MARIELLA B. MASON, Claimant-Appellant,
ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in No. 10-1554, Judge William A. Moorman.
Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.
Michael P. Goodman, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief were Y. Ken Lee, Deputy Assistant General Counsel, and Rachael T. Brant, Attorney, United States Department of Veterans Affairs, of Washington, DC.
Before Newman, Moore, and Chen, Circuit Judges.
Chen, Circuit Judge.
When an attorney successfully represents a veteran, the Veterans Administration ("VA") may, under certain circumstances, directly pay reasonable legal fees to the attorney from any past-due benefits awarded to the veteran. 38 U.S.C. § 5904(d). The VA pays the full award of past-due benefits to the veteran, however, when an attorney's direct-fee request is denied. This appeal addresses how long an attorney has to file a notice of disagreement ("NOD") with the VA to challenge its denial of a direct-fee request. For most types of claims, that period is one year. See 38 U.S.C. § 7105. But for "simultaneously contested claims, " that period is only sixty days. 38 U.S.C. § 7105A.
Here, a VA regional office ("RO") applied § 7105A's sixty-day period to reject as untimely an NOD filed by an attorney ninety days after the VA denied his direct-fee request. On appeal, the Secretary posits that the RO's decision was in accord with the proper definition of a "simultaneously contested claim." He asserts that, because § 7105A is ambiguous, deference is due to the VA's definition of "simultaneously contested claim" in 38 C.F.R. § 20.3(p) and to the VA's guidance in its Claim Adjudication Manual (the "Manual") that denials of direct-fee requests should be treated as "simultaneously contested claims" subject to a sixty-day NOD period.
Both the Board of Veterans Appeals (the "Board") and the Court of Appeals for Veterans Claims (the "Veterans Court") affirmed. So do we. The Secretary's and the Manual's application of § 20.3(p) to direct-fee requests is premised on a controlling interpretation of the regulation. We therefore hold that the sixty-day NOD period established in § 7105A applies to the denial of attorney fee requests under § 5904(d).
In 1997, Philip Corbin applied for disability compensation from the VA for injuries connected to his military service in Korea. [J.A. at 51] The RO denied Mr. Corbin's claim, and the Board affirmed that rejection in 1999. Mr. Corbin then hired Appellant Mariella Mason's husband, Ken Mason, to represent him in his appeal of the Board's decision. Pursuant to 38 U.S.C. § 5904(d), Mr. Mason arranged with Mr. Corbin to be paid directly by the VA "a fee of twenty percent (20%) of the gross amount of any past-due VA disability benefits recovered." J.A. at 43-44.
Mr. Mason secured a remand order from the Veterans Court for his client. But while Mr. Corbin's claim was being processed on remand, the VA received from Mr. Corbin what it believed to be a "new claim" for benefits, one for total disability based on individual unemployability ("TDIU"). J.A. at 84. That new claim was granted in October 2005, and the VA determined that Mr. Corbin was due approximately fifty-nine thousand dollars in past-due TDIU disability benefits. Because of the agreement between Mr. Mason and Mr. Corbin, the VA withheld payment of an amount equal to twenty percent of those unpaid, past-due TDIU benefits. [J.A. at 98] The RO subsequently determined, however, that Mr. Mason was not eligible for direct payment of his legal fee. It reasoned that Mr. Corbin pursued his successful TDIU claim on his own and that the new claim was beyond the scope of the appeal for which Mr. Mason had been retained. [J.A. at 96]
The RO notified both Mr. Mason and Mr. Corbin in writing of its decision. That notice informed them that they had sixty days to file an NOD if they wished to dispute it.
If you disagree with this determination, you may file a notice of disagreement (NOD). . . . To initiate appellate review, an NOD must be filed with this office within 60 days after the date of this letter. Since there is more than one party who may claim entitlement to the money being withheld as attorney fees in this case, the provisions ...