Citation Nr: 0003750 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 00-00 842 ) DATE ) ) THE ISSUE Eligibility for payment of attorney fees from past-due benefits. ATTORNEY FOR THE BOARD N. L. Rippel, Associate Counsel INTRODUCTION The veteran served on active duty from November 1951 to May 1962. This matter comes before the Board of Veterans' Appeals (BVA or Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. FINDINGS OF FACT 1. The Board entered a final decision on the underlying issue in question on December 7, 1990; a notice of disagreement was presumably received by VA after November 18, 1988; and the veteran retained an attorney in March 1991, within one year of the date of the Board's decision. 2. On February 6, 1992, the veteran and his attorney entered into a contingent attorney fee agreement, which provided that 20 percent of past-due benefits were to be paid by the VA to the veteran's attorney. 3. An April 1999 Board decision granted an increase in disability compensation for service-connected chondromalacia of the left knee with traumatic arthritis, from 10 to 20 percent, effective from July 16, 1986, and from 20 to 30 percent, effective from January 9, 1998, in addition to an identical increase for service-connected chondromalacia of the right knee with traumatic arthritis, the Board's decision was effectuated by the RO in June 1999, and these determinations resulted in past-due benefits being payable to the veteran. CONCLUSION OF LAW The requirements for payment of attorney fees from past-due benefits by the VA pursuant to the terms of the February 1992, attorney fee agreement, for the receipt of additional compensation for service-connected chondromalacia of the right and left knees with traumatic arthritis, for the period of time between July 16, 1986, and April 20, 1999, have been met. 38 U.S.C.A. § 5904 (West 1991 & Supp. 1999); 38 C.F.R. § 20.609 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION A determination of basic eligibility for attorney fees paid by the VA from past-due benefits requires: (1) A final decision promulgated by the Board, (2) a notice of disagreement (NOD) pertaining to that decision dated on or after November 18, 1988, and (3) the retention of counsel not later than one year after the date of the Board's decision. See 38 U.S.C.A. § 5904(c); 38 C.F.R. § 20.609(c). In this case, the Board issued a decision on December 7, 1990, denying an evaluation in excess of 10 percent for right knee chondromalacia with traumatic arthritis as well as an evaluation in excess of 10 percent for left knee chondromalacia with traumatic arthritis. Thereafter, on February 6, 1992, the veteran and his attorney entered into an attorney fee agreement to represent the veteran in his claim for VA benefits denied in the December 1990 Board decision. At that time, the veteran was appealing the denial of this claim to the United States Court of Appeals for Veterans Claims (Court). The attorney fee agreement called for the attorney to be paid on a contingent basis 20 percent of any past-due benefits directly by the VA. The record also contains documents suggesting that the attorney's representation of the veteran dates to March 1991. These documents include a notice of appeal to the Court and a notice of limited appearance, both dated in March 1991, as well as a letter from the attorney to the VA, dated in February 1992, indicating that the representation actually began in March 1991. In November 1992, the Court issued an Order granting a Joint Motion submitted on behalf of the Secretary and the veteran to vacate the Board decision and to remand the case to the Board. Subsequent to the Court Order, a question arose as to the whether the case was one over which the Court could assert jurisdiction in the wake of a Court precedent opinion on the subject of whether or not there could be multiple NOD's for one claim. See Hamilton v. Brown, 4 Vet. App. 528 (1993). While the veteran initially indicated that he did not know the exact date of his notice of disagreement, it appears that at least one document that could be construed as an NOD was received by VA prior to November 18, 1988, However, following considerable discussion, all parties agreed that the case would proceed. In June 1993, May 1996, and May 1997, the Board issued decisions remanding the case to the RO for development consistent with the Court Order. Following the submission of additional evidence and additional examination of the veteran, the RO continued the denial of an increased evaluation and returned the case to the Board. In a decision issued April 20, 1999, the Board granted an increased evaluation to 20 percent for each knee through January 9, 1998, and a 30 percent evaluation for each knee thereafter. The RO effectuated the Board's decision in a June 11, 1999, rating action. Thereafter, by letter dated December 8, 1999, the veteran and his attorney were informed that past-due benefits resulting from this award had been computed as $40,847.07, and that $8,169.41, or twenty percent of the past-due benefits, had been withheld as the maximum attorney fee payable, pending a determination by the Board as to the issue of attorney fees. Based on this evidence, the Board finds that the February 1992, attorney fee agreement satisfied the eligibility requirements under 38 U.S.C.A. § 5904(c) and 38 C.F.R. § 20.609(c). In this case, the Board promulgated a final