Catherine Cornell v. Robert A. McDonald
28 Vet. App. 297
| Vet. App. | 2016Background
- Attorney Catherine Cornell represented Mr. Moberly pro bono on initial hearing loss/tinnitus claims; later entered a direct-fee agreement (Nov 2010) for 20% of past-due benefits.
- VA withheld $18,208.81 from past-due benefits in 2011 per the fee agreement; Cornell later abandoned the case and closed the file.
- Mr. Moberly was granted TDIU effective Jan 2006; in May 2012 VA withholding of $20,204.16 for fees was communicated to Cornell; a July 2012 DAV NOD was filed.
- In December 2012 VA advised Cornell the fee payment was in error; Cornell filed an NOD in Jan 2013; VA later determined Cornell not eligible for fees.
- By 2013–2014, Cornell argued for fee eligibility; VA and Board reviewed de novo; the Board ultimately found the $20,204.16 payment improper.
- The Court, after argument, set aside the Board’s finding that the case was not a simultaneously contested claim and affirmed the Board’s ultimate conclusion that the fee payment was improper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cornell is entitled to the $20,204.16 attorney fee. | Cornell asserts entitlement under Mason II re: TDIU as part of underlying claim. | Secretary contends Cornell did not earn the fee; no TDIU was raised by counsel. | Cornell not entitled to the fee; fee not earned by her. |
| Whether the case constitutes a simultaneously contested claim. | Cornell treats issue as non-simultaneous but contends finality restraints apply. | Secretary acknowledges a simultaneously contested claim exists. | Case is a simultaneously contested claim; Board's finding was clearly erroneous. |
| Whether timely NOD and SOC procedures were satisfied. | Cornell argues SOC not sent; non-final May 2012 decision; NOD timely. | VA cured issues; NOD timely via DAV; SOC issued later. | NOD timely; remand not required; no prejudice from alleged procedural defects. |
| Whether recoupment of fees or equitable defenses apply. | None specific beyond fee entitlement; laches invoked against Secretary. | Secretary seeks recoupment from Cornell; no plausible laches against government. | Secretary may pursue recoupment from Cornell; VA may not recoup from Moberly. |
Key Cases Cited
- Scates v. Nicholson, 282 F.3d 1366 (Fed. Cir. 2002) (limits on attorney-fee entitlement reflecting contribution to benefits)
- Mason v. Shinseki, 743 F.3d 1370 (Fed. Cir. 2014) (defines simultaneously contested claims; direct fees affect veteran benefits)
- Mason I, 13 Vet.App. 79 (1999) (attorney fees where underlying issues supported by the record)
- Rice v. Shinseki, 22 Vet.App. 447 (2009) (TDIU must be raised by veteran or record to be part of initial rating)
- Bly v. McDonald, 28 Vet.App. 256 (2016) (fee reasonableness considerations beyond regulatory factors)
- Sellers v. Shinseki, 25 Vet.App. 265 (2012) (notice defects cured by actual receipt; prejudice analysis)
- Haney v. Nicholson, 20 Vet.App. 301 (2006) (fair process in adjudication of claims)
- Thurber v. Brown, 5 Vet.App. 119 (1993) (principles of fair process in VA adjudication)