UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O . 08-2969

K E N N E TH B. M A S O N , A P P E L L A N T ,
V

. E R I C K. S H I

N S E K I , S E C R E TA R Y O F V E TE R

A N S A F F A I R S , A P P E L L E E

.

F R E D E R I C K L

. T R

A W I C K , I N TE R V E N O R

. On Appea l from the B oard of Veter ans' Appea ls

(Arg ued Aug ust 25, 2011 Dec ided Octobe r 28, 2011)

Kenneth M. Carpenter , of Topeka , Kansa s, for the a

ppellant. Anthony C. Scire, Jr ., and Joan E. Moriarty , Deputy Assistant Gene ral Counsel, with whom W ill A. Gunn , Gene ral Counsel , and R. Randall Campbell , Assistant G ener al Counsel, wer e on the brief, a ll of Washington, D.C., for the appellee

. Michae l J. Nardotti , Jr ., with whom Elizabeth M. Gill was on the brief, both of Washington, D.C., for F rede rick L . Traw ick as interve nor.
Thomas J. Ree d , of Wil mington, Delaw are , for the Veter ans L aw Clini c of Widener University

School of L aw a s amicus cur iae. 1

Be fore KASOL D, Chief Judge , and HAG ELand SCHOEL EN, Judges

. SCHOEL EN, Judge , filed the opinion of the C o u rt. KASOL D, Chief Judge , filed a dissenting opinion.
SCHOEL EN, Judge : The appellant, attorney Kenne th B. Ma son, appea ls through c ounsel

The Court would like to extend its appre ciation t o Thomas J

. R ee d o f t he Vetera ns L aw 1 Clini c at Widener University of School of L aw who submitt ed written arg ument, as amicus curia e, in suppor t of Mr. Traw ick, who was initially unrepr esente d when he first reque sted to inter vene in this procee ding.a May

22, 2008, Boa

rd of Veter ans' Appea ls (B oard) decision t hat determined he was not eligible
to rec eive pay

ment of attorney fee s from past-due benef its awa rded to veter an Fr eder ick L

. Traw ick. Record of Procee dings (R.) at 3-9. The veter an and intervenor , Mr. Traw ick, filed a brief disputing Mr. Mason' s entitlement to pay ment of attorney fee s from the awa rd of past-due benef

its. The Boa

rd deter mined that "[t]he require ments for pay ment of attorney fee s in the amount of 20[%] of past-due benef its pay able to the veter an, in the calc ulated amount of $53,472.53, have not been met" beca use (1) Mr. Traw ick did not reta in Mr

. Mason until Aug ust 3, 1998, more than one y ear afte r a J une 6, 1997, Boa rd decision; and (2) Mr. Mason did not file a copy of the fee ag ree ment with the Boa rd and d i d not notify the reg ional office (RO) within 30 day s of its execution, as require d by 38 C

. F. R

. § 20.609(g ), (h)( 4) (2007). This appea l is timely , and the Court has jurisdiction to revie w the Boa rd' s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a)

. Be cause Mr. Mason has not demonstrated clea r err or in the Boa

rd' s finding that he was not reta ined within one y ear of the J une 6, 1997, Boa rd decision, the Court will aff irm the Boa

rd' s 2008 deter

mination that he is not elig ible for pay ment of attorney fee s for services p ro v i d ed in proce eding s befor e VA beca use his fee ag ree ment did not comply with the require ments of 38 U.S.C. § 5904(c)( 1).

I. BACKG ROUND On J une 6, 1997, the Boa

rd issued a decision in which it found that the veter an, Mr. Traw ick, did not prese nt new and materia l evidenc e sufficie nt to reope n a claim for entitlement to VA

com p en s ation benef

its for a psy chiatric disorder. R. at 1148-56. Mr. Traw ick filed a motion for

rec onsideration (R. at 1146), which was denied by the Boa rd Chairman on J une 19, 1998. R. at 1129-31. Whil e his motion for rec onsideration was pe nding, Mr . Traw ick also initiated an appea l to this C ourt on September 8, 1997. After the Boa

rd Chairman denied Mr. Traw ick' s motion for rec onsideration, on Aug ust 3, 1998, Mr. Mason enter ed into two repr esenta tion ag ree ments with the veter an. The first fee
ag ree ment was a pro bono repr esenta tion ag ree ment, which applied solely to Mr

. Traw ick' s appea l befor e the Court under

docket number

97-1589. The pro bono r epre sentation ag ree ment states:

2

The Court notes that the pr o bono repr esenta tion ag ree ment is not included in the rec ord 2 of proce eding s. Howeve r, beca use the ag ree ment was filed with the Court on Aug ust 4, 1998, under

2I here by reta in y ou to repr esent me befor e the [C ourt].

. . . This ag ree ment applies

only to my appea l befor e [t he Court] and does not apply to any repr esenta tion befor e the U.S. Court of Appea ls f or the Fe dera l Circuit [ (F eder al Circuit)] in the event of
an y ap p ea l or befor e the U.S. Depa rtment of Veter ans Affa irs in the event of a rema nd. Such repr esenta tion will be covere d by other a g ree ments, if any

. The ag ree ment al s o p ro vided that Mr. Mason would not char g e Mr. Traw ick "a fee or litigation
expenses for repr esenta tion u n d er this ag ree ment" and Mr. Traw ick ag ree d that Mr. Mason may reque st an awa

rd of att o rn ey fe es and expenses pursuant to the Equal Acc ess to J ustice Act, 28 U.S.C. § 2412. Finally , the ag ree ment stated that Mr. Mason would have "no obliga tion" to Mr. Traw ick "unle ss and until" Mr. Mason signe d and returne d a copy of the ag ree ment to Mr. Traw ick. The seco n d fe e ag ree ment, also executed on Aug ust 3, 1998, and at issue here , was a conting ent fee ag ree ment for repr esenta tion solely befor e the Boa rd and the RO. R. at 1111-14. The
ag ree ment states : "I h ere by reta in y ou to repr esent me befor e the Boa rd

. . . and the [R O]

. . . to prosec ute my cl aim for disability compensa tion benef its.

