BVA9506175 
DOCKET NO.  95-03 942     )       DATE
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THE ISSUE

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

ATTORNEY FOR THE BOARD

James R. Siegel, Counsel

INTRODUCTION

The veteran served on active duty from July 1973 to April 1974.

This matter relating to attorney fees is currently before the
Board of Veterans' Appeals (the Board) following an August 1994
rating decision of the Regional Office (RO) in Winston-Salem,
North Carolina, which granted the veteran's claim of entitlement
to a permanent and total disability rating for pension purposes,
effective from October 26, 1989.  By letter in January 1995, the
RO informed the veteran (with a copy to his attorney) that 20
percent of the maximum amount of past-due benefits was being
withheld from his award pending review by the Board.

CONTENTIONS

In essence, the veteran's attorney believes that he should be
paid 20 percent of the past-due benefits to which the veteran has
been found entitled the receipt of which is to come directly from
the Department of Veterans Affairs (VA).

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.
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 supports the claim for payment of
attorney fees directly from VA.

FINDINGS OF FACT

1.  By rating decision dated in March 1990, the RO denied the
veteran's claim of entitlement to a permanent and total
disability rating for pension purposes.

2.  A notice of disagreement with that determination was
submitted by the veteran in August 1990.

3.  By decision in October 1991, the Board denied the veteran's
claim for VA nonservice-connected pension benefits.

4.  Following the Board's October 1992 remand of the case on
reconsideration to the RO, the veteran was determined to be
permanently and totally disabled by rating decision dated in
August 1994.

5.  Past-due benefits are payable to the veteran's attorney as a
result of the August 1994 rating decision, pursuant to a written
fee agreement signed by the veteran in January 1992, providing
that one fifth (20 percent) of past due benefits be set aside by
the VA to pay his attorney following successful recovery thereof.

CONCLUSION OF LAW

The criteria for eligibility for payment of attorney fees by VA,
amounting to 20 percent of past-due benefits, have been met.  38
U.S.C.A. § 5904(c),(d) (West 1991); 38 C.F.R. § 20.609 (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under the governing criteria, attorneys and agents may charge
claimants or appellants for their services before VA, including
the Board, only if all the following conditions have been met:
(1) A final decision has been promulgated by the Board with
respect to the issue, or issues involved; (2) the Notice of
Disagreement which preceded the Board decision with respect to the
issue or issues, involved was received by the agency of original
jurisdiction on or after November 18, 1988; and (3) the attorney
at law or agent was retained not later than one year following the
date that the decision by the Board with respect to the issue, or
issues, involved was promulgated.  38 U.S.C.A. § 5904(c);
38 C.F.R. § 20.609(c).

A fee agreement providing that payment for the services of the
attorney-at-law will be made directly to the attorney-at-law by
VA our of any past-due benefits awarded will be honored by VA
only if the following conditions are met:  (i) The total fee
payable (excluding expenses) does not exceed 20 percent of the
total amount of the past-due benefits awarded; (ii) The amount of
the fee is contingent on whether the claim is resolved in a
manner favorable to the claimant or appellant, and (iii) The
award of past-due benefits results in a cash payment to a
claimant or an appellant from which the fee may be deducted.  38
C.F.R. § 20.609(h).

Fees permitted for services of an attorney-at-law or agent
admitted to practice before the VA must be reasonable.  Factors
considered in determining whether fees are reasonable include:
(1) The extent and type of services the representative performed;
(2) The complexity of the case; (3) The level of skill and
competence required of the representative in giving the services;
(4) The amount of time the representative spent on the case; (5)
The results the representative achieved, including the amount of
any benefits recovered; (6) The level of review to which the
claim was taken and the level of the review at which the
representative was retained; (7) Rates charged by other
representatives for similar services; and (8) Whether, and to
what extent, the payment of fees is contingent upon the results
achieved.  38 C.F.R. § 20.609(e).

Fees which total no more than 20 percent of any past-due benefits
awarded will be presumed to be reasonable.  38 C.F.R.
§ 20.609(f).

The veteran's claim of entitlement to a permanent and total
disability rating for pension purposes was denied by the Board in
an October 1991 decision.  A motion for reconsideration was filed
by the veteran's attorney in January 1992, and was granted in
April 1992.  In its October 1992 remand on reconsideration, the
Board determined that additional development of the evidence was
required, including a VA examination.  Based on the additional
evidence procured, the RO, by rating decision in August 1994
determined that the veteran was permanently and totally disabled,
effective from October 26, 1989.

The question before the Board is whether the attorney is entitled
to the payment of attorney fees directly from VA from past-due
benefits awarded the veteran.  Clearly, the prerequisites set
forth in 38 C.F.R. § 20.609(c) have been met, and thus, a fee may
be charged in this case.  Moreover, the fee agreement was signed
by the veteran and his attorney in January 1992.  The fee
agreement set forth an amount of 1/5 (20 percent) of past due
benefits and, as such, is clearly contingent on an outcome
favorable to the veteran.  By regulation, such a fee must be
presumed to be reasonable.  Under the circumstances of this case,
the Board concludes that attorney fees may be payable out of the
past-due benefits.

ORDER

Eligibility for payment of attorney fees directly by VA from
past-due benefits is granted, subject to the controlling
regulation governing supplemental awards.

          J. F. GOUGH

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.