervenor Paralyzed Veterans of 

America. National Organization of Veterans’ Advocates, 

Inc. also represented by GENEVIEVE PATRICIA HOFFMAN,

ROMAN MARTINEZ, BARRETT TENBARGE. 

 LINDA E. BLAUHUT, Paralyzed Veterans of America, 

Washington, DC, for intervenor Paralyzed Veterans of 

America.

 KENNETH M. CARPENTER, Law Offices of Carpenter 

Chartered, Topeka, KS, argued for petitioner Carpenter 

Chartered.

 ALEX SCHULMAN, Paul Hastings LLP, Washington, DC, 

argued for petitioners Phillip Boyd Haisley, National Veterans Legal Services Program. Also represented by 

STEPHEN BLAKE KINNAIRD; BARTON F. STICHMAN, National 

Veterans Legal Services Program, Washington, DC. 

 SOSUN BAE, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 

DC, argued for respondent in 2019-1600, 2019-1687. Also 

argued by WILLIAM JAMES GRIMALDI in 19-1680, DAVID 

PEHLKE in 2019-1685. Also represented by ERIC P.

BRUSKIN, JEFFREY B. CLARK, MARTIN F. HOCKEY, JR.,

ROBERT EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN,

ANDREW J. STEINBERG, Office of General Counsel, United 

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States Department of Veterans Affairs, Washington, DC; 

DAVID J. BARRANS in 2020-1687, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC. 

 ______________________ 

Before REYNA, CLEVENGER, and CHEN, Circuit Judges.

CHEN, Circuit Judge. 

In 2017, Congress enacted the Veterans Appeals Improvement and Modernization Act (AMA) to reform the administrative appeals system of the Department of Veterans 

Affairs (VA). See Pub. L. No. 115–55, 131 Stat. 1105 (2017)

(codified at scattered sections of 38 U.S.C.). The AMA replaced the existing VA appeals system, which had shepherded all denials of veteran disability claims through a 

one-size-fits-all appeals process. Under the AMA, claimants may now choose between three procedural options in 

response to an unfavorable initial decision: (1) filing a supplemental claim based on additional evidence, (2) requesting higher-level review within the VA based on the same 

evidentiary record, and (3) filing a notice of disagreement 

(NOD) to directly appeal to the Board of Veterans Appeals 

(Board). Pursuant to its notice-and-comment rulemaking 

authority, the VA promulgated a series of regulations to 

implement the AMA. See VA Claims and Appeals Modernization, 84 Fed. Reg. 138 (Jan. 18, 2019) (Final Rule). Several veterans’ service organizations, a law firm, and an 

individual (collectively, Petitioners) filed four separate petitions raising thirteen rulemaking challenges to these regulations under 38 U.S.C. § 502.1

1 Specifically, Petitioners include: Military-Veterans Advocacy (MVA) in Military-Veterans Advocacy v. Sec’y 

of Veterans Affs., Appeal No. 19-1600; National 

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Before oral argument, we requested supplemental 

briefing on whether Petitioners have standing to challenge

the regulations identified in their petitions. We conclude 

that two veterans’ service organizations, MVA and PVA, 

have demonstrated associational standing based on

claimed injuries to their members to collectively bring

three of their seven challenges. Because we conclude that 

no Petitioner has demonstrated standing to raise any of the 

remaining challenges, we dismiss the petitions with respect to those challenges. 

The three regulations for which MVA and PVA have 

standing to challenge all relate to supplemental claims—

one of the three review lanes established by the AMA. Specifically, 38 C.F.R. § 14.636(c)(1)(i) limits when a veteran’s 

representative may charge fees for work on supplemental 

claims; 38 C.F.R. § 3.2500(b) bars the filing of a supplemental claim when adjudication of the same claim is pending before a federal court; and 38 C.F.R. § 3.155 excludes 

supplemental claims from the intent-to-file framework. 

We hold that all three regulations are invalid for contravening the unambiguous meaning of their governing

statutory provisions. Accordingly, we grant-in-part and 

dismiss-in-part MVA’s and PVA’s petitions in Appeal Nos. 

Organization of Veterans’ Advocates, Inc. (NOVA) and Paralyzed Veterans of America (PVA) in Nat’l Org. of Veteran’ 

Advocates, Inc. v. Sec’y of Veterans Affs., Appeal No. 19-

1680; Carpenter Chartered in Carpenter Chartered v. Sec’y 

of Veterans Affs., Appeal No. 19-1685; and Phillip Boyd 

Haisley and National Veterans Legal Services Program 

(NVLSP) in Haisley v. Sec’y of Veterans Affs., Appeal No. 

19-1687. These four appeals were treated as companion 

cases for purposes of oral argument. Because they involve 

overlapping legal issues and raise rulemaking challenges 

to related regulations, we address all four companion cases 

in this single opinion.

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19-1600 and 19-1680, and we dismiss the remaining two 

petitions in Appeal Nos. 19-1685 and 19-1687 in their entirety. 

BACKGROUND

I 

Congress enacted the AMA in 2017 to reform the existing VA administrative appeals system, which was, by all 

accounts, “broken,” marked by lengthy delays, and plagued 

with a formidable backlog of cases. See H.R. Rep. No. 115–

135, at 5–8 (2017) (“The current backlog for appeals exceeds 470,000 claims and is growing.”). Under the previous 

appeals system, often described as the “legacy system,”2

veteran disability claimants had only one pathway to seek 

administrative review of an unsatisfactory initial decision 

on their disability claim from the agency of original jurisdiction (AOJ). This one-size-fits-all-claims pathway was 

long and complicated, regardless of the extent or nature of 

the claimant’s disagreement with the initial decision. 

Claimants initiated an appeal by filing a NOD to the AOJ’s 

decision, and after an elaborate set of steps, could have 

their claim reviewed by the Board.3 

2 The legacy system still applies to claims filed before the AMA effective date.

3 Specifically, under the legacy system, after a veteran submits a claim to the VA, that claim is reviewed by 

the AOJ, typically one of the Veterans Benefits Administration’s (VBA) fifty-six regional offices. J.A. 109. The 

AOJ’s initial decision decides whether the claimant is entitled to compensation and, if so, how much. A claimant who 

is unsatisfied with that initial decision may initiate an appeal within one year of the decision’s notification date by 

filing a NOD. J.A. 110. After receiving the NOD, the AOJ 

reviews the claim again, and if the disagreement cannot be 

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More problematic, however, was the “continuous evidence gathering and readjudication of the same matters” 

that caused appeals to “churn” in the system. See S. Rep. 

115–126, at 29 (2017) (Jennifer S. Lee, Deputy Under Secretary for Health and Policy Services) (“Veterans and VA 

adjudicators are . . . engaged in continuous evidence gathering and repeated readjudication of the same appeal. This 

cycle of evidence gathering and readjudication means that 

appeals often churn for years between the Board and the 

[AOJ] to meet complex legal requirements, with little to no 

benefit flowing to the Veteran.”). Because the legacy system permitted claimants to submit new evidence at virtually any time prior to a final Board decision—including at 

the Board hearing—nearly half of the appeals before the 

Board resulted in a remand to the AOJ for additional development and readjudication. The VA, moreover, had a 

statutory duty to assist the claimant in obtaining evidence 

in support of the appeal throughout the entire appeals process. The introduction of new evidence at the Board would 

resolved, it issues a statement of the case (SOC) setting 

forth the agency’s legal and factual position with respect to 

the disagreement. Id. The claimant then has sixty days to 

file a “[s]ubstantive [a]ppeal” to the Board (and request a 

hearing) by filing a form that provides “specific allegations 

of error of fact or law . . . related to specific items in the 

[SOC].” See § 20.202 (2018). The Board subsequently reviews the case and can either grant the requested relief, 

deny that relief, or remand the case to the AOJ for additional fact finding and readjudication. J.A. 111. A claimant dissatisfied with the Board’s final decision may 

continue an appeal to the United States Court of Appeals 

for Veterans Claims (Veterans Court), and beyond the VA 

to our court and even to the Supreme Court. Id. Additionally, clear and unmistakable error (CUE), see § 5109A, and 

new and material evidence, see § 5108 (2016), claims allow 

for review of final judgments.

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often result in a remand to the AOJ for readjudication of 

the claim in light of that evidence. Collectively, these features resulted in a protracted administrative appeals system in which claimants waited “an average [of] five years 

for a final decision” from the Board, which was expected to 

increase to “an average [of] ten years for a final appeals 

decision by the end of 2027.” See H.R. Rep. No. 115–135, 

at 5.

As relevant here, the AMA sought to reduce inefficiencies of the legacy appeals system by introducing several 

statutory reforms. These amendments reflect Congress’s 

goal of streamlining the administrative appeals system 

while still protecting claimants’ due process rights. See id.

(“To help ensure that veterans receive timely appeals decisions in the future . . . [t]he new appeals procedures created by this bill would reduce [the] VA’s workload and help 

ensure that the process is both timely and fair.”); see also

S. Rep. No. 115–126, at 27 (“[T]he current system allows 

for repeated revisions and resubmissions of claims while 

maintaining an effective date for benefits based upon the 

original filing date of the claim. . . . The proposed changes 

are intended to significantly streamline the appeal process, 

which would allow appeals to be finalized in a shorter period of time with fewer employees.”).

Central to the AMA’s many reforms, claimants may 

now choose from three procedural lanes to obtain review of 

their claim within one year of the initial decision (in contrast to the legacy system’s single pathway for appeal to

the Board). 38 U.S.C. § 5104C(a)(1). Claimants may use 

only one lane at a time. § 5104C(a)(2)(A). Each lane has

varying limitations on the submission of new evidence and 

the VA’s duty to assist the claimant in obtaining such evidence.

The first lane is the filing of a supplemental claim, 

which allows a claimant to submit additional evidence to 

an AOJ for “readjudication” of the claim. 

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§§ 5104C(a)(1)(B), 5108. The second lane is a request for 

“higher-level review” made within one year of the AOJ’s decision. §§ 5104B(b)(1)(B), 5104C(a)(1)(A). This lane offers 

review of the claim by a higher-level claims adjudicator at 

the AOJ that is based on the same evidentiary record as 

the initial claim (i.e., the claimant may not submit new evidence), and the VA has no duty to assist during the review. 

§§ 5104B(d), 5103A(e). The third lane is a direct appeal to 

the Board,4 which a claimant initiates by filing a NOD 

within one year of the AOJ’s initial decision. As with the 

legacy appeals system, this lane permits claimants to submit additional evidence and request a Board hearing, if 

they wish. Unlike the legacy system, however, claimants 

must specify in the NOD their intention to add to the record and submit the additional evidence within a certain

time frame (i.e., within 90 days of the NOD’s filing or the 

Board hearing). In another departure from the legacy system, wherein the VA’s duty to assist continued while a 

claim was on appeal before the Board, the VA has no duty 

to assist during a Board appeal under the AMA’s modified 

procedures. § 5103A(e).

Should one lane of review prove unsuccessful, claimants may sequentially pursue another lane of review while 

maintaining the original effective date of the initial claim, 

so long as they “continuously pursue” that claim by selecting an appropriate alternative lane within one year of an 

unsatisfactory AOJ, Board, or Veterans Court decision. 

§ 5110(a)(2)–(3). But two consequences arise when the 

claim is no longer in continuous pursuit—that is, when a 

claimant waits more than one year to seek further review 

of an unsatisfactory AOJ, Board, or Veterans Court 

4 In contrast to legacy Board appeals, this third lane 

eliminates “intermediate and duplicative steps . . . such as 

the [SOC] and the Substantive Appeal [form].” S. Rep. No. 

115–126, at 30.

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decision. First, at that time, claimants can no longer seek 

higher-level review or appeal to the Board but can only file 

a supplemental claim. See § 5104C(b). And second, any 

award under such a supplemental claim is no longer entitled to the initial claim’s original effective date and will instead be assigned an effective date tied to the supplemental 

claim’s date of receipt. § 5110(a)(3).

II

On August 10, 2018, pursuant to its authority under 

38 U.S.C. § 501(a) to “prescribe all rules and regulations 

which are necessary or appropriate to carry out the laws 

administered by the [agency],” the VA published a notice of 

proposed rulemaking in the Federal Register inviting the 

public to comment on its proposed rules for implementing 

the AMA’s reforms. See VA Claims and Appeals Modernization, 83 Fed. Reg. 39,818 (Aug. 10, 2018) (Proposed Rule). 

After receiving comments on the Proposed Rule, the VA 

promulgated the Final Rule on January 18, 2019, which 

along with the AMA5 became effective on February 19, 

2019. 

Petitioners subsequently filed four separate petitions 

under § 502, collectively raising thirteen rulemaking 

5 The amendments under the AMA apply to all

claims for which notice of a decision is provided by the Secretary on or after the later of: (1) the date that is 540 days 

after August 23, 2017, and (2) the date that is 30 days after 

the Secretary submits to the appropriate committees of 

Congress a certification of required resources and a summary of performance outcomes. See 131 Stat. at 1115. As 

the VA submitted the required documentation to Congress 

on January 18, 2019, the effective date of the amendments 

made by the AMA was February 19, 2019. The date 540 

days after the date of enactment of the AMA was February 

14, 2019.