. . . This ag ree ment does not cover repr esenta tion befor e [t he C ourt] or the [Feder al Circuit,] which will be cover ed by other
ag ree ments." R. at 1113. I n this ag ree ment, Mr. Traw ick, the vete ra n , agreed to pay 20% of the
g ross amount of any

past-due be nefits awa

rd to a ttorney Mason as a "c ontinge ncy fee " a nd further
ag ree d that VA may wi t h h o l d such amount and make pay ment direc tly to the attorney

. Id. The
ag ree ment also permitted the veter an to discharg e the attorney "a t any time" upon written notice with the following proviso: "I f I discharg e y ou afte r y o u h av e fu lly or substantially perf ormed or contributed substantially to the results finally obtained by me, I shall be liable for pay ment of the fee
set forth above." R. at 1113-14. Finally , the ag ree ment contained a para g raph entitled "COMMENCEMENT OF REPR ESENTATI ON," w h ic h s ta te d : " Y o u r [Mr. Mason' s] responsibility under this ag ree ment will not commence unless or until (1) y ou rec eive a copy here of signe d by me [Mr. Traw ick] and (2) y ou date, sign[,] and return the ag ree ment to me." R. at 1114 (ca pitaliz ation in orig inal). Pursuant to the Secre tary ' s unopposed motion to vaca te t he Board' s J une 6, 1997 decision,

docket number 97-1589, t he C ourt will take judicial notice of its co n t en t

. See Cotant v. Principi , 17 Vet.App. 116, 124 (2003) (taking judicial notice of pleading s filed in case pending befor e Court that raised same question of statutory interpre tation); Shepard v. Gober , 10 Vet

. A p p
. 4 8 6 , 487 (1997) (taking judicial notice of r ecor d on appea l and pleading s filed in concur rent c ases)

. 3on October 8, 1998, the Court vaca ted the Boa

rd' s decision and rema

nded t h e m atter for further development. R. at 1 1 24-28. Mr. Mason filed a copy of the Aug ust 3, 1998, conting ency fee
ag ree ment with the Boa

rd and the RO on Dec ember 18, 1998. R. at 1111-14. I n his corr espondenc e, Mr. Mason noted that the ag ree ment was dated Aug ust 3, 1998, but that "[r]eprese ntation beg an in April[] 1998, when [Mr. Traw i ck] contac ted [hi m] ." R. at 1111. On J anuar y 4, 1999, the Boa

rd
wrote to Mr. Mason to inform him that it rec eived a copy of the fe e agr ee m ent and that there
appea red to be a "pote ntial problem" in that the fee ag ree ment was executed more than one y ear afte r the J une 1997 Boa

rd decision. R. at 145-47 (citing 38 U.S.C. § 5904(c) (1))

. The Boa rd acknow ledg ed that Mr. Mason' s Dec ember 1998 corr espondenc e indicated that repr e s entation beg an in April 1998 and reque sted "e vidence " to show that Mr. Mason was reta ined within one y ear of the J une 1997 Boa

rd decision. Id. The Dec ember 1998 corr espondenc e contains a handwr itten note in the marg in, w h ic h states: "[R] ep[resenta tion] beg an on 4/23/98[ ,] altho[ugh] not reduc ed to writing ." Id

. 3 Following the C ourt' s October 1998 rema nd, Mr. M ason i s named as the r epresentative of the veter an on three occa sions. See R. a t 1064- 74 (Apr. 28, 2000, Boa rd decision reope ning claim for e ntitlement to benef

its for a psy chiatric disorder) ; 1085-88 (Dec. 1, 1999, Boar d rema nd); and 1104-07 (Apr. 15, 1999, Boa rd rema nd). I n the April 28, 2000, Boa rd decision, the Boa

rd found that

new and materia l evidenc e h ad b ee n s u bmitted to reope n Mr. Traw ick' s claim for entitlement to benef its for a menta l disorder a nd further found the c laim to be well g rounded. R. at 1066. On May 19, 2000, Mr. Traw ick sent Mr. M as o n a letter informing him that he no longe r neede d his service s. R. a t 206. On the same date, Mr. Traw ick also appointed Disabled Americ an

The rec ord cont ai n s an u n s igned aff idavit, which appea

rs to have been draf

ted for Mr. 3 Traw ick' s signa ture, but there is no indication in the rec ord t hat he e ver e x ecute d the af fidavit. R. at 213. The aff

idavit states that it is being made "in answe r to the letter of the Boa rd

. . . dated J anuar y 4, 1999,

. . . to demonstrate that I reta ined my attorney , Kenne th B. Mason, within one y ear of the fina l Boa

rd dec ision herein dated J une 6, 1997[,] as require d by 38 U.S.C. § 5904(c)(1) and 38 C.F.R. § 20.609(c) (3)." Id. The document states that Mr. Traw ick first spoke with Mr. Mason,
on or about October or November 1997, and that in Apri l 1 9 9 8 he called Mr. Mason to repr esent him. Id. Fi n al l y , the document states: "We discussed the terms of repr esenta tion, and they wer e finally put in writing in J uly 1998 and executed in Aug ust 1998. I believe this shows that I reta ined Mr. Mason within [one] y ear of the fina l Boa

rd dec ision dated J une 6, 1997." Id.
4Ve t er ans (DAV ) as his repr esenta tive (R. at 1015); in J anuar y 2003, he appointed the Am er i ca n L egion (R. at 452); and in Aug ust 2004, he re- appointed DAV (R. at 459). On Marc h 10, 2005, while Mr. Traw ick was repr esente d by DAV, the RO notified him of its decision, which gra n t ed entitlement to benef

its for schizo-affe ctive d i sorder , bipolar ty pe, and assig ned a 100% disability rating , eff ective Aug ust 12, 1992, the date of Mr. Traw ick' s claim to reope n. R. at 502-19. The RO subsequently informed Mr. Mason and Mr. Trawi ck that it had deter mined that Mr. Mason was entitled to pay

ment of attorney fee s in the amount of $53 , 4 7 2

. 5 3 beca use the require ments of 38 U.S.C. § 5904 and 38 C.F.R. § 20.609 had bee n met. R. at 495-96. I n April 2005, Mr. Trawick filed a Notice of Disagr eeme nt asser ting, in re levant part, that "Mr

. Mason has not repr esente d me since 1999.

. . . I have had DAV repr esent me since 1999 when Mr. Mason told me he could not repr esent me any more." R. at 482. The RO issued a Statement of the Case in October 2005 stating that "[c]urrent repr esenta tion by the private attorney is not a statutory or reg ulatory prer equisite to VA' s pay ment of attorney fee s from past-due benef its." R. at 220-38, 237. The RO also stated that direc t pay ment could be made provided that "a ll other statutory and re g ulatory

require ments for pa

y ment of fe es, as we ll as the terms of the a g ree ment, have been met." R. at 237. I n his Substantive Appea l, Mr. Traw ick arg ued that "Mr

. Mason did very littl e work on my case [.] [T] he technica l work and the arg ument that won my claim was perf ormed by the DAV. I reque st that the money

withheld be re lease d as soon as possible." R. at 205. I n the May 22, 2008, decision here on appea l, the Boa rd deter mined that "[t]he require ments for pay ment of attorney fee s in the amount of 20[%] of past-due benef its pa y able to the veter an, in the calc ulated amount of $53,472.53, have not be en met." R. a t 5 (citing 38 U.S.C. § 5904 (2002) and 38 C.F.R. § 20.609 (2007))

. The Boa rd based its conclusion on two finding s: (1) Mr. Traw ick did not reta in Mr. Mason until Aug ust 3, 1998, which was more than one y ear afte r the Boa rd' s J une 6, 1997, decision; and (2) Mr. Mason did not file a copy of the fee ag ree ment with the Boa rd and did not notify the RO within 30 day s of its ex ecution, as r equire d by 38 C.F.R. § 20.609(g ), (h) (4).

