Kenneth B. Mason v. Eric K. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 08-2969

KENNETH B. MASON, APPELLANT,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

FREDERICK L. TRAWICK, INTERVENOR.

On Appeal from the Board of Veterans' Appeals

(Argued August 25, 2011 Decided October 28, 2011)

Kenneth M. Carpenter, of Topeka , Kansas, for the appellant.

Anthony C. Scire, Jr., and Joan E. Moriarty, Deputy Assistant General Counsel, with whom

Will A. Gunn, General Counsel, and R. Randall Campbell, Assistant General Counsel, were on the

brief, all of Washington, D.C., for the appellee.

Michael J. Nardotti, Jr., with whom Elizabeth M. Gill was on the brief, both of Washington,

D.C., for Frederick L. Trawick as intervenor.

Thomas J. Reed, of Wilmington, Delaware, for the Veterans Law Clinic of Widener

University School of Law as amicus curiae.1

Before KASOLD, Chief Judge, and HAGEL and SCHOELEN, Judges.

SCHOELEN, Judge, filed the opinion of the Court. KASOLD, Chief Judge, filed a

dissenting opinion.

SCHOELEN, Judge: The appellant, attorney Kenneth B. Mason, appeals through counsel

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The Court would like to extend its appreciation to Thomas J. Reed of the Veterans Law

Clinic at Widener University of School of Law who submitted written argument, as amicus curiae,

in support of Mr. Trawick, who was initially unrepresented when he first requested to intervene in

this proceeding.

a May 22, 2008, Board of Veterans' Appeals (Board) decision that determined he was not eligible

to receive payment of attorney fees from past-due benefits awarded to veteran Frederick L. Trawick.

Record of Proceedings (R.) at 3-9. The veteran and intervenor, Mr. Trawick, filed a brief disputing

Mr. Mason's entitlement to payment of attorney fees from the award of past-due benefits. The Board

determined that "[t]he requirements for payment of attorney fees in the amount of 20[%] of past-due

benefits payable to the veteran, in the calculated amount of $53,472.53, have not been met" because

(1) Mr. Trawick did not retain Mr. Mason until August 3, 1998, more than one year after a June 6,

1997, Board decision; and (2) Mr. Mason did not file a copy of the fee agreement with the Board and

did not notify the regional office (RO) within 30 days of its execution, as required by 38 C.F.R.

§ 20.609(g), (h)(4) (2007). This appeal is timely, and the Court has jurisdiction to review the Board's

decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Because Mr. Mason has not demonstrated

clear error in the Board's finding that he was not retained within one year of the June 6, 1997, Board

decision, the Court will affirm the Board's 2008 determination that he is not eligible for payment of

attorney fees for services provided in proceedings before VA because his fee agreement did not

comply with the requirements of 38 U.S.C. § 5904(c)(1).

I. BACKGROUND

On June 6, 1997, the Board issued a decision in which it found that the veteran, Mr. Trawick,

did not present new and material evidence sufficient to reopen a claim for entitlement to VA

compensation benefits for a psychiatric disorder. R. at 1148-56. Mr. Trawick filed a motion for

reconsideration (R. at 1146), which was denied by the Board Chairman on June 19, 1998. R. at

1129-31. While his motion for reconsideration was pending, Mr. Trawick also initiated an appeal

to this Court on September 8, 1997.

After the Board Chairman denied Mr. Trawick's motion for reconsideration, on August 3,

1998, Mr. Mason entered into two representation agreements with the veteran. The first fee

agreement was a pro bono representation agreement, which applied solely to Mr. Trawick's appeal

before the Court under docket number 97-1589.2 The pro bono representation agreement states:

2

The Court notes that the pro bono representation agreement is not included in the record

of proceedings. However, because the agreement was filed with the Court on August 4, 1998, under

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I hereby retain you to represent me before the [Court]. . . . This agreement applies

only to my appeal before [the Court] and does not apply to any representation before

the U.S. Court of Appeals for the Federal Circuit [(Federal Circuit)] in the event of

any appeal or before the U.S. Department of Veterans Affairs in the event of a

remand. Such representation will be covered by other agreements, if any.

The agreement also provided that Mr. Mason would not charge Mr. Trawick "a fee or litigation

expenses for representation under this agreement" and Mr. Trawick agreed that Mr. Mason may

request an award of attorney fees and expenses pursuant to the Equal Access to Justice Act,

28 U.S.C. § 2412. Finally, the agreement stated that Mr. Mason would have "no obligation" to Mr.

Trawick "unless and until" Mr. Mason signed and returned a copy of the agreement to Mr. Trawick.

The second fee agreement, also executed on August 3, 1998, and at issue here, was a

contingent fee agreement for representation solely before the Board and the RO. R. at 1111-14. The

agreement states: "I hereby retain you to represent me before the Board . . . and the [RO] . . . to

prosecute my claim for disability compensation benefits. . . . This agreement does not cover

representation before [the Court] or the [Federal Circuit,] which will be covered by other

agreements." R. at 1113. In this agreement, Mr. Trawick, the veteran, agreed to pay 20% of the

gross amount of any past-due benefits award to attorney Mason as a "contingency fee" and further

agreed that VA may withhold such amount and make payment directly to the attorney. Id. The

agreement also permitted the veteran to discharge the attorney "at any time" upon written notice with

the following proviso: "If I discharge you after you have fully or substantially performed or

contributed substantially to the results finally obtained by me, I shall be liable for payment of the fee

set forth above." R. at 1113-14. Finally, the agreement contained a paragraph entitled

"COMMENCEMENT OF REPRESENTATION," which stated: "Your [Mr. Mason's] responsibility

under this agreement will not commence unless or until (1) you receive a copy hereof signed by me

[Mr. Trawick] and (2) you date, sign[,] and return the agreement to me." R. at 1114 (capitalization

in original).

