[00:00:00] Speaker 02:
Number 22, 1061, Viterma versus McDonough.

[00:00:12] Speaker 02:
OK, Mr. Carpenter.

[00:00:15] Speaker 01:
Excuse me.

[00:00:15] Speaker 01:
May I please report?

[00:00:16] Speaker 01:
Kenneth Carpenter, carrying on behalf of Michael Luterno.

[00:00:21] Speaker 01:
In this case, Your Honors, the Veterans Court misinterpreted the provisions of 38 CFR 5904D when it determined that the Board had authority to review a fee agreement for purpose of determining whether or not it applies to the claim for which it is being proffered.

[00:00:39] Speaker 01:
There is no such language in either 5904 or in 5904.

[00:00:47] Speaker 01:
The Board's eligibility review

[00:00:50] Speaker 02:
is limited to a determination as to whether or not services... There is language in the statute that says that if there's a fee agreement, this withholding can take place.

[00:01:03] Speaker 02:
And the question basically is whether there's a fee agreement.

[00:01:06] Speaker 02:
Yes.

[00:01:07] Speaker 02:
And it doesn't seem to me to be much of a stretch to say there's no fee agreement if the fee agreement doesn't cover the situation.

[00:01:17] Speaker 01:
Well, Your Honor,

[00:01:19] Speaker 01:
It's our position that the fee agreement itself does not control.

[00:01:23] Speaker 02:
There is no requirement in... So suppose there's a fee agreement with respect to a tell arthritis issue and the lawyer is successful in getting compensation for PTSD.

[00:01:48] Speaker 02:
Is there an agreement under those circumstances with respect to PTSD?

[00:01:52] Speaker 01:
No, Your Honor, because the services were not performed after the triggering event.

[00:01:58] Speaker 01:
The triggering event in this case was met regardless of what was in the fee agreement.

[00:02:04] Speaker 01:
What's the difference?

[00:02:07] Speaker 01:
Well, Your Honor, under 5904C in the preceding paragraph that applies to all fee agreements, 5904D only applies to withholding fee agreements.

[00:02:18] Speaker 02:
and under the general i don't think you're addressing my hypothetical i'm sorry if there's a if there's an agreement with respect to tele-arthritis and uh... and lawyers secures compensation for ptsd how is it that there's a fee agreement respect ptsd there there isn't your honor but the only issue that different from this case because there there was a fee agreement with respect to uh...

[00:02:45] Speaker 01:
and i'll be used uh... after a particular day and this is important that's correct your honor issue and the representation in this case for was one issue and one issue alone and that was the i c benefits and i was the i c benefits were not on uh... and they were they were not ambiguous uh... missus pits new what it was she was hiring mister the turn it to do

[00:03:13] Speaker 01:
And Mr. Paterna, in accordance with the statutory scheme, provided services to her after the triggering event, which was a first final board decision and his representation of her at court.

[00:03:27] Speaker 00:
And under those circumstances... The statute talks about 5904D, talks about 20% of the total amount of any past due benefits awarded on the basis of the claim.

[00:03:44] Speaker 01:
That's correct, Your Honor.

[00:03:45] Speaker 00:
And how is the VA supposed to determine the basis of the claim without looking at what claim is at stake?

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And here, the agreement doesn't cover the claim filed prior to June 20, 2007.

[00:04:02] Speaker 01:
No, Your Honor, the fee agreement does not.

[00:04:06] Speaker 01:
And it's our position that there is no statutory requirement that a fee agreement do so.

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What is required by the statutory fee agreement is outlined in the regulations, and the board found in this case that he met all of the requirements for a valid fee agreement with Mrs. Pitts.

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And as a consequence, there is no ambiguity here that can be read into the Scrivener's error, which took place by identifying the wrong triggering event.

[00:04:37] Speaker 01:
That's all that happened here is that this fee agreement was not the proper fee agreement under the facts of this particular case.

[00:04:47] Speaker 00:
I mean, you say this is a scrivener's error, but it's part of the agreement.

[00:04:52] Speaker 01:
It is part of the agreement, Your Honor, but the question is, is there a review of the fee agreement beyond the scope of 5904D?

[00:05:01] Speaker 01:
5904D is

[00:05:05] Speaker 01:
limited to withholding fee agreements.

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And the predicate for withholding fee agreements is that the fee must be limited to 20%, which this contract provided, and it must be contingent.

[00:05:17] Speaker 01:
And as a result, those terms, which is why the board made a favorable finding of fact, that this was a valid fee agreement.

[00:05:26] Speaker 01:
what the veterans court did and what the board did before it was to go back and review the contents to see if there was some defect because of the indication in there about the erroneously identified fear or triggering event but if there's a defect and there's no agreement iris that we disagree your honor not under this statutory scheme this statutory scheme it seems to me that does that would make any sense at all

[00:05:55] Speaker 00:
to say you don't look to see whether there was a valid underlying agreement.

[00:06:00] Speaker 00:
You just look to see, OK, was it 20% and was it contingent?

[00:06:05] Speaker 00:
That's it.

[00:06:07] Speaker 01:
No, Your Honor.

[00:06:07] Speaker 01:
There's also a threshold determination under C1 as to whether or not there was an appropriate triggering event.

[00:06:15] Speaker 01:
Regardless of what's in the fee agreement, were these services performed by Mr. Veterna,

[00:06:20] Speaker 01:
after the correct triggering event, which is independent of what may or may not have been in the fee agreement.

[00:06:31] Speaker 01:
The services performed were performed by Mr. Paterna after he was lawfully able under C-1 to charge and receive a fee.

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He did so in good faith.

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He filed this fee agreement in 2013.

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And it does not come to light until after there is an award of past due benefits.

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And that meets all of the qualifications under 5904D.

[00:06:55] Speaker 01:
And the board, in fact, found that there was a valid fee agreement under 5904D.

[00:07:00] Speaker 01:
Now, it didn't say under 5904D.

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It simply said there was a valid fee agreement.

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And then it goes underneath that valid fee agreement to look to the content.

[00:07:11] Speaker 01:
I'm simply saying that Congress

[00:07:15] Speaker 01:
was in 5904D creating an incentive to attorneys to represent claimants under these defined terms under D. That's what Mr. Faterna did.

[00:07:30] Speaker 01:
He did so after the appropriate triggering event.

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And he is, as a matter of law, entitled to a fee.

[00:07:40] Speaker 01:
Unless there's any further questions from the panel.

[00:07:42] Speaker 02:
OK.

[00:07:43] Speaker 02:
Thank you, Mr. Carpenter.

[00:07:44] Speaker 02:
Mr. Yale?

[00:07:54] Speaker 03:
Thank you, Your Honor, and may it please the Court.

[00:07:57] Speaker 03:
Our position is that the plain language of the Statute 5904D covers this particular situation.

[00:08:08] Speaker 03:
The language that was seized upon earlier by Judge Lynn awarded on the basis of the claim.

[00:08:13] Speaker 03:
In order to evaluate whether or not the statutory requirements are met,

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You have to look at the face of the fee agreement, as well as what benefits were awarded, what was the claim, and make sure that that matches up.

[00:08:28] Speaker 03:
And that's how, in order to comply with that statutory provision.

[00:08:32] Speaker 03:
What was the claim here?

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the specific claim here?

[00:08:39] Speaker 03:
It was an Agent Orange pancreatic cancer claim.

[00:08:44] Speaker 04:
Right.

[00:08:45] Speaker 04:
So when we look at basis of the claim and that reward of benefits, that doesn't have anything to do with timing of when the fee agreement is supposed to kick in.

[00:09:01] Speaker 03:
Well, but the fee agreement is describing, it's identifying what claims can be brought.

[00:09:07] Speaker 04:
And so certainly the fee agreement... But if you want to... The basis of the claim, I mean, the word claim and basis of the claim, that has some clear understanding in Veterans Benefits Law.

[00:09:18] Speaker 04:
And, you know, I'd be a little reluctant to twist the meaning of the word claim in Veterans Benefits Claim Law to start talking and thinking about, well,

[00:09:29] Speaker 04:
triggering events and fee agreements?

[00:09:32] Speaker 03:
Well, respectfully, we haven't brought up the triggering event that particular language here.

[00:09:39] Speaker 03:
I mean, I think that's sort of a separate issue as to whether or not any veteran is actually eligible for payment.

[00:09:48] Speaker 04:
I guess what I'm trying to understand is why is it that you point to the phrase on the basis of the claim in the statute as

[00:09:57] Speaker 04:
means to start looking into the fee agreement and examining the fee agreement?

[00:10:04] Speaker 03:
Well, we point to that language because we think when read in conjunction with the entirety of 5904D, including the is-to-be-paid language, here, under the agreement, it's not to be- It's simple.