5II. THE P ARTIES' CONTENTIONS

The Court notes that the parties have provided e x t en s i v e b riefs reg arding (1) Mr. Mason' s elig ibilit y to rec eive attorney fee s pursuant to the August 3, 1998, conting ency fe e agre ement and (2) the a ppropriate reme dy

assuming tha t the Court determined Mr . Mason was e ligible to re ceive

a fee

. Be cause the Court has deter mined here in that Mr. Mason' s elig ibilit y to rec eive a fee rests on whether he satisfied the statutory require ments provided in 38 U.S.C. § 5904(c) (1), which we hold he did not, the Court will limit its rema ining discussion of the parties' arg uments to this issue. Both the Secre tary and Mr. Traw ick ar g ue that Mr. Mason is not entitled to r ece ive pay ment of attorney fee s pursuant to the Aug ust 3, 1998, conting ency fee ag ree ment for service s provided befor e the Boa rd and the RO beca

use Mr. Traw ick reta ined Mr. Mason more than one y ear afte r the Boa rd first made a decision in the case , i.e. , J une 6, 1997. Secre tary ' s Supplemental Br ief (B r.) at 8-12; 4 I nterve nor' s Br

. at 6-12. They arg ue that the conting ency fee ag ree ment betwee n Mr. Mason and Mr. Traw ick is subject to the one-y ear require ment set forth in 38 U.S.C. § 5904(c) (1) beca use the statute only exempts "se rvice s provided with respe ct to proce eding s befor e a court" and the conting ency fee
ag ree ment at issue here , executed more than one y ear afte r the June 6, 1997, decision, was limit ed to service s provided bef

ore the Boa

rd and the RO. Id

. Mr. Mason makes three arg uments in r esponse. First, he a rg ues that the B oard' s order that denied entitlement to fee s was not premise d on Mr. Mason' s not having met the statutory require ments to char g e a fee . Appellant' s Reply Br . to the I nterve nor at 2. Sec ond, he arg ues t hat he met the statutory require ments beca use he was "r etained" within one y ear of the Boa rd' s J une 6, 1997, decision. Id. at 3. Mr. M ason asserts that althoug h the contingenc y fee agre em en t wa s not executed unti l Aug ust 3, 1998, he "commenc ed his repr esenta tion of Mr. Tra

wick in April 1998." Id. Third, he arg ues that his "r epre sentation of Mr. Traw ick and his entitlement to char g e a fee was premised u p o n h i s repr esenta tion of Mr. Traw ick before this Court [i n docket number] 97-1589." Id.

The Court notes that the S ec re t ar y 's initial brief in this matter posited that Mr. Mason' s

4 rete ntion as counsel more than one y ear afte r the Boa rd' s J une 6, 1997, decision did not prec lude him from rece iving direct pay ment of attorney fee s u n d er 3 8 U. S

. C. § 5904(d). Secre tary ' s Br

. at 6-8. The Secre tary modified his position and arg ued for aff irmance of the Boa

rd' s d ec ision in his supplemental brief

. 6III. LAW A. Statutory

and Reg ulatory

Provisions The statutory provision that g overns an attorney ' s entitlement to char g e and rec eive a fee for service s provided in connec tion with a proce eding befor e VA is 38 U.S.C. § 5904(c) (1). I n 1998, when Mr. Mason and Mr. Traw ick executed the fee ag ree ment at issue, section 5904(c) (1) provided: (c) (1) Ex cept as provided in pa rag raph (3), in connec tion with a proce eding befor e the Depa rtment with respe ct to benef its under laws administered by the Secre tary , a fee may no t be char g ed, allowed, or paid for service s of ag ents and attorney s with respe ct to service s provided befor e the date on which the Boa rd of Veter ans' Appea ls first makes a final decision in the case
. Such a fee may be char g ed, allowed, or paid in the case of service s provided afte r such date only if an ag ent or attorney is reta ined with respe ct to such case before the end of the one-y ear period beg inning on that date. The limit ation in th e p re ce d ing sentenc e does not apply to service s provided with respec t to procee dings be fore a cour t. 38 U.S.C. § 5904(c)(1)

. 5 Section 5904(d) pr ovided that when a claimant and an attorney enter into a fee ag ree ment, under which the total a

mount of the fee pay able to the attorney "is to be paid to the attorney by the Secre tary direc tly from any past-due benef its awa rded on the basis of the claim" and "is conting ent

on whether or not the matter is resolved in a manner favor able to the claimant," "the total fee pay able to the attorney

may not e x cee d 20 perc ent of the total a mount of any past-due benef its a war ded on the basis of the claim." 38 U.S.C. § 5904(d)( 1),(2) (A). A claim is considere d "to have been resolved i n a m an n er favorable to the claimant if all or any part of the relief s oug ht is g rante d." 38 U. S

. C

. § 5904(d)( 2)(B ).

The Court note s that Congr ess amende d section 5904(c) (1) in 2006 to pe rmit a n ag ent or 5 attorney to char g e a fee for service s i n co n n ection with a proce eding befor e VA afte r the date on which a Notice of Disag ree ment is filed with respe ct to the case
. See 38 U.S.C. § 5904(c) (1) (2006). Howeve r, Cong ress e x plicitly provided for prospec tive application of the amende d statute, stating that it "sha ll take effe ct on the date that is 180 day s [J une 20, 2007] afte r t he date of enactment of this Act [Dec. 22, 2006] an d s h all apply with respe ct to service s of ag ents or attorney s that are provided with respe ct to case s in which [N] otices of [D] isag ree ment are filed on or afte r that date." Veter ans Be nefits, Hea lth Care, and I nformation Tec hnology Act of 2006, Pub. L

. No. 109-461, tit. I , § 101(h), 120 Stat. 3403, 3408.

7The Sec reta ry ' s implementing re g ulation, which pre scribes w hen an attorney may char g e a fee for service s i n a proce eding befor e VA, 38 C.F.R. § 20.609 (1998), entitled "Pay ment of
repr esenta tive' s fee s in pr ocee dings befor e the Depa rtment of Veter ans Affa irs field personne l a nd befor e the B oard of

Veter ans' Appea ls," provide d in releva nt part: (c) Circumstances under which fees may be charged

. Ex cept as noted in para g raph (d) of this section, attorney s-at-law and ag ents may char g e claimants or appellants for

their ser vices only

if all of the f

ollowing c onditions are met: (1) A final decision has been promulg ated by the Boa rd

. . . with respe ct to the issue, or issues, involved; (2) The Notice of Disag ree ment which prec eded the Boa rd

. . . decision with respe ct to the i ssue, or issues, involved was rec eived by the age ncy of original jurisdi ction on or af ter Nove mber 18, 1988; and (3) The attorney -at-la

w or ag ent was reta i n ed n o t l at er than one y ear following the date that the decision by the Boa rd

. . . with r espec t to the issue, or issues, involved
was promulg ated. (This condition will be considere d to have been met with respe ct to all succe ssor attorney s-at-la w or ag ents acting in the continuous prosec ution of the same matter

if a pre dece ssor was r etained within the require d time.) 38 C.F.R. § 20.609 (c) (1),( 2),(3)