Pursuant to the Secretary's unopposed motion to vacate the Board's June 6, 1997 decision,

docket number 97-1589, the Court will take judicial notice of its content. See Cotant v. Principi,

17 Vet.App. 116, 124 (2003) (taking judicial notice of pleadings filed in case pending before Court

that raised same question of statutory interpretation); Shepard v. Gober, 10 Vet.App. 486, 487 (1997)

(taking judicial notice of record on appeal and pleadings filed in concurrent cases).

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on October 8, 1998, the Court vacated the Board's decision and remanded the matter for further

development. R. at 1124-28. Mr. Mason filed a copy of the August 3, 1998, contingency fee

agreement with the Board and the RO on December 18, 1998. R. at 1111-14. In his correspondence,

Mr. Mason noted that the agreement was dated August 3, 1998, but that "[r]epresentation began in

April[] 1998, when [Mr. Trawick] contacted [him]." R. at 1111. On January 4, 1999, the Board

wrote to Mr. Mason to inform him that it received a copy of the fee agreement and that there

appeared to be a "potential problem" in that the fee agreement was executed more than one year after

the June 1997 Board decision. R. at 145-47 (citing 38 U.S.C. § 5904(c)(1)). The Board

acknowledged that Mr. Mason's December 1998 correspondence indicated that representation began

in April 1998 and requested "evidence" to show that Mr. Mason was retained within one year of the

June 1997 Board decision. Id. The December 1998 correspondence contains a handwritten note in

the margin, which states: "[R]ep[resentation] began on 4/23/98[,] altho[ugh] not reduced to writing."

Id.3

Following the Court's October 1998 remand, Mr. Mason is named as the representative of

the veteran on three occasions. See R. at 1064-74 (Apr. 28, 2000, Board decision reopening claim

for entitlement to benefits for a psychiatric disorder); 1085-88 (Dec. 1, 1999, Board remand); and

1104-07 (Apr. 15, 1999, Board remand). In the April 28, 2000, Board decision, the Board found that

new and material evidence had been submitted to reopen Mr. Trawick's claim for entitlement to

benefits for a mental disorder and further found the claim to be well grounded. R. at 1066.

On May 19, 2000, Mr. Trawick sent Mr. Mason a letter informing him that he no longer

needed his services. R. at 206. On the same date, Mr. Trawick also appointed Disabled American

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The record contains an unsigned affidavit, which appears to have been drafted for Mr.

Trawick's signature, but there is no indication in the record that he ever executed the affidavit. R.

at 213. The affidavit states that it is being made "in answer to the letter of the Board . . . dated

January 4, 1999, . . . to demonstrate that I retained my attorney, Kenneth B. Mason, within one year

of the final Board decision herein dated June 6, 1997[,] as required by 38 U.S.C. § 5904(c)(1) and

38 C.F.R. § 20.609(c)(3)." Id. The document states that Mr. Trawick first spoke with Mr. Mason,

on or about October or November 1997, and that in April 1998 he called Mr. Mason to represent

him. Id. Finally, the document states: "We discussed the terms of representation, and they were

finally put in writing in July 1998 and executed in August 1998. I believe this shows that I retained

Mr. Mason within [one] year of the final Board decision dated June 6, 1997." Id.

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Veterans (DAV) as his representative (R. at 1015); in January 2003, he appointed the American

Legion (R. at 452); and in August 2004, he re-appointed DAV (R. at 459). On March 10, 2005,

while Mr. Trawick was represented by DAV, the RO notified him of its decision, which granted

entitlement to benefits for schizo-affective disorder, bipolar type, and assigned a 100% disability

rating, effective August 12, 1992, the date of Mr. Trawick's claim to reopen. R. at 502-19. The RO

subsequently informed Mr. Mason and Mr. Trawick that it had determined that Mr. Mason was

entitled to payment of attorney fees in the amount of $53,472.53 because the requirements of

38 U.S.C. § 5904 and 38 C.F.R. § 20.609 had been met. R. at 495-96.

In April 2005, Mr. Trawick filed a Notice of Disagreement asserting, in relevant part, that

"Mr. Mason has not represented me since 1999. . . . I have had DAV represent me since 1999 when

Mr. Mason told me he could not represent me anymore." R. at 482. The RO issued a Statement of

the Case in October 2005 stating that "[c]urrent representation by the private attorney is not a

statutory or regulatory prerequisite to VA's payment of attorney fees from past-due benefits." R. at

220-38, 237. The RO also stated that direct payment could be made provided that "all other statutory

and regulatory requirements for payment of fees, as well as the terms of the agreement, have been

met." R. at 237. In his Substantive Appeal, Mr. Trawick argued that "Mr. Mason did very little

work on my case[.] [T]he technical work and the argument that won my claim was performed by the

DAV. I request that the money withheld be released as soon as possible." R. at 205.

In the May 22, 2008, decision here on appeal, the Board determined that "[t]he requirements

for payment of attorney fees in the amount of 20[%] of past-due benefits payable to the veteran, in

the calculated amount of $53,472.53, have not been met." R. at 5 (citing 38 U.S.C. § 5904 (2002)

and 38 C.F.R. § 20.609 (2007)). The Board based its conclusion on two findings: (1) Mr. Trawick

did not retain Mr. Mason until August 3, 1998, which was more than one year after the Board's June

6, 1997, decision; and (2) Mr. Mason did not file a copy of the fee agreement with the Board and did

not notify the RO within 30 days of its execution, as required by 38 C.F.R. § 20.609(g), (h)(4).

