Chisholm v. Collins, 37 Vet. App. 1 (2025) — TDIU application may serve as a supplemental claim for fees purposes

The Court reviewed a Board decision denying attorney fees to counsel who represented a veteran in a claim stream involving increased ratings for tinea pedis and right lower extremity radiculopathy. After VA denied higher ratings in February 2020 and again in April 2021 on higher-level review, the veteran later submitted a VA Form 21-8940 seeking TDIU and described how those disabilities affected employment. VA then awarded higher ratings in April 2022, but the Board held that award was the initial decision in a new claim stream and therefore fee-authorizing work had not accrued.

The Court reversed. It first rejected the Secretary’s mootness argument, concluding that the dispute over whether Mr. Chisholm was legally entitled to fees for work on the tinea pedis and radiculopathy claims remained live notwithstanding VA’s erroneous payment actions on other matters. On the merits, the Court held that TDIU is not a standalone claim but a means of obtaining the correct higher rating, and that in this case the veteran’s TDIU filing functioned as a supplemental claim because it sought additional compensation for disabilities previously denied higher ratings. The Court further held that VA had not limited supplemental claims to a single prescribed form in a way that barred the veteran’s filing. Because the April 2022 decision was not the initial decision in the same case, the Court reversed the Board and remanded for payment of attorney fees.

When a veteran already has a prior denial of higher ratings and later submits a TDIU application seeking additional compensation for the same disabilities, that filing may constitute a supplemental claim even if it is not submitted on a supplemental-claim-specific form; a later award on those disabilities is then not an initial decision for attorney-fee purposes.

Substance controls over label: if a TDIU application is really a continued effort to obtain higher compensation for disabilities already denied higher ratings, it can preserve the same claim stream and support past-due attorney fees.

The case is important for attorney-fee disputes and claim-stream analysis because it recognizes that TDIU can continue an earlier increased-rating matter when the filing seeks more compensation for the same disabilities. It also cautions VA and advocates against treating form selection as dispositive when the regulation and the filing’s substance point to a supplemental claim.

Treating a TDIU submission as a brand-new claim and characterizing the resulting rating decision as an initial decision despite an earlier denial of higher ratings for the same disabilities.

A veteran is denied higher ratings for two service-connected conditions, then later submits VA Form 21-8940 explaining that those same conditions prevent employment. VA grants higher ratings in response. Under this case, counsel may argue the TDIU filing was a supplemental claim and fees attach to the later award.

Use this decision when arguing that a post-denial TDIU filing kept an increased-rating stream alive, especially in attorney-fee litigation or when VA claims the later rating action was an initial decision. The opinion is also useful to resist form-based objections where the filing’s substance clearly sought higher compensation for previously denied disabilities.

Jackson (Alexandra) v. McDonough, Phillips v. McDonough, Perciavalle v. McDonough, Mil.-Veterans Advoc. v. Sec’y of Veterans Affs.