. B. In re Fe e Agree ment of Mason 6 I n In re Fee A g r ee me nt of Mason , 13 Vet.App. 79, 81-85 (1999), the Court addre ssed whether an attorney was eligible to rec eive a fee for s er v i ces provided i n a procee ding before VA subsequent to a succe ssful appea l to this Court, wher e the claimant and the attorney enter ed into the fee ag ree ment for leg al service s befor e the Court, the Boa rd, and VA, more than one y ear afte r the Boa rd first made a final decision in the case
. Th e C o u rt h el d t h at beca use the attorney was not
reta ined within one y ear afte r the Bo ard issued its first decision in the case , the attorney was ineligible to char g e a fee for se rvice s provided in a pr ocee ding be fore the B oard or VA. Id. at 84. The appellant- attorney arg ued that the require ment in section 5904(c) (1) that the attorney be reta ined within one y ear afte r the first Boa rd decision was not applicable in this ci rc u m s t an ce beca use his service s provided befor e the Ag ency on rema nd wer e a continuation of proce eding s befor e the Court. See 38 U.S.C. § 5904(c)(1) (stating that "[t]he limit ation in the preceding sentenc e does not a pply

Although the appellant- attorney in the instant pr ocee ding is the same attorne y whose fe e 6 ag ree ment was discussed in In re Fee Agreem ent of Mason , the matter curr ently befor e the Court is otherwise unr elated to those pr ocee dings.
8to service s provided with respe ct to proce eding s befor e a court" ). The Court reje cted this arg ument

stating, "in g ener al, afte r a rema nd is issued by this Court, proce eding s at the VA lev el ar e not a

co n t i n uation of proce eding s befor e this Court so as to be exempt from the section 590 4 (c )( 1 ) limit ations on char g ing attorney s fee s." In re Fe e Agree ment of Mason , 13 Vet.App. a t 85. The Court s t at ed, howeve r, that "a n attorney is alway s entitled to char g e a fee for
represe ntation on matters before this Court , and may be entitled to direc t pay ment from the Secre tary from past-due benef its awa rded as a result of

such represe ntation ." Id

. (empha sis added)

. The Court held, [t ]herefor e, wher e an attorney succe ssfully repr esents a VA claimant bef o re t his Court and has filed a qualify ing attorney -client fee ag ree ment which direc ts pay ment by the Secre tary from an awa rd of past-due benef

its awa rded on the basis of the claim filed wi t h VA , t h e Secre tary is obliga ted t o pay direc tly to the attorney 20% of the past-due b en ef

i ts awa rded on the basis of the claim or application for benef its underlying the issues succe ssfully ap p ea l ed to this Court

. That pay ment could be entirely depende nt on the attorney ' s service s befor e this Court, depending on the fee ag ree ment, and, under the express terms of section 5904(c) (1), would not be subject to the limit ations in section 5904(c) (1). Id. at 86 (e mphasis in origina l). The Court rec og nized, howeve r, that there is no statutory provision that preve nts an attorney from providing the claimant leg al service s on rema nd. Rather, the rest riction provided in section 5904(c) (1) solely limit s an attorne y ' s ability to char g e a f

ee f or ser vices provide d befor e VA when he is reta ined more than one y ear afte r the Boa rd first makes a final decision in the case
. The Court in In re Fee Agreem ent of Mason explained that, on rema nd, "pr oviding further service s befor e the Boa rd and VA would, of course be in the best inte re s t of the attorney to assist the claimant in

secur ing any awa

rd of past-d u e b enef

its" but that "c ontinued repr esenta tion" does not g ener ate an additional fee

. Id.

IV. ANALYSIS A. Mr. Mason' s Eligibility To Charg e a F ee There is no dispute among the parties that the Board render ed it s first final decision in the

case on J une 6, 1997. Thus, pursuant to 38 U.S.C. § 5904(c) (1), to be elig ible to char g e and rec eive

a fee for service s provided in a proce eding befor e VA, Mr. Mason must demonstrat e t h at he was

9reta ined not later th an o n e y ea r afte r the J une 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 arg ues that the Boa rd' s decision to deny elig ibilit y for pay ment of attorney fee s from the past-due benef its awa rd was not p re mised on the failure to meet the statutory require ments, he is m i s t ak en. The Boa rd clea rly and succinc tly stated that the "f ee ag ree ment was not compliant with leg al require ments" beca use "[t]he veter an' s former attorney was not reta ined by the veteran u ntil Aug ust 3, 1998, more than one y ear afte r t he Board decision was issued." R. at 8. The Boa rd supported its conclusion by stating that "[t]hi s is evi d en ce d b y the attorney fee ag ree ment dated on Aug ust 3, 1998, and

. . . the reta ining of an attorney is shown by a qualify ing fee ag ree ment within the require d time period." Id. at 8-9. Henc e, the Court will proce ed
to addre ss the parties' rema ining arg uments to deter

mine whether Mr. Mason has demonstrated err or in the Boa

rd' s conclusion that he is not en t i t l ed to attorney fee s based on the awa rd of past-due benef its. See Hilkert v. W

es t , 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant bear s the burden of

demonstrating err or on appe al). As noted above, the first fee ag reement executed on Aug ust 3, 1998, applied solely to Mr. Mason' s repr esenta tion of Mr. Traw ick at the Court. Mr. Mason does not contend that he is entitled to pay ment of a f

ee pursuant to this ag ree ment, nor should he. Mr. Mason e x pressly ag ree d not to char g e a fee for his repr esenta tion of Mr. Trawick unde r that ag ree ment. Henc e, although section 5904(c) (1) doe s not lim it the period in which a n attorney must be retained to be eligible to char g e

a fee for s er v i ce s provided in proce eding s befor e a court, Mr. Mason ag ree d not to char g e Mr. Traw ick a fee for repr esenta tion provided at the Court under docket number 97-1589. Thus, to the
extent that Mr. Trawi ck 's aw ar d of past-due benef its resulted from Mr. Mason' s repr esenta tion in
matters befor e the Court, the expli cit terms of the "pr o bono" fee ag ree ment filed in connec tion with docket number

97-1589 do not contemplate pay ment of a f

ee f rom Mr. Tra

wick. Mr. Mason arg ues t h at he is entitled to rec eive a fee pursuant to the conting ency fee
ag ree ment, also executed on Aug ust 3, 1998, asser ting that he satisfied the require ments of section 5904(c) (1). I n this reg ard, he makes two alterna tive arg uments, which the Court will addre ss in turn. Mr. M as o n ar gu es that "[a]lthough the fee ag ree ment was not executed until Aug ust 1998, [he]

commence d his repr esen t at i o n of Mr. Traw ick in April 1998." Appellant' s Reply Br

