Robert F. Hoffman v. Douglas A. Collins
Opinion
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 24-7834
ROBERT F. HOFFMAN, APPELLANT,
V.
DOUGLAS A. COLLINS,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued May 12, 2026 Decided August 24, 2026)
C. Nicholas Scripter, with whom Grace Hurley was on the brief, both of Providence, Rhode Island, for the appellant.
Daniel B. Hausman, with whom James S. C. Baehr, General Counsel; David L. Quinn, Assistant Chief Counsel; and James B. Cowden, Deputy Chief Counsel, were on the brief, all of Washington, D.C., for the appellee.
Before PIETSCH, FALVEY, and JAQUITH, Judges.
FALVEY, Judge, filed the opinion of the Court. JAQUITH, Judge, filed a concurring opinion.
FALVEY, Judge: After a veteran prevails in a claim for benefits, VA sets the effective date—the date from which VA starts paying benefits—based on when the veteran filed the claim. An intent to file (ITF) is a tool that helps the veteran maximize that effective date. It lets the veteran tell VA that a claim is coming and, if the veteran follows through within a year, maximizes the veteran's benefits by associating the claim with the ITF and so tying the effective date to when the veteran first expressed the intent to file. But what happens when VA uses that tool in a way that does no good for one claim and prevents the veteran from using the ITF to secure several months of benefits for another, effectively wasting the ITF or acting as if it never existed?
That is what happened here. Air Force veteran Robert Hoffman filed an ITF in February 2023. A few months later, he filed a continuously pursued supplemental claim—a claim for the same or similar benefit filed within a year of an earlier denial—seeking review of earlier denials of service connection for kidney disease, hearing loss, and Meniere's disease. Then, still within a year of his ITF, he filed a new, initial, compensation claim for stroke residuals and erectile
dysfunction (ED). VA granted the stroke and ED claims, along with special monthly compensation (SMC) based on loss of use of a creative organ. But VA assigned July 21, 2023 —the date of the new compensation claim—as the effective date. Why? Because VA said that, under 38 C.F.R. § 3.155(d)(1)(ii), the continuously pursued supplemental claim was already associated with the February 2023 ITF. In effect, the ITF had been used by the time the initial claim came in.
That does not work. Congress told VA how to set the date of application for a continuously pursued supplemental claim filed within a year of a prior VA decision. The date of application is the date of the initial application for that benefit. So, applying the ITF framework to that kind of supplemental claim adds nothing. Worse, it can hurt the veteran by nullifying an ITF that otherwise would support an earlier effective date on a later claim filed within the same 1-year period.
Because Congress already decided the date of claim for a continuously pursued supplemental claim, we hold that VA may not apply § 3.155(d)(1)(ii) to associate a continuously pursued supplemental claim with an ITF when doing so would provide no effective-date benefit. Because the Board did just that here, it erred.
For Mr. Hoffman—who appeals from a September 26, 2024, Board of Veterans' Appeals decision—this means that the Board erred when it denied an effective date before July 21, 2023, for the grants of service connection for stroke residuals and ED, and of entitlement to SMC for loss of use of a creative organ based on ED. The correct date of application for Mr. Hoffman's claims stems from his ITF. And, because the Board found that he suffered from stroke residuals for that entire period—that is, at least since he filed his ITF—we can reverse the Board's denial of an earlier effective date and order VA to set the effective date to February 28, 2023. But, because the record is less clear about ED and the SMC claim depends on that claim, we can only set aside the Board's decision on those claims and remand them for further proceedings. 1
I. BACKGROUND
The dispute here is whether the effective date for the claims on appeal should go back to February 28, 2023—the date VA received Mr. Hoffman's ITF—or July 21, 2023, the date VA received his completed application. Record (R.) at 4-13, 2317-22, 2434. Mr. Hoffman believes his
1 Mr. Hoffman does not challenge the Board's denial of entitlement to (1) an initial compensable rating for ED; or (2) an initial rating above 10% for stroke residuals. Thus, we will dismiss the appeal as to these issues. See Pederson v. McDonald, 27 Vet.App. 276, 286 (2015) (en banc).
ITF should govern and the Secretary says that we have to go with the July 2023 application because VA had already associated a different claim with the ITF. To fully capture their disagreement, we first need to say more about the timeline of Mr. Hoffman's claims.
There are three important events that we need to keep in mind. First, Mr. Hoffman filed an ITF on February 28, 2023. R. at 2434. Second, in May 2023, he filed a VA Form 20-0995 Supplemental Claim Form challenging VA's denial of his kidney disability, bilateral hearing loss, and Meniere's disease claims—claims he had filed and continuously pursued for a couple of years. R. at 2373. And third, he filed his claim for service connection for stroke residuals and ED on July 21, 2023. R. at 2317-22. This case is about which filing—the May 2023 supplemental claim or the July 2023 claim—profits from the February 2023 ITF.
This issue matters because it impacts the effective date for Mr. Hoffman's stroke residuals, ED, and SMC. As stated, Mr. Hoffman applied for service connection for stroke and ED in July 2023. But he submitted his ITF in February 2023. So, if the ITF counted as his date of claim, he'd be looking at roughly six more months of benefits.
Hence, having prevailed on his claim for service connection for stroke residuals and ED, as well as entitlement to SMC based on loss of use of a creative organ, Mr. Hoffman believes that VA assigned him the wrong effective date. R. at 855.
As we said, before filing the three claims at issue, Mr. Hoffman had been denied benefits for a kidney disability, bilateral hearing loss, and Meniere's disease. R. at 193 -95. These initial denials preceded his February 2023 ITF. And it was these three claims that Mr. Hoffman pursued through his May 2023 supplemental claim. R. at 2373. Because these claims came before the ITF, the date of claims for these disabilities was already earlier than the February 2023 date of the ITF and could not benefit from the ITF.
Then came the claims that matter here. In July 2023, and still within 1 year of the February 2023 ITF, Mr. Hoffman submitted his initial claim for stroke residuals and ED. R. at 2317-22. Along with that filing, he specifically asked VA to "establish this claim in association with the February 28, 2023, Intent to File." R. at 2316. He didn't get what he asked for.
VA granted the claims. But it didn't associate them with the ITF. In its December 2023 rating decision granting service connection for stroke residuals and ED and awarding SMC, VA set a July 21, 2023, effective date for all three benefits. R. at 869-71. This was the date that VA received Mr. Hoffman's application for service connection for stroke residuals and ED. Id. As we
said, Mr. Hoffman disagrees with this effective date. And he took this disagreement all the way to the Board and now this Court. R. at 99.
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 24-7834
ROBERT F. HOFFMAN, APPELLANT,
V.
DOUGLAS A. COLLINS,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued May 12, 2026 Decided August 24, 2026)
C. Nicholas Scripter, with whom Grace Hurley was on the brief, both of Providence, Rhode Island, for the appellant.
Daniel B. Hausman, with whom James S. C. Baehr, General Counsel; David L. Quinn, Assistant Chief Counsel; and James B. Cowden, Deputy Chief Counsel, were on the brief, all of Washington, D.C., for the appellee.
Before PIETSCH, FALVEY, and JAQUITH, Judges.
FALVEY, Judge, filed the opinion of the Court. JAQUITH, Judge, filed a concurring opinion.
FALVEY, Judge: After a veteran prevails in a claim for benefits, VA sets the effective date—the date from which VA starts paying benefits—based on when the veteran filed the claim. An intent to file (ITF) is a tool that helps the veteran maximize that effective date. It lets the veteran tell VA that a claim is coming and, if the veteran follows through within a year, maximizes the veteran's benefits by associating the claim with the ITF and so tying the effective date to when the veteran first expressed the intent to file. But what happens when VA uses that tool in a way that does no good for one claim and prevents the veteran from using the ITF to secure several months of benefits for another, effectively wasting the ITF or acting as if it never existed?
That is what happened here. Air Force veteran Robert Hoffman filed an ITF in February 2023. A few months later, he filed a continuously pursued supplemental claim—a claim for the same or similar benefit filed within a year of an earlier denial—seeking review of earlier denials of service connection for kidney disease, hearing loss, and Meniere's disease. Then, still within a year of his ITF, he filed a new, initial, compensation claim for stroke residuals and erectile
dysfunction (ED). VA granted the stroke and ED claims, along with special monthly compensation (SMC) based on loss of use of a creative organ. But VA assigned July 21, 2023 —the date of the new compensation claim—as the effective date. Why? Because VA said that, under 38 C.F.R. § 3.155(d)(1)(ii), the continuously pursued supplemental claim was already associated with the February 2023 ITF. In effect, the ITF had been used by the time the initial claim came in.
That does not work. Congress told VA how to set the date of application for a continuously pursued supplemental claim filed within a year of a prior VA decision. The date of application is the date of the initial application for that benefit. So, applying the ITF framework to that kind of supplemental claim adds nothing. Worse, it can hurt the veteran by nullifying an ITF that otherwise would support an earlier effective date on a later claim filed within the same 1-year period.
