BVA9501871 DOCKET NO. 94-44 432 ) DATE ) ) THE ISSUE Eligibility for payment of attorney fees from past-due benefits. ATTORNEY FOR THE BOARD Julia M. Kurtz, Associate Counsel INTRODUCTION This matter relating to attorney fees arises out of the proceedings in the appeal to the United States Court of Veterans Appeals (hereinafter "the Court") in [citation redacted], in which the Court granted a joint motion for remand and vacated the Board of Veterans' Appeals (hereinafter "the Board") May 29, 1991 decision. In that decision, the Board denied the veteran entitlement to an earlier effective date for the grant of a 100 percent evaluation for post-traumatic stress disorder. Pursuant to the Court's direction, the case was returned to the Board in December 1992. In June 1993, the Board remanded the case to the Department of Veterans Affairs (hereinafter "VA") Seattle, Washington, Regional Office (hereinafter "the RO") for further evidentiary development. In a rating decision of July 1994, the RO granted the veteran's claim for an earlier effective date of July 28, 1987 for a 100 percent evaluation for post-traumatic stress disorder. The attorney in this case, Robert A. Friedman, has represented the veteran subsequent to the Board's May 29, 1991 decision. The veteran and his attorney, parties to a June 1992 fee agreement, were notified by the RO by letter dated August 11, 1994, that the case was being transferred to the Board of Veteran's Appeals for a determination concerning eligibility for payment of attorneys fees from past-due benefits, and that any additional evidence or argument concerning the attorney fee agreement should be submitted to the Board within 30 days. No further evidence or argument was received from either party. The case is now ready for the Board's review. CONTENTIONS No contentions have been made concerning whether or not 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(s). 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 rating decision of April 1988 established service connection for post-traumatic stress disorder and assigned a 10 percent disability evaluation, effective from July 28, 1987. 2. A rating decision of June 1989 granted the veteran's claim for a 100 percent disability evaluation for post-traumatic stress disorder, effective from August 8, 1988. 3. The Board denied the veteran's claim for an earlier effective date for a 100 percent evaluation for post-traumatic stress disorder in a May 29, 1991 decision. 4. The notice of disagreement was received and filed on or after November 18, 1988. 5. On June 16, 1992, the veteran entered into an agreement to pay the attorney for representational services before the VA, including the Board. 6. A December 7, 1992 Court order vacated the May 29, 1991 Board decision and remanded the case to the Board. 7. On June 30, 1993, the Board remanded the case for further evidentiary development. 8. In a rating decision dated July 1994, the RO granted an earlier effective date of July 28, 1987 for a 100 percent disability evaluation for post-traumatic stress disorder. CONCLUSION OF LAW The criteria for a valid fee agreement between the attorney and the veteran for representational services before the VA, including the Board, have not been met. 38 U.S.C.A. § 5904(c)(1) (West 1991); 38 C.F.R. § 20.609(c) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veterans' Judicial Review Act, Pub. L. 100-687, 102 Stat. 4105 (1988) permits VA claimants and appellants to enter into agreements with attorneys and agents for the payment of fees for services in representing them in proceedings before the VA so long as fees are neither "unreasonable" nor "excessive." A fee may be charged of the claimant or the 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) (1993). (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 U.S.C.A. § 5904(c)(1) (West 1991); 38 C.F.R. § 20.609(c)(2) (1993). (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) (1993). In this case, a final decision was promulgated by the Board with respect to entitlement to an earlier effective date for a 100 percent disability evaluation for post-traumatic stress disorder on May 29, 1991. The notice of disagreement which preceded the Board decision was received by the RO after November 18, 1988. As the first two conditions have clearly been met, we need next to determine whether the third condition has been met. A review of the record reveals that the veteran and attorney entered into an agreement regarding the payment of fees for representational services before the VA, including the Board, on June 16, 1992. However, the Board's decision with respect to the issue involved was promulgated May 29, 1991, more than one year prior to the date the attorney was retained by the veteran. Given this fact, we find that the attorney in this case may not charge the veteran a fee for representational services before the VA. Accordingly, we conclude that 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 July 1994 rating decision granting a July 28, 1987 effective date for a 100 percent disability evaluation for post- traumatic stress disorder should be paid to the attorney in this case. E. W. SEERY 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. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). 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 on your appeal by the Board of Veterans' Appeals.