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challenges to the validity of several regulations.6 Specifically, Mr. Haisley and NVLSP’s petition challenged 38 

C.F.R. § 3.105(a)(1)(iv). MVA’s petition also challenged 

§ 3.105(a)(1)(iv) in addition to 38 C.F.R. § 14.636(c)(1)(i)

and 38 C.F.R. § 20.202(c)(2). NOVA and PVA’s petition 

challenged 38 C.F.R. § 3.155(b), 38 C.F.R. § 3.156(b), 38 

C.F.R. § 3.2500(b), and 38 C.F.R. § 3.2500(d)–(e) and 38 

C.F.R. § 20.205(c). And finally, Carpenter Chartered’s petition raised all but three of the above challenges

(§ 3.105(a)(1)(iv),7 § 3.2500(d)–(e) and § 20.205(c), and 

§ 14.636(c)(1)(i)) and further raised six additional challenges, to: 38 C.F.R. § 3.1(p)(1)–(2), 38 C.F.R. § 3.103(c)(2), 

38 C.F.R. § 3.151(c)(1)–(2), 38 C.F.R. § 14.636(c)(2)–(3), 38 

C.F.R. § 20.202(a), and 38 C.F.R. § 20.800(e). 

The government’s opening briefs opposed only 

NVLSP’s and Carpenter Chartered’s standing to challenge 

the implementing regulations. However, pursuant to our 

independent duty to verify standing, we requested supplemental briefing from each Petitioner to address “the precise grounds upon which it asserts standing to make each 

of the specific challenges raised by the petition.” See, e.g., 

Order Requesting Suppl. Briefing, No. 19-1600 (Sept. 16, 

2020), ECF No. 55, at 1–2. Specifically, we asked 

6 The Petitioners presented the thirteen challenges 

as follows: (1) 38 C.F.R. § 3.1(p)(1)–(2); (2) 38 C.F.R.

§ 3.103(c)(2); (3) 38 C.F.R. § 3.105(a)(1)(iv); (4) 38 C.F.R. 

§ 3.151(c)(1)–(2); (5) 38 C.F.R. § 3.155; (6) 38 C.F.R. 

§ 3.156(b); (7) 38 C.F.R. § 3.2500(b); (8) 38 C.F.R. § 3.2500 

(d)–(e) and 38 C.F.R. § 20.205(c); (9) 38 C.F.R. 

§ 14.636(c)(1)(i); (10) 38 C.F.R. § 14.636(c)(2)–(3); (11) 38 

C.F.R. § 20.202(a); (12) 38 C.F.R. § 20.202(c)(2); and (13) 38 

C.F.R. § 20.800(e). 7 Shortly before oral argument, Carpenter Chartered withdrew its challenge to § 3.105(a)(1)(iv). Petitioner’s Notice, No. 19-1685 (Sept. 25, 2020), ECF No. 52.

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Petitioners to demonstrate the “actual or imminent injuries in fact, which are (a) concrete and particularized, and 

(b) traceable to a specific regulation” being challenged. Id. 

at 2. We also requested briefing on issues specific to the 

precise theory of standing asserted. See, e.g., id. (requesting each Petitioner relying on associational standing to 

“demonstrate that they have a member that would otherwise have personal standing to challenge the specific regulations”).

We have jurisdiction under § 502 to “directly review the 

validity of both the rulemaking process and the challenged 

VA regulations” in the Final Rule. See Paralyzed Veterans 

of Am. v. Sec’y of Veterans Affs., 345 F.3d 1334, 1339 (Fed. 

Cir. 2003). 

DISCUSSION

I. Standing

Before reaching the merits of Petitioners’ challenges, 

we must first satisfy our “independent obligation to assure 

that standing exists, regardless of whether it is challenged 

by any of the parties.” Summers v. Earth Island Inst., 555 

U.S. 488, 499 (2009). “[S]tanding is an essential and unchanging part of the case-or-controversy requirement of 

Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 

(1992). This obligation to assure standing extends to when 

a party seeks judicial review of final agency action, as Petitioners do here.

The “irreducible constitutional minimum of standing” 

consists of three elements. Id. First, a plaintiff must personally present an “injury in fact,” meaning “an invasion of 

a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or 

hypothetical.” See id. (cleaned up). This requirement ensures that the plaintiff has a “personal stake in the outcome of the controversy.” Warth v. Seldin, 422 U.S. 490, 

498 (1975). Second, there must be a causal connection 

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between the injury and the conduct complained of—that is, 

plaintiff’s injury must be “fairly traceable” to the challenged “putatively illegal conduct of the defendant,” and 

not the result of independent action of some third party not 

before the court. See Valley Forge Christian Coll. v. Ams. 

United for Separation of Church & State, Inc., 454 U.S. 

464, 472 (1982); see also California v. Texas, 141 S. Ct. 

2104, 2113–15 (2021) (no causation where plaintiffs’ injury—cost of purchasing health insurance—is not “fairly 

traceable” to any “allegedly unlawful [government] conduct” because the challenged Patient Protection and Affordable Care Act (ACA) provision mandating health 

insurance coverage was rendered “unenforceable” upon 

elimination of the tax penalty for noncoverage). Lastly, it 

must be “likely” that the injury will be redressable by the 

requested relief. Lujan, 504 U.S. at 561; see also California, 141 S. Ct. at 2116 (no standing to challenge unenforceable ACA provision where plaintiffs sought only a 

declaratory judgment that provision is unconstitutional, 

which, by itself, is not an “acceptable Article III remedy” 

that can “redress a cognizable Article III injury”). 

Petitioners bear the burden of establishing these elements under the same standard that is applied at the summary judgment stage. See Phigenix, Inc. v. Immunogen, 

Inc., 845 F.3d 1168, 1172–73 (Fed. Cir. 2017) (adopting the 

summary judgment burden of production in cases challenging final agency action). In other words, instead of resting

on “mere allegations,” a plaintiff must set forth by affidavit 

or other evidence “specific facts” to adequately support its 

contentions. See Lujan, 504 U.S. at 561 (quoting Fed. R. 

Civ. P. 56(e)). 

With respect to injury in fact, the Supreme Court has 

cautioned that “‘some day’ intentions—without any description of concrete plans, or indeed even any specification 

of when the ‘some day’ will be—do not support a finding 

of . . . actual or imminent injury.” Lujan, 504 U.S. at 564 

(cleaned up) (no actual or imminent injury where affiants 

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merely professed intent to visit endangered species without 

concrete plans to do so). Nor can generalized allegations of 

harm untethered to the “application of the challenged regulations” establish a “concrete and particularized” injury. 

See Summers, 555 U.S. at 495 (no standing where harm

alleged was “not tied to application of the challenged regulations” and did not identify a particular project subject to 

the challenged regulations that would impede petitioner’s 

specific and concrete interests); see also Lujan, 504 U.S. at 

566–67 (“pure speculation and fantasy” or an “ingenious 

academic exercise in the conceivable” is insufficient to establish injury for standing). 

Plaintiffs claiming standing to challenge the validity of 

a statute or regulation must generally assert an injury that 

is caused by that statute’s or regulation’s “actual or threatened enforcement, whether today or in the future.” California, 141 S. Ct. at 2114. Where, as here, plaintiffs seek preenforcement review, the Supreme Court has required 

plaintiffs to show that “the likelihood of future enforcement 

is ‘substantial.’” Id. In other words, while a plaintiff need 

not “await the consummation of threatened injury to obtain 

preventive relief,” it must demonstrate “a realistic danger 

of sustaining a direct injury as a result of the statute’s operation or enforcement” or show that the injury is “certainly impending.” Biotechnology Indus. Org. v. District of 

Columbia, 496 F.3d 1362, 1370 (Fed. Cir. 2007) (citing Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298

(1979)); see also Massachusetts v. Mellon, 262 U.S. 447, 488 

(1923) (plaintiff must demonstrate that “he has sustained 

or is immediately in danger of sustaining some direct injury as the result of its enforcement”); Clapper v. Amnesty 

Int’l USA, 568 U.S. 398, 409, 414 n.5 (2013) (allegation of 

future injury may suffice if threatened injury is “certainly 

impending” or there is a “substantial risk” the harm will 

occur). 

We now turn to Petitioners’ thirteen rulemaking challenges. All but two of these challenges address regulatory 

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provisions concerning procedural and substantive requirements for obtaining VA benefits—involving, e.g., initial 

claims, administrative review, and CUE claims. The remaining two challenges involve regulatory provisions governing attorneys’ fees for representing claimants in VA 

proceedings. 

Petitioners consist of several veterans’ service organizations, a law firm, and an individual. Collectively, they 

assert numerous theories of associational standing (on behalf of both veteran and attorney members), organizational 

standing, third-party standing, and personal standing. We 

address each in turn.

A. Associational Standing 

MVA, NOVA, and PVA (collectively, the Associations) 

claim associational standing on behalf of their members, 

which requires an Association to demonstrate that “(a) its 

members would otherwise have standing to sue in their 

own right; (b) the interests it seeks to protect are germane 

to the [Association’s] purpose; and (c) neither the claim asserted nor the relief requested requires the participation of 

individual members in the lawsuit.” Hunt v. Wash. State 

Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). The Associations assert different theories of associational standing on behalf of both their veteran members and their 

attorney members.

We note, as an initial matter, that as to Hunt’s second 

and third prongs, the parties’ only dispute is whether 

NOVA (and no other Petitioner) satisfies the second prong 

of associational standing—i.e., whether the interests 

NOVA seeks to protect are germane to its purpose. The 

government argues that NOVA’s petition is not germane to 

the purposes enumerated in its bylaws, which are focused 

on ensuring that its members, as advocates, offer informed 

representation to veterans seeking benefits from the VA. 

Resp’t Suppl. Br. (No. 19-1680) at 12–13. This court, however, recently resolved this dispute in NOVA’s favor in 

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National Organization of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs, where we explained that NOVA’s 

purpose is not as narrow as the government contends and 

more generally relates to “helping veterans obtain fair compensation for their claims”—which is “precisely the interest NOVA now seeks to protect in challenging” these rules. 

981 F.3d 1360, 1371 (Fed. Cir. 2020) (en banc) (NOVA). Accordingly, we conclude that the Associations satisfy the second and third prongs of associational standing. Below, we

address only Hunt’s first prong as to the Associations’ veteran and attorney members.

1. Hunt’s First Prong: Veteran Members

The Associations make six rulemaking challenges8 asserting associational standing on behalf of their veteran 

members, relying on Disabled American Veterans v. Gober, 

234 F.3d 682 (Fed. Cir. 2000) (DAV). DAV held, in relevant 

part, that petitioner NOVA had satisfied Hunt’s first prong 

of associational standing because “NOVA includes at least 

one veteran as a member,” and all veterans are “personally 

affected by the [challenged] rules,” which impact their abilities to bring CUE claims. See id. at 689. Notably, DAV

did not require NOVA to identify a specific veteran member 

that presented an injury that is actual or imminent, concrete, particularized, and fairly traceable to the challenged 

CUE rules.

Shortly after oral argument occurred in this case, however, this court, sitting en banc in NOVA, partially overruled DAV insofar as “it held that [standing] can be 

8 (1) § 3.105(a)(1)(iv); (2) § 20.202(c)(2); (3)

§ 3.2500(b); (4) § 3.2500 (d)–(e) and § 20.205(c); (5) § 3.155; 

and (6) § 3.156(b). The Associations assert associational 

standing to challenge § 14.636(c)(1)(i) only on behalf of 

their attorney members, discussed infra, not their veteran 

members. 

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established solely on the basis of NOVA member veteran 

status without identification of an individual affected 

member, the nature of [the] claimed injury, and the reasons that the challenged interpretive rule would adversely 

affect [that] member.” 981 F.3d at 1369. Instead, an organization challenging VA rulemaking based on associational standing must show that it has at least one veteran 

member with an actual or potential claim that could be affected by the challenged rule. See id. at 1369–70.

As applied here, we begin our associational standing 

analysis by asking whether at least one Association has at 

least one veteran member with an actual or potential claim 

that could be affected by the challenged rules at issue. In 

response to our request for supplemental briefing on this 

issue, the Associations submitted evidence in the form of 

signed declarations by some of their members. For the reasons below, we conclude that PVA has met its burden as to 

Hunt’s first prong for only two of the six rulemaking challenges. 

First, § 3.2500(b) bars claimants from filing a supplemental claim based on new and relevant evidence while judicial review of their initial claim is pending on appeal in

federal court. Clarence Noble, a PVA member and veteran, 

appealed the denial of his initial benefits claim to federal 

court, and while that appeal was pending, received new 

and relevant evidence he sought to submit in a supplemental claim. Under § 3.2500(b), however, Mr. Noble was 

barred from filing a supplemental claim because of his 

pending judicial appeal, thereby preventing him from

timely applying for (and receiving) benefits based on this 

new evidence. 

Second, § 3.155 excludes supplemental claims from the 

intent-to-file framework, which, by contrast, continues to 

apply to initial claims. Under this rule, a claimant filing a 

supplemental claim cannot rely on a preliminary submission to serve as an effective date placeholder. Stephen C. 