Because Congress already decided the date of claim for a continuously pursued supplemental claim, we hold that VA may not apply § 3.155(d)(1)(ii) to associate a continuously pursued supplemental claim with an ITF when doing so would provide no effective-date benefit. Because the Board did just that here, it erred.
For Mr. Hoffman—who appeals from a September 26, 2024, Board of Veterans' Appeals decision—this means that the Board erred when it denied an effective date before July 21, 2023, for the grants of service connection for stroke residuals and ED, and of entitlement to SMC for loss of use of a creative organ based on ED. The correct date of application for Mr. Hoffman's claims stems from his ITF. And, because the Board found that he suffered from stroke residuals for that entire period—that is, at least since he filed his ITF—we can reverse the Board's denial of an earlier effective date and order VA to set the effective date to February 28, 2023. But, because the record is less clear about ED and the SMC claim depends on that claim, we can only set aside the Board's decision on those claims and remand them for further proceedings. 1
I. BACKGROUND
The dispute here is whether the effective date for the claims on appeal should go back to February 28, 2023—the date VA received Mr. Hoffman's ITF—or July 21, 2023, the date VA received his completed application. Record (R.) at 4-13, 2317-22, 2434. Mr. Hoffman believes his
1 Mr. Hoffman does not challenge the Board's denial of entitlement to (1) an initial compensable rating for ED; or (2) an initial rating above 10% for stroke residuals. Thus, we will dismiss the appeal as to these issues. See Pederson v. McDonald, 27 Vet.App. 276, 286 (2015) (en banc).
ITF should govern and the Secretary says that we have to go with the July 2023 application because VA had already associated a different claim with the ITF. To fully capture their disagreement, we first need to say more about the timeline of Mr. Hoffman's claims.
There are three important events that we need to keep in mind. First, Mr. Hoffman filed an ITF on February 28, 2023. R. at 2434. Second, in May 2023, he filed a VA Form 20-0995 Supplemental Claim Form challenging VA's denial of his kidney disability, bilateral hearing loss, and Meniere's disease claims—claims he had filed and continuously pursued for a couple of years. R. at 2373. And third, he filed his claim for service connection for stroke residuals and ED on July 21, 2023. R. at 2317-22. This case is about which filing—the May 2023 supplemental claim or the July 2023 claim—profits from the February 2023 ITF.
This issue matters because it impacts the effective date for Mr. Hoffman's stroke residuals, ED, and SMC. As stated, Mr. Hoffman applied for service connection for stroke and ED in July 2023. But he submitted his ITF in February 2023. So, if the ITF counted as his date of claim, he'd be looking at roughly six more months of benefits.
Hence, having prevailed on his claim for service connection for stroke residuals and ED, as well as entitlement to SMC based on loss of use of a creative organ, Mr. Hoffman believes that VA assigned him the wrong effective date. R. at 855.
As we said, before filing the three claims at issue, Mr. Hoffman had been denied benefits for a kidney disability, bilateral hearing loss, and Meniere's disease. R. at 193 -95. These initial denials preceded his February 2023 ITF. And it was these three claims that Mr. Hoffman pursued through his May 2023 supplemental claim. R. at 2373. Because these claims came before the ITF, the date of claims for these disabilities was already earlier than the February 2023 date of the ITF and could not benefit from the ITF.
Then came the claims that matter here. In July 2023, and still within 1 year of the February 2023 ITF, Mr. Hoffman submitted his initial claim for stroke residuals and ED. R. at 2317-22. Along with that filing, he specifically asked VA to "establish this claim in association with the February 28, 2023, Intent to File." R. at 2316. He didn't get what he asked for.
VA granted the claims. But it didn't associate them with the ITF. In its December 2023 rating decision granting service connection for stroke residuals and ED and awarding SMC, VA set a July 21, 2023, effective date for all three benefits. R. at 869-71. This was the date that VA received Mr. Hoffman's application for service connection for stroke residuals and ED. Id. As we
said, Mr. Hoffman disagrees with this effective date. And he took this disagreement all the way to the Board and now this Court. R. at 99.
In the September 2024 decision on appeal, the Board denied effective dates before July 21, 2023, for the stroke residuals, ED, and SMC. R. at 4-13. The Board recognized that VA received Mr. Hoffman's February 2023 ITF, May 2023 supplemental claim, and July 2023 VA Form 21- 526EZ. R. at 9. But the Board concluded that the May 2023 supplemental claim was associated with the February 2023 ITF because that was the first claim VA received after the ITF. R. at 10. Relying on 38 C.F.R. § 3.155(d)(1)(ii), the Board reasoned that, when VA receives multiple claims within 1year of an ITF, only the first claim can be associated with that ITF. Id. Because the Board treated the May 2023 supplemental claim as the first claim, it found that the ITF was effectively used up and the July 2023 application for benefits could not stem from the February 2023 ITF date. Id.
II. LEGAL FRAMEWORK
A. Section 5110
At its core, this case is about effective dates. Mr. Hoffman seeks an earlier effective date for his awards of service connection for stroke and ED, as well as his entitlement to SMC. Thus, we first chart the statutory provisions that govern how VA assigns effective dates.
By default, "the effective date of an award based on an initial claim, or a supplemental claim, . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application." 38 U.S.C. § 5110(a)(1). But there are several exceptions to this rule. One of them involves a "continuously pursued" claim. 38 U.S.C. § 5110(a)(2). For such claims, "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 [enumerated review options], either alone or in succession." Id.
Here, the only relevant review option is filing a supplemental claim. 38 U.S.C.
§ 5110(a)(2)(A)–(E). Do so within a year of the denial, and the effective date can be tied to the initial application. 38 U.S.C. § 5110(a)(2). This is a continuously pursued supplemental claim. Id. Wait more than a year, and the effective date is tied to the date of that supplemental claim. 38 U.S.C. § 5110(a)(3).
In other words, when setting effective dates, Congress told VA to pick the latter of the date of application or when facts confirm that entitlement arose. The distinguishing feature is how to decide the date of application. For the initial application, VA must go with the default rule—it anchors the effective date based on when the claimant first applied. That's subsection (a)(1). But a claimant who gets a denial might be able to continuously pursue that application by filing a supplemental claim within a year. This is continuous pursuit under (a)(2). And that opens up the possibility of continuing to use the original date of claim. Without continuous pursuit—in other words, if the claimant files another claim more than a year after VA's most recent decision —the earlier application date is lost and the new application date is the date of that supplemental claim.
Importantly, in section 5110(a)(2), Congress gave veterans a full year to file a supplemental claim. With this in mind, we turn to the regulation in which VA prescribed how veterans can initiate their claims.
B. 38 C.F.R. § 3.155
To that end, VA promulgated 38 C.F.R. § 3.155—aptly named, "How to file a claim." This regulation "describe[s] the manner and methods in which a claim can be initiated and filed." 38 C.F.R. § 3.155 (2026). And it is "applicable to all claims . . . , with the exception that paragraph (b) of this section, regarding intent to file a claim, does not apply to supplemental claims. " Id.
In paragraph (b) of § 3.155, VA established the ITF option. That regulation allows claimants to show their intent to file a claim by submitting an ITF to VA. 38 C.F.R. § 3.155(b). It also states that, "[i]f VA receives a complete application form prescribed by the Secretary, as defined in paragraph (a) of § 3.160, appropriate to the benefit sought within 1 year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received." Id.
In effect, filing an ITF starts the "application" process for purposes of calculating the effective date. 38 U.S.C. § 5110(a). With § 3.155(b), VA gave veterans a year to finalize their claim after filing an ITF.
We thus have two relevant 1-year periods. In section 5110, Congress gave veterans 1 year to establish continuous pursuit and tie an effective date to the initial application by filing a supplemental claim. And, in § 3.155(b), VA gave veterans 1 year to file a claim after filing an ITF to tie an effective date to the date of the ITF.
Section 3.155 includes additional provisions important to our discussion. For our analysis, it helps to include them in almost their entirety, down to the section titles.
(d) Claims.—(1) Requirement for complete claim and date of claim. A complete claim is required for all types of claims, and will generally be considered filed as of the date it was received by VA . . . .
(i) Supplemental claims. Upon receipt of a communication indicating a belief in entitlement to benefits that is submitted in writing or electronically on a supplemental claim form prescribed by the Secretary that is not complete . . . , the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the application form prescribed by the Secretary. If 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 . . . . (ii) For other types of claims. If VA receives a complete claim within 1 year of the filing of an intent to file a claim that meets the requirements of paragraph (b) of this section, it will be considered filed as of the date of receipt of the intent to file a claim. Only one complete claim for a benefit (e.g., compensation, pension) may be associated with each intent to file a claim for that benefit, though multiple issues may be contained within a complete claim. In the event multiple complete claims for a benefit are filed within 1 year of an intent to file a claim for that benefit, only the first claim filed will be associated with the intent to file a claim. In the event that VA receives both an intent to file a claim and an incomplete application form before the complete claim as defined in § 3.160(a) is filed, the complete claim will be considered filed as of the date of receipt of whichever was filed first provided it is perfected within the necessary timeframe, but in no event, will the complete claim be considered filed more than one year prior to the date of receipt of the complete claim.
