Citation Nr: 0002785 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 99-23 789 ) DATE ) ) THE ISSUE Eligibility for payment of attorney fees from past-due benefits, resulting from a November 1999 RO determination, which adjusted the effective date of the DIC benefits of the veteran's widow. ATTORNEY FOR THE BOARD W. R. Steyn, Associate Counsel INTRODUCTION The veteran had active military service from May 1945 to July 1975. The veteran died on July [redacted], 1992. This matter relating to attorney fees is before the Board of Veterans' Appeals (Board) following proceedings at the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) relating to claims by the veteran's widow for VA benefits. The claimant in the present case is an attorney who was retained by the veteran's widow on January 12, 1996. The RO notified both the veteran's widow and her attorney by letter on November 19, 1999, that the case was being transferred to the Board for a determination concerning the attorney's eligibility for payment of attorney fees from past-due benefits. They were advised that any additional evidence or argument should be submitted to the Board within 30 days. The attorney did not respond. By letter dated November 29, 1999, the veteran's widow responded that the attorney did not assist her regarding the second phase of any past-due benefits. She wrote that the only person that helped her was someone from the Ft. Bragg Retirement Services Office. An officer from the Ft. Bragg Retirement Services Office responded that only she and the widow had worked on this appeal, and that the widow had never consulted with an attorney during this appeals process. FINDING OF FACT There has been no final Board decision with respect to the issue of an earlier effective date for an award of DIC benefits. CONCLUSION OF LAW The attorney is not eligible to charge a fee for services rendered in connection with the RO's November 1999 grant of an earlier effective date for DIC benefits. 38 U.S.C.A. § 5904 (c) (West 1991 & Supp. 1999); 38 C.F.R. § 20.609 (c) (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Judicial Review Act (VJRA, Public Law 100-687, 102 Stat. 4105 (1988)) allows VA claimants to enter into agreements with attorneys and agents for the payment of fees for services in representing them in VA proceedings, provided that the fees are neither "unreasonable" nor "excessive." Before enactment of the VJRA, the fees which could lawfully be charged by attorneys and accredited agents in VA proceedings had been limited to $10 since the 1860's. See Walters v. National Association of Radiation Survivors, 473 U.S. 305 (1985). A fee may now be charged if, and only 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 on which the Board first makes a final decision on the case. 38 U.S.C.A. § 5904(c)(1) (West 1991 & Supp. 1999); 38 C.F.R. § 20.609(c)(1) (1999). (2) The Notice of Disagreement which preceded the Board decision with respect to the issue, or issues, involved must have been received by the RO on or after November 18, 1988. VJRA § 403, 102 Stat. 4122; 38 C.F.R. § 20.609 (c) (2) (1999). (3) The attorney at law or agent must have been retained not later than one year following the date on which the decision of the Board with respect to the issue, or issues, involved was promulgated. 38 U.S.C.A. § 5904(c)(1) (West 1991 & Supp. 1999); 38 C.F.R. § 20.609(c)(3) (1999). By decision dated October 28, 1996, the Board granted the veteran's widow service connection for cause of the veteran's death. In May 1997, the Board determined that the criteria for a valid fee agreement had been met with respect to the issue of entitlement to service connection for the cause of the veteran's death, and that attorney fees should be paid regarding such decision. By letter dated November 19, 1999, the RO informed the veteran's widow that they were adjusting her effective date for DIC benefits, and that accordingly, her DIC benefits had increased. On January 21, 2000, the Board called the RO in an attempt to obtain the rating decision by which the effective date for DIC benefits was adjusted. The RO replied that the rating was based upon other evidence, and that there was no other rating done. There has not been a final Board decision with respect to the issue of entitlement to an earlier effective date for DIC benefits. The Board's May 1995 decision only denied entitlement to service connection for the cause of the veteran's death. Without a final Board decision with respect to the issue of entitlement to an earlier effective date for the grant of an earlier effective date for DIC benefits, the attorney is not entitled to past-due benefits stemming from the RO's grant of an earlier effective date for the grant of DIC benefits. 38 U.S.C.A. § 5904(c)(1) (West 1991 & Supp. 1999); 38 C.F.R. § 20.609(c)(1) (1999). ORDER Eligibility for payment of attorney fees from past-due benefits is denied. None of the veteran's widow's past-due benefits resulting from the adjustment of the effective date for the grant of DIC benefits by decision dated November 19, 1999, should be paid by the VA to the attorney. G. H. SHUFELT Member, Board of Veterans' Appeals