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Schwenker, a PVA member and veteran of the United 

States Air Force, submitted his intent to file a supplemental claim, which the VA received on July 24, 2018. 

Mr. Schwenker believed he had one year from that date to 

gather the evidence necessary to demonstrate service-connection for his multiple sclerosis claim. While he was eventually awarded service-connection, the effective date of his 

award was September 17, 2019 (presumably, the day his 

formal supplemental claim was received), rather than July 

24, 2018. Section 3.155 thus deprived him of an earlier effective date (and, as a result, additional benefits) based on 

the date of his intent-to-file submission.

Accordingly, we conclude that the facts alleged as to 

Mr. Noble and Mr. Schwenker establish that these PVA

veteran members suffered an injury in fact that is fairly 

traceable to the alleged shortcomings of the challenged regulations, see Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 

(2016), and as a result, PVA has associational standing on 

behalf of its veteran members to challenge § 3.2500(b) and 

§ 3.155, see NOVA, 981 F.3d at 1370. Moreover, this evidence is in the form of signed member declarations setting 

forth specific facts, which is sufficient to meet the summary 

judgment burden of production applied to direct challenges 

of agency action. See id. (citing Phigenix, 845 F.3d at 1172–

73, and Lujan, 504 U.S. at 561).

By contrast, the allegations pertaining to the four remaining challenges are too vague or speculative to establish an injury in fact. The allegations with respect to 

§ 20.202(c)(2) and § 3.156(b), for example, fail to identify 

any particular veteran member who has presented an actual or imminent harm as a result of these regulations. 

NOVA and PVA also challenge § 3.2500(d)–(e) and 

§ 20.205(c), which collectively limit a claimant’s options for 

switching administrative review lanes more than a year after the initial decision. But the declarants merely allege

that they are currently pursuing one form of administrative review and speculate that they may want to switch to 

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another lane of administrative review at some point in the 

future. While standing may be predicated on future harm, 

these declarations express nothing more than “‘some day’ 

intentions,” which fail to demonstrate that a particular veteran member faces “actual or imminent injury” if foreclosed 

from switching lanes after one year. See Lujan, 504 U.S. 

at 564.

Lastly, MVA challenges § 3.105(a)(1)(iv), which precludes a change in law (e.g., a change in the interpretation 

of a statute) from serving as the basis for a CUE claim. The 

only affected veteran member MVA specifically identifies 

is Michael Hodge, who is a Blue Water Navy veteran. Such 

veterans were previously ineligible for benefits based on a 

statutory interpretation that was later overturned in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). 

Based on this new statutory interpretation, Mr. Hodge

filed a CUE claim seeking revision of the pre-Procopio VA 

decision that denied his original claim for benefits in 2010. 

But the VA, citing § 3.105(a)(1)(iv), purportedly disregarded Mr. Hodge’s CUE claim and, instead, required him 

to file a supplemental claim. One difference between a supplemental claim and a CUE claim pertains to the claim’s 

original effective date: While a successful CUE claim provides benefits retroactive to the effective date of the claimant’s original claim, a supplemental claim filed more than 

one year after the initial decision generally provides no retroactive benefits and is effective only as of the date the supplemental claim itself is filed. See § 5110(a)(3).

But as MVA concedes, Congress has already provided 

Blue Water Navy veterans with the relief they would have

obtained had their CUE claim been allowed to proceed. See

Pet’r Suppl. Br. (No. 19-1600) at 4 n.1. The Blue Water 

Navy Vietnam Veterans Act, Pub. L. No. 116–23, 133 Stat. 

966 (2019) (codified at scattered sections of 38 U.S.C.), allows such veterans to receive retroactive effective dates for 

finally denied claims reconsidered and granted under the 

new law. Because the Act provides Blue Water Navy 

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veterans with the same benefits that they otherwise would 

have received under the CUE pathway, we discern that as 

to Mr. Hodge, MVA failed to sufficiently present an actual 

or imminent harm fairly traceable to § 3.105(a)(1)(iv). We 

therefore conclude that Mr. Hodge lacks personal standing 

to challenge this regulation, and MVA cannot claim associational standing on his behalf.

2. Hunt’s First Prong: On Behalf of Attorney Members

The Associations also claim associational standing on 

behalf of their attorney members to make two sets of rulemaking challenges: the same six challenges to rules governing a veteran’s claim for benefits addressed in the 

previous section (supra § I.A.1), and a challenge to 

§ 14.636(c)(1)(i), which limits when attorneys’ fees may be 

charged for work on veterans’ benefits proceedings. Because we have previously concluded that PVA has standing 

on behalf of its veteran members to make two of these challenges (the challenges to § 3.2500(b) and § 3.155), we only 

address the Associations’ arguments as to the remaining 

four challenges, to: (1) § 3.105(a)(1)(iv); (2) § 20.202(c)(2); 

(3) § 3.2500 (d)–(e) and § 20.205(c); and (4) § 3.156(b). We 

also address the Associations’ arguments as to 

§ 14.636(c)(1)(i).

With respect to the four challenges addressed above, 

the Associations argue that their attorney members are injured because these rules make it more difficult for their 

veteran clients to obtain benefits, which, in turn, “diminish[es] the contingency fees [attorneys] will be able to earn”

under such rules. Pet’rs Suppl. Br. (No. 19-1680) at 8. The 

Associations contend that both this court and the Supreme 

Court have already recognized that “these sorts of direct 

economic injuries to lawyers are adequate injury in fact to 

meet the constitutional minimum of Article III standing.” 

Id. at 11 (citing Caplin & Drysdale, Chartered v. United 

States, 491 U.S. 617, 623 n.3 (1989); Kowalski v. Tesmer, 

543 U.S. 125, 129 n.2 (2004); and Willis v. Gov’t 

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Accountability Off., 448 F.3d 1341, 1348 (Fed. Cir. 2006)). 

For the reasons below, we decline to find the Associations 

have associational standing on behalf of their attorney 

members to make these four challenges, which concern the 

benefits that claimants can receive and not the contingency 

fees that their attorneys can recover. 

As an initial matter, all three of the Associations’ cited 

cases involve third-party standing, and not associational 

standing. In third-party standing, an attorney seeks to assert a legal right belonging to a third party—i.e., the attorney’s client—based on a close attorney-client relationship 

and the client’s inability to assert its own rights. See Kowalski, 543 U.S. at 130. The Associations’ proposed theory 

of associational standing, on the other hand, purports to 

assert a legal right to fees belonging to their attorney members, such that those members “would otherwise have 

standing to sue in their own right.” See Hunt, 432 U.S. at 

343. We are unaware of any binding authority recognizing

that attorneys have a “legally protected interest” in safeguarding their fees against regulations that govern a client’s benefits claim; nor have we seen a case holding that 

attorneys personally have standing to challenge such regulations in their own right. To decide otherwise would lead 

to the peculiar conclusion that an attorney has personal 

standing (and the service organization to which the attorney belongs has associational standing) to raise a rulemaking challenge whenever an agency promulgates a 

regulation that could negatively impact a client’s ability to 

obtain benefits. 

Even setting aside the fundamental distinctions between third-party standing and associational standing, the 

Associations’ cited cases are readily distinguishable. Both 

Caplin and Willis, for instance, emphasize the petitioner’s 

certainty of recovery in establishing injury in fact based on 

attorneys’ fees. Caplin concluded that a law firm asserting 

third-party standing on behalf of its client had established 

an injury in fact fairly traceable to the challenged action 

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because the action prevented the firm from collecting a fee 

to which it was “almost certainly” entitled. See 491 U.S. at

623 n.3 (“[T]here can be little doubt that petitioner’s stake 

in $170,000 of the forfeited assets—which it would almost 

certainly receive if the Sixth Amendment claim it advances 

here were vindicated—is adequate injury in fact to meet 

the constitutional minimum of Article III standing.”). 

Likewise, in Willis, the outcome of the proceedings had already been adjudicated in the client’s favor, and the attorney was undisputedly entitled to fees as a result. See 448 

F.3d at 1348. This certainty is especially important where, 

as here, “[petitioner] is not himself the object of the government action . . . he challenges” because standing is “substantially more difficult to establish.” Lujan, 504 U.S. at 

561–62. Under such circumstances, standing hinges on the 

“unfettered choices made by independent actors not before 

the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to 

predict.” Id. at 562. Petitioners, then, bear the burden to 

“adduce facts showing that those choices have been or will 

be made in such a manner as to produce causation and permit redressability of injury.” Id.

Here, however, the Associations’ allegations lack the 

certainty of recovery demonstrated in Caplin and Willis

and, instead, are based on mere speculation that the challenged rules will preclude their clients from obtaining benefits that they otherwise could have filed for and might 

have been awarded, which, in turn, would “diminish” their 

contingency fees. NOVA and PVA, for instance, challenge 

§ 3.156(b)—which governs the submission of new and material evidence while a claim is pending under the legacy 

system—yet fail to identify a single attorney member with 

a client subject to this rule, let alone a concrete and specific 

set of circumstances that would lead to diminished fees. 

See Pet’rs Suppl. Br. (No. 19-1680) at 10 (“[S]ome NOVA 

members reasonably expect to represent veterans harmed 

by the elimination of effective date protection for such 

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evidence.” (emphasis added)). MVA challenges 

§ 20.202(c)(2) but, at most, asserts that this rule has dissuaded its attorneys from taking on clients they feel are 

likely to receive denials. See Pet’r Suppl. Br. (No. 19-1600) 

at Tab 3, Decl. of Robin Hood ¶ 4 (asserting that 

§ 20.202(c)(2) has caused him to “turn down [claimants] 

that [have] chosen a [Board] lane that does not let them 

adequately develop their claim and [are] foreclosed . . . from amending their choice” because the “claimant will most likely get a denial and [he] won’t be able to 

earn any fees on a denial”). Similarly, for § 3.2500(d)–(e) 

and § 20.205(c), which limit switching of administrative review options after one year, NOVA and PVA allege that an 

attorney member represents a client who originally selected one lane but, because of this rule, is unable to switch 

into a potentially faster lane without losing his effective 

date. See Pet’rs Suppl. Br. (No. 19-1680) at Tab 3, Decl. of 

Robert Chisholm ¶ 8. But these alleged facts fail to establish that the rule presents a concrete threat of diminished 

attorneys’ fees and, at best, merely indicate a possible delay in when the client receives benefits. Accordingly, even 

if diminished attorneys’ fees can suffice as an injury in fact

in some instances, the Associations’ allegations as to these 

challenged regulations are simply too speculative. 

As for § 3.105(a)(1)(iv), which excludes a change in judicial interpretation as a basis for CUE, MVA contends 

that this rule precludes its Blue Water Navy veteran clients from filing Procopio-based CUE claims, leaving them 

with only supplemental claims as a route for administrative review. This purportedly harms its attorneys because 

§ 14.636 precludes them from recovering any fees for the 

majority (if not all) of their work on such supplemental 

claims. See Pet’r Suppl. Br. (No. 19-1600) at Tab 1, Decl. 

of John B. Wells ¶ 7. We decline to subscribe to this theory 

of standing for several reasons. As a threshold matter, we 

recently addressed and rejected a similar challenge to the 

validity of this regulation in George v. McDonough, 991 

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F.3d 1227 (Fed. Cir. 2021) (holding that CUE cannot arise 

from a subsequent change in interpretation of law by the 

agency or judiciary). Having already resolved the merits of 

MVA’s challenge to § 3.105(a)(1)(iv), we decline to hold that 

it has standing based on a potential loss of attorneys’ fees, 

given that “an ‘interest in [attorneys’] fees is insufficient to 

create an Article III case[-]or[-]controversy where none exists on the merits of the underlying claim.’” See Thole v. 

U.S. Bank N.A., 140 S. Ct. 1615, 1619 (2020) (quoting 

Lewis v. Cont’l Bank Corp., 494 U.S. 472, 480 (1990)); see 

also Vermont Agency of Nat. Res. v. United States ex rel. 

Stevens, 529 U.S. 765, 773 (2000) (“[A]n interest that is 

merely a ‘byproduct’ of the suit itself cannot give rise to a 

cognizable injury in fact for Article III standing purposes.”). We also observe that MVA’s alleged injury to its 

attorneys’ ability to recover fees for supplemental claims is 

not directly caused by § 3.105(a)(1)(iv) but rather § 14.636, 

which MVA also challenges. Thus, even assuming that 

MVA has established a concrete injury in fact, it has nonetheless failed to demonstrate that this injury is “directly 

traceable” to the specific rule being challenged. See California, 141 S. Ct. at 2117; see also Summers, 555 U.S. at 

495 (no standing where harm alleged was “not tied to application of the challenged regulations”).

