Mason v. Shinseki

Mason v. Shinseki, 743 F.3d 1370 (Feb. 21, 2014)

TIME TO APPEAL ATTORNEY DIRECT-FEE DECISION

RO denials of direct-fee requests are treated as simultaneously contested claims, and thus subject to the 60-day appeal period under 38 U.S.C. § 7105A.

The attorney in this case had a direct-pay fee agreement with the veteran that entitled him to a fee of 20% of the retroactive award of benefits to be paid directly by VA. The RO determined that the attorney was not entitled to a fee, and the attorney appealed this decision 90 days after it was issued. The Court found that the denial of an attorney-fee request should be treated as a simultaneously contested claim. The Court found that the statutory language was ambiguous, and that deference was due to VA’s reasonable interpretation found in 38 C.F.R. § 20.3(p) and its Adjudication and Procedures Manual. The Court also noted that any interpretive doubt should be construed in the veteran’s favor – and that this interpretation, which would result in the veteran keeping the entire retroactive award, was more favorable to the veteran. 743 F.3d 1376, n. 5.