Citation Nr: 0000008	
Decision Date: 01/03/00    Archive Date: 12/28/01

DOCKET NO.  99-24 113	)	DATE
	)
	)


THE ISSUE

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


ATTORNEY FOR THE BOARD

Daniel R. McGarry


INTRODUCTION

This matter relating to attorney fees arises from an May 23, 
1996, rating decision of the Department of Veterans Affairs 
(VA) regional office (RO) which resulted in the award of 
past-due benefits to the veteran.

By letter dated November 17, 1999, the RO notified the 
veteran and the attorney of the payment of past-due benefits 
and the referral of the file to the Board of Veterans' 
Appeals (Board) for a decision concerning the attorney's 
eligibility for payment of a fee for services from the 20 
percent of past-due withheld by the RO.  They were given 30 
days within which to submit evidence or argument to the Board 
concerning the payment of attorney fees.  No response has 
been received from either the veteran or his attorney.


FINDINGS OF FACT

1.  The Board has not promulgated a final decision on the 
issue of entitlement to an increased rating for internal 
derangement of the left knee.

2.  Past-due benefits were awarded to the veteran on the 
basis of an May 23, 1996, rating decision which awarded an 
increased rating of 10 percent for internal derangement of 
the left knee.


CONCLUSION OF LAW

The criteria under which a valid fee agreement may be 
executed between the veteran and the attorney as to 
representation before VA and the Board concerning the issue 
of entitlement to an increased rating for internal 
derangement of the left knee have not been met.  38 U.S.C.A. 
§ 5904(c) (West 1991 & Supp. 1999); 38 C.F.R. § 20.609(c) 
(1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The applicable statute and regulations stipulate three 
criteria that must be met before an attorney or agent may 
charge claimants or appellants for their services before VA 
concerning claims for VA benefits.  38 U.S.C.A. § 5904(c) 
(West Supp. 1999); 38 C.F.R. § 20.609(c) (1999).  These 
criteria are:  1) promulgation by the Board of a final 
decision with respect to the issue or issues involved; 2) the 
NOD which preceded the Board decision with respect to the 
issue or issues involved was received by the RO on or after 
November 18, 1988; and 3) the attorney or agent must have 
been retained not later than one year following the date that 
the Board decision with respect to the issue or issues 
involved was promulgated.

In a March 1995 decision, the Board granted service 
connection for internal derangement of the left knee.  In an 
April 1995 rating decision, the RO assigned a rating of zero 
percent for the disability associated with the left knee 
disorder.

In March 1995, the veteran and attorney, D.G., entered a fee 
agreement which provided for payment of a fee not to exceed 
20 percent of any past-due benefits awarded on the basis of 
the veteran's claim.  The payment of the fee was contingent 
on whether the claim was resolved favorably to the veteran.  
On August 3, 1995, the RO received correspondence from the 
attorney in which he requested that the veteran be afforded a 
VA examination to determine the evaluation to be assigned to 
the veteran's left knee disorder.

In an May 23, 1996, rating decision, the RO awarded an 
increased rating of 10 percent for internal derangement of 
the left knee.  The Board has rendered no final decision on 
the issues decided in the RO's May 23, 1996, rating decision, 
that is, on the issue of the rating assigned for the left 
knee disorder.

As no final decision has been promulgated by the Board with 
respect to the issue of entitlement to an increased rating 
for internal derangement of the left knee, the Board 
concludes that the attorney is not eligible for the payment 
of attorney fees from past-due benefits awarded as a result 
of the RO's May 23, 1996, rating decision.

Nor is the attorney eligible for a "supplemental payment" 
under 38 U.S.C.A. § 20.609(h)(3)(i).  Under that provision, 
an attorney is entitled to be paid such a payment when, after 
service connection is granted on appeal, he successfully 
represents the veteran in a claim for increased compensation 
for the disability which was service connected.  However, 
that provision does not eliminate the requirement in 38 
C.F.R. § 20.609(c) that there must have been a final Board 
decision on the issue, or issues, involved, after a notice of 
disagreement filed on or after November 18, 1988.

The Board notes that service connection for a left knee 
disorder was denied by a decision of the Board dated in 1972.  
Obviously, the notice of disagreement which preceded that 
decision was not filed on or after November 18, 1988.  While 
the attorney did represent the veteran before the Board when 
it reconsidered its 1972 decision, the Board's 1995 decision 
on reconsideration was not preceded by a notice of 
disagreement filed on or after November 18, 1988.  Without a 
final Board decision after a notice of disagreement filed on 
or after November 18, 1988, the statutory prerequisites for 
eligibility to charge an attorney fee are not met.

Therefore, the RO will not pay to the attorney the amount of 
the past-due benefits withheld pending this decision.  The 
attorney is ordered to refund to the veteran any moneys paid 
by him for the attorney's representation before VA concerning 
the issues decided in the RO's May 23, 1996, rating decision.  
As a reduction in the fee is ordered, the attorney must 
credit the account of the claimant with the amount of the 
reduction and refund any excess payment on the account to the 
claimant not later than the expiration of the time within 
which the ruling may be appealed to the United States Court 
of Appeals for Veterans Claims.  38 C.F.R. § 20.609(i).  
Failure to do so may result in proceedings under 38 C.F.R. 
§ 14.633 to terminate the attorney's right to practice before 
VA and the Board and/or prosecution under 38 U.S.C.A. § 5905.


ORDER

No fee may be charged for services rendered by the attorney 
on the veteran's behalf before VA concerning the issues of 
entitlement to an increased rating for internal derangement 
of the left knee.  The fee is reduced to $0.  The amount in 
excess of $0 received by the attorney for fees for service 
before VA is to be refunded to the claimant.



		
	MARY GALLAGHER
Member, Board of Veterans' Appeals