Moreover, far from approving the fee-based theory of 

injury that the Associations advance here, Kowalski carefully “assume[d], without deciding” that petitioners’ allegations regarding economic injury as to their diminished fees 

were “sufficient” to demonstrate injury in fact. See 543 

U.S. at 129 n.2 (emphasis added); id. at 129 (“In this case, 

we do not focus on the constitutional minimum of standing, 

which flows from Article III’s case-or-controversy requirement. Instead, we shall assume the attorneys have satisfied Article III and address the alternative threshold 

question whether they have standing to raise the rights of 

others.” (cleaned up)). Accordingly, the Associations’ cited 

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cases fail to support standing on behalf of their attorney 

members.9

Lastly, we address MVA’s claimed standing to challenge § 14.636(c)(1)(i). Unlike the other four challenges at 

issue, this rule directly affects attorneys’ fees—by restricting fees for work performed on supplemental claims filed 

more than a year after the initial decision, but not for any 

other type of claim. Looking to the specific facts alleged, 

we find them sufficient to establish constitutional standing. Specifically, John B. Wells, an MVA member and attorney, alleges that, under this rule, he personally was 

denied “over $50,000 in fees . . . for work [performed on] a 

supplemental claim older than one year.” We thus hold 

9 Even if we were to conclude that the Associations 

have constitutional standing to challenge these regulations 

on behalf of their attorney members, we are skeptical that 

these members would fall within the class whom Congress 

has authorized to seek review under the Administrative 

Procedure Act (APA). See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014) (clarifying 

that the zone-of-interests analysis asks the statutory question of whether a “legislatively conferred cause of action encompasses a particular plaintiff’s claim”). While the zoneof-interests test is not especially demanding, the Associations’ grievance of diminished attorneys’ fees appears to be 

“so marginally related to or inconsistent with the purposes 

implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke 

v. Sec. Indus. Ass’n, 479 U.S. 388, 399–400 (1987). Nothing 

in the relevant AMA statutory provisions speaks to or even 

suggests that Congress intended to authorize attorneys to 

challenge these rules to protect their fees; instead, these 

provisions were “obviously enacted to protect the interests 

of” veterans and the VA itself, not attorneys. See Lujan v. 

Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990).

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that MVA has associational standing on behalf of its attorney members to challenge the validity of this regulation.

B. Organizational Standing

Petitioners NVLSP, MVA, NOVA, and PVA (collectively, the Organizations) next claim that they have organizational standing in their own right (and not on behalf of 

their members) to make the seven rulemaking challenges 

discussed above. Because we previously concluded that 

PVA and MVA collectively have standing to make three of 

these challenges, we only address the Organizations’ arguments as to the remaining four challenges, to: (1) 

§ 3.105(a)(1)(iv); (2) § 20.202(c)(2); (3) § 3.2500 (d)–(e) and 

§ 20.205(c); and (4) § 3.156(b).

Organizational standing, like any other theory of 

standing, requires an Organization to demonstrate the 

three elements of injury in fact, causation, and redressability. See Friends of the Earth, Inc. v. Laidlaw Env’t Servs. 

(TOC), Inc., 528 U.S. 167, 180–81 (2000). To prove an injury in fact, an Organization must establish a “concrete and 

demonstrable injury to the [O]rganization’s activities”—

such as a “perceptibl[e] impair[ment]” of the Organization’s 

mission—“with the consequent drain on the [O]rganization’s resources.” See Havens Realty Corp. v. Coleman, 455 

U.S. 363, 379 (1982).

In the present case, the Organizations claim that the 

challenged rules purportedly make it more difficult for veterans to obtain benefits, thereby frustrating the Organizations’ general purpose of helping veterans obtain benefits 

and draining their resources on educational guidance. We 

conclude that this asserted harm does not satisfy the Havens standard for organizational standing.

Demonstrating a concrete organizational injury requires more than showing a “setback to [an] organization’s 

abstract social interests.” Id. at 379. The injury thus cannot be merely ideological, meaning that damage to the 

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“special interest” of an organization does not qualify as an 

injury in fact; otherwise, “there would appear to be no objective basis upon which to disallow a suit by any other 

bona fide ‘special interest’ organization, however small or 

short-lived.” Sierra Club v. Morton, 405 U.S. 727, 738 

(1972); see also Food & Water Watch, Inc. v. Vilsack, 808 

F.3d 905, 919 (D.C. Cir. 2015) (FWW) (“An organization 

must allege more than a frustration of its purpose because 

frustration of an organization’s objectives ‘is the type of abstract concern that does not impart standing.’” (quoting 

Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 

1433 (D.C. Cir. 1995))). 

As our sister court, the D.C. Circuit, has explained, allegations that “the defendant’s conduct perceptibly impaired the organization’s ability to provide services,” such 

as when “the defendant’s conduct causes an ‘inhibition of 

[the organization’s] daily operations,’” suffice to establish a 

concrete injury to an organization’s interest. FWW, 808 

F.3d at 919 (quoting PETA v. U.S. Dep’t of Agric., 797 F.3d 

1087, 1094 (D.C. Cir. 2015)). Moreover, the consequent

“drain” on resources must go beyond normal operating 

costs—that is, an organization does not suffer an injury in 

fact where it “expend[s] resources to educate its members 

and others” unless doing so subjects the organization to 

“operational costs beyond those normally expended.” Nat’l 

Taxpayers Union, 68 F.3d at 1434; see also Nat’l Ass’n of 

Home Builders v. EPA, 667 F.3d 6, 12 (D.C. Cir. 2011) (organization’s expenditures must be for “operational costs beyond those normally expended to carry out its advocacy 

mission”). An organization’s use of resources for litigation, 

investigation in anticipation of litigation, or advocacy are 

likewise insufficient to give rise to an Article III injury. 

FWW, 808 F.3d at 919.

Havens itself is instructive on this point. There, the

organization’s (HOME) purpose was to provide clients with 

equal opportunity housing opportunities and information, 

pursuant to a federal law that provided a legal right to 

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truthful, nondiscriminatory housing information. HOME 

claimed organizational injury when a real estate company, 

Havens Realty, engaged in unlawful racial steering practices, which directly unraveled and frustrated HOME’s

nondiscriminatory counseling and referral services, requiring it to expend additional resources to counteract Havens

Realty’s misinformation. 455 U.S. at 379; see also PETA, 

797 F.3d at 1100 (Millett, J., dubitante) (“Put simply, what 

HOME used its own resources, information, and client base 

to build up, Havens Realty’s racist lies tore down. That is 

the type of direct, concrete, and immediate injury that Article III recognizes.”).

Here, the Organizations’ allegations are insufficient to 

satisfy the Havens test. What the Organizations describe 

falls short of a “perceptibl[e] impair[ment]” to their conduct 

of daily operations or to advancing their purpose and mission of providing services. The challenged rules, as discussed, merely seek to streamline procedures for filing and 

obtaining administrative review of benefits claims, not directly foreclose claimants from obtaining benefits; nor can 

it be argued that these rules impair or unwind the Organizations’ efforts in counseling and representing veterans in 

the benefits process (or otherwise block the Organizations’ 

efforts to carry out their missions). As for the purported 

drain on the Organizations’ resources, expenditures on educational programs to inform veterans of the governing

regulatory provisions are merely part of the ordinary 

course of the Organizations’ operations. For these reasons, 

we decline to conclude that NVLSP, MVA, NOVA, and PVA

have organizational standing to challenge these rules.

C. Third-Party Standing and Personal Standing

1. Mr. Haisley and NVLSP

Mr. Haisley and NVLSP filed a joint petition challenging the validity of a single regulation, § 3.105(a)(1)(iv), pertaining to the scope of CUE. Mr. Haisley argues that he 

has personal standing to challenge this regulation as a 

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Blue Water Navy veteran. We already addressed and rejected this argument with respect to MVA’s challenge to 

this same regulation, and we do so again here.

Mr. Haisley also separately argues personal standing 

based on his plans to allege CUE with respect to the Regional Office’s decision on his claim for prostate cancer. 

Specifically, he contends that he was initially awarded a 

100% disability rating for this claim in June 2016 while he 

had “active malignancy,” which was then lowered to 20% 

in March 2020 after he had completed cancer treatment 

and was left with “residual complications of prostate cancer.” See Pet’rs Suppl. Br. (No. 19-1687) at Tab 1, Decl. of 

Phillip B. Haisley ¶ 3. We decline to find standing on these 

facts. When Mr. Haisley’s declaration was filed, the ratings decision lowering his disability rating to 20% was still 

nonfinal. We find it difficult to understand why Mr. Haisley would purportedly let that decision become final to pursue a CUE claim, instead of timely initiating 

administrative review within one year based on the alleged 

error. Second, and more importantly, based on the specific 

facts alleged, if Mr. Haisley were to file a CUE claim, it appears that it would be based on an erroneous application of 

the ratings schedule, and not a change in judicial interpretation as addressed by § 3.105(a)(1)(iv). For these reasons, 

we conclude that Mr. Haisley fails to establish personal 

standing to challenge this regulation.

Next, NVLSP argues that it has third-party standing 

to challenge the CUE regulation. Third-party standing requires a Petitioner to demonstrate that (1) it has suffered 

an injury in fact giving it a sufficiently concrete interest in 

the outcome of the issue in dispute and otherwise satisfies 

Article III’s case-or-controversy requirement; (2) it has a 

“close” relationship with the third party that possesses the 

right being asserted; and (3) there exists some “hindrance’’ 

to that third party’s ability to protect its own interests. 

Kowalski, 543 U.S. at 130. Here, NVLSP alleges it has 

third-party standing because it “currently represents” 

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unnamed veterans before the Veterans Court “who seek review of a [Board] decision that rejected the argument that 

the challenged final agency decision contains CUE.” See

Pet’rs Suppl. Br. (No. 19-1687) at Tab 2, Decl. of Barton F. 

Stichman ¶ 5. We disagree. 

NVLSP does not identify a single veteran with whom it 

has a close relationship who has had the CUE rule applied 

to them, or who has an imminent, “substantial risk” of having the rule applied to them. Nor do NVLSP’s allegations 

specify if the CUE argument these veterans seek to advance is premised on a change in judicial interpretation, as 

specified in the challenged regulation. But even aside from 

these issues, it is unclear what injury in fact NVLSP suffers that shows it has a personal stake in the outcome of a 

challenge to this regulation. NVLSP first relies on organizational injury—an argument which we have already considered and rejected above. Next, citing United States

Department of Labor v. Triplett, 494 U.S. 715 (1990), 

NVLSP argues that advocates have standing to challenge 

restrictions preventing them from pursuing desired relationships with claimants and, here, the CUE rule purportedly restricts its ability to represent certain veterans 

whose claims are excluded from the scope of CUE. Pet’rs

Suppl. Br. (No. 19-1687) at 8–9. But Triplett (and similar 

cases in this line) addressed enforcement of a fee restriction 

statute that applies directly “against the litigant [i.e., advocate]” and “prevents a third party from entering into a 

relationship with the litigant . . . , to which relationship 

the third party has a legal entitlement,” i.e., “due process 

right to obtain legal representation.” 494 U.S. at 720 (emphasis added); Kowalski, 543 U.S. at 131 (explaining that 

Triplett “falls within that class of cases where we have allowed standing to litigate the rights of third parties when 

enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’

rights”). Here, however, the challenged regulation applies 

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to the third-party claimant’s CUE claim, and not to the attorney or to the attorney’s relationship with the claimant. 

Turning to the hindrance prong of third-party standing, NVLSP argues that claimants face significant obstacles to bringing suit in their own right due to the difficulties 

of navigating the VA administrative system. Pet’rs Suppl. 

Br. (No. 19-1687) at 13–14 (citing Rosinski v. Wilkie, 31 

Vet. App. 1, 10 (2019)). But the generic obstacle NVLSP 

describes would purportedly hinder all veterans from protecting their interests with respect to any VA regulation 

and fails to demonstrate how any of its clients are hindered 

from challenging the CUE regulation at issue. Kowalski, 

moreover, rejected a similar argument that indigent criminal defendants are generally hindered from advancing 

their own constitutional rights because they are unable to 

navigate the appellate process pro se. See 543 U.S. at 132. 

While an attorney would be valuable to veterans challenging the validity of the CUE regulation, we do not think that 

the lack of an attorney here is the type of hindrance necessary to allow another to assert the claimant’s rights, particularly in view of Kowalski’s finding that even pro se 

criminal defendants were not hindered enough for thirdparty attorney standing. See id.; see also In re Stanley, 9 

Vet. App. 203, 213 (1996) (“VA claimants do not face the 

type of obstacles to bringing their own challenges that ordinarily weigh in favor of finding third-party-rights standing.”). Additionally, NVLSP’s clients appear to have 

representation to advance their interests—NVLSP itself. 

2. Carpenter Chartered

Lastly, Carpenter Chartered, a law firm, asserts both 

personal standing and third-party standing on behalf of its 

clients. Its petition makes all but three of the challenges 

addressed above (§ 3.105(a)(1)(iv), § 3.2500(d)–(e) and 

§ 20.205(c), and § 14.636(c)(1)(i)), and also raised six additional challenges, to: § 3.1(p)(1)–(2), § 3.103(c)(2), 

§ 3.151(c)(1)–(2), § 14.636(c)(2)–(3), § 20.202(a), and 

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§ 20.800(e), mostly pertaining to the procedures and substance of claim filings and administrative review, with the 

exception of § 14.636(c)(2)–(3), which governs attorneys’ 

fees. 

