Citation Nr: 0007226 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 00-03 845 ) DATE ) ) THE ISSUE Eligibility for payment of attorney fees from past due benefits. ATTORNEY FOR THE BOARD Raymond F. Ferner, Counsel INTRODUCTION The veteran had active service from May 1971 to November 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. FINDINGS OF FACT 1. The Board entered a final decision on the underlying issue in question on July 6, 1998; a notice of disagreement was received by the VA after November 18, 1988; and the veteran retained an attorney in April 1999, within one year of the date of the Board's decision. 2. On April 14, 1999, the veteran and his attorney entered into a contingent attorney fee agreement that provided the 20 percent of past due benefits were to be paid by the VA to the veteran's attorney. 3. Following an appeal to the United States Court of Appeals for Veterans Claims (Court), a December 1999 BVA decision increased the evaluation for the veteran's asthma to 100 percent for the period of time between October 7, 1996, and July 20, 1997. CONCLUSION OF LAW The requirements for payment of attorney fees from past due benefits by the VA pursuant to the terms of the April 1999 attorney fee agreement for a 100 percent evaluation for asthma for the period of time between October 7, 1996, and July 20, 1997, 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 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 in June 1997 that granted service connection for asthma. Following rating actions assigning an evaluation for the veteran's asthma, the veteran expressed disagreement with the assigned evaluation, and in a decision dated July 6, 1998, the Board affirmed the RO's assignment of a 30 percent evaluation for asthma between November 25, 1971, and July 21, 1997, and granted a 100 percent evaluation from July 21, 1997. Thereafter, on April 14, 1999, the veteran and his attorney entered into an attorney fee agreement to represent the veteran in his claim for VA benefits which were partially denied by the July 1998 Board decision. At the time, the veteran was appealing the Board's decision to the 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. In June 1999 the Court vacated that portion of the Board's decision which affirmed the 30 percent evaluation between November 25, 1971, and July 21, 1997. The Board then entered a decision in December 1999 which denied an evaluation in excess of 30 percent between November 25, 1971, and October 6, 1996, and granted a 100 percent evaluation between October 7, 1996, and July 20, 1997. The RO effectuated the Board's decision in a rating decision dated in January 2000. The veteran and his attorney were informed as to past due benefits resulting from the Board's decision by a letter dated in January 2000. Based on this evidence, the Board finds that the April 1999 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 benefits sought in July 1998. A notice of disagreement pertaining to that decision was received by the RO in July 1997, thus after November 18, 1988, and the fee agreement was properly and timely executed in April 1999. That agreement provided that 20 percent of past due benefits were to be paid by the VA to the veteran's attorney for representation. The amount of the fee was contingent on whether the claim was resolved in a manner favorable to the veteran, and, as reflected in the RO's January 2000 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). 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." See 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 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 reasonable. As such, the Board finds that the fee called for is neither excessive nor unreasonable. In this case, the proper amount of past due benefits is a lump sum payment representing the total amount of recurring cash payments stemming from the issue of the award of additional compensation for asthma between the period of October 7, 1996, and July 20, 1997. Thus, the attorney is entitled to payment of 20 percent of the amount of the award for that disability accrued between those dates. See 38 C.F.R. § 20.609(h)(3)(i). ORDER Eligibility for payment of attorney fees directly by the VA to the veteran's attorney is established, and the attorney should be paid 20 percent of the veteran's past due benefits awarded for a 100 percent evaluation for asthma between October 7, 1996, and July 20, 1997. S. L. KENNEDY Member, Board of Veterans' Appeals