38 C.F.R. § 3.155(d)(1).
These provisions all do different work. Section 3.155(d)(1) gives the default rules:
claimants need to file a complete claim, and a claim is considered filed when a complete claim is received. Clauses (i) and (ii) deal with exceptions to these default rules.
Section 3.155(d)(1)(i) indicates that, if a claimant files an incomplete supplemental claim, VA will provide notice that the claim is incomplete and give the claimant 60 days to file a complete claim; if VA gets that complete claim during that period, the date of claim will be the date of the incomplete filing. In other words, the regulation gives a 60 -day grace period for an incomplete supplemental claim, despite the (d)(1) requirement of a complete claim.
Section 3.155(d)(1)(ii) creates a much broader exception to the complete-claim rule by allowing 1 year to complete the application process started with an ITF. This regulation describes how VA handles complete filings submitted within a year of an ITF: Recognizing only one ITF at a time, VA will associate the first complete submission with an ITF for purposes of establishing the date of claim. If all is correct, the date of claim is up to a year before the completed claim was filed. With the statutory and regulatory provisions charted, we turn to case law.
C. MVA
As noted, in establishing § 3.155, VA decided "that paragraph (b) of this section, regarding intent to file a claim, does not apply to supplemental claims." 38 C.F.R. § 3.155. However, this part of the regulation did not last long; it was invalidated by the Federal Circuit in Military- Veterans Advocacy v. Secretary of Veterans Affairs (MVA), 7 F.4th 1110 (Fed. Cir. 2021). But that still left the provision saying that § 3.155 is "applicable to all claims."
In MVA, among other things, the Federal Circuit was asked to address VA's exclusion of supplemental claims from the ITF framework in § 3.155.
VA did not defend the regulation, promising instead to change it. MVA, 7 F.4th at 1146.
Because no change had yet materialized while the case was pending, the Federal Circuit invalidated the regulation. Id. at 1147. The Federal Circuit zeroed in on VA's faulty reasoning for treating supplemental claims differently than other claims. VA invoked the mandate from section 5110(a)(3) that the effective dates for supplemental claims "shall not be earlier than the date of receipt of the supplemental claim." Id. at 1146. But as the appellant in MVA noted (and the Federal Circuit agreed), section "5110(a)(1) likewise requires that the effective date of an initial claim 'shall not be earlier than the date of receipt of application.'" Id. And VA allowed an ITF for section 5110(a)(1) claims but not supplemental claims despite the nearly identical language. Id.
For its part, the Federal Circuit pointed out that even VA's own regulation —
§ 3.155(d)(1)(i)—allowed claimants to have an effective date for a 5110(a)(3) supplemental claim that was earlier than contemplated by the statute. Id. at 1147. Recall that this regulation gave a claimant 60 days to cure an incomplete supplemental claim with the completed application. 38 C.F.R. § 3.155(d)(1)(i). So rather than set the effective date based on the date of claim as required by its purported reading of 5110(a)(3), VA permitted an effective date up to 60 days earlier based on the incomplete filing.
In the end, the Federal Circuit concluded that, "[i]f 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." Id. And so, the Federal Circuit invalidated § 3.155's preamble, holding that VA acted arbitrarily and capriciously in excluding supplemental claims from the ITF framework. Id.
The Federal Circuit did not discuss how ITF and supplemental claims would work together.
And VA never completed the promised rulemaking. This void prompts the dispute here.
III. THE PARTIES' ARGUMENTS A. Mr. Hoffman's Arguments As noted, the Board associated Mr. Hoffman's supplemental claim with his February 2023 ITF under § 3.155(d)(1)(ii). Mr. Hoffman disagrees. He points out that, per their titles, paragraph (d)(1)(i) expressly deals with supplemental claims and paragraph (d)(1)(ii) deals with "other types of claims." Appellant's Brief (Br.) at 7-8. Thus, he argues that VA's own regulation excludes supplemental claims from (d)(1)(ii). Id. And he contends that MVA's inclusion of supplemental claims in the ITF framework does not hold otherwise because the Federal Circuit did not modify (d)(1)(i) or (d)(1)(ii), thus leaving VA's exclusion of supplemental claims from (d)(1)(ii) in place. Id. at 10. As Mr. Hoffman sees it, his ITF does not impact his supplemental claim. Id. at 8. What's more, VA had no reason to apply the ITF provisions to his supplemental claim because Congress expressly spoke to what happens to supplemental claims filed within a year in section 5110(a)(2). Id.
Finally, Mr. Hoffman contends that, even if VA correctly interprets § 3.155(d)(1)(ii), VA waived the regulation's applicability to him because VA told him to file a specific form within a year of his February 2023 ITF with the promise that this would protect his effective date. Id. at 15. Mr. Hoffman emphasizes that, as VA suggested, he filed that form. Reply Br. at 6. He insists that VA is now reneging on that promise by refusing to associate his July 2023 application for benefits with that form. Appellant's Br. at 16.
Regardless of how we construe § 3.155(d)(1)(ii), Mr. Hoffman says that we can reverse the Board decision and award his earlier effective date. Id. at 12-14.
B. The Secretary's Retort The Secretary has a much different take—he believes that MVA controls. Secretary's Br. at 4. In his view, the Federal Circuit decided that the ITF framework covers supplemental claims. And § 3.155(d)(1)(ii) is part of that framework. Thus, the regulation applies and the Board did not err in how it applied the regulation. Id. at 4-11.
Even so, he concedes that remand is warranted for the Board to decide whether VA might have treated Mr. Hoffman unfairly when it told him to file a specific form to get an earlier effective date based on his ITF and then denied him the effective-date benefit of that ITF. Id. at 11-14.
IV. ANALYSIS
A. The Secretary's Concession We start where the Secretary ends—his suggestion that remand is appropriate based on fairness. The Secretary spends little time on this argument and neither do we. If the Secretary intended to invoke fair process, we recently explained that our fair process doctrine is not a license to invent rights; it is a recognition that due process applies to the VA claim system. Bilharz v. Collins, 38 Vet.App. 366, 379 (2025). And the Secretary does not argue that this situation fits within any recognized due process analysis. Thus, to find a reason to remand, "we would have to create it. And having 'sworn off the habit' of" inventing brand-new rights, "'we will not accept [the Secretary's] invitation to have one last drink."' FS Credit Opportunities Corp. v. Saba Cap. Master Fund, Ltd., 146 S. Ct. 1546, 1555 (2026). The attempted concession is simply too underdeveloped. See Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain underdeveloped arguments); Evans v. West, 12 Vet.App. 22, 31 (1998) (noting that the Court will disregard vague assertions and unsupported contentions).
Putting that aside, Mr. Hoffman does not want a remand. He argues for reversal. His primary point is that VA can't apply the regulation to him, not that it shouldn't have out of a sense of fairness. To accept the Secretary's concession, we'd effectively have to accept his premise that VA was right about § 3.155(d)(1)(ii) but wrong in its execution as to Mr. Hoffman's claim. In other words, the fairness issue is relevant only if we first decide that § 3.155(d)(1)(ii) applied to Mr. Hoffman's supplemental claim. And, as we discuss below, it doesn't.
B. Mr. Hoffman's Waiver Argument Similar problems apply to Mr. Hoffman's waiver argument. Generally, waiver requires a knowing and voluntary relinquishment of a legal right. Bolds v. McDonough, 37 Vet.App. 359, 366 (2024). Mr. Hoffman does not explain why the Board would have had to consider whether some agent of VA engaged in a knowing and voluntary waiver of the applicability of § 3.155(d)(1)(ii) to Mr. Hoffman's claim. And, with no suggestion of such an act in the record, we have trouble understanding why the Board should have addressed the matter. See Robinson v. Peake, 21 Vet.App. 545, 552-53 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).
Waiver and forfeiture do not arise every time a government employee errs or fails to take an action. Waiver generally requires some knowing and voluntary relinquishment of a legal right; forfeiture looks to whether the government pressed the right to correct a mistake at the appropriate time. See Hunter v. United States, 146 S. Ct. 1702, 1710 (2026) (discussing waiver and forfeiture and explaining that "[s]taying silent—as here, not picking a fight—does not qualify" and that the government did not forfeit a right when it properly pressed it on appeal or further review). Nothing here suggested to the Court that anything resembling a knowing and voluntary relinquishment took place. And we're here precisely because VA chose to apply the regulation to Mr. Hoffman when it made that decision, so forfeiture doesn't make sense either.
But, as with the Secretary's concession, we need not dwell on these issues. Both matter only if VA was right about the regulation. If the regulation simply does not apply to supplemental claims, there is nothing to waive. Thus, despite a concession of remand from VA and an alternate argument from Mr. Hoffman, we must resolve whether § 3.155(d)(1)(ii) applies to supplemental claims. And if we agree with the Secretary that it does, we would then need to resolve Mr. Hoffman's argument that the regulation clashes with the statute. We ultimately don't agree with VA, so we won't resolve the waiver or fairness arguments; this case resolves on the statute and the regulation before we get to these other arguments.
