Citation Nr: 0810408 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 06-36 626 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to VA payment of attorney fees based on a June 19, 2002 Board of Veterans' Appeals decision which granted service connection for post traumatic stress disorder (PTSD) and resulted in a retroactive award of benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The veteran had active military service from February 1968 to January 1970. The appellant was the veteran's representative. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 attorney fee eligibility decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. FINDINGS OF FACT 1. The appellant and the veteran entered into an attorney fee agreement on March 21, 2001 to appeal a December 2000 decision of the Board that denied the veteran's application to reopen a claim of service connection for PTSD. 2. On March 28, 2001 the appellant submitted the March 2001 fee agreement to the office of the VA's General Counsel; it was received by the office of the VA's General Counsel later in March 2001. 3. By an Order of the Court dated May 8, 2001, the December 2000 Board decision was vacated by the U. S. Court of Appeals for Veterans Claims (Court), and the matter was remanded to the Board. 4. In a decision dated June 19, 2002, the Board reopened the veteran's PTSD claim and granted service connection for the disability, and a July 2002 rating decision assigned a rating of 100 percent for the veteran's PTSD, effective from November 3, 1997. CONCLUSION OF LAW The criteria for entitlement to VA payment of attorney fees based on a June 19, 2002 Board of Veterans' Appeals decision which granted service connection for PTSD and resulted in a retroactive award of benefits have not been met. 38 C.F.R. § 20.609 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION In December 1998 the RO denied the veteran's application to reopen a claim of service connection for PTSD. The veteran appealed to the Board, which issued a decision in December 2000 that also denied the veteran's application to reopen a claim of service connection for PTSD. The appellant and the veteran entered into an attorney fee agreement dated as executed on March 21, 2001 whereby a contingent fee in the amount of 20 percent of the total past due benefits payable to the veteran from any award or settlement granted to the veteran pursuant to his claim was to be paid directly to the attorney by VA. By an Order dated May 8, 2001, the Court of Appeals for Veterans Claims vacated the Board's December 2000 decision and remanded the matter to the Board for further consideration. By a decision dated June 19, 2002, the Board reopened the veteran's claim and granted service connection for PTSD. A July 2002 rating decision assigned a rating of 100 percent for the veteran's PTSD, effective from November 3, 1997. This resulted in an award of past due benefits. Internal correspondence (Board emails) dated July 11, 2002 reveals that a search undertaken by personnel from the Board at that time revealed no "attorney-fee file" of record. In August 2002 the veteran was paid an award ($108,952) based on the grant of benefits per the June 2002 Board decision and the July 2002 RO decision which implemented the June 2002 Board decision. No amount was withheld by VA for payment of attorney fees. In a March 2006 Attorney Fee Eligibility Decision, the RO determined that the appellant was not eligible to payment of attorney fees from VA past due benefits resulting from the grant of service connection for PTSD and the 100 percent evaluation awarded in the July 2002 rating decision. The RO determined that the appellant was not eligible for attorney fees for the reason that "an attorney fee agreement was not found on file with the Board of Veterans' Appeals." A claimant and an attorney may enter into a fee agreement providing that payment for the services of the attorney will be made directly to the attorney by VA out of any past-due benefits awarded as a result of a successful appeal to the Board or an appellate court or as a result of a reopened claim before VA following a prior denial of such benefits by the Board or an appellate court. VA will honor such an agreement only if: (1) The total fee payable (excluding expenses) does not exceed 20 percent of the total amount of the past-due benefits awarded; (2) The amount of the fee is contingent on whether the claim is resolved in a manner favorable to the claimant; and (3) The award of past-due benefits results in a cash payment to a claimant from which the fee may be deducted. 38 C.F.R. § 20.609(h)(1). A copy of the fee agreement must be filed with the Board within 30 days of its execution. 38 C.F.R. § 20.609(g). The appellant does not contest the fact that he had not sent a copy of the fee agreement directly to the Board as required by 38 C.F.R. § 20.609(g). He does assert, however, and the evidence does show that a copy of the fee agreement was sent on March 28, 2001 to VA's Office of the General Counsel, and was received by that office later in March 2001. The appellant has essentially argued that his sending of the fee agreement to VA's Office of the General Counsel constituted substantial compliance with 38 C.F.R. § 20.609(g). Further, he also argues that the Board and VA were aware of the fee agreement prior to the June 2002 Board decision and July 2002 RO rating decision and thus, most importantly, before the August 2002 release of funds to the veteran. In support of his case, the appellant asserts that the Board would have had a copy of the fee agreement in connection with the May 2001 U. S. Court of Appeals for Veterans Claims Order that vacated the Board's December 2000 decision and remanded the matter to the Board. It is asserted that, at the very least, VA knew that the appellant was the veteran's attorney prior to the issuance of the Board's June 2002 decision. In this regard, the Board notes that the June 19, 2002 Board decision in question clearly lists the appellant as the veteran's attorney in that case. Substantial compliance, also known as the substantial- performance doctrine, is an equitable rule that states that if a good-faith attempt to perform does not precisely meet the terms of the agreement, the agreement will still be considered complete if the essential purpose of the contract is accomplished. See Mayfield v. Nicholson, 19 Vet. App. 103, 127 (2005) (using Black's Law Dictionary to define terms). The Board finds that the substantial compliance doctrine is not applicable in this case with regard to a specific time limit for the filing of an attorney fee agreement with the Board, as set forth in 38 C.F.R. § 20.609(g). To apply such a doctrine to the provisions of 38 C.F.R. § 20.609(g) would result in an open-ended, imprecise and subjective time limit, rendering the time limit without effect. As such, even if it is conceded that the Board knew or should have known of the attorney-fee agreement in this case prior to the release of funds to the veteran in August 2002, it is dispositive that the record does not establish that the Board had knowledge of the fee-agreement within thirty days after execution of the attorney fee agreement, as prescribed by 38 C.F.R. § 20.609(g). Further, the Board finds that the doctrine of equitable tolling is also not for application in this case. The record does not establish, and the appellant does not contend, that there was any extraordinary circumstance that precluded timely compliance with the provisions of 38 C.F.R. § 20.609(g). It is significant to note that, in Gilbert v. Secretary of Health and Human Services, 51 F. 3d. 254 (Fed. Cir. 1995), the Federal Circuit rejected that ordinary attorney negligence, such as missing a filing deadline, may serve as a basis for equitable tolling. In view of the foregoing, the Board finds that entitlement to VA payment of attorney fees based on a June 19, 2002 Board of Veterans' Appeals decision which granted service connection for PTSD and resulted in a retroactive award of benefits is not warranted. ORDER Entitlement to VA payment of attorney fees based on a June 19, 2002 Board of Veterans' Appeals decision, which granted service connection for PTSD and resulted in a retroactive award of benefits, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs