UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 10-1554

MARIELLA B. MASON, APPELLANT

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued April 10, 2012 Decided July 31, 2012)

 

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

Thomas E. Sullivan, Senior Appellate Attorney, with whom Will A. Gunn, General

Counsel, R. Randall Campbell, Assistant General Counsel, and Gayle E. Strommen, Deputy

Assistant General Counsel, were on the brief, all of Washington, D.C., for the appellee.

Before KASOLD, Chief Judge, and MOORMAN and DAVIS, Judges.

MOORMAN, Judge: On July 18, 2012, Mariella B. Mason, the surviving spouse of

Kenneth B. Mason, Esq., was granted leave by this Court to substitute as the appellant in this case. 

She now continues, through counsel, Mr. Mason's appeal of a January 13, 2010, Board of Veterans'

Appeals (Board) decision that determined that Mr. Mason had failed to file a timely Notice of

Disagreement (NOD) with respect to VA's denial of his entitlement to attorney fees. See Record (R.)

at 3-8.

The fundamental issue in this case is whether VA may consider an attorney-fees

determination to be a "simultaneously contested claim" subject to a 60-day NOD filing period under

38 U.S.C. § 7105A. The Court holds that VA's application of section 7105A to an attorney-fees

determination is permissible under the Secretary's regulatory interpretation that an attorney-fees

determination constitutes a simultaneously contested claim. 
I. FACTS

In July 1999, attorney Mason and veteran Phillip C. Corbin executed a representation

agreement that directed VA "to withhold twenty percent (20%) of past due benefits payable to

[veteran] and pay such amount to [Mr. Mason] as [an] attorney's fee." R. at 493-94. Mr. Mason sent

VA a copy of his fee agreement with veteran Phillip C. Corbin. R. at 495; see R. at 493-94 (fee

agreement also stating that VA "shall NEVER contact [the veteran] directly regarding attorney's fee

in general or regarding this fee agreement in particular"). In September 2005, the VA regional office

(RO) granted entitlement to individual unemployability, effective October 31, 2000, and sent notice

of its decision to Mr. Corbin. R. at 146-49, 150-57. 

On November 8, 2005, and again on November 30, 2005, the RO sent letters to Mr. Corbin

and Mr. Mason (with a benefits audit correction in the second letter), providing notice that

Mr. Mason was not eligible for attorney fees, but that 20% of Mr. Corbin's past-due benefits award

for individual unemployability, in the amount of $11,806.39, had to be withheld until the appeal

period concluded. R. at 49-51, 75-78. Both notice letters stated:

If you disagree with this determination, you may file a notice of disagreement (NOD). 

An NOD is a letter telling this office that you disagree with the decision. To initiate

appellate review, an NOD must be filed with this office within 60 days after the date

of this letter. Since there is more than one party who may claim entitlement to the

money being withheld as attorney fees in this case, the provisions relating to

simultaneously contested claims are being applied. See 38 USC § 7105A.

R. at 50, 76. In addition, an Attorney Fee Eligibility Decision was provided, stating that Mr. Mason

did not meet the first condition for attorney fees under the then-current 38 C.F.R. § 20.609(c)(1),

because there was no final Board decision regarding individual unemployability. R. at 77; see 1

38 C.F.R. § 20.609(c)(1)(i) (2005). 

On February 6, 2006, Mr. Mason faxed his NOD to VA. R. at 134. On February 21, 2006,

VA informed Mr. Mason that his NOD was not being accepted because it was untimely and should

have been filed by January 30, 2006. R. at 132-33. Two days after VA's determination, Mr. Corbin

discharged Mr. Mason as his representative. R. at 131. 

 38 C.F.R. § 14.636(c)(2) (2012) includes the language of former § 20.609(c)(1)(i) and explains that such 1

language applies to "cases in which a Notice of Disagreement was filed on or before June 19, 2007." 