C. Supplemental Claims and § 3.155(d)(1)
As with any regulatory interpretation, we start with the text. See Simon v. Wilkie, 30 Vet.App. 403, 409 (2018). Mr. Hoffman tells us that we can quickly end our inquiry because of the subsection titles. He emphasizes that VA wrote paragraph (d)(1)(i) to talk about "supplemental claims" and paragraph (d)(1)(ii) to talk about "other types of claims."
We included this regulation in its entirety to help us review this argument. On the surface, it makes a lot of sense. We have "supplemental claims" and we have "other claims" and each has their own regulatory sections. 38 C.F.R. § 3.155(d)(1). But "a title alone is not controlling." INS v. St. Cyr, 533 U.S. 289, 308 (2001). The title isn't the text; it becomes relevant context when resolving textual ambiguity. Pennsylvania Dept. of Corr. v. Yeskey, 524 U.S. 206, 212 (1998). Thus, we can't simply look to the title. We must read the whole regulation. Id.
Doing so here, we see that paragraph (d)(1)(i) addresses what VA does when it receives an incomplete supplemental claim. It does not focus on all supplemental claims. Complete supplemental claims are only mentioned to elaborate on VA's treatment of the incomplete claims. The focus of the regulation remains incomplete supplemental claims.
Turning to (d)(1)(ii), we see no similar focus on one type of claim. Instead, the regulation addresses what VA does when it receives an ITF and then a complete claim form—exactly the situation here. The regulation seemingly applies to all such claims.
And the title confirms that. As stated, paragraph (d)(1)(i) explains what VA does when a veteran submits an incomplete supplemental claim. And the title of paragraph (d)(1)(ii) tells us that it addresses "other types of claims"—that is, claims other than incomplete supplemental claims, i.e., complete claims—and the text of the regulation explains that, if VA receives such a complete claim within a year of the ITF, it will be considered as filed on the date of the ITF.
We also can't ignore that paragraph (d)(1)(ii) is part of the ITF framework. It is VA's regulation that lays out how VA will process an ITF. And the Federal Circuit has held that supplemental claims are part of that framework. MVA, 7 F.4th at 1146. True, MVA only invalidated the exclusion of supplemental claims from § 3.155(b)—the part of the regulation that effectively created the ITF framework—but that part is a key element of § 3.155(d)(1)(ii). Id. at 1147.
The first sentence of § 3.155(d)(1)(ii) expressly references paragraph (b) when it tells us that, "[i]f VA receives a complete claim within 1 year of the filing of an intent to file a claim that meets the requirements of paragraph (b) of this section, it will be considered filed as of the date of receipt of the intent to file a claim." The regulation then discusses what happens with such a paragraph (b) compliant claim: "Only one complete claim for a benefit (e.g., compensation, pension) may be associated with each intent to file a claim for that benefit" and, if "multiple complete claims for a benefit are filed within 1 year of an intent to file a claim for that benefit, only the first claim filed will be associated with the intent to file a claim. " Id.
In effect, paragraph (d)(1)(ii) is entirely about how VA will process an ITF and compliant claims under paragraph (b). And the relevant part of MVA concerned only whether supplemental claims were excluded from paragraph (b). MVA, 7 F.4th at 1146-47. The Federal Circuit wanted to ensure that supplemental claims worked with the ITF framework. Id. And § 3.155(d)(1)(ii) is how VA makes those ITF claims work.
All to say that we disagree with Mr. Hoffman that his argument about the section titles carries the day. Particularly after MVA, paragraph (d)(1)(ii) tells us what VA does when it receives an ITF, which can apply to supplemental claims. Paragraph (d)(1)(i) kicks in, as its text tells us, only when VA receives an incomplete supplemental claim.
If this plain reading of the regulation left any doubt, we can reinforce it by going back to the beginning. Recall that the regulation first says that it is "applicable to all claims." 38 C.F.R. § 3.155. With the exclusion of supplemental claims gone after MVA, we see no reason to think that VA wanted to further carve supplemental claims out when a natural reading of the text would include them. Section 3.155(d)(1)(ii) says how VA applies an ITF to all complete claims; it does not exclude complete supplemental claims.
D. Section 5110(a)(2)
With Mr. Hoffman's regulatory argument gone, all that remains is his statutory challenge.
He tells us that, when it comes to continuously pursued supplemental claims, there is nothing for VA to do with an ITF regulation if a veteran has filed his or her supplemental claim within a year. Mr. Hoffman's argument relies on the concept that agencies lack authority to act on an issue if Congress has expressly spoken on a matter. See White v. United States, 543 F.3d 1330, 1338 (Fed. Cir. 2008) ("Since Congress has spoken on the issue, the agency is not free to regulate."). So let's revisit what Congress said about continuously pursued supplemental claims.
Congress told VA that "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." 38 U.S.C. § 5110(a)(2). Thus, we know that if there's a continuously pursued supplemental claim, the date of the claim is the date of the initial application for that benefit. Now we must see if the regulation jibes with that construction.
Recall that § 3.155(d)(1)(ii) says that, if VA receives a claim within 1 year of the ITF, "it will be considered filed as of the date of receipt of the [ITF]." 38 C.F.R. § 3.155(d)(1)(ii). And so, under the regulation, the date of filing for a continuously pursued supplemental claim becomes the
date of filing of the ITF. But we know that Congress said that for the continuously pursued supplemental claim, this date is actually "the date of the filing of the initial application." 38 U.S.C. § 5110(a)(2). And as we've said, if Congress has supplied the rule, there is nothing left for an agency to do with rulemaking. White, 543 F.3d at 1338.
That has a real-world impact here. There is nothing for the ITF to do when it comes to deciding the effective date for a continuously pursued supplemental claim, because Congress has already set a rule that's better for veterans. And this will always be true. Regarding a continuously pursued claim that VA could attempt to associate with an ITF, the ITF will always come between the initial claim and the continuously pursued one. Otherwise, the ITF would come before the initial claim and that claim would be associated with the ITF, or come after the supplemental claim and apply to neither. Thus, the date of claim based on the initial claim will always favor the veteran more than the date an ITF is filed. That is how time works.
Contrast this with what an ITF does for claimants under sections 5110(a)(1) and 5110(a)(3). Those claimants benefit from having their date of application anchored by the ITF if they file the ITF at any time up to a year before they file those claims. The ITF does work there and that work is beneficial.
This is why the Federal Circuit's decision in MVA focused so heavily on VA's inconsistent treatment of 5110(a)(1) claims and 5110(a)(3) claims under the ITF framework. The ITF framework could benefit claimants who satisfied both statutory provisions, and VA provided no reason for excluding the 5110(a)(3) supplemental claims from that benefit. But no such benefit arises when a claimant files a supplemental claim within a year under section 5110(a)(2); this is presumably why the Federal Circuit did not mention section 5110(a)(2) when striking down the exclusion of supplemental claims from the ITF framework. This lack of any benefit for section 5110(a)(2) claims perhaps could be a useless feature of the regulatory scheme, but VA associating a section 5110(a)(2) supplemental claim with an ITF does harm. It effectively takes that ITF and renders it as if it were never filed; the ITF doesn't help the supplemental claim and it can't help any subsequent claims.
For Mr. Hoffman, nullifying that ITF cut off several months of potential benefits. VA says it associated his May 2023 supplemental claim with the February 2023 ITF. But that's not true. VA never awarded him the effective date based on that ITF, and for good reason—the initial dates of application for all the disabilities involved in the continuously pursued supplemental claim
predated the ITF. But if VA had associated the July 2023 claim for stroke residuals, ED, and SMC to his February 2023 ITF, the effective date for those disabilities could be February 2023 rather than July 2023. Thus, Mr. Hoffman's case perfectly exemplifies the problem with applying § 3.155(d)(1)(ii) to a section 5110(a)(2) supplemental claim. But it is easy to think of another example.
Recall that Congress gave veterans a year from their last VA decision to file a supplemental claim. 38 U.S.C. § 5110(a)(2). And VA has decided that veterans who use an ITF have a year after the ITF to complete their claims. 38 C.F.R. § 3.155(b). Both provisions give veterans a one-year grace period to complete a claim and still protect the effective date by anchoring it to the initial claim for continuously pursued supplemental claims or to the ITF for initial claims. But veterans who file a supplemental claim and an initial claim inexplicably get neither one-year grace period. Once the veteran receives a denial, there is no way to structure an ITF for a new claim and the filing of a continuously pursued supplemental claim in such a way as to use the one-year grace period for both options.
Consider three veterans, Able, Baker, and Charlie, sitting down to dinner on February 1, 2026. Able mentions that she's collecting evidence to help prove her in-service injury for a respiratory claim that VA denied on August 1, 2025, after she filed it on January 2, 2025. The process is taking her awhile, but she knows that she still has 6 months of her year left to file her supplemental claim under section 5110(a)(2) and keep her potential effective date anchored to the January 2, 2025, claim.