Carpenter Chartered’s theory of personal standing 

bears similarities to organizational standing; as a law firm 

specializing in VA benefits law, it urges that it should be 

treated like a veterans’ service organization. Carpenter 

Chartered also cites Rosinski, 31 Vet. App. 1, as purportedly establishing that law firms may have personal standing to challenge regulations such as those at issue here. We 

decline to conclude that a law firm has personal standing 

to challenge these rules for reasons similar to those already 

expressed for associational standing on behalf of attorney 

members. Carpenter Chartered has failed to establish how 

it suffers an injury in fact as a result of the challenged 

rules—especially where none of those rules (save for one) 

implicates attorneys. The one exception for which we 

might have found personal standing is § 14.636(c)(2)–(3), 

governing attorneys’ fees for claims assessed under prior 

versions of § 5904(c)(1). Carpenter Chartered contends 

that § 5904(c)(1) as amended under the AMA must apply 

to all claims regardless of when a decision issued, and that 

§ 14.636(c)(2)–(3), which limit the applicability of amended 

§ 5904(c)(1) to claims with a decision issued on or after the 

AMA’s effective date, are invalid. Pet’r Br. (No. 19-1685) 

at 42–45. Yet Carpenter Chartered merely alleges by declaration that these regulations will harm both the firm and 

its clients—it fails to point to an example claim in which it, 

under its interpretation, could receive retroactive effect or 

allege any specific facts demonstrating how this rule may 

cause such injury. We therefore decline to find personal 

standing here.

Finally, Carpenter Chartered claims that it has thirdparty standing on behalf of its veteran clients and, to that 

end, submits several signed declarations from those clients. But as we explained for NVLSP’s third-party 

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standing argument, we reject this theory for at least the 

reason that Carpenter Chartered has failed to establish 

that its clients are hindered from bringing suit in their own 

right. This rings especially true as each and every one of 

Carpenter Chartered’s declarants avers that he is a client 

of Carpenter Chartered and would have pursued an action 

in his own right, if requested. See, e.g., Pet’r Suppl. Br. (No. 

19-1685) at Tab 1, Decl. of Randy B. Bomhoff, Jr. ¶ 3 (“I 

would have allowed Carpenter Chartered to have filed this 

challenge in my name.”). Accordingly, we also decline to 

find third-party standing under these circumstances.

II. Validity of Challenged Regulations

A. Standard of Review

Having determined that Petitioners lack standing to 

challenge all but three of the regulations raised in their petitions, we now turn to the merits of those challenges.

We review petitions under § 502 in accordance with the

APA, as codified in relevant part at 5 U.S.C. § 706. See 

Nyeholt v. Sec’y of Veterans Affs., 298 F.3d 1350, 1355 (Fed.

Cir. 2002). Under § 706, we must “hold unlawful and set 

aside agency action” we find “arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with 

law.” § 706(2); see also Motor Veh. Mfrs. Ass’n v. State 

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (regulation 

must be set aside for being arbitrary and capricious where 

agency “has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for 

its decision that runs counter to the evidence before the 

agency, or is so implausible that it could not be ascribed to 

a difference in view or the product of agency expertise”).

Our review of an agency’s interpretation of a statute 

that it administers is further governed by the framework 

articulated in Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842–43 (1984). See 

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Veterans Just. Grp., LLC v. Sec’y of Veterans Affs., 818 F.3d 

1336, 1346 (Fed. Cir. 2016) (VJG). Under Chevron, we first 

ask “whether Congress has directly spoken to the precise 

question at issue.” 467 U.S. at 842. If we conclude that it 

has, “that is the end of the matter,” and the only question 

remaining is whether the regulation at issue accords with 

congressional intent. Id. at 842–43. Under such circumstances, we “must reject administrative constructions 

which are contrary to clear congressional intent,” as ascertained by the “traditional tools of statutory construction” 

and statutory history. Id. at 843 n.9.

If, however, the statute “is silent or ambiguous with respect to the specific issue, the question for the court is 

whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843. The administering 

agency, under these circumstances, is entitled to make a 

“reasonable policy choice.” Id. at 845. Because a court may 

not simply substitute its own construction of a statutory 

provision for an agency’s reasonable interpretation, such

interpretations are afforded “controlling weight unless 

they are arbitrary, capricious, or manifestly contrary to the 

statute.” Id. at 844 (footnote omitted).

B. Supplemental Claims under the AMA

The three regulations for which we find Petitioners 

MVA and PVA have standing to challenge all pertain to one 

of the new procedural lanes of AMA review—supplemental 

claims. Specifically, (1) § 14.636(c)(1)(i) limits when a veteran’s representative may charge fees for work on supplemental claims; (2) § 3.2500(b) bars the filing of a 

supplemental claim when adjudication of the same claim is 

pending before a federal court; and (3) § 3.155 excludes 

supplemental claims from the intent-to-file framework. 

Supplemental claims, as mentioned, permit a claimant to 

request readjudication of an initial claim based on “new 

and relevant evidence.” § 5108(a). Under the AMA, such 

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claims have replaced claims to reopen from the legacy system. Compare § 5108 (2016), with § 5108 (2019).

Several statutory provisions form the basis for the regulations at issue here. First, § 5104C(a) and § 5104C(b) recite a claimant’s options for administrative review 

following an AOJ decision, including the filing of a supplemental claim. Section 5104C(a) governs administrative review “within one year” of an AOJ decision, whereas 

§ 5104C(b) governs administrative review after “more than 

one year has passed.”10

10 38 U.S.C. § 5104C recites, in relevant part: 

(a) Within one year of decision.

(1) Subject to paragraph (2), in any case in which 

the Secretary renders a decision on a claim, the 

claimant may take any of the following actions on 

or before the date that is one year after the date on 

which the [AOJ] issues a decision with respect to 

that claim:

(A) File a request for higher-level review 

under section 5104B of this title. 

(B) File a supplemental claim under section 

5108 of this title.

(C) File a [NOD] under section 7105 of this 

title.

(2)

(A) Once a claimant takes an action set 

forth in paragraph (1), the claimant may 

not take another action set forth in that 

paragraph with respect to the same claim 

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Within one year of an AOJ decision, a claimant may 

generally pursue “any” one of three lanes of administrative 

review by filing: a request for higher-level review, a supplemental claim, or a NOD for Board review. See

§ 5104C(a)(1). This general rule, however, is not without 

limits, as a claimant cannot simultaneously pursue two or 

more administrative review options for the same claim or 

issue. See § 5104C(a)(2)(A). But nothing can prohibit that

claimant from pursuing each administrative review option 

in succession. See § 5104C(a)(2)(B).

or same issue contained within the claim 

until— 

(i) the higher-level review, supplemental claim, or [NOD] is adjudicated; or

(ii) the request for higher-level review, supplemental claim, or 

[NOD] is withdrawn. 

(B) Nothing in this subsection shall prohibit a claimant from taking any of the actions set forth in paragraph (1) in 

succession with respect to a claim or an issue contained within the claim.

. . .

(b) More than one year after decision. In any case 

in which the Secretary renders a decision on a 

claim and more than one year has passed since the 

date on which the [AOJ] issues a decision with respect to that claim, the claimant may file a supplemental claim under section 5108 of this title.

§ 5104C (emphases added). 

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By contrast, after more than one year has passed since 

the AOJ’s decision, a claimant is left with only one option 

for administrative review—filing a supplemental claim. 

See § 5104C(b). Collectively, then, § 5104C establishes two 

types of supplemental claims based on when the claim is 

filed: § 5104C(a) supplemental claims filed within a year 

of an AOJ decision, and § 5104C(b) supplemental claims 

filed more than a year after an AOJ decision.

Aside from the timing of when they are filed, 

§ 5104C(a) and § 5104C(b) supplemental claims also differ 

in two additional ways: their effective dates and the VA’s 

duty to notify. Section 5110(a)(2) governs the effective date 

of awards and explains that supplemental claims “continuously pursued”—i.e., filed within one year of a prior decision from the AOJ, Board, or Veterans Court—are entitled 

to an effective date reaching back to “the date of filing of 

the initial application for a benefit” (i.e., the initial claim’s 

filing date). But “supplemental claims received more than 

one year” after an AOJ or Board decision have an effective 

date “[no] earlier than the date of receipt of the supplemental claim.” See § 5110(a)(3). Thus, § 5104C(a) supplemental claims filed in continuous pursuit may reach back 

to the initial claim’s effective date, whereas § 5104C(b) supplemental claims not filed within continuous pursuit are 

accorded an effective date as of their date of receipt by the 

VA. See § 5110(a)(3). The VA, moreover, has a duty to notify claimants of any information or evidence necessary to 

substantiate their claims—including § 5104C(b) supplemental claims, see § 5103(a)(1)—but § 5104C(a) supplemental claims filed within one year after an AOJ or Board 

decision are expressly excluded from this duty, see

§ 5103(a)(3).

The final statutory provision at issue in this appeal is

§ 5904(c)(1), which, unlike the other provisions discussed, 

does not explicitly reference supplemental claims. This

provision generally applies to all VA proceedings and appeals and governs when an attorney or agent may begin to

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charge fees for services rendered in connection with a veteran’s claim for benefits: 

(c)(1) Except as provided in paragraph (4), in connection with a proceeding before the Department 

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 respect to services provided before the date on which 

a claimant is provided notice of the [AOJ’s] initial 

decision under section 5104 of this title with respect 

to the case. The limitation in the preceding sentence does not apply to fees charged, allowed, or 

paid for services provided with respect to proceedings before a court.

§ 5904(c)(1) (emphases added). Under this provision, the 

triggering event for when an attorney may begin to charge 

fees is when the claimant receives notice of the AOJ’s “initial decision . . . with respect to the case.” Id.

Below, we address each of Petitioners’ three challenges 

in turn. 

C. 38 C.F.R. § 14.636(c)(1)(i): Attorneys’ Fees

MVA first challenges the VA’s regulation governing attorneys’ fees and asserts that this regulation is invalid for 

treating § 5104C(a) and § 5104C(b) supplemental claims 

differently, contrary to the clear meaning of § 5904(c)(1). 

1 

To begin, we find it worthwhile to review the statutory 

history of restrictions on attorneys’ fees for VA benefits 

claims. Congress has thrice changed the triggering event 

for when attorneys’ fees may be charged, each time shifting

the entry point for such fees—and thus a claimant’s ability 

to retain paid representation—earlier in the administrative appeals process.

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Previously, attorneys’ fees had been strictly limited to 

$10 since 1864 due to the “relatively uncomplicated procedure” of “applying for VA benefits” in “the initial claim 

stages,” see S. Rep. No. 100–418, at 63 (1988), which were 

“informal and non-adversarial,” see H.R. Rep. No. 100–963

(1988), at 15. This limitation was left unchanged until 

1988, when Congress enacted the Veterans’ Judicial Review Act (VJRA), Pub. L. No. 100–687, 102 Stat. 4105

(1988) (codified at scattered sections of 38 U.S.C.), to allow, 

for the first time, judicial review of VA decisions. H.R. Rep. 

No. 100–963, at 16. At the same time, Congress also enacted § 5904(c)(1) (formerly 38 U.S.C. § 3404(c)(1)) to relax 

the existing limitations on attorneys’ fees, recognizing the 

importance of retaining legal counsel in both judicial proceedings and administrative appeals. See S. Rep. No. 100–

418, at 63–64; H.R. Rep. No. 100–963, at 28.

When first enacted, § 5904(c)(1)’s predecessor permitted attorneys’ fees to be charged only after “the [Board] 

first makes a final decision in the case.” See § 3404(c)(1)

(1988). This was intended to “preserve the non-adversarial 

initial benefits process, while providing the veteran with 

the assistance of an attorney when that process has failed 

and the veteran is faced with the complexities of appealing, 

reopening, and/or correcting prior adverse decisions.” See 

Carpenter v. Nicholson, 452 F.3d 1379, 1383 (2006); see also

Stanley v. Principi, 283 F.3d 1350, 1356 (2002) (“[S]ection 

5904(c) was designed to allow veterans to retain paid counsel in connection with VA proceedings to reopen final Board 

decisions, but to bar the retention of paid counsel in connection with the original VA proceedings, which were 

viewed as presenting less complex issues.”). The Senate 

Report distinguished reopening and reconsideration proceedings from the initial proceedings, explaining that “once 

the [Board] renders a decision adverse to the claimant on 

the merits, the need for the assistance of an attorney is 

then markedly greater with respect to such issues as seeking a reopening and reconsideration and deciding whether 

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to proceed to court.” See S. Rep. No. 100–418, at 63–64

(emphasis added). 

Subsequently, in 2006, Congress amended § 5904(c)(1) 

to shift the triggering event for allowing paid representation from a final Board decision to when “a [NOD] is filed 

with respect to the case.” See § 5904(c)(1) (2006). The accompanying legislative remarks explained that the amendment would permit claimants to obtain paid representation

“before [the] VA,” and not just after a final Board decision. 