. to the

10I nterve nor at 3 (citing R. at 1111-12). At oral arg ument, Mr. Mason arg ued that there is a distinction

betwee n being "r etained" within the one-y ear period ref ere nced in section 5904(c) (1) and having an "e x ecute d fee ag ree ment" within one y ear afte r the Boa rd first makes a decision in the case
. He
arg ued that the Boa

rd' s finding that he was not "r etained" until Aug ust 3, 1998, was clea rly err oneous beca use it was base d on an incor rec t interpreta tion of section 5904(c )(1) . The Court disag ree s. Even assuming that Mr. Mason is corr ect, i.e. , that there is a disti n ct i o n betwee n being "r etained" within the one-y ear period ref ere nced in section 5904(c) (1) and having an "e x ecute d fee
ag ree ment" within the one-y ear period, the Court is not "le ft with the definite and firm conviction" that the Boa

rd' s deter m ination that Mr. Mason was not reta ined until Aug ust 3, 1998, was clea rly

err oneous. United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (194 8 ); s ee a l s o Gilbert v. Derwinski , 1 Vet.App. 49, 52 (1990). The only evidenc e befor e the Boa rd supporting Mr. Mason' s contention that he was reta ined within one y ear afte r the Boa rd' s J une 6, 1 9 9 7, decision was Mr. Mason' s Dec ember 18, 1998, corr espondenc e to the Boa rd in wh i ch h e stated that his "[r]eprese ntation of Mr. Traw ick beg an in April, 1998, when Mr. Traw ick] contac ted him" but that
t h e agr ee m en t was not reduc ed to writing until afte r the Boa rd Chairman denied Mr. Traw ick' s motion for rec onsideration. R. at 1111. Howeve r, the Aug ust 3, 1998, conting ency fee ag ree ment
at issue here , included the following specific terms, which speak to when Mr. Traw ick reta ined Mr. Mason to repr esent him: " I hereby retain you to repr esent me befor e the Boa rd

. . . and the [R O]

. . . to prosec ute my claim for disability compensa tion benef its.

. . . This ag ree ment does not cover repr esenta tion befor e [t he Cou rt] or the [Feder al Circuit] which will be cover ed by other
ag ree ments." R. at 1113 (empha sis added) ; see W E B S TE R ' S N E W W O R L D D I C TI O N

A R Y 6 3 1 (3d colleg e ed. 1988) (def

ining "h er eby " as "by or throug h this; by this means" ); B L A C K ' S L A W D I C TI O N

A R Y 1317 (7th ed. 1999) (def ining "r etainer " as "[a] client' s authorization for a lawy er to act in a case ")

. Moreove r, under the "COMMENCEMENT OF REPR ESENTATI ON " s ec t ion, Mr. Mason and the veter an ag ree d that Mr. Mason' s responsi b ility under the ag ree ment would not

commence until eac h party signe d the ag ree ment and rec eived a signe d copy from the other party to the ag ree ment. R. at 1114 (ca pitaliz ation in orig inal). The ag ree ment bear s Mr. Mason' s signa ture and indicate s that it was "[a]cce pted and a g ree d to" on Aug ust 3, 1998. Id

. As alway s, it is the Boa

rd' s responsibility , in its role as fac tfinder, to assess the cre dibilit y of,

11and we ight to be g iven to the evidenc e of r ecor d, and the Court may overturn the Boa

rd' s decision only if it is clea

rly err oneous. W

ashington v. N

icholson , 19 Vet.App. 362, 367-68 (2005); Owens

v. Brown , 7 Vet.App. 429, 433 (1995). I n this case , Mr. Mason has not prese nted the Court with any basis upon which to find the Board' s deter mination in this matter clearly err oneo u s
. M r. M ason' s

asser tio n that his repr esenta

tion of Mr. Traw ick beg an in April 1998 appea rs to stand in direc t conflict with the e x press terms of the fee ag ree ment, which indicated that (1) Mr. Traw ick, by and throug h the means of the Aug ust 3, 1998, repr esenta tion ag ree ment, reta ined Mr. Mason to repr esent him before the B oard a

nd the RO, and (2) Mr. Mason' s responsibility under the ag ree ment did not

commence until at least Aug ust 3, 1998, the date Mr. Mason executed the fee ag ree ment noting his "a cce pt[ ance ] and agree[ment] ." R. at 1113-14. Acc ording ly , beca use Mr. Mason has not demonstrated clea

r err or in the Boa

rd' s deter mination that he was not reta ined until Aug ust 3, 1998, which is more than one y ear afte r J une 6, 1997, the undisputed date on which the Boa rd first made a fina l decision in the ca se, his arg ument must fail. Mr. Mason' s alterna tive argum en t in support of his contention that he satisfied the require ments of section 5904(c) (1) is tha t his re prese ntation of Mr. Traw ick and his e ntitlement to char g e a fee was premised upon his repr esenta tion of Mr. Traw ick at the Court. Appellant' s Reply Br

. to the I nterve nor at 3. I n this reg ard, Mr. Mason appea rs to rely on the exception noted in section 5904(c) (1), whic h states that " [t ]he lim itation in the pr ece ding se ntence does not apply to service s provided with resp ec t t o p ro cee dings befor e a court." 38 U.S.C. § 5904(c) (1). Howeve r, this
arg ument is not availing beca use the Court reje cted a simil ar arg ument made by Mr. Mason in In re Fee Agreem ent of M

ason , 13 Vet.App. at 84-85, when it held, "in g ener al, afte r a rema nd is issued by this Court, proceeding s at t he VA level are not a continuation of procee dings be fore this Court

so as to be exempt from the section 5904(c) (1) limit ations on char g ing attorney s fee s." 13 Vet.App. at 85. Thus, in In re Fe e Agreement of Mason , the C ourt held that " [b] eca use Mr. Mason w as not
reta ined within one y ear afte r [t he Boa rd first made a decision in the case ], he [was] not elig ible to char g e a fee for serv i ce s provided in a proce eding befor e the Boa rd or VA, reg arding the issues involved in the [Board decision]" even though he repr esente d the veter an in the proce eding s befor e the Court. 13 Vet.App. a t 84-85. Mr. Mason' s relianc e on the Secre tary ' s implementing reg ulation, 38 C.F.R. § 20.609(c) (3)

12(1998), is simil arly misplaced. Section 20.609(c) (3) essentially reiter ated the statutory require ment

that an attorney or ag ent be reta ined within one y ear afte r the Boa rd first made a decision in the case
. I n a d d it io n , the reg ulation contained a pare nthetical, which stated: "T his condition will be considere d
to have been met with respe ct to all succe ssor attorney s-at-law o r agents acting in the continuous
prosec ution of the same matter if a predec essor was retained withi n the required time ." 38 C.F.R. § 2 0

. 609(c) (3) (empha sis added)

. Mr. Mason relies on the emphasized lang uag e to arg ue t h at beca use Mr. Tr awick pr operly reta ined M r. Mason for repr esenta tion before the Court, that action permitted them to enter into a valid fe e agr ee m en t for continuous prosec ution of the same matter befor e the Boa

rd and the RO. Howeve r, Mr. Mason fails to explain how this reg ulation is applicable in this case , wher e the lang uag e of the reg ulation addre sses continuous prosec ution by "suc cessor " attorney s or ag ents. Although Mr. Mason and Mr. Traw ick executed two fee ag ree ments, the Court finds the fac ts in this case sufficie ntly analog ous to the fac ts in In re Fee Agreem ent of Mason , 13 Vet.App. 79, to be informe d whether

