Veteranclaims’s Blog

February 21, 2014

FedCir. Mason v. Shinseki, No. 2013-7038(Decided: February 21, 2014); Direct-Fee Request; § 5904(d)

Excerpt from decision below:

“And direct-fee requests concern contested claims: one by an attorney and one by a veteran, both directed at recovery of a portion of a payment of funds
based on an award of past-due benefits. See Scates v. Principi, 282 F.3d 1362, 1369 (Fed. Cir. 2002) (“[A veteran], . . . has a substantial, immediate and direct financial
MASON v. SHINSEKI 11

interest in [an] attorney fee claim, since the [VA]’s payments to [the attorney] will be made from the twenty percent of [the veteran’s] accrued benefits that the [VA] withheld for that purpose. If less than the twenty percent is paid to [the attorney], presumably the balance will be paid to [the veteran].”).
We therefore conclude that the VA’s interpretation of § 20.3(p) controls,5 and we hold that denials of direct-fee requests made pursuant to § 5904(d) are subject to the sixty-day NOD period prescribed by § 7105A(a). See Haas, 525 F.3d at 1197 (holding that a “pertinent provision of [the Manual]” was a controlling interpretation of the VA’s regulations).
III
Because the sixty-day NOD period of § 7105A applies to the denials of direct-fee requests, the Veterans Court did not commit legal error in holding that Mr. Mason’s filing of his NOD ninety days after the RO’s denial of his

5 We also note that the VA’s position abides by the
general principle that “interpretive doubt is to be resolved
in the veteran’s favor.” Brown v. Gardner, 513 U.S. 115,
118 (1994). After rejecting an attorney’s direct-fee request,
the VA withholds the contested funds until the
conclusion of the attorney’s appeal or, if no appeal is filed,
the period for filing an NOD. See Manual, M21-1MR,
Part I, Chapter 3, Section C. 17.a. As the Veterans Court
aptly reasoned, applying a sixty-day NOD period to the
denial of direct-fee requests favors veterans because full
payment to a veteran will not be withheld “for an entire
year merely to allow an attorney—supposedly well-versed
in veterans law—an additional 305 days to file an NOD.”
Mason, 26 Vet. App. at 9.
12 MASON v. SHINSEKI

request for direct payment of his legal fees was untimely.
We therefore affirm the decision of the Veterans Court