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II. THE PARTIES' CONTENTIONS

The Court notes that the parties have provided extensive briefs regarding (1) Mr. Mason's

eligibility to receive attorney fees pursuant to the August 3, 1998, contingency fee agreement and

(2) the appropriate remedy assuming that the Court determined Mr. Mason was eligible to receive

a fee. Because the Court has determined herein that Mr. Mason's eligibility to receive a fee rests on

whether he satisfied the statutory requirements provided in 38 U.S.C. § 5904(c)(1), which we hold

he did not, the Court will limit its remaining discussion of the parties' arguments to this issue. Both

the Secretary and Mr. Trawick argue that Mr. Mason is not entitled to receive payment of attorney

fees pursuant to the August 3, 1998, contingency fee agreement for services provided before the

Board and the RO because Mr. Trawick retained Mr. Mason more than one year after the Board first

made a decision in the case, i.e., June 6, 1997. Secretary's Supplemental Brief (Br.) at 8-12;4

Intervenor's Br. at 6-12. They argue that the contingency fee agreement between Mr. Mason and Mr.

Trawick is subject to the one-year requirement set forth in 38 U.S.C. § 5904(c)(1) because the statute

only exempts "services provided with respect to proceedings before a court" and the contingency fee

agreement at issue here, executed more than one year after the June 6, 1997, decision, was limited

to services provided before the Board and the RO. Id.

Mr. Mason makes three arguments in response. First, he argues that the Board's order that

denied entitlement to fees was not premised on Mr. Mason's not having met the statutory

requirements to charge a fee. Appellant's Reply Br. to the Intervenor at 2. Second, he argues that

he met the statutory requirements because he was "retained" within one year of the Board's June 6,

1997, decision. Id. at 3. Mr. Mason asserts that although the contingency fee agreement was not

executed until August 3, 1998, he "commenced his representation of Mr. Trawick in April 1998."

Id. Third, he argues that his "representation of Mr. Trawick and his entitlement to charge a fee was

premised upon his representation of Mr. Trawick before this Court [in docket number] 97-1589."

Id.

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The Court notes that the Secretary's initial brief in this matter posited that Mr. Mason's

retention as counsel more than one year after the Board's June 6, 1997, decision did not preclude him

from receiving direct payment of attorney fees under 38 U.S.C. § 5904(d). Secretary's Br. at 6-8.

The Secretary modified his position and argued for affirmance of the Board's decision in his

supplemental brief.

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III. LAW

A. Statutory and Regulatory Provisions

The statutory provision that governs an attorney's entitlement to charge and receive a fee for

services provided in connection with a proceeding before VA is 38 U.S.C. § 5904(c)(1). In 1998,

when Mr. Mason and Mr. Trawick executed the fee agreement at issue, section 5904(c)(1) provided:

(c) (1) Except as provided in paragraph (3), in connection with a proceeding before

the Department with respect to benefits under laws administered by the Secretary, a

fee may not be charged, allowed, or paid for services of agents and attorneys with

respect to services provided before the date on which the Board of Veterans' Appeals

first makes a final decision in the case. Such a fee may be charged, allowed, or paid

in the case of services provided after such date only if an agent or attorney is retained

with respect to such case before the end of the one-year period beginning on that

date. The limitation in the preceding sentence does not apply to services provided

with respect to proceedings before a court.

38 U.S.C. § 5904(c)(1).5

Section 5904(d) provided that when a claimant and an attorney enter into a fee agreement,

under which the total amount of the fee payable to the attorney "is to be paid to the attorney by the

Secretary directly from any past-due benefits awarded on the basis of the claim" and "is contingent

on whether or not the matter is resolved in a manner favorable to the claimant,""the total fee payable

to the attorney may not exceed 20 percent of the total amount of any past-due benefits awarded on

the basis of the claim." 38 U.S.C. § 5904(d)(1),(2)(A). A claim is considered "to have been resolved

in a manner favorable to the claimant if all or any part of the relief sought is granted." 38 U.S.C.

§ 5904(d)(2)(B).

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The Court notes that Congress amended section 5904(c)(1) in 2006 to permit an agent or

attorney to charge a fee for services in connection with a proceeding before VA after the date on

which a Notice of Disagreement is filed with respect to the case. See 38 U.S.C. § 5904(c)(1) (2006).

However, Congress explicitly provided for prospective application of the amended statute, stating

that it "shall take effect on the date that is 180 days [June 20, 2007] after the date of enactment of

this Act [Dec. 22, 2006] and shall apply with respect to services of agents or attorneys that are

provided with respect to cases in which [N]otices of [D]isagreement are filed on or after that date."

Veterans Benefits, Health Care, and Information Technology Act of 2006, Pub. L. No. 109-461, tit.

I, § 101(h), 120 Stat. 3403, 3408.

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The Secretary's implementing regulation, which prescribes when an attorney may charge a

fee for services in a proceeding before VA, 38 C.F.R. § 20.609 (1998), entitled "Payment of

representative's fees in proceedings before the Department of Veterans Affairs field personnel and

before the Board of Veterans' Appeals," provided in relevant part:

(c) Circumstances under which fees may be charged. Except as noted in

paragraph (d) of this section, attorneys-at-law and agents may charge claimants or

appellants for their services only if all of the following conditions are met:

(1) A final decision has been promulgated by the Board . . . with respect to the issue,

or issues, involved;

(2) The Notice of Disagreement which preceded the Board . . . decision with respect

to the issue, or issues, involved was received by the agency of original jurisdiction

on or after November 18, 1988; and

(3) The attorney-at-law or agent was retained not later than one year following the

date that the decision by the Board . . . with respect to the issue, or issues, involved

was promulgated. (This condition will be considered to have been met with respect

to all successor attorneys-at-law or agents acting in the continuous prosecution of the

same matter if a predecessor was retained within the required time.)

38 C.F.R. § 20.609 (c)(1),(2),(3).

B. In re Fee Agreement of Mason6

In In re Fee Agreement of Mason, 13 Vet.App. 79, 81-85 (1999), the Court addressed

whether an attorney was eligible to receive a fee for services provided in a proceeding before VA

subsequent to a successful appeal to this Court, where the claimant and the attorney entered into the

fee agreement for legal services before the Court, the Board, and VA, more than one year after the

Board first made a final decision in the case. The Court held that because the attorney was not

retained within one year after the Board issued its first decision in the case, the attorney was

ineligible to charge a fee for services provided in a proceeding before the Board or VA. Id. at 84.