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On June 5, 2006, VA received a statement in support of claim from Mr. Corbin explaining,

in pertinent part:

My attorney Mr. Kenneth B. Mason knew nothing about me applying for

un[e]mployability until you (VA) informed him with the same letter you sent me,

dated [N]ovember 30, 2005. Your letter stated that a notice of disapproval [sic] must

be filed with your office within 60 days from the date of your letter. It has been 180

days since I received your letter. Please inform me why I have not received the rest

of my award. A copy of your letter is enclosed. Thank you for your time, work

and consideration.

R. at 101. 

On January 7, 2008, VA sent a Statement of the Case (SOC) to Mr. Corbin and Mr. Mason,

explaining that an untimely NOD had been filed by Mr. Mason in response to the VA decision to

deny payment of attorney fees. R. at 52-73. Subsequently, the Board issued the decision on appeal,

concluding that, as a matter of law, Mr. Mason failed to file a timely NOD within 60 days of the VA

decision denying entitlement to attorney fees. R. at 4-5 (citing 38 U.S.C. § 7105A(a)). The Board

explained that

[w]hen appealing a simultaneously contested claim, the submission of notice of

disagreement must be within 60 days from the date that the agency mails notice of

the adverse action to the claimant. 38 U.S.C.A. § 7105A(a); 38 C.F.R. § 20.501(a). 

A "simultaneously contested claim" is defined as a claim where one claim is allowed

and one is rejected. 38 U.S.C.A. § 7105A. A "simultaneously contested claim" is

further defined as the situation in which the allowance of one claim results in the

disallowance of another claim involving the same benefit or the allowance of one

claim results in the payment of a lesser benefit to another claimant. 38 C.F.R.

§ 20.3(p).

The appellant argues that his claim for attorney fees is not a "simultaneously

contested claim" because the November 8, 2005, and November 30, 2005,

notifications denying his entitlement to attorneys fees did not "allow one claim and

reject another claim." Rather, he argues that the determination of whether an attorney

meets the criteria for attorney fees is a matter that is purely administrative and does

not involve a contested claim for benefits. Therefore, the appellant argues that the

regulations under 38 U.S.C.A. § 7105, which allow for a notice of disagreement to

be filed within one year from the date of mailing of notice of the result of initial

review or determination, should instead apply. 38 U.S.C.A. § 7105(b)(1).

However, the Board finds that this case does present a simultaneously contested

claim, because the allowance of the appellant's claim could result in a loss of benefits

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to the Veteran because the Veteran would not received [sic] any withheld portion of

retroactive benefits for TDIU [(total disability due to individual unemployability)]. 

The Board finds that this is a situation where one claim is allowed and one is

rejected, leading to the payment of a lesser benefits[sic] to the Veteran if the

appellant's claim is allowed. Therefore, the Board finds that the claim for attorney

fees constitutes a contested claim. 38 U.S.C.A. § 7105A[ ]; 38 C.F.R. § 20.3(p). 

R. at 5-6.

II. ANALYSIS

The appellant argues that the Board erred as a matter of law when it applied 38 U.S.C.

§ 7105A—requiring an NOD to be filed within 60 days of the date notice of an adverse decision is

mailed in a simultaneously contested claim—instead of 38 U.S.C. § 7105, which allows a claimant

to file an NOD within one year from the date the notice of an initial review or determination is

mailed. Incorporating the facts of this case into the appellant's argument, she is asserting that the

Board incorrectly determined the appeal period for withholding 20% of a veteran's past-due benefits

should be 1 year instead of 60 days because her husband made no "claim" for the direct payment of

a contingency fee and the attorney-fees eligibility determination was not "simultaneously contested." 

See Appellant's (App.) Brief (Br.) at 6-7. For the following reasons, the Court holds that VA

reasonably concluded that an attorney-fees determination constitutes a simultaneously contested

claim under section 7105A and VA regulations, and the Board's decision will be affirmed. 

A. Statutory Interpretation

When a court reviews an agency's construction of a statute which it administers, it is

confronted with two questions. First, always, is the question whether Congress has

directly spoken to the precise question at issue. If the intent of Congress is clear, that

is the end of the matter; for the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress. . . . [I]f the statute is silent or

ambiguous with respect to the specific issue, the question for the Court is whether the

agency's answer is based on a permissible construction of the statute.

Chevron v. Nat'l Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). "[W]here the meaning of a

statutory provision is ambiguous, we must take care not to invalidate otherwise reasonable agency

regulations simply because they do not provide for a pro-claimant outcome in every imaginable

case." Sears v. Principi, 349 F.3d 1326, 1331-32 (Fed. Cir. 2003) (considering Brown v. Gardner,

513 U.S. 115, 118 (1994)).

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"The Court reviews the interpretation of statutes and regulations de novo." Bradley v. Peake,

22 Vet.App. 280, 290 (2008). "Determining a statute's plain meaning requires examining the

specific language at issue and the overall structure of the statute." Gardner v. Derwinski, 1 Vet.App.

584, 586 (1991) (citing Bethesda Hosp. Assn. v. Bowen, 485 U.S. 399, 403-405 (1988)), aff'd sub

nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd sub nom. Brown v. Gardner, 513 U.S.

115 (1994). The cardinal rule is to read the statute as a whole, because the meaning of statutory

language, plain or not, depends on context. King v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991). 

A statute should be construed to give effect to all its provisions, "'so that no part will be inoperative

or superfluous, void or insignificant.'" Corley v. U.S., 556 U.S. 303, 314 (2009) (quoting Hibbs v.

Winn, 542 U.S. 88, 101 (2004)). But, when the language of the statute is transparent and its meaning

is clear, there is nothing to construe. Lewis v. U.S., 92 U.S. 618, 621 (1875). 

Under the statutory provisions of title 38 of the United States Code, only sections 7105 and

7105A dictate the timeliness of an NOD filed for Board review of an adverse VA determination. 

Pursuant to 38 U.S.C. § 7105(b)(1):

Except in the case of simultaneously contested claims, notice of disagreement shall

be filed within one year from the date of mailing of notice of the result of initial

review or determination. Such notices, and appeals, must be in writing and be filed

with the activity which entered the determination with which disagreement is

expressed (hereinafter referred to as the "agency of original jurisdiction"). A notice

of disagreement postmarked before the expiration of the one-year period will be

accepted as timely filed.

The plain language of section 7105(b)(1) does not indicate whether an attorney-fees determination

is subject to the one-year NOD filing period or should be considered a simultaneously contested

claim. Nor does reading the statute as a whole clarify its potential application to attorney-fees 2

determinations. Instead, the language suggests troubling results might be encountered if the Court

were to accept the appellant's argument that an attorney-fees determination should be construed

under section 7105. For instance, given that Mr. Mason was released as Mr. Corbin's representative

 To the extent that the appellant asserts that an attorney-fees determination is not a "claim," her counsel fails 2

to provide any statutory support for such a contention. See App. Br. at 5-9; App. Reply Br. at 1-11. Instead the

appellant's counsel appears to interpret the United States Code using VA's regulatory definitions, while simultaneously

asserting that the plain language of 7105A "is not ambiguous as such." App. Br. at 3-12. The Court declines to

reinterpret the well-established canons of statutory and regulatory construction, which will be followed herein.

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on February 23, 2006, if VA had been made aware of this change in representation and had applied

section 7105(d)(3) to the attorney-fees determination, Mr. Mason may not have been entitled to

receive the January 7, 2008, SOC and pursue an appeal, unless he were considered to be a claimant

himself. See 38 U.S.C. § 7105(d)(3); R. at 131. And if Mr. Mason had been considered a claimant, 3

under the facts of this case, section 7105(d)(3) would have provided that Mr. Mason, but not

necessarily Mr. Corbin, receive an SOC and have the opportunity to appeal the adverse Board

determination. Id. Although these incongruous hypothetical outcomes do not dictate the course of

the Court's de novo statutory review, they emphasize the lack of guidance in section 7105 in regard

to attorney-fees determinations.

Turning to the second statutory section, 38 U.S.C. § 7105A states:

(a) In simultaneously contested claims where one is allowed and one rejected, the

time allowed for the filing of a notice of disagreement shall be sixty days from the

date notice of the adverse action is mailed. In such cases the agency of original

jurisdiction shall promptly notify all parties in interest at the last known address of

the action taken, expressly inviting attention to the fact that notice of disagreement

will not be entertained unless filed within the sixty-day period prescribed by

this subsection.

The plain language of section 7105A(a) also fails to indicate whether an attorney-fees determination

is subject to the 60-day filing period, explaining only that simultaneously contested claims are 

"where one is allowed and one rejected." 38 U.S.C. § 7105A(a). However, read as a whole, the

language of section 7105A suggests that its purpose is to allow for notice to be provided to all parties

 Under 38 U.S.C. § 7105(d)(3): 3

Copies of the "statement of the case" prescribed in paragraph (1) of this subsection will be submitted

to the claimant and to the claimant's representative, if there is one. The claimant will be afforded a

period of sixty days from the date the statement of the case is mailed to file the formal appeal. This

may be extended for a reasonable period on request for good cause shown. The appeal should set out

specific allegations of error of fact or law, such allegations related to specific items in the statement

of the case. The benefits sought on appeal must be clearly identified. The agency of original

jurisdiction may close the case for failure to respond after receipt of the statement of the case, but

questions as to timeliness or adequacy of response shall be determined by the Board of Veterans'

Appeals.

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in interest when a VA determination is contested. Compare 38 U.S.C. § 7105A(b), with 38 U.S.C.

§ 7105(d)(3). 4

The appellant argues that Mr. Mason should have had one year to file his NOD under section

7105, because filing a copy of his fee agreement with VA did not constitute the filing of a "claim";

thus, the attorney fees eligibility determination cannot be considered a simultaneously contested

claim under section 7105A. App. Br. at 6-12. This argument is unpersuasive because section 7105

also was written to apply to a "claim" and section 7105A cannot be distinguished on that basis. For

example, section 7105(c) states: "If no notice of disagreement is filed in accordance with this chapter

within the prescribed period, the action or determination shall become final and the claim will not

thereafter be reopened or allowed, except as may otherwise be provided by regulations not

inconsistent with this title." (Emphasis added). Therefore, the statutory use of the word "claim" is

not dispositive in determining whether section 7105 should be applied to an attorney-fees

determination instead of section 7105A.

In sum, review of sections 7105 and 7105A indicates that Congress has not directly spoken

to the precise question of whether an attorney-fees determination constitutes a simultaneously

contested claim. Therefore, the Court holds that the language of sections 7105 and 7105A does not

provide clear guidance in regard to the filing of an NOD after an attorney-fees determination. The

broad language of section 7105A(a), considered in conjunction with section 7105(b)(1), results in

a statutory gap permitting VA to specifically determine which categories of disputes might constitute

simultaneously contested claims. See 38 U.S.C. §§ 7105(b)(1), 7105A(a); see also Chevron, supra. 

B. Regulatory Interpretation

1. Plain Language

 38 U.S.C. § 7105A(b) states: 4

Upon the filing of a notice of disagreement, all parties in interest will be furnished with a statement

of the case in the same manner as is prescribed in section 7105. The party in interest who filed a

notice of disagreement will be allowed thirty days from the date of mailing of such statement of the

case in which to file a formal appeal. Extension of time may be granted for good cause shown but with

consideration to the interests of the other parties involved. The substance of the appeal will be

communicated to the other party or parties in interest and a period of thirty days will be allowed for

filing a brief or argument in answer thereto. Such notice shall be forwarded to the last known address

of record of the parties concerned, and such action shall constitute sufficient evidence of notice. 

7
When interpreting a VA regulation, the Court first reviews the plain language, and if it is

ambiguous, turns to consider the reasonableness of the Secretary's regulatory interpretation. Meedel

v. Shinseki, 23 Vet.App. 277, 280-81 (2009). The implementing regulation for section 7105A states:

"In simultaneously contested claims, the Notice of Disagreement from the person adversely affected

must be filed within 60 days from the date of mailing of the notification of the determination to him

or her; otherwise, that determination will become final." 38 C.F.R. § 20.501(a) (2012). Parroting

the language of section 7105A, this regulation understandably fails to resolve the question of whether

an attorney-fees determination should be considered a simultaneously contested claim. See

38 U.S.C. § 7105A(a); see also Sursley v. Peake, 551 F.3d 1351, 1354-55 (Fed. Cir. 2009) (noting

that the relevant portion of an implementing regulation that is indistinguishable from the statute does

not afford VA's interpretation of the regulation any deference); Sharp v. Shinseki, 23 Vet.App. 267,

275 (2009) ("Deference to the regulation that offers no additional clarity to the interpretive issue

would be inappropriate."). 

However, § 20.501(a) is not the only relevant regulation in this case. See 38 C.F.R.

§ 14.636(k) (2012) (discussing the payment of fees for representation by agents and attorneys in

proceedings before agencies of original jurisdiction and the Board: "Notwithstanding provisions in

this section for closing the record . . . appeals shall be initiated and processed using the procedures

in 38 CFR Parts 19 and 20."). According to the Board's Rules of Practice under 38 C.F.R. § 20.3(p)

(2012), a simultaneously contested claim "refers to the situation in which the allowance of one claim

results in the disallowance of another claim involving the same benefit or the allowance of one claim

results in the payment of a lesser benefit to another claimant." See 38 U.S.C. § 501(a). The latter

language of this regulation—"the allowance of one claim results in the payment of a lesser benefit

to another claimant"—evidences VA's interpretation of section 7105A, in that it clarifies the types

of situations that may constitute simultaneously contested claims. Compare 38 C.F.R. § 20.3(p),

with 38 U.S.C. § 7105A(a). 

The Court finds that § 20.3(p) is interpretative of section 7105A, and we discern no argument

or persuasive evidence that § 20.3(p) is arbitrary, capricious, or manifestly contrary to sections 7105

and 7105A(a). See Chevron, 467 U.S. at 843-44. Unfortunately, the definition provided under

§ 20.3(p) still leaves the pertinent inquiry unresolved on its face, in that the regulation does not

8
explicitly address attorney-fees determinations. Under such circumstances, the Court must determine

the reasonableness of the Secretary's interpretation of § 20.3(p). See 38 U.S.C. § 7261(a)(1);

Meedel, supra. 

2. Secretary's Interpretation of Regulation

Deference is afforded to an agency's interpretation of its own regulation, as long as that

interpretation is not "'plainly erroneous or inconsistent with the regulation.'" Smith v. Nicholson,

451 F.3d 1344, 1349-50 (Fed. Cir. 2006) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S.

410, 415 (1945)); see Meedel, 23 Vet.App. at 281; Johnson v. Brown, 7 Vet.App. 95, 99 (1994). 

An agency's interpretation of its regulations does not require the same observance of formalities as

when an agency interprets a statute; even if VA's fair and considered judgment on the matter in

question is only reflected in litigating documents, it must be afforded deference. See Reizenstein v.

Shinseki, 583 F.3d 1331, 1335 (Fed. Cir. 2009); Smith, 451 F.3d at 1351. 

