Citation Nr: 0806164 Decision Date: 02/22/08 Archive Date: 03/03/08 DOCKET NO. 07-35 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Eligibility for payment of attorney fees from past-due benefits. ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran served on active duty from February 1990 to August 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDING OF FACT Relative to the RO's November 2005 decision regarding entitlement to payment by VA of attorney fees from past due benefits, the attorney has not identified an adverse adjudicative determination. CONCLUSION OF LAW There is no question of law or fact with respect to the November 2005 attorney fee decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.201 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION In a decision dated in June 2002, the Board denied service connection for a low back disability, a rating in excess of 10 percent for the veteran's service-connected left knee disability, and an extension beyond November 30, 1997, of a temporary total rating pursuant to 38 C.F.R. § 4.30 due to left knee surgery requiring convalescence. In September 2002, the veteran retained the services of the attorney, and the veteran filed a copy of the fee agreement with the RO. With the assistance of the attorney, the veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an order dated in May 2003, the Court vacated the Board's June 2002 decision and remanded the matter for readjudication. The Board subsequently remanded the case to the RO in February 2004 and October 2004. While the case was in remand status at the RO, the RO in an October 17, 2005, rating decision, recharacterized the veteran's service-connected left knee disability as chondromalacia of the left knee, status post arthroscopy and anterior cruciate ligament (ACL) reconstruction with residual disuse atrophy of Muscle Group XIV. In the October 2005 rating decision, the RO extended the temporary total rating pursuant to 38 C.F.R. § 4.30 for convalescence of the left knee, effective December 1, 1997, through April 30, 1998. The RO assigned a 10 percent rating for chondromalacia of the left knee, status post arthroscopy and ACL reconstruction with residual disuse atrophy of Muscle Group XIV under Diagnostic Code 5261 from May 1, 1998, through May 26, 2005, and a 20 percent rating from May 27, 2005. In addition, the RO awarded a separate 10 percent rating for left knee instability under Diagnostic Code 5257 from August 17, 2001, through May 26, 2005, and a noncompensable rating from May 27, 2005. Thereafter, in a decision dated in November 2005, the RO calculated that based on the October 17, 2005, rating decision, the total amount of past due benefits was $14,595.80. In November 2005 letters, the RO notified the veteran and his attorney that it had determined the attorney was entitled to $2,919.16 for attorney fees and that the balance of past due benefits, or $11, 676.64 was being sent (or already had been sent) directly to the veteran. The Board notes that in the November 2005 decision and in the November 2005 letters the RO mistakenly referred to June 1, 1997, instead of December 1, 1997, as the beginning date of the past due benefits period and as the effective date of the award. The calculations are, however, consistent with the proper effective date of December 1, 1997, which was the commencement of the extension of the temporary total rating pursuant to 38 C.F.R. § 4.30 for convalescence of the left knee. In a November 2005 letter, the attorney stated that he wanted to appeal the decision as to entitlement to payment of attorney fees from past due benefits. In December 2005, the RO issued a statement of the case, which it sent to the attorney with a copy to the veteran. In response, the attorney filed a VA Form 9 that contains only generic "boilerplate" language, and does not allege any error of fact or law in the determination being appealed. Indeed, the attorney failed to allege what additional portion of the veteran's past-due benefits to which he is entitled as opposed to the veteran. Furthermore, it is unclear from the record whether the attorney received a fee pursuant to the Equal Access to Justice Act (EAJA) following his representation of the veteran before the United States Court of Appeals for Veterans Claims (Court). The Board will assume that no EAJA fee was awarded, because any attorney fee from past due benefits would be offset by such an EAJA fee. In this case, the attorney received the entire 20 percent portion of the veteran's award. The Board finds that the attorney failed to identify adequately an adverse adjudicative determination of the RO. Under the circumstances, the Board concludes there is no question of law or fact to be decided, and the Board will dismiss the appeal in accordance with 38 U.S.C.A. § 7105 and 38 C.F.R. § 20.202, which state specifically that the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. ORDER The issue of eligibility for payment of attorney fees from past-due benefits in connection with the following: the award of extension of a temporary total rating from December 1, 1997, through April 30, 1998, pursuant to 38 C.F.R. § 4.30 due to treatment for a service-connected disability requiring convalescence; the award of a separate 10 percent rating for left knee instability from August 17, 2001, through May 26, 2005; and the award of a 20 percent rating for chondromalacia of the left knee, status post arthroscopy and ACL reconstruction with residual disuse atrophy of Muscle Group XIV from May 25, 2005, is dismissed. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs