BVA9503505 DOCKET NO. 95-02 034 ) DATE ) ) THE ISSUE Eligibility to charge attorney fees for work done for the veteran before the Department of Veterans Affairs. REPRESENTATION Veteran represented by: Keith D. Snyder ATTORNEY FOR THE BOARD K. J. Kunz, Associate Counsel INTRODUCTION The veteran had active service from December 1973 to May 1983. This matter comes before the Board of Veterans' Appeals (Board) based on representation provided for the veteran by the attorney, Keith D. Snyder, in disability compensation claims and appeals. Since 1983, the veteran has pursued a number of disability compensation claims and appeals before the Department of Veterans Affairs (VA), including the Wichita, Kansas, regional office (RO) and the Board, and before the U.S. Court of Veterans Appeals (Court). The attorney has represented the veteran in his claims and appeals since 1991. Although the attorney has represented the veteran before both VA and the Court, this decision addresses only the attorney's eligibility to charge the veteran fees for services performed before VA. This case was docketed at the Board in January 1995. CONTENTIONS The Board has corresponded with the veteran's attorney regarding services for which attorney fees may be charged. In response to the Board's requests for information, the attorney has submitted a copy of a letter to the veteran explaining amount of the fee proposed, and the basis for calculating the fee. 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 files. 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 veteran's attorney may properly charge the veteran for services before VA in connection with the veteran's claim for service connection for Meniere's syndrome, and the veteran's appeal of a reduction in the disability rating for epididymitis; and that the fee of $6,043 that the attorney has proposed for those services is reasonable and may be charged to the veteran. FINDINGS OF FACT 1. A notice of disagreement received in March 1990 gave rise to an appeal on the issue of service connection for Meniere's syndrome that was decided by the Board in July 1991. 2. The notice of disagreement that preceded a July 1991 decision by the Board on the issue of an increased rating for epididymitis was received in August 1987. 3. A notice of disagreement received in March 1990 gave rise to an appeal on the issue of restoration of a 20 percent rating for epididymitis that was decided by the Board in July 1991. 4. The notice of disagreement that preceded a July 1991 decision by the Board on the issue of a total rating for compensation purposes based on individual unemployability was received in August 1987. 5. The veteran entered into a fee agreement with the attorney, Keith D. Snyder, in October 1991. 6. The attorney has represented the veteran before VA on issues for which attorney fees may be charged. 7. The attorney is not seeking payment of his fee by the VA from past-due benefits, but is looking solely to the veteran for payment of the attorney fee. 8. The services provided by the attorney required a high level of skill and competence; and the attorney achieved favorable results for the veteran, in the form of lump sum retroactive compensation payments and ongoing entitlement to increased disability compensation. 9. In a January 1995 letter, the attorney proposed a fee in the amount of $6,043 for services provided before VA. CONCLUSIONS OF LAW 1. The criteria for charging attorney fees for services before VA on the issue of service connection for Meniere's syndrome have been met. 38 U.S.C.A. § 5904(c)(1) (West 1991); 38 C.F.R. § 20.609(c) (1994). 2. The criteria for charging attorney fees for services before VA on the issue of an increased rating for epididymitis have not been met. 38 U.S.C.A. § 5904(c)(1) (West 1991); 38 C.F.R. § 20.609(c) (1994). 3. The criteria for charging attorney fees for services before VA on the issue of restoration of a 20 percent rating for epididymitis have been met. 38 U.S.C.A. § 5904(c)(1) (West 1991); 38 C.F.R. § 20.609(c) (1994). 4. The criteria for charging attorney fees for services before VA on the issue of a total disability rating based on individual unemployability have not been met. 38 U.S.C.A. § 5904(c)(1) (West 1991); 38 C.F.R. § 20.609(c) (1994). 5. The amount of the fee, $6,043, that the attorney proposes to charge the veteran for services before VA on the issues of service connection for Meniere's syndrome and restoration of a compensable rating for epididymitis is reasonable. 38 U.S.C.A. 5904(c)(2) (West 1991); 38 C.F.R. 20.609(e) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we note that this case does not involve the direct payment of attorney fees by VA. Under certain circumstances, VA may pay the attorney's fee directly from past-due benefits awarded to the claimant. See 38 C.F.R. § 5904(d) (West 1991). The October 1991 fee agreement between the veteran and his attorney, Keith D. Snyder, provided for direct payment of fees by the VA to the attorney. In June 1994, however, the attorney wrote to VA requesting that all past-due benefits be sent directly to the veteran. The attorney wrote, "I release the VA from any obligation to withhold my fee and will look instead solely to my client for my fee." The Board's tasks in this case are to determine whether the attorney may charge for services he has provided on behalf of the veteran before the VA; and to determine whether the fee he has proposed is reasonable. I. Issues for Which the Attorney May Charge Fees The law provides that attorneys and agents may charge claimants or appellants for their services before VA, only if all of the following conditions have been met: (1) A final decision has been promulgated by the Board with respect to the issue or issues involved. (2) The notice of disagreement which preceded the Board decision with respect to the issue or issues involved was received by the RO on or after November 18, 1988. (3) The attorney or agent was 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. See 38 U.S.C.A. § 5904(c) (West 1991); 38 C.F.R. § 20.609(c) (1994). The attorney provided services for the veteran before the VA with regard to three issues: (1) service connection for Meniere's syndrome, (2) an increased rating, or reversal of a reduction in rating, for epididymitis, and (3) a total disability rating based on individual unemployability. We will address the question of attorney fees with respect to each of these