Carpenter v. Gober

KRAMER, Judge,

concurring:

Contrary to the appellant’s primary contention in his motion for full Court consideration, In re Fee Agreement of Smith, 10 Vet.App. 311 (1997), is readily distinguishable from the case here on appeal. In that case, the Board made no decision as to the claim for total disability based on individual unemployability. See In re Smith, 10 Vet.App. at 312-13. Here, the Board remanded the claim, thus rendering a decision with respect to it, albeit not a final decision for purposes of attorney fees. As to the argued inconsistency between In re Fee Agreement of Mason, 13 Vet.App. 79 (1999), and the panel decision in the case here on appeal, these two decisions also are readily distinguishable. The portion of the Court’s decision in In re Mason allegedly inconsistent with the decision in this appeal is concerned with attorney fees earned based on work before this Court, irrespective of eligibility for attorney fees for work done before VA. See In re Mason, 13 Vet.App. at 85-88. Here, the argued basis for attorney fees is only the latter. Thus, there is no inconsistency between panel decisions to reconcile.