BVA9504676 DOCKET NO. 94-47 765 DATE FEB 03 1995 THE ISSUE Eligibility for payment of attorney fees from past-due benefits. ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The veteran served on active duty from November 1940 to December 1945. This matter relating to attorney fees comes before the Board of Veterans' Appeals (BVA or Board) following its remand to the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, in June 1993 of issues involving the veteran's entitlement to an increased rating for a psychiatric disorder, as well as a total rating based on individual unemployability, due to service-connected disabilities, and a permanent and total rating for pension purposes. Those issues had been remanded to BVA for additional consideration by the United States Court of Veterans Appeals in November 1992, pursuant to a joint motion. [citation redacted]. While the case remained in remand status, the RO in rating action in August 1994 increased the scheduler evaluation for the veteran's service-connected bipolar disorder from 50 percent to 100 percent, effective from July 1989. In light of the total scheduler rating assigned, no further action was deemed warranted insofar as the issues of a total rating based on individual unemployability or a permanent and total rating for pension purposes were concerned In correspondence from the RO, dated in September 1994, the veteran and his attorney were advised that the case was being transferred to BVA for a determination concerning eligibility for payment of attorney fees from past-due benefits, and that any additional evidence or argument concerning the attorney fees issue should be submitted to BVA within 30 days. A copy of the fee agreement executed in October 1991 was received by VA from the attorney in October 1994. CONTENTIONS No contentions regarding the specific matter herein under consideration have been advanced by the veteran or his attorney. DECISION OF THE BOARD BVA, 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 and consideration of the relevant evidence in this matter, and for the following reasons and bases, it is the BVA's decision that the record supports eligibility for the payment of attorneys fees from past-due benefits. FINDINGS OF FACT 1. BVA entered a decision on the claim of entitlement to an increased raring for a psychiatric disorder in September 1991; a notice of disagreement was received by VA on or after November 18, 1988, as to that claim; the attorney was retained within one year after entry of the aforementioned BVA decision; and legal services were rendered by the veteran's attorney upon the appeal of the BVA's decision. 2. Past-due benefits are payable to the veteran. 3. The fee agreement at issue is in writing and signed by the veteran, and it is specific as to the terms and percentage of past- due benefits to be paid. 4. The fee agreement provides that an amount not to exceed 20 percent of past-due benefits is to be withheld by VA for payment to the attorney upon favorable resolution of the veteran's claim in whole or in part. CONCLUSIONS OF LAW 1. The criteria for a valid fee agreement between the attorney and the veteran as to representation before VA have been met. 38 U.S.C.A. 5904(c) (West 1991); 38 C.F.R. 20.609(c) and (g) (1994). 2. The fee specified in the agreement as being payable by VA directly to the attorney and amounting to 20 percent of past-due benefits awarded 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) and (h) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Past-due benefits were awarded the veteran by virtue of the RO's assignment of a total scheduler evaluation for a bipolar disorder in August 1994. Such action was preceded by a BVA decision on the same issue in September 1991, with the notice of disagreement leading to that decision having been filed in July 1990. The record likewise reflects that the veteran retained the attorney in this case not later than October 1991, clearly within the one year time limit running from the time of entry of the BVA decision. As such, it is without doubt that the attorney fee agreement for representation of the veteran's interests before VA is valid. Turning to the question of eligibility for payment of attorney fees from past-due benefits, it is observed that more than one fee agreement was executed in this case. In October 1991, both the veteran and the attorney signed an agreement in which the veteran agreed to pay the attorney for legal services in connection with his VA claim in an amount of 25 percent of any back pay, in addition to expenses. Another agreement, dated in March 1993 and containing the veteran's name, address, and VA claim number, limited the amount of compensation to 20 percent of any back pay awarded upon favorable consideration of the veteran's claim and authorized VA to withhold the attorney's fee from any past-due benefits to be paid to the veteran. Under general principles of contract law, this agreement superseded the October 1991 agreement. Inasmuch as the fee to be paid is not in excess of 20 percent and since all of the other criteria for the VA's payment of the attorney's fee from past-due benefits awarded the veteran have been met, the claim is granted. As to the inclusive dates for past-due benefits, it is evident that the grant of a 100 percent scheduler evaluation for a bipolar disorder was made effective by RO action on August 2, 1994, from July 11, 1989. The veteran was thereafter paid 80 percent of past- due benefits through August 31, 1994. Per 38 C.F.R. 20.609 (h)(3), the ending date for purposes of an award of attorney fees is the date of the RO's action, August 2, 1994. ORDER Eligibility for direct payment by VA of the attorney's fee totaling no more than 20 percent of past-due benefits from the RO's grant of a total scheduler rating for a bipolar disorder is established. BRUCE KANNEE 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 199 1), 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.