Baker realizes that he needs to file a claim for service connection of a back injury from a crash. He knows that he needs to collect evidence of his in-service injury. Thanks to his friends pointing out that he can use an ITF, he begins VA's online application that night to preserve his effective date. He thus has one year from February 1, 2026, to finish his claim under § 3.155(b) and, if he does so, his effective date can be based on the ITF and start that day.
Charlie, like Able, is working on gathering evidence to file her supplemental claim following an August 1, 2025, denial of her initial claim. They applied together. She knows she'll need every day of her one-year continuous pursuit deadline to help prove her claim. But Charlie also got injured alongside Baker. She would like to submit the same claim. The problem is that, if Charlie files an ITF, she will waste that ITF by filing her supplemental claim within the next 6 months because the supplemental claim will be associated with the ITF. Charlie has no way to
secure her effective date on her new claim like Baker while also leveraging her full statutory time to file a continuously pursued supplemental claim like Able.
Perhaps Charlie could file her ITF and hope that she'll be able to file her new claim before her deadline to file a supplemental claim. But, as it stands, she can neither take her full time to seek review like Able nor take her full time to file her initial claim like Baker, at least not without giving up the benefit of one of the effective date protections. VA has deprived her of both the statutory and regulatory timelines and the associated effective date protections.
As stated, VA can neither truncate the congressional timeline to file a supplemental claim nor apply the ITF regulation to award a less favorable effective date—the date of the ITF—rather than the more favorable and congressionally mandated "date . . . of the initial application." 38 U.S.C. § 5110(a)(2). Thus, VA has no way to apply the ITF framework for any substantive purpose once a veteran has filed a section 5110(a)(2) supplemental claim. Using the ITF framework for a continuously pursued supplemental claim would mean setting the effective date based on the filing of the ITF, but the statute already anchors the effective date to the earlier and more favorable date of the initial application. VA can't violate the statute. The ITF regulation, particularly § 3.155(d)(1)(ii), does nothing useful for these supplemental claims. Thus, it makes no sense for these supplemental claims to stem from an ITF under § 3.155(d)(1)(ii).
When it includes continuously pursued supplemental claims, § 3.155(d)(1)(ii) hinders veterans who have both claims to continuously pursue with timely supplemental claims and new claims that begin with an ITF—that is, veterans like Mr. Hoffman. Those veterans have no way to file both a supplemental claim and an ITF while still using their full one-year filing period. VA offers no good reason, nor can we conceive of one, for why it needs to apply § 3.155(d)(1)(ii) to waste an ITF when a veteran files a section 5110(a)(2) supplemental claim. Having a regulation that forces veterans to surrender their congressionally granted timeline to seek review or their regulatory ability to file an ITF, all without any benefit, strikes us as "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 38 U.S.C. § 7261(a)(3)(A).
Thus, even though we agree with the Secretary that § 3.155(d)(1)(ii) contemplates section 5110(a)(2) supplemental claims, we diverge because the regulation is invalid to the extent that it applies to continuously pursued claims. In other words, MVA requires filers of supplemental claims to have access to the ITF framework when the ITF can benefit them; it does not require VA to apply an ITF to a continuously pursued supplemental claim when Congress already supplies an
earlier application date, and applying the ITF to that supplemental claim would either conflict with the statute or only harm the claimant by taking away the ability to use an ITF for a new claim.
This leads us to conclude that VA exceeds its legal authority when it would apply the ITF framework, including § 3.155(d)(1)(ii), to a continuously pursued supplemental claim. VA can't impose the date of filing of the ITF as the date of application for a 5110(a)(2) supplemental claim; Congress spoke to that date of claim, and we can't permit VA to ignore that. See 38 U.S.C. § 7261(a)(3)(C) (requiring this Court to strike down actions and regulations of the Secretary that are "in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right"). And if the regulation simply wastes an ITF on a supplemental claim and prevents veterans from using the ITF for new claims without any justification, it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 38 U.S.C. § 7261(a)(3)(A). Either way, VA's actions cannot stand.
Leaving veterans who have both supplemental claims to continuously pursue and new claims to initiate with an ITF out of the effective-date-protection dinner party without any reason is exactly the kind of arbitrary line-drawing that the Federal Circuit struck down in MVA. We think it appropriate to continue in that spirit today.
At the same time, we recognize that § 3.155(d)(1)(ii) does not identify continuously pursued supplemental claims. We do not think that VA intended the odd situation it defends today; VA never meant to apply ITF to any supplemental claims. Still, we enforce laws, not subjective intent. Kisor v. Wilkie, 588 U.S. 558, 619 (2019) (Gorsuch, J., concurring in the judgment) ("[I]f the rule of law means anything, it means that we are governed by the public meaning of the words found in statutes and regulations, not by their authors' private intentions."); United States v. Smith, 100 F.4th 1244, 1250 n.6 (10th Cir. 2024). And VA wrote a generally applicable regulation that pulls in continuously pursued supplemental claims in the wake of MVA. No matter what VA originally intended, § 3.155(d)(1)(ii) is invalid as applied to such section 5110(a)(2) supplemental claims. With this legal question settled, we turn to Mr. Hoffman's case.
E. Application to Mr. Hoffman Now that we know that Mr. Hoffman's continuously pursued supplemental claim is not what should have been associated with his ITF, the valid application of § 3.155(d)(1)(ii) kicks in and Mr. Hoffman's effective date can be based on his February 2023 ITF. Taking that as the date of application for purposes of section 5110(a)(1), Mr. Hoffman asks that we reverse the Board's
denial of an earlier effective date because he qualifies for those benefits as of the date of his February 2023 ITF.
Of the three effective dates at issue, the stroke-residuals date is easiest. As Mr. Hoffman points out, the Board expressly found that he suffered a stroke in 2018. R. at 6. But the Board made no such findings about his ED. See R. at 6-10.
We're generally prohibited from finding facts when the Board did not make the initial findings. That said, "even if the Board did not resolve an issue, we can resolve facts 'if it is clear that the factual basis for such conclusion is not open to debate and the Board on remand could not have reached any other determination on that issue.'" Willen v. Collins, 38 Vet.App. 259, 271 (2025) (quoting Tadlock v. McDonough, 5 F.4th 1327, 1336 (Fed. Cir. 2021)). Here, Mr. Hoffman says that there can be no dispute that he had ED before February 2023. Appellant's Br. at 13. We disagree.
It is true that, when applying for service connection, Mr. Hoffman stated that his ED began in 2008, R. at 2319, which is undoubtedly before February 2023. And, at a November 2023 VA exam, Mr. Hoffman reported the onset date as 2003—again, before February 2023 even if inconsistent with his earlier representation. R. at 1651. That discrepancy alone wouldn't prevent reversal because both dates are well before February 2023. Still, the VA examiner pinned the date of Mr. Hoffman's ED diagnosis as November 2023. Id. But, during a stroke exam that same day, the same examiner concluded that Mr. Hoffman did not have ED. R. at 1666. So, contrary to what Mr. Hoffman says about the lack of dispute, the evidence tells us that Mr. Hoffman developed ED before he filed his ITF, after he filed his ITF, and not at all.
Even if the November 2023 date of diagnosis notation and that same examiner's contrary notation about ED in the stroke exam are explicable, that is an explanation that we must leave to the Board on remand. See Wiker v. McDonough, 36 Vet.App. 119, 131 (2023) (remanding for the Board to make an initial finding of fact about when the disability first began). And because the SMC effective date depends on the ED effective date, we must remand the SMC claim as well. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (holding that, when "two claims are sufficiently intertwined . . . they should be considered together").
V. CONCLUSION
Based on the above, that part of the September 26, 2024, Board decision concluding that 38 C.F.R. § 3.155(d)(1)(ii) applied to Mr. Hoffman's continuously pursued supplemental claim is REVERSED. The Board's denial of an effective date before July 21, 2023, for stroke residuals is REVERSED and the matter is REMANDED for VA to assign an effective date of February 28, 2023, for this award. Those parts of the Board decision denying an effective date before July 21, 2023, for ED and SMC are SET ASIDE and the matters are REMANDED for VA to award an effective date based on the February ITF anchoring the date of claim. The appeal is otherwise DISMISSED.
JAQUITH, Judge, concurring: I agree with the majority's holdings that (1) "the Board erred when it denied an effective date before July 21, 2023, for the grants of service connection for stroke residuals and ED, and of entitlement to SMC for loss of use of a creative organ based on ED"; (2) "[t]he correct date of application for Mr. Hoffman's claims stems from his ITF"; (3) because the Board found that Mr. Hoffman suffered from stroke residuals from at least since he filed his ITF, "we can reverse the Board's denial of an earlier effective date and order VA to set the effective date to February 28, 2023"; and (4) "because the record is less clear about ED and the SMC claim depends on that claim, we can only set aside the Board's decision on those claims and remand them for further proceedings." Ante at 2. Based on that agreement, I concur in the Court's judgment as set forth in the conclusion paragraph. I write separately because I find the majority's summary dicta 2 regarding waiver to be wrong and regarding fairness to be alarming, and therefore emphasize that the majority's waiver and fairness dicta should not be misconstrued to have any precedential effect.