Mr. Mason is entitled to rec eive a fee for his continual represe ntation of Mr. Traw ick on rema

nd, when he was not reta ined by Mr. Traw ick within one y ear afte r the Boa rd first made a decision in the case
. What is clea r from the Co u rt 's d ecision in In re Fee Agreem ent of Mason is that continuing repre sentation on rema nd from this Court does not nece ssarily entitle an at torney to char g e a fee for those service s provided in the proceeding befor e the Ag ency
. R at h er , entitlement to a fe e for

service s befor e the Ag ency is depende nt on the terms of the fee ag ree ment and whether the attorney was reta ined within the one-y ear period ref ere nced in se ction 5904(c) (1). Id

. at 84 (holding that the attorney was not elig ible to rec eive a fee for service s provided befor e the Ag ency afte r a succe ssful appea l to the Cour t p u rs u an t to a conting ency fee ag ree ment, which provi d ed fo r re p rese ntation befor e the Court, the Board, and the R O, because he was not reta ined within the one-y ear

period re fer ence d in section 5904(c) (1))

. Mr. Mason' s arg uments ignor e the clea r distinction draw n in In re Fee Agreem ent of Mason
reg arding an attorney ' s elig ibilit y to char g e a fee for service s when he is reta ined more than one y ear afte r t h e Bo ar d first makes a decision in the case
. 13 Vet.App. at 83-86. Pursuant to section 5904(c) (1), a

n attorney may not char g e for

service s provided bef

ore the Boa

rd or the R O when he is reta ined more than one y ear afte r the Boa rd first m ak es a fi n al d ecision in the case
. Id. at 83.

13Howeve r, reg ardle ss of when the attorney is reta i ned, an attorney may g ener ally char g e a fee for

service s provided at the Court and may rec eive direc t pay ment fr o m t h e S ec retary pursuant to a qualify ing c ontinge ncy

fee ag ree ment on issues succe ssfully appea led to the Court. Id . at 85-86. This case cre ates an even clea rer application of In re Fee Agreem ent of Mason beca

use, here , (1) Mr. Mason agr eed not to char g e Mr. Traw ick a fee for services provided at the C o u rt , s ee Fe e Ag ree ment filed August 4, 1998, i n connec tion with docket number 97-1589; and (2) as found by the Boa rd, Mr. Mason was not reta ined within one y ear of the J une 6, 1997, Boa rd decision. Thus,
to the extent Mr. Traw ick' s past-due benef its awa rd is rela ted to issues succe ssfully appea led to the C o u rt , Mr. M ason agr eed not to char g e a fee for those service s. And, t o the ex tent Mr. Trawi ck 's past-due benef

its awa rd is rela ted to service s provided in a proce eding befor e the Boa rd and the RO pursuant to the separ ate conting ency fee ag ree ment, Mr. Mason' s elig ibilit y to rec eive a fee for those service s is subject to the limit ation in section 5904(c) (1) that he be reta ined within one y ear afte r the Boa rd first makes a final decision in the case
. Be cause Mr. Mason has not demonstrated clea r err or in the Boa rd' s deter mination that he was not reta ined until Aug ust 3, 1998, more than one y ear afte r the J une 6, 1997, Boa

rd decision, he is not elig ible to char g e a fee for service s provided befor e the Boa rd and the RO pursuant to the Aug ust 3, 1998, conting ency fee ag ree ment. See 3 8 U. S .C. § 5904(c) (1); In re Fe e Agree ment of Mason , supra
. B. Mr . Mason' s Additional Arg uments The Court notes that Mr. M ason arg ued in his opening brief that (1) the B oard e rre d when it deter mined that he was not entitled to char g e and rec eive a fee beca use he failed to f

ile a copy of the fee ag ree ment with the Boa rd in compliance with 38 C.F.R. § 20.609(g ) and failed to notify the RO of the fee ag ree ment in compliance with § 20.609(h)( 4); (2) the Boa rd improperly relied on these
reg ulations w ithout af

fording him notice of its intent to c onsider provisions of law not r elied upon by the RO in violation of 38 C.F.R. § 20.903(b); and ( 3) the Court should admonish the Boa rd for failing to provide him and his rep rese ntative with a copy of the May 22, 2008, decision here on appea l. The Cou rt wi l l not addre ss the merits of Mr. Mason' s additional arg uments, howeve r, beca use Mr. Mason' s failure to be retained withi n one y ear of t he J une 6, 199 7 , Bo ar d d ec i s ion is dispositi ve of the issue befor e the Court, and there fore , he cannot meet his burden of demonstrating prejudicia l err or with reg ard to these arg u m en t s
. S ee S h inseki v. Sanders , 129 S. Ct. 1696, 1704

14(2009) (noting that the statute req u i ri n g t h is Court to "take due acc ount of prejudicia l err or []

require s the Veter ans Court to apply the same kind of ' harmless err or' rule that courts ordinarily apply in civil cases" ). C. I ssues Not Raised by the Parties The Court notes that Mr. Tra wick filed w ith the Board a motion for reconsider ation of t he J une 6, 1997, decision and that the Court 's ca s elaw provides that the filing of the motion of

rec onsideration within the 120-da y judicial appea l period abates the finality of the B oard de cision for purposes of filing a timely Notice of Appea l at the Court. See Rosler v. Derwinski , 1 Vet.App. 241, 249 (1991); see also May v. Nicholson , 19 Vet.App. 310 (2005). Howeve r, beca use the parties do not arg ue that Mr. Traw ick' s motion for rec onsideration in any way abate d the finality of the J une 6, 1997, Boa

rd dec ision for purposes of being "the date on which the B oard . . . f irst makes a f

inal decision in the case," 38 U.S.C. § 5904(c) (1), the Court will take no position on the effec t, if any , of Mr. Tr awick' s motion for rec onsideration. W h i l e our dissenting colleag ue would like to rea ch this issue, and in fac t opines that M r. Traw ick' s motion for reconsider ation abate d the finality of t he Board' s J une 6, 1997, decision, t he Court is hesitant to addre ss this issue and ref uses to do so, espec ial l y gi v en the vast amount of briefing that has been submitt ed in this matter, which has nonetheless resulted in the absenc e of any arg ument, particula

rly from Mr. Mason, that the J une 6, 1997, Boa rd decision was not the first final Boa rd decision in the case
. Specifica lly , neither Mr. Mason, an attorney with more than $53,000 at stake in this litigation, nor his counsel, another experience d attorney , raised this issue to the Court, and none of the 10 pleading s, which wer e draf ted by at least 5 attorney s and totaled 2 1 4 pag es, contain any such abate ment arg ument. Rather, this novel and interesting arg ument arose only in the inquisit ive mind of o u r d i s t inguishe d dissenting colleag ue, who, perha ps unfortunate ly for Mr. Mason, was not his re prese ntative. I t is undisputed that "U .S. courts of appea ls have the discretion to raise leg al issues not raised by a party ." Patton v. W est , 12 Vet.App. 272, 2 8 3 (1999) (empha sis added) ; see also Kamen v. Kemper Fin. Servs., Inc. , 500 U.S. 90, 99 (1 9 9 1 ) ("When an issue or claim is proper ly befor e the court, the court is not limit ed to the particula r leg al theories advanc ed b y t h e p ar t i es , but rathe r retains the independe nt power to identify and apply the proper construction o f go verning law." )

15(empha sis added)