The appellant-attorney argued that the requirement in section 5904(c)(1) that the attorney be retained

within one year after the first Board decision was not applicable in this circumstance because his

services provided before the Agency on remand were a continuation of proceedings before the Court.

See 38 U.S.C. § 5904(c)(1) (stating that "[t]he limitation in the preceding sentence does not apply

6

Although the appellant-attorney in the instant proceeding is the same attorney whose fee

agreement was discussed in In re Fee Agreement of Mason, the matter currently before the Court is

otherwise unrelated to those proceedings.

8

to services provided with respect to proceedings before a court"). The Court rejected this argument

stating, "in general, after a remand is issued by this Court, proceedings at the VA level are not a

continuation of proceedings before this Court so as to be exempt from the section 5904(c)(1)

limitations on charging attorneys fees." In re Fee Agreement of Mason, 13 Vet.App. at 85.

The Court stated, however, that "an attorney is always entitled to charge a fee for

representation on matters before this Court, and may be entitled to direct payment from the

Secretary from past-due benefits awarded as a result of such representation." Id. (emphasis added).

The Court held,

[t]herefore, where an attorney successfully represents a VA claimant before this

Court and has filed a qualifying attorney-client fee agreement which directs payment

by the Secretary from an award of past-due benefits awarded on the basis of the claim

filed with VA, the Secretary is obligated to pay directly to the attorney 20% of the

past-due benefits awarded on the basis of the claim or application for benefits

underlying the issues successfully appealed to this Court. That payment could be

entirely dependent on the attorney's services before this Court, depending on the fee

agreement, and, under the express terms of section 5904(c)(1), would not be subject

to the limitations in section 5904(c)(1).

Id. at 86 (emphasis in original).

The Court recognized, however, that there is no statutory provision that prevents an attorney

from providing the claimant legal services on remand. Rather, the restriction provided in section

5904(c)(1) solely limits an attorney's ability to charge a fee for services provided before VA when

he is retained more than one year after the Board first makes a final decision in the case. The Court

in In re Fee Agreement of Mason explained that, on remand, "providing further services before the

Board and VA would, of course be in the best interest of the attorney to assist the claimant in

securing any award of past-due benefits" but that "continued representation" does not generate an

additional fee. Id.

IV. ANALYSIS

A. Mr. Mason's Eligibility To Charge a Fee

There is no dispute among the parties that the Board rendered its first final decision in the

case on June 6, 1997. Thus, pursuant to 38 U.S.C. § 5904(c)(1), to be eligible to charge and receive

a fee for services provided in a proceeding before VA, Mr. Mason must demonstrate that he was

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retained not later than one year after the June 6, 1997, decision. 38 U.S.C. § 5904(c)(1) (1998);

38 C.F.R. § 20.609(c)(3) (1998).

To the extent that Mr. Mason argues that the Board's decision to deny eligibility for payment

of attorney fees from the past-due benefits award was not premised on the failure to meet the

statutory requirements, he is mistaken. The Board clearly and succinctly stated that the "fee

agreement was not compliant with legal requirements" because "[t]he veteran's former attorney was

not retained by the veteran until August 3, 1998, more than one year after the Board decision was

issued." R. at 8. The Board supported its conclusion by stating that "[t]his is evidenced by the

attorney fee agreement dated on August 3, 1998, and . . . the retaining of an attorney is shown by a

qualifying fee agreement within the required time period." Id. at 8-9. Hence, the Court will proceed

to address the parties' remaining arguments to determine whether Mr. Mason has demonstrated error

in the Board's conclusion that he is not entitled to attorney fees based on the award of past-due

benefits. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant

bears the burden of demonstrating error on appeal).

As noted above, the first fee agreement executed on August 3, 1998, applied solely to Mr.

Mason's representation of Mr. Trawick at the Court. Mr. Mason does not contend that he is entitled

to payment of a fee pursuant to this agreement, nor should he. Mr. Mason expressly agreed not to

charge a fee for his representation of Mr. Trawick under that agreement. Hence, although section

5904(c)(1) does not limit the period in which an attorney must be retained to be eligible to charge

a fee for services provided in proceedings before a court, Mr. Mason agreed not to charge Mr.

Trawick a fee for representation provided at the Court under docket number 97-1589. Thus, to the

extent that Mr. Trawick's award of past-due benefits resulted from Mr. Mason's representation in

matters before the Court, the explicit terms of the "pro bono" fee agreement filed in connection with

docket number 97-1589 do not contemplate payment of a fee from Mr. Trawick.

Mr. Mason argues that he is entitled to receive a fee pursuant to the contingency fee

agreement, also executed on August 3, 1998, asserting that he satisfied the requirements of section

5904(c)(1). In this regard, he makes two alternative arguments, which the Court will address in turn.

Mr. Mason argues that "[a]lthough the fee agreement was not executed until August 1998, [he]

commenced his representation of Mr. Trawick in April 1998." Appellant's Reply Br. to the

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Intervenor at 3 (citing R. at 1111-12). At oral argument, Mr. Mason argued that there is a distinction

between being "retained" within the one-year period referenced in section 5904(c)(1) and having an

"executed fee agreement" within one year after the Board first makes a decision in the case. He

argued that the Board's finding that he was not "retained" until August 3, 1998, was clearly erroneous

because it was based on an incorrect interpretation of section 5904(c)(1). The Court disagrees.

Even assuming that Mr. Mason is correct, i.e., that there is a distinction between being

"retained" within the one-year period referenced in section 5904(c)(1) and having an "executed fee

agreement" within the one-year period, the Court is not "left with the definite and firm conviction"

that the Board's determination that Mr. Mason was not retained until August 3, 1998, was clearly

erroneous. United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v.

Derwinski, 1 Vet.App. 49, 52 (1990). The only evidence before the Board supporting Mr. Mason's

contention that he was retained within one year after the Board's June 6, 1997, decision was Mr.

