BVA9501352 DOCKET NO. 91-10 658 ) DATE ) ) THE ISSUE Eligibility for payment of attorney fees from past-due benefits. ATTORNEY FOR THE BOARD W. Pope, Counsel INTRODUCTION This matter relating to attorney fees arises out of the proceedings in the appeal to the United States Court of Veterans Appeals (Court) in [citation redacted], in which the Court granted the appellee's motion for remand and vacated the Board of Veterans' Appeals (Board) March 15, 1991 decision which denied a permanent and total disability rating for pension purposes. Pursuant to the Court's direction, the case was returned to the Board in September 1992. In March 1993 the Board remanded the case to the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, for further development. In a May 1994 rating decision the RO granted a permanent and total disability rating for pension purposes, effective from October 18, 1989. The veteran and his attorney in this case, Alvin D. Wax, parties to a June 1992 fee agreement, were notified by the RO by letter in October 1994, that the case was being transferred to the Board for a determination concerning eligibility for payment of attorneys fees from past-due benefits and that any additional evidence or argument concerning the attorneys fee agreement should be submitted to the Board within 30 days. The case was received at the Board in November 1994 and is ready for appellate review. CONTENTIONS No contentions have been made concerning whether attorney fees should be paid from past-due benefits. 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 is against eligibility for payment of attorney fees from past-due benefits. FINDINGS OF FACT 1. A February 1990 rating decision denied the veteran's claim of entitlement to a permanent and total disability rating for pension purposes. 2. The veteran filed a notice of disagreement in March 1990. 3. A March 1991 decision by the Board upheld the February 1990 rating decision denial of a permanent and total disability rating for pension purpose. 4. On June 20, 1992, the veteran entered into a written agreement with his attorney, Alvin D. Wax. 5. A September 1992 Court order vacated the March 1991 Board decision and remanded the case to the Board. 6. In March 1993 the Board remanded the case to the RO for further development. 7. A May 1994 rating decision granted entitlement to a permanent and total disability rating for pension purposes, effective from October 18, 1989. CONCLUSION OF LAW As the criteria for a valid fee agreement between the attorney and the veteran for representational services before VA have not been met, the attorney fees are not payable from past-due benefits. 38 U.S.C.A. § 5904(c)(1) (West 1991); 38 C.F.R. § 20.609 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The law permits VA claimants to enter into agreements with attorneys for the payment of fees for services in representing them in proceedings before the VA, as long as the fees are neither "unreasonable" nor "excessive." A fee may be charged of the claimant or appellant if the following conditions are met: (1) A final decision must have been promulgated by the Board with respect to the issue, or issues, involved. Fees may neither be charged, allowed nor paid for services provided before the date of the Board's decision. 38 U.S.C.A. § 5904(c)(1) (West 1991); 38 C.F.R. § 20.609(c)(1) (1992). (2) The notice of disagreement which preceded the Board decision with respect to the issue, or issues, involved, must have been received by the agency of original jurisdiction on or after November 18, 1988. 38 C.F.R. § 20.609(c)(2) (1992). (3) The attorney at law or agent must have been 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)(1) (West 1991); 38 C.F.R. § 20.609(c)(3) (1992). As noted, a February 1990 rating decision by the RO denied the veteran's claim of entitlement to a permanent and total disability rating for pension purposes. The veteran filed a notice of disagreement with that decision in March 1990. The Board denied the veteran's appeal on March 15, 1991. The Court's September 1992 order vacated the Board's March 15, 1991 decision and remanded the case to the Board. Subsequent to the Board's remand, the RO granted a permanent and total disability rating for pension purposes and a retroactive award date for benefits were assigned. However, the attorney in this case was retained on June 20, 1992, as documented by the fee agreement of the same date between the veteran and the attorney. Since this was more than 15 months after the Board's March 15, 1991 decision, the basic criteria for a fee agreement between the attorney and the veteran for representational services before the VA, under 38 U.S.C.A. § 5904(c)(1) (West 1991); 38 C.F.R. § 20.609(c)(3) (1992), have not been met. Under the circumstances eligibility for payment of attorney fees from past-due benefits is not established. ORDER Eligibility for payment of attorney fees from past-due benefits is denied. None of the veteran's past-due benefits resulting from the May 1994 rating decision granting a permanent and total disability rating for pension purposes, should be paid to the attorney in this case. STEPHEN L. WILKINS 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.