. Howeve r, we disag ree with our dissenting colleag ue that this case repr esents one

of those rar e instances when the Court should exercise that discretion. See Davis v. U.S. , 512 U.S. 452, 464 (1994) (Scalia, J ., concur ring ) (re cog nizi ng that, g ener ally , "r efusa l to consider arg uments

no t ra i s ed i s a sound prudential prac tice," but that "the re are times when prudenc e dictates the
contra ry ")

. Unlike in the Supreme Court case s cited by our dissenting colleag ue, we do not believe that the eff

ect of Mr. Traw ick' s motion for rec onsideration at the Boa rd is an issue "a

ntece dent to

. . . and ultimately dispositi ve of' " the dispute befor e the Court that must be decide d to avoid committing

a leg al err or. See post at 19-20 (quot ing 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 v i ew this arg ument as indisti ng uishable from any other arg ument – novel or otherwise – that the Court would ordinarily deem abandone d by a party for a failure to raise it on appea l. See Grivois v. Brown , 6 Vet.App. 136, 138 (1994) (holding that issues or claims not arg ued
on appea l are considere d abandone d). Considering arg uments not raised by

the par ties essentially

wre sts control of the litigati o n aw ay from the parties, who, for any number of rea sons, may have chosen not to advanc e such arg uments to the Court. I n short, the Court will not invent an arg ument for a repr esente d party who had ample opportunity and resour ces to make that same arg ument, but, for whateve r rea son–be it strateg y , oversig ht, or something in be tween–did not do so. Cf. Forshey v. Principi , 284 F.3d 1335, 1357- 58 (F ed. Cir. 2002) (noting that a "va riety of consider ations may counsel ag ainst considera tion of an issue not decide d 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 ]hi le a Court may draw upon its own knowledg e of applicable prec edents in r uling

on a motion, it is not required to unear th theories and prec edents not cited by a party

. . . . Br inging those prec edents and theories to the attention of the district judge is the job of the party ' s attorney s.")

. I t is important to reme mber that our disag ree ment with our dissenting colleag ue amounts to nothing more than a dispute over whether the Court should exe rcise its discretion to addre ss 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 co l l ea gu e i s nece ssary to the dispositi on of the case , see 38 U.S.C. § 7261(a) (limiti ng the Court's scope of revie w to decide d

16rele vant questions of law "to the extent nece ss a r y t o i t s decision and when presented " (empha sis added) ), and our dissenting coll ea gu e has not convince d us otherwise. There fore , the Court will decline to a ddress that issue.

V. CONCLUSION After considera

tion of the pleading s of the ap p ellant, the Secre tary , the intervenor , and amicus cur iae, a

nd a re view of the rec ord, the B oard' s May 22, 2008, decision is AFF I RMED.

KASOL D, Chief

Judge, dissenting: Until rec ently , Congr ess restric ted the rig ht of a veter an 7
to reta in paid counsel for repr esenta tion befor e the Secre tary or the Boa rd until afte r the Boa

rd issued its "f irst

. . . final [ Boa

rd] decision," and then only if the veteran retained p aid counsel within one y ear of that final decision. 38 U.S.C. § 5904(c) (1) (1998). This sta tutory constraint on a veter an' s rig ht to reta in paid counsel should not be rea d broadly

. Cf. Brown v. Gardner , 513 U.S. 115, 117-18 (1994) ( noting that inter

preta tive doubt is to be resolved in the ve tera n' s favor ). There is no dispute in thi s case that Mr. Tra wick' s claim was de nied by a June 1997 Boa

rd decision and that he retained paid counsel in Aug ust 1998, more than one y ear afte r t hat decision. There also is no dispute, howeve r, that Mr. Traw ick soug ht rec onsideration of the J une 1997 Boa rd decision in Aug ust 1997, and that he reta ined paid counsel in Aug ust 1998, t wo m o n t h s after he

rec eived notice in J une 1998 that his reque st for re consideration was denied. Be cause , as discussed below, the reque st for rec onsideration abate d finality of the J une 1997 Bo ar d d ecision until the reque st was denied in J une 1998, Mr. Traw ick had the rig ht to reta i n attorney Mason for a fee in Aug ust 1998. Additionally , Mr. Mason – who eventua lly was discharg ed by Mr. Traw ick – had the rig ht to seek reimburse ment for the work he perf ormed on Mr. Traw ick' s behalf prior to being discharg ed. Under such circ umstances, the matter should be rema nded for the Boa rd to deter mine the fee that ref

lects Mr. Traw ick' s contribution. See Scates v. Principi , 282 F.3d 1362, 1366 (F ed. Cir. 2002) (" [A] n attorney

. . . discharg ed by the client befor e the case is completed

I n 2006, Congr ess altere d section 5904(c) (1), such that veter ans denied benef its in a rating 7 decision may reta in paid counsel for assistance the administrative and judicial appea l proce ss "a fter the date on w hich the notice of disag ree ment is filed." 38 U .S.C. § 5904(c)(1) (2006)

.

17[ ] is not a utomatically entitled to the full twenty perc ent fee

. He may rec eive only a fee that fairly and accur ately ref

lects hi s contribution to and responsibili ty for the benef its awa rded .") ; Lippman

v. Shinseki , 23 Vet.App. 243, 256 (2009) (" Be cause [t he veter an] objected

. . . to the pay ment of the supplemental attorney fee

. . . , VA was obliga ted to revie w the fee ag ree ment and reduc e the fee to be paid if it wa s excessive or unre asonable .")

. "T he concept of ' finality ' with respec t to judicial decisions does not have a s ingle meaning applicable in all contexts." Stanley v. Principi , 283 F.3d 1350, 1355 (F ed. Cir. 2002); see also Clay

v. United States , 537 U.S. 522, 52 7 (2 0 03) (" Finality is variously define d

. . . its prec ise meaning depends on context."). The same is true with respe ct to Boa rd decisions. Stanley , 283 F.3d at 1355 (citi n g How ard v. Gober , 220 F.3d 1341, 1344 (F ed. Cir. 2000) (addr essing finality of a Boa rd decision))

. Thus, it is well settled, for example, that when a re q u es t fo r re consi dera tion is filed within the time permitted to file an appea l with the Court (120 day s), finality is abate d for purposes of fili ng an appeal, and a new 120-d ay p eriod to appea l beg ins when the Boa rd C hairman render s

a decision on the rec onsideration reque st. Rosler v. Derwinski , 1 Vet.App. 241, 249 (1991) (holding that a motion for rec onsideration abate s the finality of the Boa rd decision and that the appea l period is tolled); see Fithian v. Shinseki , 24 Vet.App. 146, 149 (2010) (" a Boa rd decision is no longe r final

o n ce a m o tion for rec onsideration is [t imely ] filed" ); Ricke tt v. Shinseki , 23 Vet.App. 366, 37 1 (2010) (" [F]i nality does not attach until the Boa rd Chairman rende rs a decision deny ing the [t imely ] motion for reconsider ation

. . . .") , rev'd on other grounds , 421 F. App' x 967 (F ed. Cir. 2011); see also I CC v. Bhd. of Locom otive Eng'rs , 482 U.S. 270, 284 (1987) (" [P ]etit ions f or rec onsideration