A. Waiver
The majority acknowledges (and summarily dismisses) the Secretary's remand concession and the veteran's waiver argument without addressing the factual underpinning for each position.
2 "Dictum is language in an opinion that is unnecessary to the decision in a case and therefore nonbinding in future cases." Mayfield v. McDonough, 36 Vet.App. 251, 259 (2023). In the words of the Supreme Court, "[d]ictum settles nothing, even in the court that utters it." Jama v. Immig. & Cust. Enf't, 543 U.S. 335, 351 n. 12 (2005). The majority acknowledges that the Court does not "resolve the waiver or fairness arguments," ante at 10, so its statements about them are dicta.
Regarding waiver, the majority asserts that the record reflects no suggestion that an agent of VA "engaged in a knowing and voluntary waiver of the applicability of § 3.155(d)(1)(ii) to Mr. Hoffman's claim," and that Mr. Hoffman does not explain why the Board would have had to consider that issue. Ante at 10. However, the veteran did, contrary to the majority's assertion, point out VA's knowing and voluntary waiver: (1) that VA knew and applied its own regulation in responding, on March 2, 2023, to the veteran's submission of his intent to file a claim by telling the veteran that, for VA to process his claim, he "must complete, sign, and return a VA Form 21- 526EZ, Application for Disability Compensation and Related Compensation Benefits," R. at 2429, and (2) that "the [v]eteran was entitled to take VA at its word." Appellant's Br. at 15-16. See Jackson v. Nicholson, 19 Vet.App. 207, 210 (2005) (noting "the premise that the Secretary, aware of his own regulations," knows what its terms mean), aff'd, 449 F.3d 1204 (Fed. Cir. 2006).
It is self-evident that VA knows the regulation it promulgated and intends to and does voluntarily implement the regulation by applying it to specific cases. See 38 U.S.C. §§ 501(a) ("The Secretary has authority to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws, including--. . . (2) the forms of application by claimants under such laws); 511(a) ("The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans.").
The Secretary also has the statutory authority to prescribe specific forms to be filed to claim veterans benefits, 38 U.S.C. § 5101(a), and to prescribe rules and regulations regarding such forms, 38 U.S.C. § 501(a). VA exercised that authority by revising 38 C.F.R. § 3.155 to mandate specific forms—the VA Form 21-0996 for written expressions of the intent to file a claim—and promised that, upon receipt of the ITF form, "VA will notify the claimant and/or the authorized representative of any information necessary to complete the formal application form, such as a VAF 21-526EZ and, as statutorily required pursuant to 38 U.S.C. [§] 5102, VA will furnish the claimant with the appropriate application form(s) as claimant indicates on the 21 -0966." Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,667 (Sep. 25, 2014). VA's commitment to furnish the appropriate application form was spelled out in 38 C.F.R. § 3.155(b) (2015). See Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,667 (Sep. 25, 2014). Section 3.155 unequivocally authorizes the Secretary to accept an intent to file a claim submitted in writing on
the prescribed form, requires the Secretary to take responsive steps, and authorizes the Secretary to consider a complete claim filed within 1 year of the ITF to have been filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b).
"'VA's regulations are akin to claims-processing rules insofar as they govern the processing of cases but do not implicate the agency's jurisdiction.'" Bolds v. McDonough, 37 Vet.App. 359, 366 (2024) (quoting Hall v. McDonough, 34 Vet.App. 329, 333 (2021) (holding that "regulations are not jurisdictional in nature as only Congress may confer or withdraw jurisdiction"). As claims- processing rules, the provisions of § 3.155 "are subject to Secretarial waiver." Bolds, 37 Vet.App. at 367. The Secretarial waiver here was similar to the one in Bolds.
On February 28, 2023, the veteran submitted, on the prescribed intent to file a claim form, VA Form 21-0966, his intent to file a claim for compensation. R. at 2434. That form says: "IMPORTANT: After receiving this form, VA will give you the appropriate application to file for the general benefit you select above"—in this case, compensation. Id. The cover letter by the veteran's attorney enclosing the form also specified that, "Mr. Hoffman intends to file a claim for entitlement to compensation." R. at 2433.
On March 2, 2023, VA responded: We received your intent to file on February 28, 2023. You indicated you would like to file a claim for compensation. . . .
....
In order for us to begin processing your claim for compensation, you must complete, sign, and return a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. . . .
We will take no further action until we receive your completed application.
R. at 2429.
The March 2, 2023, responsive letter the veteran highlighted was an official letter from a VA regional office (RO) director, R. at 2429-31, who is the leader of the activity that renders "the original determination with regard to a claim for benefits under laws administered by the Secretary.'" Loyd v. Collins, 38 Vet.App. 234, 236 n.4 (2025) (quoting 38 U.S.C. § 101(34)); see 38 U.S.C. § 726(a)(1) (listing RO directors first on a listing of "high -level employees"); Smith v. Brown, 10 Vet.App. 330, 332 (1997) ("[T]his Court has jurisdiction to review only those final [Board] benefits decisions prior to which a [Notice of Disagreement] was filed on or after
November 18, 1988, as to an underlying decision of an RO or other agency of original jurisdiction."). The RO director's March 2, 2023, letter did not fulfill VA regulatory responsibilities; it satisfied neither the requirement that "[u]pon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary," nor the requirement that the Secretary "shall notify the claimant and the claimant's representative, if any, of the information necessary to complete [that application form]." 3 38 C.F.R. § 3.155(b). There is not a scintilla of evidence or argument even hinting that either the inadequacy of the RO director's letter or its mandatory directive was a product of coercion, deception, or anything other than knowing, voluntary, and intentional decisionmaking applying § 3.155(b).
VA well knew its statutory and regulatory obligations and commitments and voluntarily chose how to proceed—by requiring the claimant to locate, obtain, and then "complete, sign, and return a VA Form 21-526EZ" to be able, if awarded benefits, to be compensated from the date VA received his intent to file. R. at 2429. Far from staying silent, VA directed the action. Cf. Hunter v. United States, 146 S.Ct. 1702, 1710-11 (2026) (holding that the government does not waive an appeal waiver agreement with the defendant by failing to correct a court's misstatement of it).
On July 21, 2023, the veteran did what VA told him to do —he completed, signed, and returned a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, claiming entitlement to service connection for his stroke and ED. R. at 2317-22. His attorney's cover letter enclosing the application form specifically said, "Please establish this claim in association with the February 28, 2023 Intent to File and begin any development necessary for this case." R. at 2316. VA did not do so. In providing a mandatory directive to the veteran regarding how to proceed following his submission of his intent to file form, VA clearly communicated that a VA Form 21-526EZ was the "appropriate application form" to be associated with the intent to file. See 38 C.F.R. § 3.155(b). The RO director's March 2023 letter "contain[ed] an unqualified and unequivocal statement" that the ITF would apply only to a VA Form 21-526EZ, see Bolds, 37 Vet.App. at 367. As a result, VA was bound by its own regulation and could not subsequently disregard its instruction to the veteran after he had already relied on and complied with that instruction. In Bolds, the Secretary could not impose an evidentiary record
3 The March 2, 2023, letter reflected VA's policy and practice to require specific forms but not furnish them, instead pointing the claimant to a website to obtain the required forms—notwithstanding the statutory mandate and VA's regulatory commitment to furnish them. See Ripley v. Collins, 38 Vet.App. 164, 178, 184-91 (2025) (en banc) (Jaquith, J., dissenting).
restriction after waiving it by agreeing that the appellant "may submit additional argument and evidence" on remand. Id. Here, VA waived its option to associate the veteran's intent to file with his supplemental claim after explicitly telling him he had to file a compensation claim on a specific form—which he timely did—to obtain the effective date benefit from association with his intent to file. Although the Secretary acknowledged that the March 2023 letter was "potentially misinformative," Secretary's Br. at 12, it is "misinformative" only if VA is allowed to go back on its word and attach the ITF to a supplemental claim, rather than the veteran's VA Form 21-526EZ.4 B. Fairness
The Secretary acknowledges that remand is warranted because the Board failed to provide an adequate statement of reasons or bases for its decision denying the veteran an earlier effective date for his disability compensation claims, in that the Board did not address VA's March 2, 2023, letter at all. Secretary's Br. at 3, 11-12. The Secretary says the Court should remand the matter "for the Board to address the fairness of the March 2023 VA letter," id. at 3, which the Secretary characterizes as "potentially misinformative," id. at 12, so he asserts that "the underlying concepts of procedural regularity and basic fair play of the VA benefits adjudicatory system could come into play," id. at 14. The Secretary's acknowledgement of the underlying "procedural regularity and basic fair play of the VA benefits adjudicatory system" as guardrails is expressly grounded on Gonzales v. United States, 348 U.S. 407, 412 (1955), and Thurber v. Brown, 5 Vet.App. 119, 123 (1993)—the cases which, with the Due Process Clause of the U.S. Constitution, are foundation stones for what has, for over three decades, been referred to as "fair process." See, e.g., Austin v. Brown, 6 Vet. App. 547, 551-52 (1994) (embracing the "fair process" principle the Court implicitly relied on in Thurber and seconding Thurber’s reliance on the Supreme Court's invocation, in Gonzales, of "underlying concepts of procedural regularity and basic fair play ").