[00:10:17] Speaker 02:
Why do you have to argue there's no agreement?

[00:10:19] Speaker 02:
If the agreement doesn't cover this, there's no agreement.

[00:10:22] Speaker 03:
Well, we don't disagree with that premise either.

[00:10:28] Speaker 03:
I think we would phrase it as

[00:10:31] Speaker 03:
whatever agreement there is does not cover this particular claim, because the way that this agreement was written is covering, you know, after an NOD is fired after a certain date.

[00:10:45] Speaker 03:
So could something down the road be covered by that particular agreement?

[00:10:50] Speaker 03:
It could.

[00:10:50] Speaker 03:
This is not though.

[00:10:52] Speaker 03:
This particular claim is not.

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And so, you know, and I think that's the distinction here that we were trying to make.

[00:11:01] Speaker 03:
But we certainly think that VA has to have the authority to look and see whether or not there's a match-up of the basis on which benefits were awarded and what's spelled out in the agreement on the face of that particular agreement.

[00:11:22] Speaker 03:
In our briefing, we addressed the situation where there could be a rating decision that benefits are awarded on

[00:11:31] Speaker 03:
seven different claims, essentially.

[00:11:35] Speaker 02:
So what about, we had a case named Cox, I think, which was, I don't know, maybe last month involving the question of whether the board could look to the agreement to see whether the agreement was violated or not.

[00:11:53] Speaker 02:
So if I understand from that case, you're also suggesting that the board has the authority to determine whether there was a violation of the agreement so there shouldn't be payment under the agreement, correct?

[00:12:06] Speaker 03:
Well, I think that there's nothing that we've seen that necessarily prevents that.

[00:12:10] Speaker 03:
Cox was reasonable.

[00:12:12] Speaker 02:
That's the government's position, right?

[00:12:14] Speaker 02:
Not only can you determine whether or not there was an agreement, you can also determine whether the agreement was violated, right?

[00:12:22] Speaker 03:
Well, on the face of the agreement, but I think what in this case we're pointing to is a much more narrow analysis, which is matching up the claim, the benefits awarded in that particular claim, what it is, with what's identified as the claim in the fee agreement.

[00:12:42] Speaker 00:
In this case, the notice of disagreement on the claim was filed prior to June 20, 2007.

[00:12:50] Speaker 00:
Is that right?

[00:12:52] Speaker 03:
correct that's that's and that's undisputed and so this particular agreement does not apply to the benefits just on the face of the dust agreement does not apply to the claim correct exactly and and that's uh... you know that's the position we have uh... you know with respect to cox cox i think was more of a reasonableness uh... determination case i think there actually was reasonableness now so i don't wanna

[00:13:20] Speaker 02:
The government was arguing that there was no entitlement to the fee because the agreement was violated.

[00:13:28] Speaker 03:
Right, and I think there was a good cause provision in there and whatnot.

[00:13:32] Speaker 03:
I don't want to sort of re-litigate that recent case.

[00:13:37] Speaker 02:
How often do these issues come up about the board's authority to enforce fee agreements or to look at the fee agreements?

[00:13:47] Speaker 03:
You know, I'm not sure I have a specific answer.

[00:13:51] Speaker 03:
I mean, my understanding is that there have been a lot, there's been a lot more

[00:13:58] Speaker 03:
motion practice, for example, at the VA with respect to reasonableness, for example, but with respect to the eligibility issues.

[00:14:10] Speaker 03:
I'm not aware of a lot of cases about that.

[00:14:15] Speaker 03:
I do know that there's been a lot more, at least recently, for example, motions by

[00:14:23] Speaker 03:
veterans council with respect to the reasonableness of the fee and vice versa with respect to the general council looking into that.

[00:14:33] Speaker 03:
It's gone up.

[00:14:34] Speaker 03:
I can't give you specific numbers, but I think this is slightly different.

[00:14:40] Speaker 03:
This is more eligibility for the fee, whether or not you can get it entitlement to the fee.

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And so I don't think I'm really aware of at least recently other

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other such cases.

[00:14:54] Speaker 03:
Obviously Cox was a relatively recent case on the subject.

[00:15:15] Speaker 01:
The fee agreement in this case is in Appendix 61 and it refers to the claim only in the broadest possible terms.

[00:15:24] Speaker 01:
The question here is whether or not this fee agreement can be valid at the same time in which it is not a fee agreement.