The Secretary argues that "a request for direct payment by the Secretary of attorney fees out

of a past due benefit award is indeed a claim for benefits," and that an attorney-fees eligibility

determination implicates a situation in which the "'allowance of one claim results in the payment of

a lesser benefit to another claimant.'" Secretary's Br. at 9 (quoting 38 C.F.R. § 20.3(p)). As applied

to the facts of this case, the Secretary's interpretation advances the notion that Mr. Mason's fee

agreement constituted an informal application for a percentage of any resulting past-due benefits

awarded to Mr. Corbin; thus, Mr. Mason met the requirements of filing a "claim" under

circumstances giving rise to a "simultaneously contested claim." 38 C.F.R. §§ 20.3(f), (p).

An attorney-fees determination begins with the filing of a fee agreement, which may provide

for the payment of attorney fees out of an award of past-due benefits. See 38 U.S.C. § 5904(c)(2) 

(attorneys "shall file a copy of any fee agreement . . . with the Secretary"), (d); 38 C.F.R. § 14.363(e),

(h)(4). Thus, the Secretary's interpretation that a fee agreement filing constitutes a claim for benefits

is not inconsistent with the broad definition of a claim as an "application made under title 38, United

States Code, and implementing directives for entitlement to Department of Veterans Affairs benefits

or for the continuation or increase of such benefits, or the defense of a proposed agency adverse

action concerning benefits." 38 C.F.R. § 20.3(f); see 38 C.F.R. § 14.636(k). Indeed, the courts have

frequently referred to an attorney-fees determination as a "claim." See Stanley v. Principi, 283 F.3d

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1350, 1359 (Fed. Cir. 2002) ("Since there had been no final decision in the initial proceedings with

respect to the TDIU claim, which would be appealable to the Court of Appeals for Veterans Claims,

there can be no claim for attorneys' fees for the period before such a final decision."); Snyder v.

Gober, 14 Vet.App. 154, 165 (2000) ("[T]he Court is directing the Board to send the direct-payment

claim back to the RO as to representation before both VA and the Court. Hence, that claim will then

be pending before the RO, as to both fee agreements." (emphasis in original)); Scates v. Gober,

14 Vet.App. 62, 65 (2000) ("The matter of attorney fees remains pending before the Secretary by

virtue of the fee agreement filed in this case. After notice to the appellant and intervenor, and an

opportunity to be heard, that claim should be decided by the RO."), aff'd as modified sub nom.,

Scates v. Principi, 282 F.3d 1362 (Fed. Cir. 2002). 

The Secretary formalized his interpretation in the VA Adjudication Procedures Manual, M21-

1MR, pt. III, subpt. vi., ch. 6, § A.1.e ("Claims Involving Attorney Fee Withholding . . . The failure

to withhold 20 percent of past due benefits and the denial of payment of such claims . . . should be

handled as a contested claim due to the possibility that VA may be required to attempt to collect fees

paid to the attorney from the claimant."), and there is no doubt it reflects the agency's fair and

considered judgment on the matter in question. Further, the Secretary's regulatory interpretation is

not inconsistent with other VA regulations, including the definitions of "benefit," "claimant," and

"past-due benefits" under § 20.3, or the rules for the payment of fees by agents and attorneys in

proceedings before agencies of original jurisdiction and the Board under § 14.363. See 38 C.F.R.

§§ 14.363, 20.3(e), (f), (g), and (n); see also 38 U.S.C. §§ 7015, 7105A, 5904. Although the

appellant asserts that the definition of a claim under 38 C.F.R. § 3.1(p) is paramount when reviewing

the Secretary's regulatory interpretation, the Court disagrees, because the word "claim" is separately

defined under § 20.3(p) specifically for the Board's rule of practice. See App. Br. at 6; cf. 38 C.F.R.

§ 14.636(k); compare 38 C.F.R. § 3.1(p) ("Claim – Application means a formal or informal

communication in writing requesting a determination of entitlement or evidencing a belief in

entitlement, to a benefit."), with 38 C.F.R. § 20.3(p). Regardless, under either definition, it is not

plainly erroneous or inconsistent for the Secretary to interpret the filing of an attorney-fees

application as constituting a claim, whether formal or informal, for a portion of past-due

VA benefits.