issues. A. Meniere's Syndrome In November 1988, the veteran requested to amend his disability claim to include service connection for Meniere's syndrome. The RO denied service connection for Meniere's syndrome in an August 1989 rating decision, and the veteran filed a notice of disagreement in March 1990. The Board issued a decision denying service connection for Meniere's syndrome in July 1991. The veteran entered into a fee agreement with the attorney in October 1991, and the attorney proceeded to represent the veteran in his claims, including service connection for Meniere's syndrome. The Board has promulgated a final decision with respect to the issue of service connection for Meniere's syndrome. The notice of disagreement which preceded that Board decision was received by the RO in March 1990, which is after November 18, 1988. The attorney was retained no later than October 1991, less than one year following the July 1991 Board decision denying service connection for Meniere's syndrome. The conditions for charging attorney fees for services before the VA in the claim for service connection for Meniere's syndrome have been met. B. Epididymitis The RO granted service connection for the veteran's epididymitis in a March 1984 rating decision, which also assigned a 10 percent disability rating. In an April 1985 decision, the Board granted a 20 percent disability rating on an extraschedular basis. In October 1986, the veteran requested an increased rating for epididymitis. In February 1987, the RO confirmed the 20 percent rating. The veteran filed a notice of disagreement in August 1987. In January 1989, the Board remanded the case for further development, to include a period of hospitalization for observation and evaluation of his disabilities. The observation and evaluation period was scheduled in August 1989. Later in August 1989, the RO issued a rating decision reducing the disability rating for epididymitis from 20 percent to 0 percent. In September 1989, the RO received a statement from the veteran requesting a new examination, as the observation and evaluation had been inadequate. In June 1990, the Board again remanded the case for further development. In a July 1991 decision, the Board denied entitlement to an increased rating for epididymitis. The veteran and the attorney entered into a fee agreement in October 1991. The veteran appealed to the United States Court of Veteran's Appeals (Court). With regard to the veteran's epididymitis, the veteran asserted that the Board's July 1991 decision upholding the reduction in rating was void because the Board had failed to apply regulations relevant to a reduction in rating. In a June 1993 decision in [citation redacted], the Court found that the Board had failed to consider 38 C.F.R. §§ 3.344(a) and (b), which must be applied in reducing a disability rating that has been in effect for five years or more. The Court vacated the July 1991 Board decision and remanded for reconsideration. The VA has addressed more than one issue with respect to the veteran's service-connected epididymitis, including entitlement to an increased rating, and the validity of a rating reduction. The attorney may charge fees for services before the VA with regard to these issues if the conditions listed above have been met. The first condition for charging fees is met, in that the Board promulgated a final decision in July 1991 with regard to the rating for epididymitis. The Board described the issue as entitlement to an increased rating for epididymitis; however, the Court found that the Board should have addressed the issue of whether the reduction of the rating for epididymitis was proper. The third condition is also met, in that the veteran retained the attorney by October 1991, less than one year after the July 1991 Board decision. Turning to the second condition, we note that the latest notice of disagreement that refers to an increased rating for epididymitis was received in August 1987, prior to November 18, 1988. Therefore, the conditions for charging attorney fees for services with regard to an increased rating have not been met. In his September 1989 request for a new examination following the reduction in rating, however, the veteran in effect expressed disagreement with that reduction. We find that the veteran's September 1989 statement has the effect of a notice of disagreement. As that statement was received after November 18, 1988, the conditions for charging attorney fees are met with regard to the reduction of the rating for epididymitis, and the attorney may charge fees for services before the VA on that issue. C. Total Rating Based on Individual Unemployability The veteran first sought a total disability rating based on individual unemployability in July 1985. The RO denied his claim for individual unemployability in August 1985, and he filed a notice of disagreement in January 1986. In August 1986, the Board issued a decision denying entitlement to a total rating for compensation purposes based on individual unemployability. In August 1986, the veteran requested to reopen a claim for a total rating for compensation purposes based on individual unemployability. The RO issued a rating decision denying individual unemployability in September 1986. The veteran filed a notice of disagreement in August 1987. The Board remanded the case for further development in January 1989 and in June 1990. In June 1991, the Board issued a decision denying entitlement to a total rating based on individual unemployability. In June 1993, the Court found that it did not have jurisdiction to consider the veteran's individual unemployability claim, because the notice of disagreement in the case was received before November 18, 1988. No other notice of disagreement has been received on the issue of individual unemployability. A total rating for compensation purposes based on individual unemployability was later granted by the RO in a June 1994 rating decision. The Board has promulgated two final decisions with respect to the issue of a total rating based on individual unemployability, in 1986 and 1991. The notices of disagreement which preceded those Board decisions, however, were received by the RO in 1986 and 1987, both before November 18, 1988. As the notices of disagreement preceding Board decision on individual unemployability were not received by the RO on or after November 18, 1988, that condition for charging attorney fees has not been met. The attorney may not charge fees for services before the VA on the claim for a total rating based on individual unemployability. We conclude that the attorney may charge the veteran fees for his services before the VA on the issue of service connection for Meniere's syndrome, and on the issue of the reduction of the rating for epididymitis. II. Reasonable Fee The Board may review a fee agreement between an attorney and a claimant or appellant for representation before VA; and 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. 