[00:15:35] Speaker 01:
This is a fee agreement that covered services performed after the statutory triggering event was met.

[00:15:44] Speaker 01:
included in his fee agreement the wrong triggering event.

[00:15:50] Speaker 01:
The board could not have made the determination that this was a valid fee agreement if there was not a valid triggering event.

[00:15:58] Speaker 01:
And there was, because this representation took place after a first final decision, which was the original criteria for the authorization to lawfully charge a fee, and it was representation at court.

[00:16:13] Speaker 01:
On both of those bases,

[00:16:15] Speaker 01:
he had a valid basis to lawfully charge a fee.

[00:16:19] Speaker 01:
What was before the board and then before the Veterans Court was whether or not under 5904D he had a valid fee agreement for withholding purposes.

[00:16:31] Speaker 02:
But if you were to lose this case, that doesn't mean that your client wouldn't have a remedy to sue under state law, right?

[00:16:42] Speaker 02:
Or there was an implicit agreement

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have him perform these services.

[00:16:47] Speaker 02:
You just couldn't get withholding.

[00:16:48] Speaker 02:
You could sue under state law, right?

[00:16:51] Speaker 01:
Well, Your Honor, unfortunately, Mrs. Pitts has passed away.

[00:16:54] Speaker 01:
So in this case, that's not an available option.

[00:16:57] Speaker 01:
But in any event, I do not believe that would be the case because the defense would be that there was a determination by the VA that he was not entitled to a fee.

[00:17:09] Speaker 02:
No, he was only not entitled to a fee under the written agreement.

[00:17:12] Speaker 02:
But there was potentially a separate oral agreement.

[00:17:17] Speaker 01:
I understand that, Your Honor.

[00:17:19] Speaker 01:
But it was not the intention of Congress, particularly in 5904D, that attorneys or agents would have to go to civil court to collect their fees.

[00:17:30] Speaker 01:
The entire purpose of 5904D is uniquely formed by Congress to withhold fees from the award of past due benefits and have them directly paid.

[00:17:42] Speaker 02:
Well, there's no intention that, if there was only an oral agreement, that there would be without them, right?

[00:17:49] Speaker 01:
Because the statute specifically... No, a fee agreement is required.

[00:17:53] Speaker 01:
The problem here, Your Honor, is that it's simply unfair to require the attorney to file a fee agreement, which he did in 2013, and then wait five, six years later in order to say, well, your fee agreement isn't compliant.

[00:18:11] Speaker 01:
if the secretary's going to review these three agreements and the secretary ought to be obligated to review the three agreements and spot these technical errors which easily could have been corrected in twenty thirteen twenty fourteen or twenty fifty so that the a needs to be clairvoyant and now you're on the front end and and review every fee agreement and imagined themselves so this couldn't possibly be with the lawyer really wanted to agree to no your honor

[00:18:38] Speaker 01:
congress required that the agreements be filed with the agency this the agreement was filed with the agency in twenty thirteen and yet that filing there was no action taken to review that the agreement to determine whether or not it was or was not compliant i know if you appear to be asking uh... or demanding that the v actually conduct such a review

[00:19:02] Speaker 04:
But that's what they ultimately... Do you want to figure out whether the lawyer's interests are appropriately protected by the agreement?

[00:19:10] Speaker 02:
They're asking for a reformation, right?

[00:19:12] Speaker 01:
No, I'm not.

[00:19:14] Speaker 01:
I'm asking for a determination that there was an error as to the identifiable triggering event.

[00:19:22] Speaker 01:
There was no qualifying NOD in this case.

[00:19:26] Speaker 01:
Therefore, the agreement would be presumably invalid on its face

[00:19:31] Speaker 01:
in terms of just looking at the four corners of that fee agreement.

[00:19:35] Speaker 04:
Then the fee agreement's invalid?

[00:19:37] Speaker 01:
No, it can't be invalid, but it was valid.

[00:19:42] Speaker 01:
And that's simply our point, Your Honor, that you can't have the disconnect of the finding of a valid fee agreement and then turn around and take that validity away based upon a ground that isn't in the statute.

[00:19:57] Speaker 01:
What is in the statute in C-1 is that the triggering event

[00:20:01] Speaker 01:
determines whether or not in either a withholding or a non withholding fee agreement whether or not there is a lawful right to charge and receive a fee.

[00:20:10] Speaker 02:
Thank you very much.