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Further, the Court notes the appellant's unsupported assertion that "[t]he process of

determining an attorney's eligibility to lawfully charge and receive a fee is a ministerial function of

the VA." App. Br. at 6-7. However, "[t]he agency of original jurisdiction's [attorney fees] eligibility

determination is a final adjudicative action and may be appealed to the Board." 38 C.F.R.

§ 14.636(c)(3) (emphasis added); see also 38 C.F.R. § 14.636(i). Therefore, the appellant's assertion

is unpersuasive. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) ("An appellant bears

the burden of persuasion on appeals to this Court."), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000)

(table); see also Scates, 282 F.3d at 1365 ("According to Mason, only the 'ministerial' act of paying

him the withheld money remains to be done to complete the resolution of this attorney fee

dispute. . . . Mason's attorney fee claim cannot be disposed of so simply and easily."). 5

Additionally, the Secretary's interpretation is most favorable to veterans, who should not have

any percentage of their past-due benefits withheld for an entire year merely to allow an

attorney—supposedly well-versed in veterans law—an additional 305 days to file an NOD. See

Gardner, supra; 38 C.F.R. § 20.3(p); compare 38 U.S.C. § 7105, with 38 U.S.C. § 7105A. Granted,

accepting the Secretary's interpretation also means that veterans disputing attorney-fees

determinations must adhere to the 60-day NOD filing period, but because a percentage of their pastdue benefits is withheld until the appeal period passes, veterans have every impetus to act

expeditiously in this narrow exception to the one-year filing rule. Cf. 38 U.S.C. § 7105A(b); R. at

49-50, 52-53 (notice provided to both the veteran and Mr. Mason that they could appeal the attorney

fee eligibility decision within 60 days). By requiring fee disputes to be raised within 60 days, the

Secretary's regulation reduces uncertainty for both sides in the attorney-client relationship, which

encourages attorneys to offer their services to veterans and veterans to accept them. To the extent

that the appellant contends it is the Board's interpretation of an attorney-fees determination as a

simultaneously contested claim that diminishes the attorney-client relationship, such a contention

is unpersuasive, particularly given that the Federal Circuit previously explained to Mr. Mason:

 For reasons unknown to this Court, the appellant's counsel failed to cite to the United States Court of Appeals 5

for the Federal Circuit's decision involving Mr. Mason as a party in that attorney fees determination case. Cf. U.S. VET.

APP.R. ADM. & PRAC. 4(a); MODEL RULES OF PROF'L CONDUCT R. 3.3(a) (Candor Toward the Tribunal) ("A lawyer shall

not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be

directly adverse to the position of the client and not disclosed by opposing counsel; . . . ") (2009).

11
Mason contends that the Veterans Court improperly authorized his former client

Scates to participate in the Regional Office proceedings to determine Mason's right

to a fee. Scates, however, has a substantial, immediate and direct financial interest

in the attorney fee claim, since the Department's payments to Mason will be made

from the twenty percent of Scates' accrued benefits that the Department withheld for

that purpose. If less than the twenty percent is paid to Mason, presumably the

balance will be paid to Scates.

Scates, 282 F.3d at 1369. 

III. CONCLUSION

After consideration of the appellant's and the Secretary's arguments and briefs, and a review

of the record, the Court holds that the Secretary's interpretation of an attorney-fees determination as

being "the allowance of one claim result[ing] in the payment of a lesser benefit to another claimant,"

is not plainly erroneous or inconsistent with VA regulations or the beneficent congressional intent

evidenced within the United States Code. See Chevron, Gardner, and Smith, all supra; 38 C.F.R.

§ 20.3(p). The Court concludes that the Board correctly determined that VA properly considered the

attorney-fees determination to constitute a simultaneously contested claim under 38 U.S.C. § 7105A. 

Accordingly, the Board's January 13, 2010, decision is AFFIRMED.

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