152 Cong. Rec. S11854, at S11855 (2006) (Sen. Akaka); see 

also 152 Cong. Rec. H8995-02, at H9018 (2006) (Rep. Miller) (“Current law prohibits an attorney from receiving a 

fee for representing a claimant until the [Board] renders 

its first decision on the claim. Unfortunately, the claims 

process has become very complex and can be very overwhelming to some claimants. This provision would give 

veterans the option of hiring an attorney earlier in the process if the veterans believe they need assistance with their 

claim.”). Because fees could be charged “only after a [NOD] 

has been filed in a case,” the amended statute continued to 

bar attorneys’ fees for the initial application of benefits 

while, at the same time, expanding a claimant’s ability to 

retain counsel to seek review of an unsatisfactory initial 

decision by the AOJ. See 152 Cong. Rec. S11854, at 

S11855. 

Now, under the AMA, the triggering event for attorneys’ fees has once again shifted earlier to permit paid representation after a claimant receives notice of the AOJ’s 

“initial decision . . . with respect to the case.” See

§ 5904(c)(1) (2019); see also H.R. Rep. No. 115–135, at 3 (explaining this amendment permits “veterans to retain the 

services of attorneys and accredited agents who charge a 

fee when the [AOJ] provides notice of the original decision” 

(emphasis added)). As the VA acknowledged in its Final 

Rule, this amendment was necessary “to allow paid representation with respect to the claimant’s expanded options 

for seeking review of an initial decision on a claim.” Final 

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Rule, 84 Fed. Reg. at 150 (emphasis added). In other 

words, because claimants are no longer limited to filing a 

NOD to seek review of an unsatisfactory initial AOJ decision (and can instead file a supplemental claim or request 

for higher-level review), “Congress necessarily had to shift 

the entry point for paid representation to the AOJ decision 

itself” in order “to permit paid representation regardless of 

the form of review.” Id. (emphasis added). This shift was 

part of a continuing congressional effort to enlarge the 

scope of activities for which attorneys can receive compensation for assisting veterans. 

2 

Section 14.636(c)(1)(i),11 titled “[c]ircumstances under 

which fees may be charged,” permits attorneys to charge 

11 38 C.F.R. § 14.636(c)(1)(i) states:

(c) Circumstances under which fees may be 

charged. Except as noted in paragraph (d) of this 

section, agents and attorneys may only charge fees 

as follows:

(1)(i) Agents and attorneys may charge claimants 

or appellants for representation provided after an 

[AOJ] has issued notice of an initial decision on the 

claim or claims. . . . For purposes of this paragraph 

(c)(1)(i), an initial decision on a claim would include an initial decision on an initial claim for an 

increase in rate of benefit, an initial decision on a 

request to revise a prior decision based on [CUE]

(unless fees are permitted at an earlier point pursuant to paragraph (c)(1)(ii) or paragraph (c)(2)(ii) 

of this section), and an initial decision on a supplemental claim that was presented after the final adjudication of an earlier claim. However, a 

supplemental claim will be considered part of the 

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fees for work performed after an AOJ has issued “an initial 

decision on the claim.” See § 14.636(c)(1)(i). The regulation, however, treats § 5104C(b) supplemental claims differently from all other forms of administrative review, 

including § 5104C(a) supplemental claims. See Final Rule, 

84 Fed. Reg. at 150 (explaining that the regulation “treats 

supplemental claims differently based on whether they 

were filed within one year of a prior decision”). Specifically, 

§ 5104C(a) supplemental claims, which are “continuously 

pursued” within one year of a prior decision, “will be considered part of the earlier [initial] claim,” such that attorneys may charge fees for any work performed on the 

supplemental claim. Id. But for § 5104C(b) supplemental 

claims, which involve claim issues that are no different in 

substance from § 5104C(a) supplemental claims, fees may 

only be charged for work performed after “an initial decision on [the] supplemental claim” itself. Id. This regulation thus permits claimants to receive paid representation 

for all work on a § 5104C(a) supplemental claim—including the preparation and filing of such a claim—but requires 

earlier claim if the claimant has continuously pursued the earlier claim by filing any of the following, 

either alone or in succession: A request for higherlevel review, on or before one year after the date on 

which the [AOJ] issued a decision; a supplemental 

claim, on or before one year after the date on which 

the [AOJ] issued a decision; a [NOD], on or before 

one year after the date on which the [AOJ] issued a 

decision; a supplemental claim, on or before one 

year after the date on which the Board of Veterans’ 

Appeals issued a decision; or a supplemental claim, 

on or before one year after the date on which the 

Court of Appeals for Veterans Claims issued a decision.

§ 14.636(c)(1)(i) (emphases added).

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a § 5104C(b) supplemental claim to be first denied before 

paid representation is available. 

MVA urges us to invalidate § 14.636(c)(1)(i) for contravening the clear statutory basis for this regulation as 

set forth in § 5904(c)(1). Specifically, MVA argues that the 

regulation’s unequal treatment of § 5104C(a) and 

§ 5104C(b) supplemental claims violates the AMA’s “unambiguous[] require[ment] that all work on supplemental 

claims be capable of compensation.” Pet’r Br. (No. 19-1600) 

at 49. MVA contends that nothing in the statute limits fees 

for § 5104C(b) claims or otherwise distinguishes fees for 

different types of supplemental claims. Instead, 

§ 5904(c)(1) restricts only fees charged before an AOJ’s “initial decision . . . with respect to the case,” and a supplemental claim is part of the same “case” as the initial claim, 

whether continuously pursued within a year of a prior decision or not.

The government does not attempt to argue that

§ 5904(c)(1)’s text directly supports differential treatment

of § 5104C(a) and § 5104C(b) supplemental claims as to 

paid representation. Instead, it argues that the VA’s regulation deserves deference because the VA has an established practice of treating motions to reopen “finallydecided claims based on new evidence” as a “separate 

case[]” for the purposes of attorneys’ fees, which it purports 

are analogous to § 5104C(b) supplemental claims under the 

AMA, and nothing in the AMA or its statutory history indicates that Congress intended for the VA to deviate from 

this practice. Resp’t Br. (No. 19-1600) at 41. The government also contends that the regulation is consistent with 

congressional intent because the AMA itself treats 

§ 5104C(a) and § 5104C(b) supplemental claims differently 

by assigning different effective dates and imposing different notification duties on the VA. We disagree and conclude that § 14.636(c)(1)(i) contradicts the unambiguous 

meaning of § 5904(c)(1), which permits paid representation

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for all forms of administrative review under the AMA, including § 5104C(b) supplemental claims. 

Starting with the words of the statutory provision itself, § 5904(c)(1) states that attorneys’ fees may not be 

charged for services provided before the date a claimant receives notice of the AOJ’s “initial decision . . . with respect 

to the case.” On its face, the provision recites no other restriction on attorneys’ fees. Nor does the provision distinguish between work performed on different types of 

administrative review under the AMA. Because all such 

review work necessarily occurs after the AOJ issues an “initial decision . . . with respect to the case,” a straightforward reading of § 5904(c)(1) indicates that work on all 

forms of review under the AMA—including § 5104C(b) supplemental claims—should be compensable. 

Our reading of the statutory provision also comports 

with legislative intent, as supported by the statutory history. As the VA acknowledges, Congress shifted 

§ 5904(c)(1)’s entry point for paid representation from the 

filing of a NOD to receiving notice of the AOJ’s initial decision “to permit paid representation regardless of the form 

of review” a claimant chooses. See Final Rule, 84 Fed. Reg. 

at 150 (emphasis added). After receiving the AOJ’s initial 

decision, a claimant may initiate review of that decision by

either filing a NOD, requesting higher-level review, or filing a supplemental claim—even if that supplemental claim 

is filed “more than one year [after] the date on which the 

[AOJ] issues a decision with respect to [the initial] claim.” 

See § 5104C(b); see generally § 5104C (titled “[o]ptions following decision by [AOJ]” and including both § 5104C(a) 

and § 5104C(b) supplemental claims among such options). 

All are “form[s] of review” under the AMA. Section 5904(c)(1), moreover, is devoid of any indication that 

§ 5104C(b) supplemental claims should be treated differently from other types of administrative review for purposes of attorneys’ fees. Yet, no other form of review is

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subject to the same restrictions on attorneys’ fees under the 

VA’s regulation. 

We also reject the government’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 that earlier 

decision, thereby barring attorneys from charging fees for 

any work on such claims until the supplemental claim itself 

is rejected. Logic dictates that § 5104C(b) supplemental 

claims, like any other form of administrative review under 

the AMA, should be construed as part of the same “case” as 

the initial AOJ decision being reviewed, just as an appeal 

or motion for reconsideration in litigation is considered

part of the same “case” as the underlying decision. See 38 

U.S.C. § 101(36) (defining “supplemental claim” as “a claim 

for benefits . . . filed by a claimant who had previously filed 

a claim for the same or similar benefits on the same or similar basis” (emphases added)). While neither § 5904(c)(1) 

nor any other provision of the AMA defines the term “case,” 

the parallel language in § 5104C(a) and § 5104C(b) suggests that supplemental claims belong to the same “case” 

as the initial decision being reviewed, regardless of when 

they are filed. Compare § 5104C(a) (“in any case in which 

the Secretary renders a decision on a claim, the claimant 

may” file a supplemental claim within one year of when the 

AOJ issues a decision with respect to that claim (emphasis 

added)), with § 5104C(b) (“[i]n any case in which the Secretary renders a decision on a claim and more than one year 

has passed since the date [the AOJ] issues a decision with 

respect to that claim, a claimant may file a supplemental 

claim” (emphasis added)).

Although the government correctly notes that 

§ 5104C(b) supplemental claims may have a different effective date and duty to notify than § 5104C(a) supplemental 

claims, see §§ 5110(a)(3), 5103(a)(3), we see no reason why 

these distinctions should matter in the context of charging 

attorneys’ fees. That § 5104C(b) supplemental claims are 

not entitled to an effective date reaching back to the initial 

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claim merely reflects Congress’s efforts to “streamline” the

“broken” legacy appeals process that allowed for “repeated 

revisions and resubmissions of claims while maintaining 

an effective date for benefits based upon the original filing 

date of the claim.” See H.R. Rep. 115–135, at 8. Restricting

the effective date of § 5104C(b) supplemental claims simply 

reflects a legislative choice to award claimants who delayed 

seeking review of their claims for over a year fewer benefits 

than those who “continuously pursued” administrative review. It says nothing of Congress’s intent to restrict attorneys’ fees or limit a claimant’s ability to retain paid 

representation for § 5104C(b) supplemental claims. The 

government, moreover, has not identified any differences 

in the work that an attorney would perform on a § 5104C(a) 

claim as opposed to a § 5104C(b) claim that would justify

compensating the former but not the latter. 

As for the VA’s “longstanding interpretation” of legacy

reopening claims as belonging to a “case” separate from 

that of the original claim for benefits, the government argues that “Congress has now amended section 5904(c) 

twice and has not overruled [the] VA’s statutory interpretation.” Resp’t Br. (No. 19-1600) at 46. From this purported inaction, the government presumes that Congress

has implicitly ratified the VA’s practice of restricting paid 

representation for legacy reopening claims and, by extension, for any “post-final decision claims based on new evidence.” Id. at 47. This argument suffers from several 

flaws. Included among them is our express rejection of the 

VA’s interpretation in both Stanley and Carpenter, discussed infra. 

To begin with, an implicit ratification theory holds no 

water where, as here, the regulation at issue clearly contradicts the requirements of the statutory provision. See

Brown v. Gardner, 513 U.S. 115, 121 (1994) (“There is an 

obvious trump to the reenactment argument . . . in the rule 

that where the law is plain, subsequent reenactment does 

not constitute an adoption of a previous administrative 

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construction.”); id. at 122 (“A regulation’s age is no antidote 

to clear inconsistency with a statute, and the fact [that the 

regulation] flies against the plain language of the statutory 

text exempts courts from any obligation to defer to it.”). 

Reenactment, moreover, “[cannot] carry the day” where 

“there is no . . . evidence to suggest Congress was even 

aware of the VA’s interpretative position.” Id. Here, as we 

have concluded, § 14.636(c)(1)(i)’s differential treatment of 

§ 5104C(b) supplemental claims clearly contravenes 

§ 5904(c)(1)’s requirement that paid representation be

available for all forms of administrative review under the 

AMA. We also see no indication that Congress was aware 

of the VA’s regulations restricting paid representation for 

reopening claims or distinguishing such claims as separate 

from “the case” of the initial claim. Under such circumstances, we reject the government’s implicit ratification argument. 

Far from “inaction” that would suggest implicit ratification of preexisting practices, the AMA dramatically overhauled the VA appeals process by replacing the “broken,” 

one-size-fits-all legacy system with a new three-lane system. Given the extent and nature of the AMA’s reforms, 

we think it unlikely that Congress intended to preserve the 

VA’s “longstanding interpretation” of the fee statutory provision from the superseded legacy system, especially where

the regulation at issue contradicts both the plain and ordinary meaning of the statutory provision and the statutory 

history. The AMA’s three-lane system was intended to alleviate the legacy system’s growing appeals backlog by allowing claimants to choose from new and more efficient 

administrative review pathways specifically tailored for 

their needs. But the AMA’s reforms can only succeed if 

claimants are able to avail themselves of these additional 

pathways, and Congress, in turn, amended the fee provision to provide claimants with paid representation regardless of the form of administrative review sought. We would 

do little justice to Congress’s amendments by clinging to a 

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legacy administrative practice that markedly restricts paid 

representation for one lane of review. Cf. Stanley, 283 F.3d 

at 1356 (explaining that Congress amended the fee provision in 1988 because the “new right to judicial review” under the VJRA “would be a hollow right indeed without some 

easing of the limitation on attorneys’ fees” (quoting S. Rep. 