Mason's December 18, 1998, correspondence to the Board in which he stated that his

"[r]epresentation of Mr. Trawick began in April, 1998, when Mr. Trawick] contacted him" but that

the agreement was not reduced to writing until after the Board Chairman denied Mr. Trawick's

motion for reconsideration. R. at 1111. However, the August 3, 1998, contingency fee agreement

at issue here, included the following specific terms, which speak to when Mr. Trawick retained Mr.

Mason to represent him: "I hereby retain you to represent me before the Board . . . and the [RO] . . .

to prosecute my claim for disability compensation benefits. . . . This agreement does not cover

representation before [the Court] or the [Federal Circuit] which will be covered by other

agreements." R. at 1113 (emphasis added); see WEBSTER'S NEW WORLD DICTIONARY 631 (3d

college ed. 1988) (defining "hereby" as "by or through this; by this means"); BLACK'S LAW

DICTIONARY 1317 (7th ed. 1999) (defining "retainer" as "[a] client's authorization for a lawyer to act

in a case"). Moreover, under the "COMMENCEMENT OF REPRESENTATION" section, Mr.

Mason and the veteran agreed that Mr. Mason's responsibility under the agreement would not

commence until each party signed the agreement and received a signed copy from the other party to

the agreement. R. at 1114 (capitalization in original). The agreement bears Mr. Mason's signature

and indicates that it was "[a]ccepted and agreed to" on August 3, 1998. Id.

As always, it is the Board's responsibility, in its role as factfinder, to assess the credibility of,

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and weight to be given to the evidence of record, and the Court may overturn the Board's decision

only if it is clearly erroneous. Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005); Owens

v. Brown, 7 Vet.App. 429, 433 (1995). In this case, Mr. Mason has not presented the Court with any

basis upon which to find the Board's determination in this matter clearly erroneous. Mr. Mason's

assertion that his representation of Mr. Trawick began in April 1998 appears to stand in direct

conflict with the express terms of the fee agreement, which indicated that (1) Mr. Trawick, by and

through the means of the August 3, 1998, representation agreement, retained Mr. Mason to represent

him before the Board and the RO, and (2) Mr. Mason's responsibility under the agreement did not

commence until at least August 3, 1998, the date Mr. Mason executed the fee agreement noting his

"accept[ance] and agree[ment]." R. at 1113-14. Accordingly, because Mr. Mason has not

demonstrated clear error in the Board's determination that he was not retained until August 3, 1998,

which is more than one year after June 6, 1997, the undisputed date on which the Board first made

a final decision in the case, his argument must fail.

Mr. Mason's alternative argument in support of his contention that he satisfied the

requirements of section 5904(c)(1) is that his representation of Mr. Trawick and his entitlement to

charge a fee was premised upon his representation of Mr. Trawick at the Court. Appellant's Reply

Br. to the Intervenor at 3. In this regard, Mr. Mason appears to rely on the exception noted in section

5904(c)(1), which states that "[t]he limitation in the preceding sentence does not apply to services

provided with respect to proceedings before a court." 38 U.S.C. § 5904(c)(1). However, this

argument is not availing because the Court rejected a similar argument made by Mr. Mason in In re

Fee Agreement of Mason, 13 Vet.App. at 84-85, when it held, "in general, after a remand is issued

by this Court, proceedings at the VA level are not a continuation of proceedings before this Court

so as to be exempt from the section 5904(c)(1) limitations on charging attorneys fees." 13 Vet.App.

at 85. Thus, in In re Fee Agreement of Mason, the Court held that "[b]ecause Mr. Mason was not

retained within one year after [the Board first made a decision in the case], he [was] not eligible to

charge a fee for services provided in a proceeding before the Board or VA, regarding the issues

involved in the [Board decision]" even though he represented the veteran in the proceedings before

the Court. 13 Vet.App. at 84-85.

Mr. Mason's reliance on the Secretary's implementing regulation, 38 C.F.R. § 20.609(c)(3)

12

(1998), is similarly misplaced. Section 20.609(c)(3) essentially reiterated the statutory requirement

that an attorney or agent be retained within one year after the Board first made a decision in the case.

In addition, the regulation contained a parenthetical, which stated: "This condition will be considered

to have been met with respect to all successor attorneys-at-law or agents acting in the continuous

prosecution of the same matter if a predecessor was retained within the required time." 38 C.F.R.

§ 20.609(c)(3) (emphasis added). Mr. Mason relies on the emphasized language to argue that

because Mr. Trawick properly retained Mr. Mason for representation before the Court, that action

permitted them to enter into a valid fee agreement for continuous prosecution of the same matter

before the Board and the RO. However, Mr. Mason fails to explain how this regulation is applicable

in this case, where the language of the regulation addresses continuous prosecution by "successor"

attorneys or agents.

Although Mr. Mason and Mr. Trawick executed two fee agreements, the Court finds the facts

in this case sufficiently analogous to the facts in In re Fee Agreement of Mason, 13 Vet.App. 79, to

be informed whether Mr. Mason is entitled to receive a fee for his continual representation of Mr.

Trawick on remand, when he was not retained by Mr. Trawick within one year after the Board first

made a decision in the case. What is clear from the Court's decision in In re Fee Agreement of

Mason is that continuing representation on remand from this Court does not necessarily entitle an

attorney to charge a fee for those services provided in the proceeding before the Agency. Rather,

entitlement to a fee for services before the Agency is dependent on the terms of the fee agreement

and whether the attorney was retained within the one-year period referenced in section 5904(c)(1).

Id. at 84 (holding that the attorney was not eligible to receive a fee for services provided before the

Agency after a successful appeal to the Court pursuant to a contingency fee agreement, which

provided for representation before the Court, the Board, and the RO, because he was not retained

within the one-year period referenced in section 5904(c)(1)).