. . . [render] the order s under rec onsideration nonfinal." ); Mondero v. Nicholson , 129 F. App' x 605, 607 n.1 (F ed. Cir. 2005) (ac knowledg ing the adoption of Rosler in Linville v. W est , 165 F.3d 1382, 1385-86 (F ed. Cir. 1999)). The same rationale applies with reg ard to the rete ntion of counsel, and application of section 5904(c) (1). When a veter an proce eds on his own and files for rec onsideration within one y ear of an adver se Boa

rd decision, finality of that decision is abate d for the purposes of section 5904(c) (1), and, if rec onsideration is denied, the claimant has one y ear from the date of the denial of rec onsideration
to reta in paid counsel for further procee dings before the Board and Secre tary . To hold otherwise, essentially would be to ma ndate a claimant to reta in paid counsel when seeking rec onsideration of

18the Boa

rd decision, or lose the rig ht to so reta in paid counsel if the Boa rd Chairman takes more than
one y ear to rende r a de cision. Cf. Rosler , 1 Vet.App. a t 246 (reje cting as an "one rous burden" the notion that a claimant filing a motion for rec onsideration must al s o fi le an appea l to the Court to pre s er ve his rig ht to appea l). No policy supports forc ing a veter an to seek counsel while still pursuing a claim within the informal adjudi ca t i o n p roce ss below, or the loss of his rig ht to do so when e ffor

ts to seek re course are reje cted more than a y ear later. As to the majority ' s belief that the issue of finality should not be addre ssed, I o b v iously disag ree
. I understand that there are policy rea sons for the Court not to addre ss an ar gu m en t n o t expli citly raised, particula rly when an appellant is repr esente d by counsel and, as here , is an attorney himself. Howeve r, this issue was not "inve nt[ ed]" solely by my self. Ante at section I V.C. Rather, it rea sonably was raised by the statute, case law, the rec ord of proce eding s (which ref lects the Boa

rd' s

rec og nition of Mr. Traw ick' s motion for rec onsideration), and the well-e stablished fac t that finality depends on context. See Clay and Stanley , both supra ; see also Forshey v. Principi , 284 F.3d 1335, 1357 n.20 (F ed. C ir. 2002) (a n appellate court' s "' duty is to enuncia te t he 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 ( Fe d. Cir. 2003). I n addition, the drama tically fluctuating litigative posture of this case supports a discussion of the statutory interpre tation issue raised by this c ase. I n short, the Secre tary initially ag ree d with Mr. Mason that (1) the Boa rd err ed as to Mr. Mason' s elig ibilit y , and (2) rea sonablene ss was the only disputed issue. Amicus enter ed and likewise ag ree d. Only afte r Mr. Traw ick intervene d with a wellwritten brief did the Secre tary ch ang e his position. Although the majority corr ectly note that 10 briefs w ere submitt ed in this case, they fail to rec og nize that the Secre tary reve rsed his position in this litigation in the tenth and final brief. I n this context, it is eminently understand able why Mr. Traw ick did not expli citly prese nt an alterna tive arg ument on section 5904(c) (1) in his briefs. Such circ umstances only add to the propriety of addre ssing the statutory interpre tation issue raised by this

case
. See Davis v. United States , 512 U.S. 452, 464 (199 4 ) (Scalia, J ., concur ring ) (g ener ally , "r efusa l to consider arg uments not raised is a sound prudential prac tice," but "the re are times when prudenc e dictate s the contra ry ")

. Moreove r, the issue is dispositive. See U.S. Nat' l B ank of Or. v. Indep. Ins. Agents of A m. ,

19508 U.S. 439, 447 (1993) (" [A] court may consider an issue ' antec edent to

. . . and ultimately

dispositi ve of' the dispute befor e 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 co n s i d ering the eff ect of Mr. Traw ick' s motion for rec onsideration on the finality of the Boa

rd decision or the commence ment of the one-y ear period to reta in paid counsel

–
serve s to bar Mr. Mason from rec eiving any compensa tion for the work he did at the Boa rd for Mr. Traw ick. As shown above, a proper application of case law and canons of interp reta tion rende r a conclusion that Mr. Traw ick' s motion for rec onsideration abate d the finality of the J une 1997 Boa rd decision for the purposes of section 5904(c) (1) until the Chairman rende red a decisio n on that motion in J une 1998, such that the rete ntion ag ree ment in this instance was enter ed into within one y ear of the first final B oard de cision. Fur ther, the purpose of the one-y ear period to reta in paid counsel was to obstruct the rete ntion of attorney s for attempts to reope n claims afte r a number of y ear s without any action. See 134 C O N G

. R E C

. S16,632-01 (Oc t. 18, 1988) (Sen. Cranston, noting that the purpose of the one-y ear period was "to addre ss the possibili ty of a claimant rec eiving a final B[oard] decision, waiting a number of y ear s without any action, and then reta ining an attorney to reque st a reope ning and pursuit of the claim at the [R O] level" ). That purpose is in no wa y fu l filled here , wher e Mr. Traw ick never sat on his laure ls with many y ear s of i n ac t i o n. Rather, he promptly soug ht rec onsideration of his Boa rd decision and promptly reta ined counsel afte r having his reque st fo r re co nsideration denied. The majority ' s application of section 5904(c) (1) in th i s i n stance contra venes the purpose behind the

s tatute. As shown above, such an application is not mandated by the statute, our ca s el aw , o r t h e canons of interpre tation. Finally , this is a signific ant issue, involving considerations of due proce ss, a rig ht to adequate leg al repr esenta tion, and a rig ht to contra ct. See W alters v. Nat' l Ass'n o

f Radiation Survivors , 4 7 3 U.S

. 305, 312-16 (1985); Stanley , 283 F.3d at 1355-57. Fa ctors underly ing the o ri gi n al

enac tment of attorney fee limit ations, such as conce rns about unscrupulous attorn ey s , and even fac tors underly

ing the Supreme Court's decision in W alters to reve rse a prelim i nary injunction on such limit ations are now differ ent or no longe r prese nt. Compare W alters , 473 U.S. at 321-22, with Veter ans J udicial Review Act, Pub. L

. No. 100-687 (Nov. 18, 198 8 ) (e ff ec t ive J une 1, 1989).

20Although the one-y ear period in which a claimant may reta in paid counsel for repr esenta tion befor e

t h e S ecr etar

y or the Boa

rd is restric tive of the rig ht to reta in paid counsel, the deg ree of restric tiveness is depende nt on the meaning of when a Boa rd decision become s final for the purposes of section 5904(c) (1). Be cause the conce pt of finality is context depende nt, Stanley , supra , and an overly restric tive application of section 5904(c) (1) is inconsistent wi t h t h e purpose behind establishing the o ne-y ear period, we should addre ss the meaning of finality as used in section 5904(c) (1) in the context of a motion for rec onsideration, find that Mr. Traw ick had a rig ht to reta in Mr. Mason for a fee in this case , and rema nd the matter for the Boa

rd to awa rd a fee ref

lecting Mr. Mason' s contribution to Mr. Trawic k' s case
.

21