====================

United States Court of Appeals for the Federal Circuit
______________________
MARIELLA B. MASON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7038
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-1554, Judge William A. Moorman.
______________________
Decided: February 21, 2014
______________________
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.
2 MASON v. SHINSEKI
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.
MASON v. SHINSEKI 3
We therefore hold that the sixty-day NOD period established
in § 7105A applies to the denial of attorney fee
requests under § 5904(d).
I
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.1 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”).2 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
1 Ms. Mason was substituted for Mr. Mason upon
his death during the proceedings before the Veterans
Court, well beyond the sixty-day NOD period we find
applicable here. [BB at 1 n.1]
2 After remand, the VA awarded Mr. Corbin disability
benefits based on some of his originally claimed injuries.
Those awards are not relevant to our decision.
4 MASON v. SHINSEKI
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 relating
to simultaneously contested claims are being applied.
See 38 U.S.C. § 7105A.
J.A. at 97 (emphasis added).
Mr. Mason filed an NOD ninety days after the date of
the RO’s letter. Because his NOD was not filed within the
prescribed sixty-day window, the RO rejected it as untimely.
[J.A. at 100] The Board affirmed the RO’s decision.
On appeal, the Veterans Court also affirmed. Mason
v. Shinseki, 26 Vet. App. 1, 1 (2012). It concluded that
“Congress ha[d] not directly spoken to the precise question
of whether an attorney fees determination constitutes
a simultaneously contested claim” under § 7105A. Id. at
6. It then turned to 38 C.F.R. § 20.3(p), which explains
that a “[s]imultaneously contested claim refers to the
situation in which the allowance of one claim results in
the disallowance of another claim involving the same
benefit or the allowance of one claim results in the payMASON
v. SHINSEKI 5
ment of a lesser benefit to another claimant.” The court
did not find that definition dispositive though. Id. at 7
(explaining that § 20.3(p) “leaves the pertinent inquiry
unresolved on its face”). It did find persuasive, however,
the Manual’s guidance that a denial of an attorney fee
request should be treated as a simultaneously contested
claim. It ultimately found the Manual’s interpretation
reasonable, not inconsistent with statute or regulation,
and favorable to veterans. Id. at 8-9. As a result, the
Veterans Court concluded that the VA properly applied
the sixty-day filing period from § 7105A to Mr. Mason’s
NOD.
After an unsuccessful request to the Veterans Court
for reconsideration of that decision, Ms. Mason filed a
timely appeal with this Court. We have jurisdiction
under 38 U.S.C. § 7292.
II
This case turns on whether Mr. Mason’s NOD should
have been subject to the one-year filing period of § 7105
instead of the sixty-day period imposed by § 7105A. More
specifically, we must decide whether Mr. Mason’s directfee
request qualifies as a “simultaneously contested
claim” under § 7105A. We hold that it does.
A
Denials of direct-fee requests are appealable to the
Board. Cox v. West, 149 F.3d 1360, 1365 (Fed. Cir. 1998).
To institute such an appeal, the aggrieved attorney must
file an NOD. See § 7105(a). The Secretary is correct that
only § 7105 and § 7105A control the time period during
which that NOD must be filed. See Cox, 149 F.3d at 1365.
One of those two statutes must therefore apply to directfee
requests.
Section 7105 explains that, “[e]xcept in the case of
simultaneously contested claims, notice of disagreement
shall be filed within one year from the date of mailing of
6 MASON v. SHINSEKI
notice. . . .” § 7105(b)(1). Section 7105A provides that,
“[i]n simultaneously contested claims where one is allowed
and one rejected, the time allowed for the filing of a
notice of disagreement shall be sixty days from the date
notice of the adverse action is mailed.” 38 U.S.C.
§ 7105A(a). Neither statute, however, plainly addresses
whether it applies to a direct-fee request.
In Ms. Mason’s view though, § 7105 plainly applies to
direct-fee requests. She argues that § 7105A applies only
to simultaneously contested claims and direct-fee requests
are not “claims.” [BB at 10] She proposes that
§ 7105 has broader applicability because it contemplates
the appeal of both claims and “actions.”
However, Ms. Mason’s reliance on the reference to
“actions” in § 7105 as a basis for distinguishing between
the applicability of the statutes is unavailing. Section
7105(c) reads: “If no notice of disagreement is filed in
accordance with this chapter within the prescribed period,
the action or determination shall become final and the
claim will not thereafter be reopened or allowed, except as
may otherwise be provided . . . .” § 7105(c) (emphasis
added). Contrary to Ms. Mason’s argument, that passage
does not eliminate the requirement for a predicate claim.
The language of § 7105(c) clearly states that if an “action
or determination” is not appealed, then “the claim” cannot