4 The Secretary's assertion that VA "always adjudicated the July 2023 initial claims" pursuant to § 3.155(d)(1)(ii), Secretary's Br. at 13, assigning July 2023 effective dates, see R. at 857-73, 877-79, demonstrates the harm, not the absence of waiver. As the Court found in Bolds, a December 2021 Board letter instructing the veteran that she could not submit additional evidence did not undo the prior Secretarial waiver of the evidentiary record limitations contained in section 7113(b) and § 20.302(a) because "the Board was not free to sua sponte reinstate the evidence submission limitations that the Secretary waived in the JMPR." Bolds, 37 Vet.App at 369-70. Here, VA was not free to assign the ITF to the supplemental claim after instructing the veteran to file a compensation claim to attach to the ITF.
1. Bilharz
The majority casts the Secretary's remand concession as "underdeveloped," ante at 9, which might be an accurate characterization absent any information about the March 2023 letter or the law. In context, the majority apparently means "unwelcome," as the majority glibly mischaracterizes the Court's fair process caselaw and summarily overstates the holding in Bilharz v. Collins, 38 Vet.App. 366, 379 (2025)—all in one sentence. Ante at 9. The majority says, "we recently explained that our fair process doctrine is not a license to invent rights; it is a recognition that due process applies to the VA claim system." Id. Indeed, in Bilharz, the author of the majority opinion here joined the Chief Judge in saying that "it is clear to us that our fair process jurisprudence is best understood as being coextensive with well-established constitutional due process doctrine," but they hastened to add that "[n]othing in this opinion should be construed to suggest that we are overruling any precedent of this Court concerning the fair process doctrine." 38 Vet.App. at 379 n.80. That was a necessary disclaimer because it is well-settled that a panel may not render a decision that conflicts materially with an earlier panel decision —"[o]nly the en banc Court may overturn a panel decision." Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992). However, the significant conflict between the majority's declaration and this Court's precedent is unmistakable. In this circumstance, the Court's fair process precedent continues to prevail. Rorie v. McDonough, 37 Vet.App. 430, 442 n. 74 (2024) (noting that the "Court is bound by prior panel and en banc opinions"); Ulysses Copeland v. McDonald, 27 Vet.App. 333, 337 (2015) ("[P]anel decisions constitute binding precedent unless overturned by, inter alia, the en banc Court or the U.S. Court of Appeals for the Federal Circuit.") (both citing Bethea, 2 Vet.App. at 254).
In addition, the Bilharz majority upon which the majority here relies grounded its contention that fair process is "coextensive with well-established constitutional due process doctrine" on this Federal Circuit quote: "'the fair process doctrine is a recognition that due process applies in the claimant process.'" Bilharz, 38 Vet.App. at 379 (quoting Frantzis v. McDonough, 104 F.4th 262, 266 (Fed. Cir. 2024), aff'g 35 Vet.App. 354, 357 (2022), and Sprinkle v. Shinseki, 733 F.3d 1180, 1185 (Fed. Cir. 2013)). There are three problems with that: (1) the quoted statement does not say that fair process and due process are coextensive; (2) the quoted statement is also dicta—in affirming Frantzis based on a statutory change under the Veterans Appeals Improvement and Modernization Act of 2017 (AMA), the Federal Circuit said "the [fair process] argument was not presented below and is thus forfeited," Frantzis, 104 F.4th at 266; and (3) the quoted statement
is not in the Sprinkle decision at all. Instead, the Sprinkle court acknowledged that fair process is premised on Gonzales, where "the Supreme Court held that despite silence in the applicable statute and regulations as to a particular procedural requirement, the requirement was implicit in the statute and regulations when 'viewed against our underlying concepts of procedural regularity and basic fair play.'" Sprinkle, 733 F.3d at 1185. After analyzing our caselaw and the facts presented, the Federal Circuit said "we conclude that the fair process doctrine is not implicated by this case" because "the Regional Office issued a Supplemental Statement of the Case summarizing the [medical examination] evidence it obtained on remand and returned the case to the Board after Mr. Sprinkle indicated that he had no additional evidence to submit," Mr. Sprinkle received the examination report before the Board issued its decision, and Mr. Sprinkle could not show prejudice. Sprinkle, 733 F.3d at 1187.
In Sprinkle, the Federal Circuit did exactly the opposite of what our Court did in Bilharz:
the Bilharz Court "address[ed] appellants' contentions principally through the lens of due process," Bilharz, 38 Vet.App. at 379, while the Federal Circuit analyzed the fair process doctrine "[b]y its terms" and determined "that Mr. Sprinkle was not denied fair process," Sprinkle, 733 F.3d at 1187. Sprinkle thus provides no support for the Bilharz decision the majority relies on in this case, and the Federal Circuit's embrace, in Frantzis, 104 F.4th at 266, of Sprinkle and its explanation of fair process falls well short of abrogating that doctrine. To the extent that there is tension among precedential decisions, our Court is obligated to review and reconcile their holdings, if possible, and if not, to follow the earlier caselaw as the binding precedent. See Johnston v. IVAC Corp., 885 F.2d 1574, 1579 (Fed. Cir. 1989); Deckers Corp. v. United States, 752 F.3d 949, 965 (Fed. Cir. 2014); Rouse v. McDonough, 34 Vet.App. 43, 49 (2021) (citing Johnston as paralleling our Court's rule that "one panel may not proffer an opinion that 'conflicts materially' with an earlier panel opinion") (quoting Bethea, 2 Vet.App. at 254).
2. Inventing Rights?
The majority's assertion that the Court has been inventing rights is also misplaced. The complaint that a court is inventing a new right is leveled when that court—particularly the Supreme Court—determines that a substantive right is guaranteed by the Due Process Clause. See, e.g., Adam Lamparello, Taking the "Substance" Out of Substantive Due Process and Returning Lawmaking Power to the Federal and State Legislatures, 63 S.C. L. Rev. 285, 294 (2011) ("Perhaps the most profound mistake in the [Supreme] Court's modern day jurisprudence was its
creation of the substantive due process doctrine. The Court invented new rights, stripped the legislature of its lawmaking power, and compromised the democratic process."); David M. Smolin, The Jurisprudence of Privacy in a Splintered Supreme Court, 75 Marq. L. Rev. 975, 1045 (1992) ("Eminent Justices and scholars have argued against the legitimacy of substantive due process and its modern version, the right of privacy. . . . [A]llowing judges to invent new rights will make it impossible to maintain even the pretense that the Constitution is not being altered to suit the personal desires of the Justices."); cf. J. Thomas Oldham & Paul M. Kurtz, Tributes to Family Law Scholars Who Helped Us Find Our Path, 55 Fam. L.Q. 341, 348 (2022) ("When the [Supreme] Court recognized rights of family integrity in the reservoir of substantive due process, it was not inventing rights out of thin air. Rather, it was simply acknowledging this aspect of the Reconstruction Amendments' response to, and repudiation of, that 'peculiar institution.'") (referring to slavery). Professor Smolin points to judges who "have championed the view that the Due Process Clause is purely procedural and has no substantive component." 75 Marq. L. Rev. at 1045. After Professor Smolin's article, Supreme Court Justice Antonin Scalia also clearly expressed that view, saying: "I believe that the Due Process Clause guarantees no substantive rights, but only (as it says) process," and "I would follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away." United States v. Carlton, 512 U.S. 26, 40, 42 (1994) (Scalia, J. concurring). Mr. Lamparello says courts should focus on the actual language of the clause. "The text is clear and unambiguous; before an individual is deprived of life, liberty, or property, there must be adequate procedures for the purpose of ensuring fairness and justice ." Lamparello, 63 S.C. L. Rev. at 294. Our Court has hewed to that text, unfailingly focusing on the guaranty of fair process before a veteran is deprived of the benefits earned by military service and sacrifice, for that is the process that veterans are due. It is the application of undisputed rights in the claims adjudicative process, with no invention needed or attempted.
The majority here stands alone—with no party or precedent to support it—in suggesting that the process due veterans seeking the benefits to which their service and sacrifice entitle them need not be fair process. The majority's solitude is needless and unwarranted, for the statutory interpretation it gets right dovetails with VA's waiver and the veteran's right to fair process in a rainbow remedy to the procedural irregularity and fair play failure here.
Recall that VA advised the veteran that he needed to complete a VA Form 21-526EZ to reap the benefit of his intent to file, R. at 2429, and he did just that, R. at 2316-22. In fact, the cover letter he submitted with the July 2023 VA Form 21-526EZ specifically requested that VA "establish this claim in association with the February 28, 2023 Intent to File [(ITF)]." R. at 2316. Yet VA reneged on its word by associating a different VA form with the ITF, which deprived him of the benefit of that ITF. "[A] veteran is entitled to expect that VA means what it says." Percy v. Shinseki, 23 Vet.App. 37, 47 (2009). When VA's own words lead a veteran to act accordingly, it waives its option to choose not to follow through; "a determination to the contrary would raise serious fair process issues." Gomez v. Principi, 17 Vet.App. 369, 373 (2003).