No. 100–418, at 63)).

Lastly, we reject the government’s proposition that this 

court has previously endorsed the VA’s longstanding interpretation of the fee provision—that is, “the basic principle 

that a reopening proceeding is separate from the original 

case” and thus foreclosed from paid representation until 

the VA issues a decision on the reopening claim itself. 

Resp’t Br. (No. 19-1600) at 39 (citing Stanley, 283 F.3d at 

1358). Even assuming, as the government contends, that

§ 5104C(b) supplemental claims under the AMA are analogous to legacy reopening claims, we have never denied attorneys’ fees for work performed on reopening proceedings

based on the VA’s understanding of “case.” To the contrary, 

our decisions in Stanley and Carpenter reinforce our textual analysis that § 5904(c)(1) plainly permits paid representation for all forms of administrative review after the

AOJ’s initial decision on the original claim for benefits. 

In Stanley, we considered an earlier (and more restrictive) version of the fee provision prohibiting attorneys from 

collecting fees until “the [Board] first makes a final decision 

in the case.” See § 5904(c) (2000). The issue before us was

whether an attorney could collect fees for work performed 

on a legacy reopening claim filed more than a year after an

AOJ’s initial decision, which thus became final. We held 

that such fees were permissible because § 5904(c) “was designed to allow attorneys’ fees after the initial claims proceeding, in connection with proceedings to reopen a claim 

on the ground of new and material evidence or [CUE],” 283 

F.3d at 1352 (emphasis added), and “[t]he retention of paid 

counsel would have been permissible at the point when the 

[AOJ’s initial] decision became ‘final,’” id. at 1357. In other 

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words, even under a more limited version of the fee provision, we permitted paid representation for administrative 

review proceedings filed more than a year after the AOJ’s 

initial decision and based on new and material evidence. 

While Stanley described the “reopening proceeding . . . [as] 

a separate ‘case’” having a “final decision,” that statement

was made to allow, rather than deny, paid representation 

for reopening work under the then-existing fee provision, 

which required a “final decision” for attorneys’ fees to be 

charged. See id. at 1358. 

We later clarified Stanley’s reasoning in Carpenter, explaining that “a veteran’s claim based on the specified disability does not become a different ‘case’ at each stage of 

the often lengthy and complex proceedings, including remands as well as reopenings as in Stanley.” 452 F.3d at 

1384 (emphasis added). Specifically, in Carpenter, we concluded that a later CUE challenge (which is necessarily 

filed after a decision on the original claim has become final 

and cut off from direct review) is part of the same “case” as

other challenges to the initial decision. See id. at 1384. Attorneys may charge fees for work on CUE claims, we explained, because the fee provision “was designed to 

authorize compensation for attorney services rendered after the initial proceedings, undertaken by the veteran, 

have failed.” Id. A “case” therefore “encompasses all potential claims raised by the evidence, applying all relevant 

laws and regulations, regardless of whether the claim is 

specifically labeled.” Id. Just as a CUE claim belongs to 

the same “case” as a veteran’s original claim for benefits,

thereby permitting paid representation for work performed 

after an AOJ’s initial decision, so too does a § 5104C(b) supplemental claim seeking the “same or similar benefits on 

the same or similar basis” as the original claim. See

§ 101(38).

For these reasons, we hold that § 14.636(c)(1)(i) is contrary with the plain and ordinary meaning of § 5904(c)(1), 

and we thus invalidate that regulatory provision.

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D. 38 C.F.R. § 3.2500(b): Prohibition on Concurrent Supplemental Claim and Federal Court Appeal

Section 3.2500(b) places two restrictions on the use of 

administrative review: 

(b) Concurrent election prohibited. With regard to 

the adjudication of a claim or an issue as defined in 

§ 3.151(c), a claimant who has filed for review under one of the options available under paragraph 

(a) of this section12 may not, while that review is 

pending final adjudication, file for review under a 

different available option. While the adjudication 

of a specific benefit is pending on appeal before a 

federal court, a claimant may not file for 

12 38 C.F.R. § 3.2500(a), titled “[r]eviews available,” 

summarizes a claimant’s three “administrative review options” under the AMA: 

(1) Within one year from the date on which the 

[AOJ] issues a notice of a decision on a claim or issue as defined in § 3.151(c), except as otherwise 

provided in paragraphs (c), (e), and (f) of this section, a claimant may elect one of the following administrative review options by timely filing the 

appropriate form prescribed by the Secretary:

(i) A request for higher-level review under 

§ 3.2601 or

(ii) An appeal to the Board under § 20.202 

of this chapter.

(2) At any time after VA issues notice of a decision

on an issue within a claim, a claimant may file a 

supplemental claim under § 3.2501.

§ 3.2500(a) (emphases added).

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administrative review of the claim under any of 

[the] options listed in paragraph (a) of this section.

§ 3.2500(b) (emphases added). First, this regulation prohibits claimants from pursuing two concurrent lanes of administrative review for the same “claim or [] issue.” 

Separately, § 3.2500(b) also prohibits claimants from filing

for administrative review of a claim “[w]hile adjudication 

of a specific benefit is pending on appeal before a federal 

court.”

PVA challenges only the validity of § 3.2500(b)’s second 

prohibition on concurrent administrative and judicial review. We note, as an initial matter, that the only form of 

administrative review that is potentially available for a 

claim already pending on appeal before a federal court is a 

supplemental claim.13 Thus, this prohibition primarily affects claimants who have already appealed their claim to a 

federal court (from an adverse Board decision) but believe 

they have “new and relevant evidence” for that same claim 

that could entitle them to benefits.14 This regulation bars

such claimants from filing a supplemental claim with the 

VA based on that “new and relevant evidence” while judicial appeal of their initial claim remains pending before 

this court or the Supreme Court. They must instead wait 

13 This follows because only a final Board decision (initiated by filing a NOD) may be appealed to a federal court, 

and there can be no higher-level review by the AOJ of a 

final Board decision.

14 We assume that the VA meant “federal court” in 

§ 3.2500(b) to include the Veterans Court, even though the 

Veterans Court is “an Executive Branch entity,” United 

States v. Arthrex, Inc., 141 S. Ct. 1970, 1984 (2021). Regardless, we hold that § 5104C, our statutory basis for invalidating § 3.2500(b), permits a veteran to file a 

supplemental claim at any time after receiving an adverse 

Board decision. 

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until the judicial appeal concludes to file any such supplemental claims.

This prohibition, PVA argues, is invalid because it “imposes new restrictions that are not contemplated in the 

statute.” Pet’rs Br. (No. 19-1680) at 24. While

§ 5104C(a)(2)(A)15 appears to provide a statutory basis for 

§ 3.2500(b)’s first prohibition against concurrent lanes of 

administrative review, no statutory provision directly supports § 3.2500(b)’s second prohibition against concurrent 

administrative and judicial review. Id. PVA further contends that this prohibition harms claimants in two ways. 

First, § 3.2500(b) can delay a claimant’s receipt of benefits. 

A claimant possessing “new and relevant evidence” that 

would entitle the claimant to benefits must wait until an 

ongoing judicial appeal concludes before a supplemental 

claim requesting readjudication based on that new evidence can be filed. 

But more importantly, PVA contends, claimants seeking to appeal an adverse Veterans Court decision are forced 

to make a “hard choice” between pursuing appellate review 

beyond the Veterans Court and filing a supplemental claim 

within continuous pursuit. Pet’rs Br. (No. 19-1680) at 24–

26. This follows because § 5110(a)(2)—the statutory provision governing effective dates of “continuously pursued” 

claims—does not, on its face, recite that supplemental 

claims filed within one year of a Federal Circuit or Supreme Court decision are entitled to their original effective

date. Such effective date protections are instead only expressly recited for supplemental claims filed within one 

year of a Veterans Court decision, a Board decision, or an 

15 Section 5104C(a)(2)(A) explains that once a claimant pursues one lane of administrative review, the claimant cannot pursue another lane of administrative review 

“with respect to the same claim or issue until” that first 

review is “adjudicated” or “withdrawn.”

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AOJ decision. See § 5110(a)(2)(B), (D)–(E);16 see also

§ 3.2500(c), (h)(1) (implementing regulations reflecting 

same). Accordingly, while a claimant may still file a supplemental claim after unsuccessfully appealing an adverse 

Veterans Court decision to this court or the Supreme 

16 38 U.S.C. § 5110(a)(2) recites:

(2) For purposes of determining the effective date 

of an award under this section, the date of application shall be considered the date of the filing of the 

initial application for a benefit if the claim is continuously pursued by filing any of the following, either alone or in succession:

(A) A request for higher-level review under 

section 5104B of this title on or before the 

date that is one year after the date on 

which the [AOJ] issues a decision.

(B) A supplemental claim under section 

5108 of this title on or before the date that 

is one year after the date on which the 

[AOJ] issues a decision. 

(C) A [NOD] on or before the date that is 

one year after the date on which the [AOJ]

issues a decision.

(D) A supplemental claim under section 

5108 of this title on or before the date that 

is one year after the date on which the 

[Board] issues a decision. 

(E) A supplemental claim under section 

5108 of this title on or before the date that 

is one year after the date on which the [Veterans Court] issues a decision. 

§ 5110(a)(2) (emphases added). 

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Court, the claimant risks losing entitlement to the original 

effective date for any benefits awarded on that supplemental claim. On the other hand, a claimant who chooses 

not to appeal an adverse Veterans Court decision and instead files a supplemental claim within continuous pursuit

will retain the initial claim’s original effective date for any 

benefits awarded. § 5110(a)(2)(E). But in doing so, that

claimant gives up the opportunity to have this court review

the Veterans Court’s legal rulings under 38 U.S.C. § 7292. 

Consequently, PVA argues, § 3.2500(b) improperly forces 

claimants “to choose between pursuing the appeal rights 

granted to them by statute . . . and protecting their effective date of benefits.” Pet’rs Br. (No. 19-1680) at 23. 

The government responds that, as a threshold matter,

the primary harm PVA complains of—loss of effective 

date—will soon be irrelevant because the “VA plans to propose a regulatory change [to § 3.2500(c), (g)] to protect the 

effective dates of supplemental claims” filed within one 

year of a decision by this court or the Supreme Court. 

Resp’t Br. (No. 19-1680) at 17. But more to the point, the 

government argues, § 3.2500(b)’s requirement that claimants pursue administrative review sequentially (rather 

than concurrently) with judicial review in the federal 

courts is consistent with the AMA and should be sustained 

because it “reasonably promotes systemic efficiency without prejudicing claimants.” Id. at 10.

We note that it has been over a year since the government filed its brief, and we have yet to see a notice of proposed rulemaking for the regulatory changes mentioned. 

Instead, on March 19, 2020, the VA issued a policy letter 

stating that “[e]ffective immediately, claims adjudicators 

must consider supplemental claims . . . filed within one 

year of a Federal Circuit or Supreme Court decision as continuously pursued and apply the provisions of 38 C.F.R. 

§ 3.2500(h)(1) when adjudicating the claim.” See VA Policy 

Letter 20–01 (Mar. 19, 2020). 

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It is unclear what effect, if any, the VA’s unfulfilled 

promise of forthcoming regulatory amendments and subsequent policy letter has on our analysis of § 3.2500(b)’s validity. But we ultimately need not resolve that question 

here. For even if the VA had amended its regulations 

through notice-and-comment rulemaking to extend effective date protections for supplemental claims filed within a 

year of a Federal Circuit or Supreme Court decision,17 we

would nonetheless conclude that § 3.2500(b)’s bar on filing 

a supplemental claim during the pendency of a federal 

court appeal is invalid for contradicting the plain and ordinary meaning of § 5104C. 

Both parties agree that while § 5104C expressly bars 

concurrent lanes of administrative review, see

§ 5104C(a)(2)(A), it does not expressly prohibit concurrent

administrative and judicial review. Thus, nothing in this 

statutory provision nor any other provision of the AMA expressly prohibits filing a supplemental claim during a 

pending appeal in federal court. The government interprets the absence of such a provision as a statutory gap for 

the VA to fill. See Resp’t Br. (No. 19-1680) at 15–16. It 

contends that § 3.2500(b) is a reasonable construction of

§ 5104C(a)(2)(A) warranting deference because the additional prohibition against concurrent administrative and 

judicial review is consistent with the AMA’s efficiency 

goals. We disagree and conclude that § 5104C leaves no 

gap to be filled because it unambiguously permits claimants to file supplemental claims while judicial review of the 

same underlying claim or issue is pending in federal court. 

Section 5104C broadly authorizes a claimant to file a 

supplemental claim “[i]n any case in which the Secretary 

renders a decision on a claim,” whether filed within one 

year of an AOJ decision or not. See § 5104C(a)(1)(B), (b) 

17 We make no conclusions as to whether such an 

amended regulation, if promulgated, would be valid. 

