Veteranclaims’s Blog

July 31, 2021

MILITARY-VETERANS ADVOCACY v. SECRETARY OF VETERANS AFFAIRS, No. 2019-1600 ( Decided: July 30, 2021 ); We hold that all three regulations [38 C.F.R. § 14.636(c)(1)(i); 38 C.F.R. § 3.2500(b); 38 C.F.R. § 3.155] are invalid for contravening the unambiguous meaning of their governing statutory provisions; four separate petitions raising thirteen rulemaking challenges to these regulations under 38 U.S.C. § 502.1; AMA’s three procedural lanes to obtain review; 38 U.S.C. § 5104C(a)(1); claimants may use only one lane at a time. § 5104C(a)(2)(A); 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. §§ 5104C(a)(1)(B), 5108; 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); third lane is a direct appeal to the Board;

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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


Case: 19-1600 Document: 67 Page: 1 Filed: 07/30/2021
MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
2

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.


Case: 19-1600 Document: 67 Page: 2 Filed: 07/30/2021
MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
3
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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MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
4
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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MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
5
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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MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
6
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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7
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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SECRETARY OF VETERANS AFFAIRS
8
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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MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
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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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MILITARY-VETERANS ADVOCACY v.
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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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MILITARY-VETERANS ADVOCACY v.
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15
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
  3. 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
  4. 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.
  5. 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–
  6. 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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    MILITARY-VETERANS ADVOCACY v.
    SECRETARY OF VETERANS AFFAIRS
    57
    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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    SECRETARY OF VETERANS AFFAIRS
    59
    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
    Case: 19-1600 Document: 67 Page: 59 Filed: 07/30/2021
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    SECRETARY OF VETERANS AFFAIRS
    60
    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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    MILITARY-VETERANS ADVOCACY v.
    SECRETARY OF VETERANS AFFAIRS
    61
    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
    Case: 19-1600 Document: 67 Page: 61 Filed: 07/30/2021
    MILITARY-VETERANS ADVOCACY v.
    SECRETARY OF VETERANS AFFAIRS
    62
    (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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    MILITARY-VETERANS ADVOCACY v.
    SECRETARY OF VETERANS AFFAIRS
    63
    § 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

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