BVA9507625 
DOCKET NO.  95-02 746     )       DATE
          )
          )

THE ISSUE

Eligibility for payment of attorney fees from past-due benefits.

ATTORNEY FOR THE BOARD

Robert A. Leaf, Counsel

INTRODUCTION

The veteran served on active duty from October 1964 to August
1966.  By notice of disagreement received in February 1991, the
veteran initiated an appeal from a September 1990 rating decision
of the Department of Veterans Affairs (VA) Regional Office (RO)
in San Francisco, California.  His appeal was subsequently denied
by the Board of Veterans' Appeals (Board) in April 1992.  The
veteran appealed to the Court of Veterans Appeals (Court).  By
memorandum decision dated in April 1993, the Court vacated the
Board's April 1992 decision and remanded the case for further
development of the evidence concerning the veteran's claim.
[citation redacted].

In December 1993, the Board remanded the case to the RO for the
Court-ordered development.  By a rating decision of November 10,
1994, the RO granted the veteran a permanent and total disability
rating for pension purposes.

This matter, relating to attorney fees, arises from the aforesaid
proceedings.

CONTENTIONS

The attorney has expressed no specific contentions regarding the
payment of his fees directly to him by VA out of the veteran's
past-due benefits.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims files and
in files pertaining to litigation and attorney-fee matters in
this case.  Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the evidence is in favor of the
validity of the fee agreement for the attorney to receive 20
percent of the veteran's past-due benefits for service rendered
before VA.

FINDINGS OF FACT

1.  A notice of disagreement on the veteran's underlying claim
was received in February 1991; a final Board decision was issued
in April 1992; the attorney was retained by the veteran within
one year after the final Board decision; and the attorney has
performed services on behalf of the veteran as to the underlying
claim.

2.  A written fee agreement, executed by both the veteran and the
attorney, specifies that the attorney's fee shall be 20 percent
of any past-due benefits awarded to the veteran.

3.  Entitlement to a permanent and total disability rating for
pension purposes was established, effective March 22, 1990, and
past-due benefits are payable to the veteran as a result.

CONCLUSIONS OF LAW

1.  The criteria for a valid fee agreement between the attorney
and the veteran regarding VA representation have been met.  38
U.S.C.A. § 5904(c)(1) (West 1991); 38 C.F.R. § 20.609(c)(g)
(1994).

2.  The fee described in the agreement as 20 percent of past-due
benefits awarded to the veteran is presumed reasonable and may be
paid from past-due benefits.  38 U.S.C.A. § 5904(d) (West 1991);
38 C.F.R. § 20.609(f)(h) (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board begins its review on a historical note by observing
that since the 1860's, the fee which could be lawfully charged by
an attorney-at-law and accredited agents for services in
proceedings before VA was limited to $10.00.  Walters v.
Association of Radiation Survivors, 473 U.S. 305 (1985).
However, with passage of the Veterans' Judicial Review Act
(VJRA), Pub. L. No. 100-687, 102 Stat. 4105 (1988), VA claimants
can now contract with attorneys or agents for payment of fees for
their representation before VA, but only when the fee agreements
meet the following requirements:

(1)  A final decision must have been
promulgated by the Board as to the issue or
issues involved.  A fee may not be charged,
allowed, or paid for services provided
before the date of the Board's decision.
38 U.S.C.A. § 5904(c)(1); 38 C.F.R.
§ 20.609(c)(1).

(2)  The Notice of Disagreement preceding
the Board's decision as to the issue or
issues involved must have been received by
the agency of original jurisdiction on or
after November 18, 1988.  VJRA § 403, 102
Stat. at 4122; 38 C.F.R. § 20.609(c)(2).

(3)  The attorney-at-law or agent must have
been retained within one year following the
date that the Board decision with respect
to the issue or issues involved was
promulgated.  38 U.S.C.A. § 5904(c)(1); 38
CF.R. § 20.609(c)(3).

(4)  A copy of the written fee agreement,
signed by the veteran and the attorney or
agent, must be filed with the Board within
30 days of its execution.  38 C.F.R.
§ 20.609(g).

In the present case, a notice of disagreement initiating an
appeal was received in February 1991; the final Board decision
was issued from that appeal in April 1992; the attorney was
retained by the veteran within one year after the final Board
decision, as documented by his representation before the Court
and a written fee agreement dated August 6, 1992; and a copy of
that agreement was filed with the Board on August 17, 1992.
Therefore, the four criteria for a valid fee agreement between
the veteran and the attorney have been met.

The Board must now determine whether the attorney's fee may be
paid from past-due benefits which were awarded to the veteran.
Pursuant to 38 U.S.C.A. § 5904(d), the total fee payable to the
attorney may not exceed 20 percent of the total amount of any
past-due benefits awarded on the basis of the claim, and pursuant
to 38 C.F.R. § 20.609(f), fees which total no more than 20
percent of any past-due benefits are also presumed to be
reasonable.  Thus, the fee specified in the August 1992 attorney
fee agreement is permissible under governing statutory and
regulatory criteria, and under the circumstances of this case,
the Board finds that 20 percent of past-due benefits should be
authorized as attorney's fees.  Further, a review of the fee
agreement in question leads the Board to conclude that the
agreement contemplates that this fee shall be paid directly by VA
to the attorney.  The RO has notified the veteran and the
attorney of the fact that 20 percent of the veteran's award has
been withheld by the RO until the Board decides whether all or
part of the withheld funds are to be paid to the attorney.  Both
the veteran and the attorney were also provided with a 30 day
period in which to submit additional evidence or argument, but no
such submissions have been received.  The Board, therefore, finds
that the legal requirements for the payment of attorney fees in
the amount of 20 percent of the veteran's past-due benefits
directly to the attorney have been met.

The inclusive dates for payment of the attorney's fees are now
for consideration.  As indicated above, the Court vacated the
Board's April 1992 decision, and, after further development of
the evidence, the RO granted entitlement to the claimed benefit
in a rating decision of November 10, 1994, effective from March
22, 1990.  The provisions of 38 C.F.R. § 3.31 (1994) specify that
payment may not be made for any award until the first day of the
month following the effective date of that award.  As such, the
inclusive dates for past-due benefits for the purposes of
entitlement to attorney fees are April 1, 1990, the award payment
date, to November 10, 1994, the date of the rating decision
granting the benefit.

ORDER

Eligibility is established for payment directly by VA to the
attorney, for services rendered before VA, of a fee equal to 20
percent of past-due benefits from April 1, 1990 to November 10,
1994, awarded to the veteran for a permanent and total disability
rating for pension purposes.

D. C. SPICKLER
          Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 5904(c)(2) (West
1991), a finding or order of the Board of Veterans' Appeals upon
review of an agent's or attorney's fee agreement may be reviewed
by the United States Court of Veterans Appeals under 38 U.S.C.A.
§ 7263(d) (West 1991).  Under 38 U.S.C.A. § 7266 (West 1991), a
final decision of the Board of Veterans' Appeals may be appealed
to the United States Court of Veterans Appeals by a person
adversely affected by the decision within 120 days from the date
of mailing of notice of the decision.  The date which appears on
the face of this decision constitutes the date of mailing and the
copy of this decision which you have received is your notice of
the action taken by the Board of Veterans' Appeals.