decision that denied the benefit sought on December 1990. A Notice of Disagreement pertaining to that decision was presumed received by the RO on or after November 18, 1988, and it is noted that the Court asserted jurisdiction and vacated the Board's December 1990 decision. See 38 U.S.C.A. §§ 7251, 7252 (West 1991 & Supp. 1999); Strott v. Derwinski, 964 F.2d 1124, 1126 (Fed. Cir. 1992) ("Congress chose to limit the jurisdiction of the Veterans Court to cases in which a NOD had been filed on or after November 18, 1988."). The Board is bound by the decision of the Court by the law of the case doctrine. In Browder v. Brown, 5 Vet. App. 268, 270 (1993), the Court described the law of the case doctrine: "When a case has been once decided by this court on appeal, and remanded to the circuit court, whatever was before this court, and disposed of by its decrees, is considered as finally settled. The circuit court is bound by the decree as the law of the case, and must carry it into execution according to the mandate." In re Sanford Fork & Tool Co., 160 U.S. 247, 255-6, S. Ct. 291, 293, 40 L. Ed. 414 (1895). Thus, when the Court determined that the NOD in fact conferred jurisdiction, Board was bound by the Court's determination. In other words, the Board was able to take jurisdiction of the claim following the remand from the Court because the Court had done so initially. As noted, the record also reflects that the veteran and his attorney entered into a contingent fee agreement on February 6, 1992, to represent the veteran in connection with his claim for increased compensation for his knee disabilities, and there is uncontroverted evidence in the record that representation actually began in March 1991, well within one year of the Board's decision. That agreement provided that 20 percent of past-due benefits was to be paid by the VA to the veteran's attorney for representation. The Board further observes that the total fee (excluding expenses) required in the agreement does not exceed 20 percent of the total amount of past-due benefits awarded, the amount of the fee is contingent on whether the claim is resolved in a manner favorable to the veteran, and, as reflected in the RO's December 1999 letter, the award of past-due benefits resulted in payment to the veteran from which a fee may be deducted. See 38 C.F.R. § 20.609(h)(1). Under the law, the Board may order a reduction in the fee called for in the agreement if the Board finds that the fee is "excessive or unreasonable." Matter of Fee Agreement of Smith, 4 Vet. App. 487, 492 (1993), vacated in part on other grounds sub nom. In re Wick, 40 F.3d 367 (Fed. Cir. 1994); Matter of the Fee Agreement of Vernon, 8 Vet. App. 457, 459 (1996). The Board notes that under 38 C.F.R. § 20.609(f), fees that total no more than 20 percent of any past-due benefits awarded will be presumed to be reasonable. The Board concludes that the fee agreed to in the fee agreement involved in this case is, on its face, neither excessive nor unreasonable. See Matter of Fee Agreement of Smith, 4 Vet. App. at 492. Consequently, the Board concludes that the requirements of 38 U.S.C.A. § 5904(d) and 38 C.F.R. § 20.609(h), for payment of the attorney's fee by VA from past-due benefits relating to the grant of increased compensation for chondromalacia of the left and right knees, with traumatic arthritis, are met concerning the past-due benefits. Past-due benefits is defined in 38 C.F.R. § 20.609(h)(3) as [a] nonrecurring payment resulting from a benefit, or benefits, granted on appeal or awarded on the basis of a claim reopened after a denial by the Board . . . or the lump sum payment which represents the total amount of recurring cash payments which accrued between the effective date of the award, as determined by applicable laws and regulations, and the date of the grant of the benefit by the agency of original jurisdiction, the Board . . ., or an appellate court. In this case, the proper amount of the past-due benefits is the lump sum payment representing the total amount of recurring cash payments, stemming from the issue of increased compensation for bilateral knee disability, that accrued between the effective date of the award, i.e., July 16, 1986, and the date of the grant of the benefit by the Board, i.e., April 20, 1999. Thus, the attorney is entitled to payment of 20 percent of the amount of the award for increased compensation for chondromalacia of the left and right knees with traumatic arthritis, accrued between those two dates. See 38 C.F.R. § 20.609(h)(3)(i) (1999). Payment of monetary benefits based, as here, on an award of increased compensation may not be made for any period prior to the first day of the calendar month following the month in which the award became effective. See 38 U.S.C.A. § 5111(a) (West 1991); 38 C.F.R. § 3.31 (1999). Hence, the actual payment of monetary benefits was effective from August 1, 1986, as the veteran and his attorney were advised by the previously noted correspondence from the RO. ORDER Eligibility for payment directly by VA to the veteran's attorney is established, and the attorney should be paid 20 percent of the veteran's past-due benefits awarded the veteran for the grant of increased disability compensation for service connected chondromalacia of the right and left knees with arthritis, from July 16, 1986, through April 20, 1999. S. L. KENNEDY Member, Board of Veterans' Appeals