Mr. Mason's arguments ignore the clear distinction drawn in In re Fee Agreement of Mason

regarding an attorney's eligibility to charge a fee for services when he is retained more than one year

after the Board first makes a decision in the case. 13 Vet.App. at 83-86. Pursuant to section

5904(c)(1), an attorney may not charge for services provided before the Board or the RO when he

is retained more than one year after the Board first makes a final decision in the case. Id. at 83.

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However, regardless of when the attorney is retained, an attorney may generally charge a fee for

services provided at the Court and may receive direct payment from the Secretary pursuant to a

qualifying contingency fee agreement on issues successfully appealed to the Court. Id. at 85-86.

This case creates an even clearer application of In re Fee Agreement of Mason because, here,

(1) Mr. Mason agreed not to charge Mr. Trawick a fee for services provided at the Court, see Fee

Agreement filed August 4, 1998, in connection with docket number 97-1589; and (2) as found by

the Board, Mr. Mason was not retained within one year of the June 6, 1997, Board decision. Thus,

to the extent Mr. Trawick's past-due benefits award is related to issues successfully appealed to the

Court, Mr. Mason agreed not to charge a fee for those services. And, to the extent Mr. Trawick's

past-due benefits award is related to services provided in a proceeding before the Board and the RO

pursuant to the separate contingency fee agreement, Mr. Mason's eligibility to receive a fee for those

services is subject to the limitation in section 5904(c)(1) that he be retained within one year after the

Board first makes a final decision in the case. Because Mr. Mason has not demonstrated clear error

in the Board's determination that he was not retained until August 3, 1998, more than one year after

the June 6, 1997, Board decision, he is not eligible to charge a fee for services provided before the

Board and the RO pursuant to the August 3, 1998, contingency fee agreement. See 38 U.S.C.

§ 5904(c)(1); In re Fee Agreement of Mason, supra.

B. Mr. Mason's Additional Arguments

The Court notes that Mr. Mason argued in his opening brief that (1) the Board erred when

it determined that he was not entitled to charge and receive a fee because he failed to file a copy of

the fee agreement with the Board in compliance with 38 C.F.R. § 20.609(g) and failed to notify the

RO of the fee agreement in compliance with § 20.609(h)(4); (2) the Board improperly relied on these

regulations without affording him notice of its intent to consider provisions of law not relied upon

by the RO in violation of 38 C.F.R. § 20.903(b); and (3) the Court should admonish the Board for

failing to provide him and his representative with a copy of the May 22, 2008, decision here on

appeal. The Court will not address the merits of Mr. Mason's additional arguments, however,

because Mr. Mason's failure to be retained within one year of the June 6, 1997, Board decision is

dispositive of the issue before the Court, and therefore, he cannot meet his burden of demonstrating

prejudicial error with regard to these arguments. See Shinseki v. Sanders, 129 S. Ct. 1696, 1704

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(2009) (noting that the statute requiring this Court to "take due account of prejudicial error []

requires the Veterans Court to apply the same kind of 'harmless error' rule that courts ordinarily apply

in civil cases").

C. Issues Not Raised by the Parties

The Court notes that Mr. Trawick filed with the Board a motion for reconsideration of the

June 6, 1997, decision and that the Court's caselaw provides that the filing of the motion of

reconsideration within the 120-day judicial appeal period abates the finality of the Board decision

for purposes of filing a timely Notice of Appeal at the Court. See Rosler v. Derwinski, 1 Vet.App.

241, 249 (1991); see also May v. Nicholson, 19 Vet.App. 310 (2005). However, because the parties

do not argue that Mr. Trawick's motion for reconsideration in any way abated the finality of the June

6, 1997, Board decision for purposes of being "the date on which the Board . . . first makes a final

decision in the case," 38 U.S.C. § 5904(c)(1), the Court will take no position on the effect, if any,

of Mr. Trawick's motion for reconsideration.

While our dissenting colleague would like to reach this issue, and in fact opines that Mr.

Trawick's motion for reconsideration abated the finality of the Board's June 6, 1997, decision, the

Court is hesitant to address this issue and refuses to do so, especially given the vast amount of

briefing that has been submitted in this matter, which has nonetheless resulted in the absence of any

argument, particularly from Mr. Mason, that the June 6, 1997, Board decision was not the first final

Board decision in the case. Specifically, neither Mr. Mason, an attorney with more than $53,000 at

stake in this litigation, nor his counsel, another experienced attorney, raised this issue to the Court,

and none of the 10 pleadings, which were drafted by at least 5 attorneys and totaled 214 pages,

contain any such abatement argument. Rather, this novel and interesting argument arose only in the

inquisitive mind of our distinguished dissenting colleague, who, perhaps unfortunately for Mr.

Mason, was not his representative.

It is undisputed that "U.S. courts of appeals have the discretion to raise legal issues not raised

by a party." Patton v. West, 12 Vet.App. 272, 283 (1999) (emphasis added); see also Kamen v.

Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) ("When an issue or claim is properly before the

court, the court is not limited to the particular legal theories advanced by the parties, but rather

retains the independent power to identify and apply the proper construction of governing law.")

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(emphasis added). However, we disagree with our dissenting colleague that this case represents one

of those rare instances when the Court should exercise that discretion. See Davis v. U.S., 512 U.S.

