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Cameron v. Shinseki

United States Court of Appeals, Federal Circuit

July 3, 2013

JOHN F. CAMERON, Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims in No. 09-1894, Judge Lawrence B. Hagel.

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.

James R. Sweet, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were Stuart F. Delery, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, Kirk T. Manhardt, Assistant Director, and Alex P. Hontos, Trial Attorney. Of counsel on the brief was Brian D. Griffin, Staff Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC. Of counsel was Michael J. Timinski, Deputy Assistant General Counsel.

Before O'Malley, Schall, and Wallach, Circuit Judges.

OPINION

WALLACH Circuit Judge

Attorney John F. Cameron appeals the United States Court of Appeals for Veterans Claims' ("Veterans Court") affirmance of the Board of Veterans' Appeals' ("Board") decision determining "that attorney fees from past due benefits in the amount of $9, 199.19 for his representation of veteran Floyd W. Bartlett were correctly calculated and that additional fees were not warranted." Cameron v. Shinseki, 2012 U.S. App. Vet. Claims LEXIS 362, at *5–6 (U.S. App. Vet. Cl. Mar. 1, 2012) ("Veterans Court Decision"). Because the Veterans Court correctly interpreted 38 U.S.C. § 5904(c)(1) (2004), we affirm.

Background

Mr. Bartlett served on active duty from 1943 to 1963. On March 28, 2002, he submitted a claim to the Department of Veterans Affairs ("VA") Regional Office ("RO") to increase his rating for his service-connected Post-Traumatic Stress Disorder ("PTSD"), which was then rated at 30% disabling. The RO denied Mr. Bartlett's claims for an increased rating.

After Mr. Bartlett appealed the RO's denial, the Board issued its first final decision in this matter on March 16, 2005, increasing Mr. Bartlett's disability rating from 30% to 100%. It remanded the claim for the RO to implement its decision and determine the effective date of the award.[1]

On March 31, 2005, after the first final Board decision, but before the RO issued a decision on remand, Mr. Bartlett entered into a fee agreement with Mr. Cameron. The fee agreement provided that Mr. Cameron would provide legal representation to Mr. Bartlett "in connection with all proceedings for benefits before the U.S. Department of Veterans Affairs." J.A.44. The fee agreement stipulated that Mr. Bartlett would pay Mr. Cameron "a contingent fee equal to 20 percent of the total amount of any past due VA benefits awarded on the basis of [his] claim(s) with the [VA]." J.A.44.

In July 2005, the RO issued a decision implementing the Board's decision to increase Mr. Bartlett's disability rating for PTSD from 30% to 100%, effective April 10, 2002, the date that Mr. Bartlett filed his claim. J.A.48 ("We have assigned an effective date of April 10, 2002, which is the date we received your claim for an increased evaluation.").

Mr. Cameron sought to recover fees for the past-due benefits awarded to Mr. Bartlett as a result of the RO's implementation of the 100% rating. In September 2005, the RO denied Mr. Cameron entitlement to attorney fees, finding that, because "the March 16, 2005, decision [wa]s the first final decision rendered by the [Board] in this veteran's PTSD claim, the provisions of 38 U.S.C. § 5904(c)(1) preclude the attorney's entitlement to fees based on benefits arising from this decision." J.A.52.

In addition to filing this fee petition, Mr. Cameron filed an appeal on Mr. Bartlett's behalf with respect to the effective date the RO assigned to Mr. Bartlett's increased disability rating. In May 2006, the RO determined that the proper effective date for the 100% disability rating was January 22, 2001, approximately 15 months earlier than the effective date initially assigned. The RO granted Mr. Bartlett $45, 995.93 in past-due benefits and also found that that Mr. Cameron met the requirements for payment of attorney fees under 38 U.S.C. § 5904 and 38 C.F.R. § 20.609. Accordingly, attorney fees were set aside for Mr. Cameron, representing 20% of the additional award occasioned by the change in the effective date of his 100% disability rating.[2]

Mr. Cameron filed an appeal with respect to the RO's denial of his first fee request. In September 2008, the Board issued the decision now on appeal, which affirmed the denial of attorney fees for the RO's implementation of the 100% disability rating. On appeal, the Veterans Court affirmed the Board's ...


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