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(emphasis added); see also H.R. Rep. No. 115–135, at 10

(explaining that § 5104C(b) would “[c]larify that in any 

case in which more than one year has passed in which the 

AOJ has issued a decision denying a claim, the claimant 

may file a supplemental claim”). Yet this broad authorization, as we have noted, is not without limits. Once a claimant has initiated one lane of administrative review, that

claimant “may not” pursue another lane, such as filing a 

supplemental claim, “until the higher-level review, supplemental claim, or [NOD] is adjudicated[] or . . . withdrawn.” 

§ 5104C(a)(2)(A) (emphasis added). But while the adjudication or withdrawal of any prior administrative review is 

a prerequisite to filing a subsequent supplemental claim, 

no provision of the AMA requires completion of an ongoing 

judicial review as yet another hurdle to filing a supplemental claim.

To the contrary, § 5104C(a)(2)(A) demonstrates that 

Congress knew how to bar two simultaneous forms of review but chose to only bar concurrent lanes of administrative review. That Congress did not include an analogous 

provision also barring concurrent administrative and judicial review suggests that it simply did not intend to do so. 

Cf. Hamdan v. Rumsfeld, 548 U.S. 557, 578 (2006) (“A familiar principle of statutory construction . . . is that a negative inference may be drawn from the exclusion of 

language from one statutory provision that is included in 

other provisions of the same statute.”); Jama v. Immigr. & 

Customs Enf’t, 543 U.S. 335, 341 (2005) (“We do not lightly 

assume that Congress has omitted from its adopted text 

requirements that it nonetheless intends to apply, and our 

reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such 

a requirement manifest.”). At the same time, 

§ 5104C(a)(2)(B) makes clear that “[n]othing in this subsection shall prohibit a claimant from taking [administrative 

review actions] in succession.” See § 5104C(a)(2)(B) (emphases added). Section 5104C(a)(2)(B), then, protects a 

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claimant’s ability to file a supplemental claim following an 

unsatisfactory Board decision, and we see nothing in the 

AMA that would change this outcome once that Board decision is appealed to the Veterans Court. Accordingly, 

§ 5104C, read in its entirety, makes clear that a claimant 

whose initial claim is on appeal before a federal court does 

not have to wait until the completion of that appeal to file 

a supplemental claim.

The government responds that our reading of § 5104C 

undermines Congress’s broad intent to improve the timely 

administration of the VA benefits program and reintroduces some of the inefficiencies the AMA sought to eliminate. Resp’t Br. (No. 19-1680) at 19–20. But nothing in the 

AMA’s text or statutory history suggests that the concerns

driving Congress’s reforms to the VA’s legacy administrative review process are also implicated by concurrent judicial and supplemental claim review. Instead, permitting a 

claimant to file a supplemental claim during the long pendency of a judicial appeal could result in an earlier award 

of benefits, which is consistent with, and not contrary to,

the AMA’s goal of reducing protracted wait times for receiving a final decision on benefits. The statutory text and statutory history, moreover, indicate that Congress intended to 

allow supplemental claims to be filed “in any case in which 

more than one year has passed in which the AOJ has issued 

a decision denying a claim.” H.R. Rep. No. 115–135, at 10; 

see also § 5104C(b). To the extent that the broad availability of supplemental claims undermines the AMA’s efficiency goals, Congress already addressed that concern 

through § 5104C(a)(2)(A)’s express prohibition on simultaneously pursuing two different lanes of administrative review, and nothing indicates that Congress had similar 

concerns about concurrent judicial and supplemental claim

review. For these reasons, we conclude that our reading of 

§ 5104C is consistent with, and not contrary to, congressional intent under the AMA.

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Because we conclude that § 5104C’s statutory text unambiguously permits filing a supplemental claim during 

the pendency of an appeal before a federal court, we need 

not proceed to Chevron’s second step to consider the VA’s 

policy justifications for the regulation. We therefore hold 

that § 3.2500(b) is invalid for contravening § 5104C’s clear 

statutory text.

E. 38 C.F.R. § 3.155: Intent-to-File Framework

For claimants to receive VA benefits, “[a] specific claim 

in the form prescribed by the Secretary . . . must be filed.” 

See § 5101(a)(1). The VA, however, has long permitted 

claimants to establish a claim’s effective date through a 

preliminary submission indicating an intent to apply for

benefits, which serves as a placeholder until the claimant

files a formal application for benefits within a specified period. See VJG, 818 F.3d at 1341. Under the current “intent-to-file” framework,18 a claimant who signals an 

intention to apply for benefits through a format specified 

by regulation, and later completes a formal application for 

benefits within one year, will be afforded an effective date 

as of the day the intent-to-file was signaled. See id. at 

1342.

18 The “intent-to-file” framework was implemented in 

September 2014 to replace the previous “informal claims” 

framework. See Standard Claims and Appeals Forms, 79 

Fed. Reg. 57,660 (Sept. 25, 2014); see also § 3.155(a) (2014). 

Under the “intent-to-file” framework, a claimant may signal a preliminary intent to apply for benefits by (1) saving 

an electronic application within a VA web-based claims application system; (2) submitting a VA standard form in either paper or electronic form; or (3) oral communication 

with designated VA personnel regarding the claimant’s intent to file a claim. See § 3.155(b)(1)(i)–(iii).

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Section § 3.155 governs the “manner and methods in 

which a claim can be initiated and filed,” including the intent-to-file process set forth in § 3.155(b). The regulation’s

preamble expressly excludes supplemental claims—but not 

initial claims—from § 3.155(b)’s intent-to-file framework: 

The following paragraphs describe the manner and 

methods in which a claim can be initiated and filed. 

The provisions of this section are applicable to all 

claims governed by part 3, with the exception that 

paragraph (b) of this section, regarding intent to file 

a claim, does not apply to supplemental claims. 

§ 3.155 (emphasis added).

In the Final Rule, the VA explained that the AMA’s 

amendments to § 5110 required differential treatment of 

initial and supplemental claims. See 84 Fed. Reg. at 142. 

Because § 5110 “prescribes a one-year filing period” during

which claimants may pursue supplemental claims while 

maintaining the initial claim’s effective date, applying the 

intent-to-file framework “would allow for supplemental 

claim[s] [submitted] beyond the one-year period” to retain 

an earlier effective date, contrary to § 5110(a)(3)’s requirement that the effective date of such supplemental claims 

“shall not be earlier than the date of receipt.” See id.

PVA argues that this regulation is arbitrary and capricious because the VA interprets “virtually identical” statutory language in § 5110(a)(1) and § 5110(a)(3)

inconsistently. Section 5110(a)(3) states that the effective 

date of § 5104C(b) supplemental claims “shall not be earlier than the date of receipt of the supplemental claim,” and

§ 5110(a)(1) likewise requires that the effective date of an

initial claim “shall not be earlier than the date of receipt of 

application therefor.” It thus makes little sense, PVA contends, for the VA to interpret this substantially similar language to forbid an intent-to-file submission in one instance

but not another. PVA also argues that the VA’s explanation for this rule runs counter to another regulatory 

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provision that permits claimants who have filed an incomplete supplemental claim form to retain that filing date as 

their effective date so long as they submit a complete supplemental claim form within 60 days. See § 3.155(d)(1)(i)

(“Upon receipt of a communication indicating a belief in entitlement to benefits that is submitted . . . on a supplemental claim form . . . that is not complete,” the Secretary 

“shall notify the claimant . . . of the information necessary 

to complete the application form” and “[i]f VA receives a 

complete claim within 60 days of notice by VA that an incomplete claim was filed, it will be considered filed as of the 

date of receipt of the incomplete claim.”).

The government, for its part, does not defend the validity of § 3.155’s preamble. Rather than litigate the regulation on the merits, the government asks that we dismiss 

and remand this challenge back to the agency. Specifically, 

“without conceding that [PVA’s] challenge is meritorious,” 

it avers that the “VA plans to propose a regulation to 

amend [§] 3.155 to apply the intent[-]to[-]file rule to 

[§] 5104C(b) supplemental claims” such that “[PVA’s] challenge will become moot.” Resp’t Br. (No. 19-1680) at 43. 

But if the proposed amendments to § 3.155 have not materialized by the time we render judgment in this matter, the 

government requests a voluntary remand for the VA to 

complete its rulemaking process. See id. at 43–44.

We decline, as a threshold matter, to grant the government’s request for voluntary remand. Much as was the 

case for the promised regulatory changes to § 3.2500(b), we 

have yet to see any indication that the VA will amend 

§ 3.155’s preamble to include supplemental claims within 

the intent-to-file framework. While courts have discretion 

to grant a request for voluntary remand so that the agency 

can reconsider its previous position, see SKF USA Inc. v. 

United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001), the VA 

has already had quite some time to revise a plainly invalid 

regulation but failed to do so. Although the VA assured 

this court that it would make certain amendments to two 

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of its regulations, several months have now passed since 

oral argument, and not one of these regulatory amendments has materialized. Nor has the VA provided any updates or a timeline for when such changes might occur. 

Under these circumstances, we are unpersuaded that a remand to the VA would be of any benefit, and we see no reason to avoid resolving the ultimate question of validity.

Turning to the merits, we agree with PVA that 

§ 3.155’s exclusion of supplemental claims from the intentto-file framework is arbitrary and capricious. The VA’s 

proffered explanation for this rule squarely contradicts 

other provisions of this regulation (i.e., § 3.155(d)(1)(i)) 

demonstrating that the effective date of a supplemental 

claim can, in fact, be earlier than the date that the VA receives the completed supplemental claim. Much like 

§ 3.155(b)’s intent-to-file framework, this provision effectively permits a preliminary submission “indicating a belief in entitlement to benefits” to serve as an effective date 

placeholder for the later completed supplemental claim.

Moreover, it is a well-established canon of statutory 

construction that Congress is presumed to have intended 

for “identical words used in different parts of the same 

act . . . to have the same meaning.” See Sorenson v. Sec’y 

of the Treasury, 475 U.S. 851, 860 (1986) (quoting Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 87 (1934) 

(in turn quoting Atl. Cleaners & Dyers, Inc. v. United 

States, 286 U.S. 427, 433 (1932))). To overcome this presumption, the VA must demonstrate that it engaged in reasoned decision-making by providing an “adequate 

explanation” for its difference in interpretation of similarly 

worded statutory provisions. See Nat’l Org. of Veterans’ 

Advocs. v. Sec’y of Veterans Affs., 260 F.3d 1365, 1380 (Fed. 

Cir. 2001) (setting aside regulation because the VA “purport[ed] to interpret virtually identical language contained 

in related veterans’ benefits statutes to mean different 

things, without providing an adequate explanation for the 

inconsistency”); see also State Farm, 463 U.S. at 34

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(arbitrary and capricious standard requires that an agency 

demonstrate that it engaged in reasoned decision-making 

by providing an “adequate basis and explanation” for its 

decision). Here, the VA has not offered any explanation for 

why it interpreted the substantively identical language in 

§ 5110(a)(1) and § 5110(a)(3) inconsistently. If the application for an initial claim is “deem[ed] . . . to have been received as of the date of the intent to file a claim,” we see no 

reason why that same interpretation may not also apply to 

deem a supplemental claim received as of the date of the 

intent-to-file submission. For these reasons, we hold that 

the VA acted arbitrarily and capriciously in excluding supplemental claims from the intent-to-file framework. Section 3.155’s preamble, to the extent that it does so, is 

invalid. 

CONCLUSION

In sum, MVA and PVA collectively have associational 

standing to challenge the validity of § 14.636(c)(1)(i), 

§ 3.2500(b), and § 3.155, and no Petitioner has demonstrated standing to challenge the validity of any other regulatory provisions raised in the petitions. We hold that all

three regulatory provisions that MVA and PVA have standing to challenge are invalid. Section 14.636(c)(1)(i)’s restriction on attorneys’ fees for § 5104C(b) supplemental 

claims is invalid because it contravenes the plain and ordinary meaning of § 5904(c)(1), which permits paid representation once a claimant receives notice of the AOJ’s “initial 

decision . . . with respect to the case.” Section 3.2500(b)’s

bar on filing supplemental claims during the pendency of a 

judicial appeal is invalid for contravening § 5104C’s clear 

authorization for filing supplemental claims “[i]n any case 

in which the Secretary renders a decision on a claim.” 

Lastly, § 3.155’s preamble excluding only supplemental 

claims from the intent-to-file framework is arbitrary and 

capricious because the VA failed to adequately explain its 

inconsistent treatment of initial and supplemental claims

given the substantially similar statutory language in 

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§ 5110(a)(1) and § 5110(a)(3). Accordingly, we grant-inpart and dismiss-in-part MVA’s and PVA’s petitions in Appeal Nos. 19-1600 and 19-1680, and we dismiss the remaining two petitions in Appeal Nos. 19-1685 and 19-1687 in 

their entirety. 

GRANTED-IN-PART AND DISMISSED-IN-PART

COSTS

No costs. 

Case: 19-1600 Document: 67 Page: 63 Filed: 07/30/2021