452, 464 (1994) (Scalia, J., concurring) (recognizing that, generally, "refusal to consider arguments

not raised is a sound prudential practice," but that "there are times when prudence dictates the

contrary"). Unlike in the Supreme Court cases cited by our dissenting colleague, we do not believe

that the effect of Mr. Trawick's motion for reconsideration at the Board is an issue "antecedent to . . .

and ultimately dispositive of'" the dispute before the Court that must be decided to avoid committing

a legal error. See post at 19-20 (quoting Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990) and

citing U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993) and Kamen,

500 U.S. at 99).

Rather, we view this argument as indistinguishable from any other argument – novel or

otherwise – that the Court would ordinarily deem abandoned by a party for a failure to raise it on

appeal. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (holding that issues or claims not argued

on appeal are considered abandoned). Considering arguments not raised by the parties essentially

wrests control of the litigation away from the parties, who, for any number of reasons, may have

chosen not to advance such arguments to the Court. In short, the Court will not invent an argument

for a represented party who had ample opportunity and resources to make that same argument, but,

for whatever reason–be it strategy, oversight, or something in between–did not do so. Cf. Forshey

v. Principi, 284 F.3d 1335, 1357-58 (Fed. Cir. 2002) (noting that a "variety of considerations may

counsel against consideration of an issue not decided or raised below" including whether the case

was litigated pro se); Ned Chartering & Trading, Inc. v. Republic of Pak., 294 F.3d 148, 155 (D.C.

Cir. 2002) ("[W]hile a Court may draw upon its own knowledge of applicable precedents in ruling

on a motion, it is not required to unearth theories and precedents not cited by a party . . . . Bringing

those precedents and theories to the attention of the district judge is the job of the party's attorneys.").

It is important to remember that our disagreement with our dissenting colleague amounts to

nothing more than a dispute over whether the Court should exercise its discretion to address an issue

not raised by the parties, not whether the Court has the authority to do so. As stated above, the Court

does not believe that resolution of the issue identified by our dissenting colleague is necessary to

the disposition of the case, see 38 U.S.C. § 7261(a) (limiting the Court's scope of review to decided

16

relevant questions of law "to the extent necessary to its decision and when presented" (emphasis

added)), and our dissenting colleague has not convinced us otherwise. Therefore, the Court will

decline to address that issue.

V. CONCLUSION

After consideration of the pleadings of the appellant, the Secretary, the intervenor, and

amicus curiae, and a review of the record, the Board's May 22, 2008, decision is AFFIRMED.

KASOLD, Chief Judge, dissenting: Until recently,7 Congress restricted the right of a veteran

to retain paid counsel for representation before the Secretary or the Board until after the Board issued

its "first . . . final [Board] decision," and then only if the veteran retained paid counsel within one

year of that final decision. 38 U.S.C. § 5904(c)(1) (1998). This statutory constraint on a veteran's

right to retain paid counsel should not be read broadly. Cf. Brown v. Gardner, 513 U.S. 115, 117-18

(1994) (noting that interpretative doubt is to be resolved in the veteran's favor).

There is no dispute in this case that Mr. Trawick's claim was denied by a June 1997 Board

decision and that he retained paid counsel in August 1998, more than one year after that decision.

There also is no dispute, however, that Mr. Trawick sought reconsideration of the June 1997 Board

decision in August 1997, and that he retained paid counsel in August 1998, two months after he

received notice in June 1998 that his request for reconsideration was denied.

Because, as discussed below, the request for reconsideration abated finality of the June 1997

Board decision until the request was denied in June 1998, Mr. Trawick had the right to retain

attorney Mason for a fee in August 1998. Additionally, Mr. Mason – who eventually was discharged

by Mr. Trawick – had the right to seek reimbursement for the work he performed on Mr. Trawick's

behalf prior to being discharged. Under such circumstances, the matter should be remanded for the

Board to determine the fee that reflects Mr. Trawick's contribution. See Scates v. Principi, 282 F.3d

1362, 1366 (Fed. Cir. 2002) ("[A]n attorney . . . discharged by the client before the case is completed

7

In 2006, Congress altered section 5904(c)(1), such that veterans denied benefits in a rating

decision may retain paid counsel for assistance the administrative and judicial appeal process "after

the date on which the notice of disagreement is filed." 38 U.S.C. § 5904(c)(1) (2006).

17

[ ] is not automatically entitled to the full twenty percent fee. He may receive only a fee that fairly

and accurately reflects his contribution to and responsibility for the benefits awarded."); Lippman

v. Shinseki, 23 Vet.App. 243, 256 (2009) ("Because [the veteran] objected . . . to the payment of the

supplemental attorney fee . . . , VA was obligated to review the fee agreement and reduce the fee to

be paid if it was excessive or unreasonable.").

"The concept of 'finality' with respect to judicial decisions does not have a single meaning

applicable in all contexts." Stanley v. Principi, 283 F.3d 1350, 1355 (Fed. Cir. 2002); see also Clay

v. United States, 537 U.S. 522, 527 (2003) ("Finality is variously defined . . . its precise meaning

depends on context."). The same is true with respect to Board decisions. Stanley, 283 F.3d at 1355

(citing Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000) (addressing finality of a Board

decision)). Thus, it is well settled, for example, that when a request for reconsideration is filed

within the time permitted to file an appeal with the Court (120 days), finality is abated for purposes

of filing an appeal, and a new 120-day period to appeal begins when the Board Chairman renders

a decision on the reconsideration request. Rosler v. Derwinski, 1 Vet.App. 241, 249 (1991) (holding

that a motion for reconsideration abates the finality of the Board decision and that the appeal period

is tolled); see Fithian v. Shinseki, 24 Vet.App. 146, 149 (2010) ("a Board decision is no longer final

once a motion for reconsideration is [timely] filed"); Rickett v. Shinseki, 23 Vet.App. 366, 371

(2010) ("[F]inality does not attach until the Board Chairman renders a decision denying the [timely]

motion for reconsideration . . . ."), rev'd on other grounds, 421 F. App'x 967 (Fed. Cir. 2011); see

also ICC v. Bhd. of Locomotive Eng'rs, 482 U.S. 270, 284 (1987) ("[P]etitions for reconsideration

. . . [render] the orders under reconsideration nonfinal."); Mondero v. Nicholson, 129 F. App'x 605,

607 n.1 (Fed. Cir. 2005) (acknowledging the adoption of Rosler in Linville v. West, 165 F.3d 1382,

1385-86 (Fed. Cir. 1999)).

