BVA9504677 DOCKET NO. 94-00 024 DATE JAN 24 1995 THE ISSUE Eligibility for payment of attorney fees from past-due benefits. ATTORNEY FOR THE BOARD K. Hudson, Associate Counsel INTRODUCTION The veteran had active service from October 1944 to July 1949. This matter relating to attorney fees ensues from a Board of Veterans' Appeals (Board) decision of May 1991 which denied the veteran's claim for an evaluation in excess of 30 percent for status post-operative mesothelioma, which had been reduced from 100 percent effective April 1, 1990. Subsequently, by rating action of August 1990, the effective date of the reduction was changed to November 1, 1990. The case was appealed to the United States Court of Veterans Appeals (Court), and the appellee filed a motion for remand in July 1992. In November 1992, the Court granted the appellee's motion, and vacated the Board decision of May 1991 and remanded the case to the Board for further action. Rossiello v. Principi, No. 91-1145 (U.S. Vet.App. Nov. 4, 1992). The Board remanded the case to the regional office (RO) for further development in April 1993. By rating action of June 1994, the RO granted a 100 percent rating for mesothelioma with post-operative residuals continuously from May 1988; this resulted in past due benefits from November 1, 1990, the effective date of the reduction. In November 1994, the veteran and his attorney, parties to an July 1991 fee agreement, were notified by the RO that the case was being referred to the Board for a determination concerning eligibility for payment of attorney fees from past-due benefits, and that any additional evidence or argument concerning the attorney fee agreement should be submitted to the Board within 30 days. No response was received from either party. CONTENTIONS No specific contentions have been made. 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 file(s). 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 eligibility of the attorney to receive 20 percent of the veteran's award of past-due benefits. FINDINGS OF FACT 1. The Board made a prior final decision denying entitlement to an evaluation in excess of 30 percent for mesothelioma in May 1991; the notice of disagreement preceding that decision was received in February 1990; and the attorney, who provided services related to that claim, was retained in July 1991. 2. Past-due benefits are payable to the veteran. 3. The fee agreement, a copy of which is in the file, executed in July 1991, provides that the attorney's fee, to be paid by VA to the attorney, shall be equal to 20 percent of past-due benefits awarded to the veteran, and is contingent upon a decision favorable to the veteran. CONCLUSION OF LAW The criteria for payment of attorney fees amounting to 20 percent of past-due benefits awarded the veteran have been met. 38 U.S.C.A. 5904 (West 1991); 38 C.F.R. 20.609 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION In order for attorney's fees to be paid by VA directly to the attorney out of past-due benefits, certain requirements must be met, according to 38 U.S.C.A. 5904(c) (West 1991). It must first be determined whether there is a valid claim for payment of such fees. To be eligible for payment of attorney fees, there must be a fee agreement for services rendered with respect to the issue, or issues, involved; the notice of disagreement must have been received by the agency of original jurisdiction on or after November 18, 1988; a final decision must have been promulgated by the Board of Veterans' Appeals; and the attorney-at-law or agent must have been retained no later than one year following the date of the decision by the Board of Veterans' Appeals. 38 U.S.C.A. 5904(c)(1) (West 1991); 38 C.F.R. 20.609(c) (1994). In this case, a notice of disagreement with the RO's denial of the veteran's claim for an increased evaluation was received in February 1990; the Board issued a final decision denying the benefit in May 1991; and the veteran entered into a fee agreement regarding the issue in July 1991. Therefore, the threshold requirements for eligibility for payment of attorney fees have been met. It must next be determined whether the attorney's fee may be paid from the past-due benefits awarded to the veteran pursuant to the June 1994 rating action which increased the veteran's rating for status post-operative mesothelioma to 100 percent effective November 1, 1990. Under 38 U.S.C.A. 5904(d) (West 1991), the total fee payable to the attorney may not exceed 20 percent of any past- due benefits awarded on the basis of the claim. In addition, the fee must be contingent upon the favorable resolution of the veteran's claim. 38 U.S.C.A. 5904(d)(2) (West 1991); 38 C.F.R. 20.609(h) (1994). The July 1991 attorney fee agreement, which provides for a contingent fee of 20 percent of past-due benefits to be awarded directly to the attorney from any past-due benefits awarded on the basis of the veteran's claim, meets the criteria for a fee permissible for an attorney who is being paid directly by the VA out of past-due benefits awarded the veteran. The rating action of June 8, 1994, granted a 100 percent evaluation for status postoperative mesothelioma from June 1988, resulting in an effective date of November 1, 1990 for the increased benefits. The amount of past-due benefits is equal to the amount of the recurring cash payments which accrued between the effective date of the award and the date of the grant of the benefit. 38 C.F.R. 20.609(h)(3) (1994). Accordingly, the inclusive dates for past-due benefits for the purpose of entitlement to attorney fees are November 1, 1990 to June 8, 1994. ORDER Eligibility is established for payment by VA directly to the attorney of 20 percent of the past-due benefits awarded the veteran for the period from November 1, 1990 to June 8, 1994. JACK W. BLASINGAME 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 199 1), 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.