be “reopened or allowed.” § 7105(c) (emphasis added).
Accordingly, the language of § 7105 and § 7105A provides
no reason to distinguish between the applicability of
either section to direct-fee requests.
B
Faced with this ambiguity in the statute, we turn to
any interpretive regulations issued by the VA. See Guerra
v. Shinseki, 642 F.3d 1046, 1049-50 (Fed. Cir. 2011);
Haas v. Peake, 525 F.3d 1168, 1186 (Fed. Cir. 2008). In
§ 20.3(p), the VA explains that “[s]imultaneously contestMASON
v. SHINSEKI 7
ed claim refers to the situation in which the allowance of
one claim results in the disallowance of another claim
involving the same benefit or the allowance of one claim
results in the payment of a lesser benefit to another
claimant.” 38 C.F.R. § 20.3(p). The Secretary asserts that
Chevron deference is due to that regulatory definition
because the applicability of § 7105A is unclear in this
case. [RB at 19-20] We agree. Because the meaning of
“simultaneously contested claims” in § 7105A is ambiguous,
deference is due if the VA’s interpretation is “based
on a permissible construction of the statute”—which it is.
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 843 (1984).3 The definition in the regulation
aligns with an ordinary understanding of the term
“simultaneously contested.” It seems quite natural to
refer to claims as “simultaneously contested” if the allowance
of one prevents the allowance of another or reduces
the payment awarded to another claimant.
Since § 20.3(p) is entitled to deference, the Secretary
asserts that it controls the outcome of this appeal. According
to the Secretary, the regulation’s definition of
simultaneously contested claim “encompasses the situation
where an attorney or claimant appeals an eligibility
determination for direct payment of fees” because the
allowance of a direct-fee request results in the “payment
of a lesser benefit to another claimant,” the veteran.
Appellee’s Br. at 20. The Secretary argues the VA’s
instruction in the Manual to treat direct-fee requests as
3 We note that the VA had the authority to interpret
§ 7105A by regulation pursuant to its general rulemaking
authority. See 38 U.S.C. § 501; see also Haas v.
Peake, 525 F.3d 1168, 1186 (Fed. Cir. 2008) (explaining
that Congress’s grant of general rulemaking authority to
the VA authorized the VA to issue interpretive regulations
for an act related to veterans benefits).
8 MASON v. SHINSEKI
simultaneously contested claims supports his interpretation
of the regulation. Even if reasonable minds could
disagree over such an interpretation and application of
§ 20.3(p) to direct-fee requests, the Secretary asserts that
the VA’s interpretation must control. We agree.
An agency’s interpretation of its own regulations is
“controlling unless plainly erroneous or inconsistent with
the regulations being interpreted.” Long Island Care at
Home, Ltd. v. Coke, 551 U.S. 158, 171 (2007) (internal
quotation marks omitted); see Auer v. Robbins, 519 U.S.
452, 461 (1997); Haas, 525 F.3d at 1186; see also Thomas
Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)
(holding that an agency’s interpretation of its regulations
is entitled to “substantial deference” unless “an alternative
reading is compelled by the regulation’s plain language”).
That is true even if the interpretation was not
subject to notice and comment rule making, Haas, 525
F.3d at 1197, or was “issued only to internal [agency]
personnel,” Long Island Care, 551 U.S. at 170-71. And it
does not matter if the agency’s interpretation has changed
over time, Long Island Care, 551 U.S. at 170-71, or
“comes to us in the form of a legal brief,” Auer v. Robbins,
519 U.S. 452, 462 (1997). What matters is that an agency’s
“interpretation of its own regulation reflects its
considered views” and is not “merely a post hoc rationalization
of past agency action.” Long Island Care, 551 U.S.
at 171 (internal quotation marks and correction omitted);
see Auer, 519 U.S. at 462.4
4 The “rule does not apply,” however, “if a particular
regulation merely ‘parrots’ statutory language, because
if it did, an agency could bypass meaningful rulemaking
procedures by simply adopting an informal ‘interpretation’
of regulatory language taken directly from the
statute in question.” Haas, 525 F.3d at 1186; see Gonzales
v. Oregon, 546 U.S. 243, 257 (2006). Here, § 20.3(p) does
MASON v. SHINSEKI 9
Here, such controlling “considered views” are reflected
in the Secretary’s position on appeal and in the Manual’s
instruction to treat direct-fee requests as simultaneously
contested claims. First, it is clear that both the Secretary’s
position in this appeal and the Manual concern the
VA’s interpretation of § 20.3(p). Although the Manual
does not specifically cite § 20.3(p), it is apparent that the
sections regarding the applicability of § 7105A to directfee
requests interpret § 20.3(p): the Manual duplicates the
regulation’s exact language and syntax. See, e.g., Manual,
M21-1MR, Part III, Subpart vi, Chapter 6, Section A-1-a
(explaining in part that a “contested claim exists when . . .
a favorable decision on one claim requires . . . the denial