38 U.S.C.A. § 5904(c)(2) (West 1991). Fees charged by an attorney in such a case must be reasonable. Fees may be based on a fixed fee, hourly rate, a percentage of benefits recovered, or a combination of such bases. Factors considered in determining whether fees are reasonable include: (1) The extent and type of services the representative performed; (2) The complexity of the case; (3) The level of skill and competence required of the representative in giving the services; (4) The amount of time the representative spent on the case; (5) The results the representative achieved, including the amount of any benefits recovered; (6) The level of review to which the claim was taken and the level of the review at which the representative was retained; (7) Rates charged by other representatives for similar services; and (8) Whether, and to what extent, the payment of fees is contingent upon the results achieved. 38 C.F.R. § 20.609(e) (1994). The veteran entered into a fee agreement with the attorney in October 1991. That agreement provided that the veteran would pay a fee equal to 20 percent of the total amount of any past-due benefits awarded on the basis of action taken by VA. The agreement stated that the veteran would be liable for the amount of the fee unless and until the fee was paid by VA. In June 1994, the attorney submitted to VA a letter stating that the VA should direct all past-due benefits awarded to the veteran, and that the attorney would look solely to the veteran for his fee. In correspondence in June and August 1994, the Office of the Chairman of the Board of Veterans' Affairs informed the attorney that it appeared that, under the applicable regulations, he would not be permitted to charge the veteran a fee for services before VA concerning the issue of a total rating based on individual unemployability. In January 1995, the attorney submitted to the Board a copy of a letter to the veteran. In the letter, the attorney noted that the Board's position that the fee paid could not take into account past-due benefits awarded for individual unemployability. The attorney then proceeded to present a formula for calculating the fee owed, and a fee amount based on the past-due benefits received. The attorney has waived payment of his fee by the VA, and has agreed to look solely to the veteran for his fee. Therefore, this case does not involve the direct payment of attorney fees by VA under 38 C.F.R. § 5904(d) (West 1991). The attorney represented the veteran before the VA on a number of issues. We have determined that regulations do not permit the attorney to charge a fee based on a percentage of past-due benefits awarded on certain issues. Nonetheless, the attorney is entitled to charge a reasonable fee for work on those issues for which the regulatory conditions have been met. Therefore, we will not review the attorney fee on the basis of the relationship between the amount of the fee and the amount of past-due benefits received. We will instead review whether the proposed fee amount constitutes a "reasonable" fee, as described under 38 C.F.R. § 20.609(e) (1994), for services that the attorney provided before VA on those issues for which a fee may be charged. In his January 1995 letter to the veteran, the attorney has proposed a dollar amount $10,043 for his fee, reduced by $4,000 paid under the Equal Access to Justice Act for services rendered in representing the veteran before the Court. Thus, the fee proposed for services before the VA, including the RO and the Board, is $6,043. On the issues of service connection for Meniere's syndrome and restoration of a 20 percent rating for epididymitis, the attorney performed services that assisted in the movement of the case toward a resolution in the veteran's favor. He prepared written arguments to VA that described in detail the veteran's position, applying the facts of the case to the relevant statutes, regulations, and case law. He engaged in ongoing communication with the veteran and with VA on the status of the case. Correspondence and other documents in the claims file reveal that the attorney's work in these areas was fairly extensive. The veteran's case is complex. In order to provide services to the veteran the attorney had to work with several separate yet interrelated issues, a large volume of evidence, and a long and varied procedural history. The complexity of the veteran's case called for assistance by an attorney, and required skill in legal argument and case management, and competence in the area of veterans' benefits law. The attorney achieved favorable results for the veteran. In 1994, the veteran was awarded service connection, a 60 percent disability rating, and retroactive compensation from 1989 forward for Meniere's syndrome. The 1989 reduction in rating for epididymitis from 20 percent to 0 percent was reversed, and the veteran was awarded retroactive compensation for the period during which the rating was reduced. The attorney had agreed with the veteran that payment of attorney fees was contingent on the veteran receiving past-due benefits. In light of the work performed by the attorney and the results achieved for the veteran, we find that the proposed fee of $6,043 is a reasonable fee for the services that the attorney performed in representing the veteran before VA on the issues of service connection for Meniere's syndrome and restoration of a 20 percent rating for epididymitis. ORDER Eligibility to charge the veteran fees for services rendered before VA in connection with service connection for Meniere's syndrome and restoration of a 20 percent rating for epididymitis is granted. The fee of $6,043 that the attorney has proposed to charge for those services is reasonable, and the attorney may charge the veteran such a fee. JACK W. BLASINGAME 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. § 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.