The same rationale applies with regard to the retention of counsel, and application of section

5904(c)(1). When a veteran proceeds on his own and files for reconsideration within one year of an

adverse Board decision, finality of that decision is abated for the purposes of section 5904(c)(1), and,

if reconsideration is denied, the claimant has one year from the date of the denial of reconsideration

to retain paid counsel for further proceedings before the Board and Secretary. To hold otherwise,

essentially would be to mandate a claimant to retain paid counsel when seeking reconsideration of

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the Board decision, or lose the right to so retain paid counsel if the Board Chairman takes more than

one year to render a decision. Cf. Rosler, 1 Vet.App. at 246 (rejecting as an "onerous burden" the

notion that a claimant filing a motion for reconsideration must also file an appeal to the Court to

preserve his right to appeal). No policy supports forcing a veteran to seek counsel while still

pursuing a claim within the informal adjudication process below, or the loss of his right to do so

when efforts to seek recourse are rejected more than a year later.

As to the majority's belief that the issue of finality should not be addressed, I obviously

disagree. I understand that there are policy reasons for the Court not to address an argument not

explicitly raised, particularly when an appellant is represented by counsel and, as here, is an attorney

himself. However, this issue was not "invent[ed]" solely by myself. Ante at section IV.C. Rather,

it reasonably was raised by the statute, caselaw, the record of proceedings (which reflects the Board's

recognition of Mr. Trawick's motion for reconsideration), and the well-established fact that finality

depends on context. See Clay and Stanley, both supra; see also Forshey v. Principi, 284 F.3d 1335,

1357 n.20 (Fed. Cir. 2002) (an appellate court's "'duty is to enunciate the law on the record facts'"

(quoting Empire Life Ins. Co. of Am. v. Valdak Corp., 468 F.2d 330, 334 (5th Cir. 1972))), overruled

on other grounds by Morgan v. Principi, 327 F.3d 1357 (Fed. Cir. 2003).

In addition, the dramatically fluctuating litigative posture of this case supports a discussion

of the statutory interpretation issue raised by this case. In short, the Secretary initially agreed with

Mr. Mason that (1) the Board erred as to Mr. Mason's eligibility, and (2) reasonableness was the only

disputed issue. Amicus entered and likewise agreed. Only after Mr. Trawick intervened with a well-

written brief did the Secretary change his position. Although the majority correctly note that 10

briefs were submitted in this case, they fail to recognize that the Secretary reversed his position in

this litigation in the tenth and final brief. In this context, it is eminently understandable why Mr.

Trawick did not explicitly present an alternative argument on section 5904(c)(1) in his briefs. Such

circumstances only add to the propriety of addressing the statutory interpretation issue raised by this

case. See Davis v. United States, 512 U.S. 452, 464 (1994) (Scalia, J., concurring) (generally,

"refusal to consider arguments not raised is a sound prudential practice," but "there are times when

prudence dictates the contrary").

Moreover, the issue is dispositive. See U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am.,

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508 U.S. 439, 447 (1993) ("[A] court may consider an issue 'antecedent to . . . and ultimately

dispositive of' the dispute before it, even an issue the parties fail to identify and brief." (quoting

Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990))). The majority's application of section 5904

(c)(1) – done without considering the effect of Mr. Trawick's motion for reconsideration on the

finality of the Board decision or the commencement of the one-year period to retain paid counsel –

serves to bar Mr. Mason from receiving any compensation for the work he did at the Board for Mr.

Trawick. As shown above, a proper application of caselaw and canons of interpretation render a

conclusion that Mr. Trawick's motion for reconsideration abated the finality of the June 1997 Board

decision for the purposes of section 5904(c)(1) until the Chairman rendered a decision on that motion

in June 1998, such that the retention agreement in this instance was entered into within one year of

the first final Board decision.

Further, the purpose of the one-year period to retain paid counsel was to obstruct the retention

of attorneys for attempts to reopen claims after a number of years without any action. See 134 CONG.

REC. S16,632-01 (Oct. 18, 1988) (Sen. Cranston, noting that the purpose of the one-year period was

"to address the possibility of a claimant receiving a final B[oard] decision, waiting a number of years

without any action, and then retaining an attorney to request a reopening and pursuit of the claim at

the [RO] level"). That purpose is in no way fulfilled here, where Mr. Trawick never sat on his

laurels with many years of inaction. Rather, he promptly sought reconsideration of his Board

decision and promptly retained counsel after having his request for reconsideration denied. The

majority's application of section 5904(c)(1) in this instance contravenes the purpose behind the

statute. As shown above, such an application is not mandated by the statute, our caselaw, or the

canons of interpretation.

Finally, this is a significant issue, involving considerations of due process, a right to adequate

legal representation, and a right to contract. See Walters v. Nat'l Ass'n of Radiation Survivors,

473 U.S. 305, 312-16 (1985); Stanley, 283 F.3d at 1355-57. Factors underlying the original

enactment of attorney fee limitations, such as concerns about unscrupulous attorneys, and even

factors underlying the Supreme Court's decision in Walters to reverse a preliminary injunction on

such limitations are now different or no longer present. Compare Walters, 473 U.S. at 321-22, with

Veterans Judicial Review Act, Pub. L. No. 100-687 (Nov. 18, 1988) (effective June 1, 1989).

20

Although the one-year period in which a claimant may retain paid counsel for representation before

the Secretary or the Board is restrictive of the right to retain paid counsel, the degree of

restrictiveness is dependent on the meaning of when a Board decision becomes final for the purposes

of section 5904(c)(1). Because the concept of finality is context dependent, Stanley, supra, and an

overly restrictive application of section 5904(c)(1) is inconsistent with the purpose behind

establishing the one-year period, we should address the meaning of finality as used in section

5904(c)(1) in the context of a motion for reconsideration, find that Mr. Trawick had a right to retain

Mr. Mason for a fee in this case, and remand the matter for the Board to award a fee reflecting Mr.

Mason's contribution to Mr. Trawick's case.

21