of the other claim, or . . . payment of a lesser benefit to the
other claimant); J.A. at 140, M21-1MR, Part IV, Chapter
5, Section 5.01, Identification of Contested Claims (historical
version, superseded May 10, 2007) (“a. Definition.
The provisions of this chapter apply to claims filed by 2 or
more persons for the same benefit. A claim is considered
contested if a favorable decision on one claim requires
disallowance of the other claims or payment of a lesser
benefits, and one claimant contests the allowance or
payment of that benefit to the other claimant.”).
Second, neither the Secretary’s position nor the Manual
appears to be a mere post hoc rationalization of the
VA’s actions here. We are not aware of any situations in
which the Secretary or the VA has espoused a different
view on the applicability of § 20.3(p) to direct-fee requests.
Indeed, the Manual consistently instructs that direct-fee
requests should be handled as simultaneously contested
more than merely parrot the language of § 7105A; it
elaborates on the statutory phrase “simultaneously contested
claims” to encompass the situation in which “the
allowance of one claim results in the payment of a lesser
benefit to another claimant.” 38 C.F.R. § 20.3(p).
10 MASON v. SHINSEKI
claims and has done so since at least 2003. See, e.g.,
Manual, M21-1MR, Part I, Chapter 3, Section C-17-a
(citing § 7105A and explaining that “fee eligibility decisions
are considered contested claims, as two parties are
involved” and that the period of appeal, “[r]egardless of
whether the decision is an award or denial of fees,” is
sixty days); M21-1MR, Part III, Subpart vi, Chapter 6,
Section A-1-e (instructing that direct-fee payment requests
after failure to withhold twenty percent of past-due
benefits is a contested claim); M21-1MR, Part I, Chapter
3, Section C-21-Exhibit 3 (form letter for distribution to
an attorney and his veteran client indicating denial of a
direct-fee request and referring each party to VA Form
4107c regarding appeal rights and procedures for “Contested
Claims”); J.A. at 144, M21-1MR, Part I, Chapter 3,
Section C-18-a, Time Limit for Appeal of Attorney Fee
Decision (historical version dated June 11, 2003) (instructing
that the “claimant and his/her attorney have
. . . 60 days to file a NOD”); see also M21-1MR, Part I,
Chapter 3, Section C-17-i (instructing that reasonableness
reviews of attorney fee requests are also subject to the
“time for filing an NOD under 38 U.S.C. 7105A”).
Last, reading the definition of simultaneously contested
claims in § 20.3(p) to encompass direct-fee requests
is not plainly erroneous or inconsistent with § 20.3(p).
See Long Island Care, 551 U.S. at 171. Section 20.3(p)
provides that simultaneously contested claims include the
situation in which “the allowance of one claim results in
the payment of a lesser benefit to another claimant.”
Direct payment of attorney fees under § 5904(d) results in
lesser payments to veterans based on the award of pastdue
benefits. And direct-fee requests concern contested
claims: one by an attorney and one by a veteran, both
directed at recovery of a portion of a payment of funds
based on an award of past-due benefits. See Scates v.
Principi, 282 F.3d 1362, 1369 (Fed. Cir. 2002) (“[A veteran],
. . . has a substantial, immediate and direct financial
MASON v. SHINSEKI 11
interest in [an] attorney fee claim, since the [VA]’s payments
to [the attorney] will be made from the twenty
percent of [the veteran’s] accrued benefits that the [VA]
withheld for that purpose. If less than the twenty percent
is paid to [the attorney], presumably the balance will be
paid to [the veteran].”).
We therefore conclude that the VA’s interpretation of
§ 20.3(p) controls,5 and we hold that denials of direct-fee
requests made pursuant to § 5904(d) are subject to the
sixty-day NOD period prescribed by § 7105A(a). See
Haas, 525 F.3d at 1197 (holding that a “pertinent provision
of [the Manual]” was a controlling interpretation of
the VA’s regulations).
III
Because the sixty-day NOD period of § 7105A applies
to the denials of direct-fee requests, the Veterans Court
did not commit legal error in holding that Mr. Mason’s
filing of his NOD ninety days after the RO’s denial of his
5 We also note that the VA’s position abides by the
general principle that “interpretive doubt is to be resolved
in the veteran’s favor.” Brown v. Gardner, 513 U.S. 115,
118 (1994). After rejecting an attorney’s direct-fee request,
the VA withholds the contested funds until the
conclusion of the attorney’s appeal or, if no appeal is filed,
the period for filing an NOD. See Manual, M21-1MR,
Part I, Chapter 3, Section C. 17.a. As the Veterans Court
aptly reasoned, applying a sixty-day NOD period to the
denial of direct-fee requests favors veterans because full
payment to a veteran will not be withheld “for an entire
year merely to allow an attorney—supposedly well-versed
in veterans law—an additional 305 days to file an NOD.”
Mason, 26 Vet. App. at 9.
12 MASON v. SHINSEKI

request for direct payment of his legal fees was untimely.
We therefore affirm the decision of the Veterans Court.
AFFIRMED
COSTS
No costs.

 

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