This type of procedural unfairness has been roundly rejected by the Court throughout its history. See, e.g., Bryant v. Wilkie, 33 Vet.App. 43, 48 (2020) ("By prematurely deciding the appeal without the benefit of the argument that the Board knew was forthcoming, the Board effectively shut Mr. Bryant out of the appellate process, a process that, by law and regulation, is designed to be a partnership between the appellant and the Agency."); Smith v. Wilkie, 32 Vet.App. 332, 339 (2020) (finding a fair process violation when "the language used in the November 2015 and September 2016 remand decisions could reasonably lead Mr. Smith to believe that the credibility question was favorably settled, and he asserts that he relied on that mistake to his detriment"); Austin v. Brown, 6 Vet.App. 547, 552 (1994) ("We hold that basic fair play requires that evidence be procured by the agency in an impartial, unbiased, and neutral manner."). And the Secretary agrees that the March 2023 VA letter, which the Board failed to address, raises concerns about "fairness under the particular factual circumstances of this appeal." Secretary's Br. at 12.
More broadly, the Secretary has acknowledged "'that claimants have a general right to fair process in the development and adjudication of their claims and appeals before VA, including under the modernized system.'" Brack v. McDonough, 37 Vet.App. 172, 182 (2024) (Jaquith, J., concurring) (quoting Secretary's Supplemental Br. at 4). The Board likewise has acknowledged that appellants are entitled to fair process. Lorio v. Collins, 38 Vet.App. 120, 128 (2025). Particularly notably, Congress embraced fair process as a pillar of appeals modernization, saying that the AMA was designed, in part, to "streamline VA's appeal process" and "help ensure that the process is both timely and fair." H. Rep. No. 115-135 at 5 (2017).
The majority's inaccurate characterization of fair process is particularly troubling here, where there is no countervailing consideration like the change to 38 U.S.C. § 7107 at issue in
Bilharz and Frantzis. See Bilharz, 38 Vet.App. at 384 ("It would be inappropriate to use the fair process doctrine to insert a requirement into the statutory procedural system that Congress expressly removed [from section 7107]."); Frantzis, 35 Vet.App. at 357 ("Congress removed the statutory language [in section 7107] that required the same Board member who conducted a hearing to also participate in the appeal's final determination.").
The core of both due process and fair process is the right to notice and a meaningful opportunity to be heard. LaChance v. Erickson, 522 U.S. 262, 266 (1998); Williams v. Wilkie, 32 Vet.App. 46, 58 (2019), aff'd, 828 Fed. App'x 721 (Fed. Cir. 2020) (unpublished). For notice to be adequate, it must be accurate. Cook v. McDonough, 36 Vet.App. 175, 189 (2023). Inadequate or misleading notice to a claimant prevents the claimant from making an informed decision and thus prevents the claimant from effectively participating in the adjudicative process. Id. at 190. Settling for incorrect notice "would make the notice requirement useless, which is not acceptable in a nonadversarial system built on notice and the opportunity to be heard ," and intolerable as a violation of due process. Wiker v. McDonough, 36 Vet.App. 119, 126 (2023); see Covington v. Dept. of Health and Human Services, 750 F.2d 937, 943 (Fed. Cir. 1984) (holding that a decision made "based on misinformation or a lack of information, cannot be binding as a matter of fundamental fairness and due process"). In directing the veteran to file a VA Form 21-526EZ to associate his disability compensation claim with his ITF, with no mention of any other possibility, including that VA might use the ITF on a supplemental claim, the RO director's March 2, 2023, letter was indeed misinformative and misleading, preventing the veteran from making an informed decision regarding what claim to file when and how to do so to obtain the ITF effective date—and thus violating both due process and fair process.
Such overlap is not surprising. Fairness is the defining characteristic of due process. See Jt. Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 161 (1951) (Frankfurter, J., concurring) ("Fairness of procedure is 'due process in the primary sense.'") (quoting Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 681 (1930)); Culley v. Marshall, 601 U.S. 377, 414 n.4 (2024) (describing fairness as the basic due process requirement). See also, e.g., Burnham v. Super. Ct. of California, Cnty. of Marin, 495 U.S. 604, 622 (1990) ("For new procedures, hitherto unknown, the Due Process Clause requires analysis to determine whether 'traditional notions of fair play and substantial justice' have been offended.") (quoting Intl. Shoe Co. v. State of Wash., Off. of Unempl. Compen. & Placement, 326 U.S. 310, 316 (1945)); Application of Gault, 387 U.S. 1, 26 (1967)
("fairness, impartiality and orderliness . . . [are] the essentials of due process"); Galvan v. Press, 347 U.S. 522, 530 (1954) ("fair play . . . is the essence of due process").
The principle of fairness is implicit in due process. See, e.g., Milliken v. Meyer, 311 U.S.
457, 463 (1940); Int'l Dark-Sky Ass'n, Inc. v. Fed. Commc'n Comm'n, 106 F.4th 1206, 1215 (D.C. Cir. 2024). After all, the very essence of the due process requirement is that it ensures fairness and the orderly administration of the law. See, e.g., Fuld v. Palestine Liberation Org., 606 U.S. 1, 14 (2025). Fair notice is an essential aspect of the due process that is required by "ordinary notions of fair play." Sessions v. Dimaya, 584 U.S. 148, 155, (2018) (citation omitted). Moreover, "[w]ithout question, the right to due process includes a right to 'a fair process of decision making.'" Marathon Targets, Inc. v. United States, 175 Fed. Cl. 725, 739 (2025) (quoting Fuentes v. Shevin, 407 U.S. 67, 81 (1972).
Against this backdrop, the determinative Federal Circuit case announced "that a veteran alleging a service-connected disability has a due process right to fair adjudication of his claim for benefits." Cushman v. Shinseki, 576 F.3d 1290, 1292 (Fed. Cir. 2009). So we can say with certainty that veterans are due fair process in the adjudication of their claims for benefits, as our Court has held many times before. See, e.g., Davis v. McDonough, 36 Vet.App. 142, 155 (2023) (holding that under the AMA, "[t]he Board is obligated to provide fair process to appellants in the adjudication of their claims"); Nohr v. McDonald, 27 Vet.App. 124, 134 n.5 (2014) ("[I]t is well-established that the Board must ensure that it provides an appellant fair process in the adjudication of his [or her] claim.").
Given their interrelatioship, it may be true that due process and fair process can and should be coextensive. But that depends on the present Court acknowledging that a fairness requirement is implicit in the concepts of procedural regularity and basic fair play undeniably underlying the VA benefits adjudicatory system. After all, "[the Federal Circuit] and the Supreme Court both have long recognized that the character of the veterans’ benefits statutes is strongly and uniquely pro- claimant." Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). And "the paternalistic attributes of the veterans' benefits system . . . militate toward providing more protection for veterans, not less." Gambill v. Shinseki, 576 F.3d 1307, 1324 (Fed. Cir. 2009) (Moore, J., concurring). With that understanding, the Court can take to heart the Supreme Court's instruction that "' Due process is flexible and calls for such procedural protections as the particular situation demands.'" Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). The
particular situation here is a system for adjudicating veterans benefits claims that is "strongly and uniquely pro-claimant," Hodge, 155 F.3d at 1362, and dramatically more protective of veterans' rights than the construct for ordinary civil litigation, Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 440 (2011). Because "veterans risked both life and liberty in their military service to this country[, t]he veterans benefits scheme is . . . 'imbued with special beneficence from a grateful sovereign.'" Sneed v. Shinseki, 737 F.3d 719, 728 (Fed. Cir. 2013) (quoting Bailey v. West, 160 F.3d 1360, 1370 (Fed. Cir. 1998) (Michel, J., concurring)).
The gratitude and solicitude due veterans—recognized by Congress and the Supreme Court—should affect our discernment of the fairness dictated by due process through consideration of the Mathews factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and fina lly, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews, 424 U.S. at 335. The principal effect is to change the order to reflect, up front, that "[t]he government's interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them." Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. Cir. 2006). And the private interest that is affected is a compelling one involving the health and welfare of veterans. "[T]here is no dispute that the private interest—compensation of disabled veterans—is vital." Gambill, 576 F.3d at 1330 (Moore, J., concurring).
In this case, there is no real balancing to be done. Misleading notice led to erroneous deprivation of the ITF-set effective date for the veteran's grant of disability compensation. And providing correct notice and properly processing the claimant's responsive filing is less burdensome for VA than misleading notice and the subsequent proceedings it begets.
Controlling caselaw points toward a better understanding that ensuring that the process for adjudicating veterans benefits claims is the fair one each claimant is due—under the Constitution and the principles enshrined in the statutes creating that process, as Thurber showed. 5 Vet.App. at 122-26. At the very least, it is time to stand up and be counted. If fairness is to be jettisoned by judicial fiat, it must be by a full court vote.
Robert F. Hoffman v. Douglas A. Collins (Robert F. Hoffman v. Douglas A. Collins) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.