BVA9507409 DOCKET NO. 95-03 541 ) DATE ) ) THE ISSUE Eligibility for payment of attorney fees from past-due benefits. ATTORNEY FOR THE BOARD C. Chaplin, Associate Counsel INTRODUCTION The veteran had active service from January 1969 to June 1971. The veteran's initial claim for service connection for hepatitis and bronchitis was denied by the regional office (RO) in 1971. The veteran's initial claim for service connection for post- traumatic stress disorder was denied by the regional office in June 1982 as was a claim for bronchitis. In December 1987, the veteran initiated a new claim for compensation benefits. The claim was denied in March 1989. The veteran's notice of disagreement was received in May 1989. By a decision dated in November 1990, the Board of Veterans' Appeals (Board) denied the veteran's appeal in its entirety. The veteran appealed to the United States Court of Veterans Appeals (Court). In February 1991, he entered into a fee agreement with the attorney in this case, who has represented the veteran since that time. In May 1992, the parties filed a joint motion for remand to the Board. In June 1992, in [citation redacted], the Court ordered that the joint motion for remand was granted, and the Board's decision was vacated. The Court directed that the action agreed upon by the appellant's representative and the General Counsel of the Department of Veterans Affairs (VA) in their joint motion filed May 28, 1992, be effected. In December 1992, the Board remanded the case to the RO for further development of the record. By rating action of December 1994, the regional office granted service connection for post-traumatic stress disorder, assigned a 100 percent evaluation effective December 11, 1987, initial date of re-opened claim; granted service connection for hepatitis and bronchitis with chronic obstructive pulmonary disease, each assigned a noncompensable evaluation; and granted service connection for tinnitus, assigned a 10 percent evaluation effective December 11, 1987. Following the December 1994 rating action granting service connection for post-traumatic stress disorder, hepatitis, tinnitus, and bronchitis with chronic obstructive pulmonary disease, the veteran and his attorney, parties to the February 1991 fee agreement, were notified by the RO by letter dated February 1, 1995, that the case was being transferred to the Board for a determination concerning eligibility for payment of attorney 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 response was received from either party. CONTENTIONS No specific contentions have been made. 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 in favor of a finding that the attorney is eligible to receive 20 percent of the veteran's award of past-due benefits. FINDINGS OF FACT 1. The Board has made a prior final decision on the underlying issues in this case; the notice of disagreement preceding the Board decision was received after November 18, 1988; and the attorney, who provided services relating to that claim, was retained within one year of the Board decision in question. 2. Past-due benefits are payable to the veteran. 3. The fee agreement, a copy of which is in the file, executed within one year of the initial Board decision, provides that the attorney's fee, to be paid by VA to the attorney, shall be equal to 20 percent of past-due benefits awarded to the veteran, and is contingent upon a decision favorable to the veteran. CONCLUSION OF LAW The criteria for payment of attorney fees amounting to 20 percent of past-due benefits awarded the veteran have been met. 38 U.S.C.A. § 5904 (West 1991); 38 C.F.R. § 20.609 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION In order for attorney's fees to be paid by VA directly to the attorney out of past-due benefits, certain requirements must be met, according to 38 U.S.C.A. § 5904(c) (West 1991). It must first be determined whether there is a valid claim for payment of such fees. To be eligible for payment of attorney fees, there must be a fee agreement for services rendered with respect to the issue, or issues, involved; the notice of disagreement must have been received by the agency of original jurisdiction on or after November 18, 1988; a final decision must have been promulgated by the Board of Veterans' Appeals; and the attorney-at-law or agent must have been retained no later than one year following the date of the decision by the Board of Veterans' Appeals. 38 U.S.C.A. § 5904(c)(1) (West 1991); 38 C.F.R. § 20.609(c) (1994). In this case, a notice of disagreement with the RO's denial was received in May 1989; the Board issued a final decision denying the benefits in November 1990; and the veteran entered into a fee agreement with the veteran regarding the issues in February 1991. Therefore, the threshold requirements for eligibility for payment of attorney fees have been met. It must now be determined whether the attorney's fee may be paid from the past-due benefits awarded to the veteran pursuant to the December 1994 rating action which granted service connection for post-traumatic stress disorder, assigned a 100 percent evaluation effective December 11, 1987, initial date of re-opened claim; granted service connection for hepatitis and bronchitis with chronic obstructive pulmonary disease, each assigned a noncompensable evaluation; and granted service connection for tinnitus, assigned a 10 percent evaluation, effective December 11, 1987. Under 38 U.S.C.A. § 5904(d) (West 1991), the total fee payable to the attorney may not exceed 20 percent of any past-due benefits awarded on the basis of the claim. In addition, the fee must be contingent upon the favorable resolution of the veteran's claim. 38 U.S.C.A. § 5904(d)(2) (West 1991); 38 C.F.R. § 20.609(h) (1994). Thus, the February 1991 attorney fee agreement, which provides for a fee of 20 percent of past-due benefits awarded directly to the attorney in the event of favorable resolution of the claim, meets the criteria for a fee permissible for an attorney who is being paid directly by the VA out of past-due benefits awarded the veteran. Fees which total no more than 20 percent of any past-due benefits will be presumed to be reasonable. 38 C.F.R. § 20.609(f) (1994). The rating action of December 12, 1994, granted service connection for post-traumatic stress disorder, assigned a 100 percent evaluation effective December 11, 1987, initial date of re-opened claim; granted service connection for hepatitis and bronchitis with chronic obstructive pulmonary disease, each assigned a noncompensable evaluation; and granted service connection for tinnitus, assigned a 10 percent evaluation, effective December 11, 1987. The amount of past-due benefits is equal to the amount of the recurring cash payments which accrued between the effective date of the award and the date of the grant of the benefit. 38 C.F.R. § 20.609(h)(3) (1994). Accordingly, the inclusive dates for past-due benefits for the purpose of entitlement to attorney fees are December 11, 1987, to December 12, 1994. ORDER Eligibility is established for payment by VA directly to the attorney of 20 percent of the past-due benefits awarded the veteran for the period from December 11, 1987, to December 12, 1994. JACK W. BLASINGAME 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.