Citation Nr: 0810516 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 04-29 799 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California THE ISSUE Entitlement to payment of attorney fees from past-due benefits. REPRESENTATION Appellant represented by: Law Offices of David P. Berschauer WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran had active military service from November 1952 to August 1967. The veteran died in July 1996. The claimant in the present case is an attorney who was retained by the veteran's widow on August 8, 2001. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2003 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In this decision, the RO determined that the appellant was not entitled attorney fees from past-due benefits awarded to the veteran's widow for Dependency Indemnity Compensation (DIC) benefits. In January 2008, the appellant appeared and testified at a hearing before the undersigned, sitting at the RO. A transcript of that hearing is of record. FINDING OF FACT There has been no final Board decision with respect to the issue of entitlement to the validity of the widow's marriage to the veteran or her entitlement to DIC benefits. CONCLUSION OF LAW The criteria for payment to the appellant of fees for attorney services from past-due benefits awarded to the veteran's widow based on the RO's grant of DIC benefits are not met. 38 U.S.C.A. § 5904(d) (West 2002); 38 C.F.R. § 20.609 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA. At the outset, the Board notes that in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007). However, the Board observes that the VCAA does not apply to the issue at hand. See Barger v. Principi, 16 Vet. App. 132 (2002). The statute at issue in this appeal is found in Chapter 59 of Title 38 of the U.S. Code, which concerns special provisions relating to agents and attorneys. The notice and duty-to-assist provisions of the VCAA are relevant to a different chapter of Title 38, and do not apply to this appeal. See generally Smith (Claudus) v. Gober, 14 Vet. App. 227, 230 (2000). II. Factual background. The record indicates that the veteran died in July 1996. The veteran's wife submitted an application for Dependency and Indemnity Compensation (DIC) benefits (VA Form 21-534) in August 1996. In February 1997, the RO sought an opinion regarding the validity of the marriage between the claimed surviving spouse and the veteran. In an April 1998 rating decision, the RO granted service connection for the cause of the veteran's death. Of record is a notice of representation by counsel, dated August 8, 2001, wherein the veteran's widow indicated that she was being represented by the appellant in all matters arising out of her claim for survivor's benefits with VA following the death of the veteran. In August 2001, the veteran's surviving spouse retained the attorney to represent her in all issues concerning her DIC claim before the VA. By letter dated in October 2001, the RO acknowledged receipt of the declaration of representation from the veteran's widow. Attached was a copy of an attorney fee agreement. The applicable fee agreement is in writing, and, in pertinent part, provides that the fee will be equal to no more than 20 percent of any past-due benefits awarded. In July 2002, the attorney-client contingent fee contract was filed with the Board. In an administrative decision in January 2003, the RO determined that the marriage of R.G. to the veteran was valid. Consequently, it was determined that R.G. was entitled to DIC benefits. By letter dated in June 2003, the veteran's widow was informed that the RO was withholding 20 percent to the retroactive amount due to her until a determination was made regarding the amount of attorney fees payable. Submitted in support of the appellant's claim for attorney fees was a statement from the veteran's widow, dated in September 2003, who noted that she made a claim for DIC benefits in August 1996; she indicated that her claim remained pending for over five years before she hired the appellant and his law firm. She maintained that VA's refusal to recognize her as the legitimate widow of the veteran caused her a lot of stress; her letters and pleas for help went unanswered. The widow stated that if it were not for the appellant's hard work and tireless help for the last two years, she wound not have been awarded the benefits to which she was entitled. She requested that the appellant be paid out of any benefits he recovered for her. At his personal hearing in January 2008, the appellant indicated that the veteran's widow came to his law office in October 2001. He noted that the widow made an application for Survivor's benefits in 1996; 5 years had passed and she had not received any benefits from VA. The appellant indicated that he spent nearly two years trying to get someone at the Board to resolve the widow's claim. The appellant indicated that the widow had hired advocates prior to contacting him, but she got nowhere. The appellant agreed that the widow's claim had never left the RO; he argued that the office sat on the claim to the point that the widow became indigent. III. Legal Analysis. Under the provisions of 38 U.S.C.A. § 5904(c)(1), a fee may not be charged, allowed, or paid for an attorney's services with respect to services provided before the date on which the Board first makes a final decision in a case. Such a fee may be charged, allowed, or paid in the case of services provided after such date only if an attorney is retained with respect to such case before the end of a 1-year period beginning on that date. Under the provisions of 38 C.F.R. § 20.609(c), an attorney may charge fees only if both of the following conditions have been met: a final Board decision has been promulgated with respect to the issue involved, and the attorney was retained not later than 1 year following the date on which that Board decision was promulgated. See In re Mason, 13 Vet. App. 79, 83-86 (1999). In the Matter of the Fee Agreement of Smith, 4 Vet. App. 487, 490 (1993), the United States Court of Appeals for Veterans Claims (Court) held that, pursuant to 38 C.F.R. § 5904(c)(1), a fee agreement may be entered into between a claimant and an attorney for services provided only after the Board makes a final decision on the issue involved in a case. In the Matter of the Fee Agreement of Stanley, 10 Vet. App. 104, 107 (1997), the Court also held that the issue extant in the final Board decision in a case must be the same issue for which the attorney is seeking payment. In this case, there has been no final Board decision on the issue for which the appellant seeks payment, i.e., entitlement to DIC benefits. The veteran's widow and the appellant signed a contingent fee agreement in July 2002. The Agency of Original Jurisdiction (AOJ) issued an administrative decision in January 2003 which determined that the marriage of R.G. to the veteran was valid. Consequently, it was determined that R.G. was entitled to DIC benefits. As noted above, the RO granted service connection for the case of the veteran's death in a rating action in April 1998. However, a field examination and further development was required in order to determine whether the claimed surviving spouse's (R.G.'s) marriage to the veteran was valid. There has not been a final Board decision with respect to the issue of the validity of the widow's marriage to the veteran. Without a final Board decision with respect to the validity of the widow's marriage to the veteran, the attorney is not entitled to past-due benefits stemming from the RO's grant of DIC benefits based on the finding of validity of the marriage. 38 U.S.C.A. § 5904(c) (1) (West 2002 & Supp. 2007); 38 C.F.R. § 20.609(c) (1) (2007). Accordingly, the attorney's claim of entitlement to the payment of attorney fees in connection with a claim of entitlement to DIC benefits is denied. In reaching this decision the Board acknowledges that under the Veterans Benefits, Health Care, and Information Technology Act of 2006, Public Law 109-461, attorneys may represent a claimant before VA for a fee after a notice of disagreement is filed. The new law, however, pertains only to those claims where the notice of disagreement is filed on or after June 20, 2007. As the widow had not filed a notice of disagreement in this case, the provisions of Public Law 109-461 are not applicable. ORDER Payment of attorney fees from past-due benefits based on the RO's grant of DIC benefits is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs