Citation Nr: 0814593 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 05-36 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Eligibility for payment of attorney fees from past-due benefits. (Whether the attorney fees assigned by the RO, in the calculated amount of $14,880.11, are reasonable will be the subject of a separate Board decision.) REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Associate Counsel INTRODUCTION The veteran had active military service from January 1954 to February 1974. He died in May 1997; the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Montgomery, Alabama. In an attorney fee eligibility decision dated September 9, 2005, VA found that the attorney, Mark R. Lippman, was entitled to payment of attorney fees of 20 percent ($14,880.11) from past due benefits (gross amount of $74,400.53). The appellant, the veteran's surviving spouse, disagreed with the payment of 20 percent of retroactive benefits for attorney fees in a September 2005 notice of disagreement. FINDINGS OF FACT 1. In an August 2000 decision, the Board denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. 2. The appellant appealed the Board's August 2000 decision to the United States Court of Appeals for Veterans Claims (Court), which in February 2001 order, vacated the Board's August 2000 decision and remanded the appellant's claim to the Board. 3. In January 2001, a fee agreement was filed between the appellant and her attorney which meets the basic statutory and regulatory requirements for payment of attorney fees from past due benefits. 4. In an April 2004 decision, the Board granted service connection for the cause of the veteran's death. CONCLUSION OF LAW The requirements for payment of attorney fees have been met. 38 U.S.C.A. § 5904 (West 2002 & Supp. 2007); 38 C.F.R. § 20.609 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Simultaneously Contested Claims Sections 19.101 and 19.102 of Chapter 38 of the United States Code of Federal Regulations provide that upon the filing of a notice of disagreement in a simultaneously contested claim, all interested parties and their representatives will be furnished a copy of the statement of the case, and if a substantive appeal is timely filed, the content of the substantive appeal will be furnished to the other contesting parties. 38 C.F.R. §§ 19.101, 19.102 (2007). In the present case, the other contesting party, attorney Mark R. Lippman was provided a copy of the October 2005 statement of the case. He was also notified that if a formal appeal was filed he would be notified and given an opportunity to respond in accordance with 38 C.F.R. § 20.502 (2007). It is not clear from the claims file whether a copy of the appellant's November 2005 substantive appeal and accompanying evidence was furnished to Mr. Lippman. However, to the extent that any notification procedures were not followed, the Board finds it to be harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In this regard, a letter received on November 14, 2005, from Mr. Lippman stated that he wished to "rely on the evidence of record" and that he did not intend to submit an answer to the appellant's contentions. Moreover, as discussed below, the Board's decision on the issue of eligibility for payment of attorney fees is favorable to Mr. Lippman. Thus, there is no prejudice in continuing with a decision in this matter. II. Analysis An attorney fee dispute is not a "claim" for disability compensation benefits. The Court has held that VA's duties to notify and assist the claimant do not apply to cases where, as here, the claimant is not seeking benefits under Chapter 51 of Title 38 of the United States Code, but rather, is seeking a decision regarding how benefits will be distributed under another Chapter, i.e., Chapter 59. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). As such, no discussion of whether there has been compliance with the Veterans Claims Assistance Act is necessary. The facts in this case are not in dispute. In an August 2000 decision, the Board denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. The appellant appealed the Board's August 2000 decision to the Court, which in a February 2001 order, vacated the Board's decision and remanded it for readjudication. The appellant and her attorney, Mark R. Lippman, entered into a fee agreement on January 13, 2001, that was filed at the RO on January 22, 2001, and at the Board on January 23, 2001. This agreement satisfied the basic statutory and regulatory requirements for payment of attorney fees from past due benefits. See 38 C.F.R. § 20.609(g) and (h) (2007). In this regard, the Board observes that the fee agreement provided for a total fee not exceeding 20 percent of any past-due benefits awarded to the appellant upon a favorable disposition of her claim and was filed at both the Board and the agency of original jurisdiction (AOJ) within 30 days of its execution. Id. In an April 2004 decision the Board granted the appellant's claim of entitlement to service connection for the cause of the veteran's death. An April 2004 RO rating decision implemented the Board's decision, and in a September 2004 letter to the appellant, the RO informed the appellant that she was entitled to Dependency and Indemnity Compensation (DIC) benefits from the date of the veteran's death in May 1997. The RO's April 2004 rating decision resulted in past due benefits being paid to the appellant. The pertinent laws and regulations governing the award of attorney fees provide that if the following conditions are met, attorney fees may be available: (1) A final decision was promulgated by the Board with respect to the issue, or issues, involved; and (2) The attorney was retained not later than one year following the date on which the decision of the Board with respect to the issue, or issues, involved was promulgated. 38 U.S.C.A. § 5904 (West 2002 & Supp. 2007); 38 C.F.R. § 20.609(c) (2007). Here, both conditions are satisfied as the Court vacated the Board's August 2000 decision denying the appellant's claim of entitlement to service connection for the cause of the veteran's death and the appellant retained Mr. Lippman in January 2001 to represent her in her appeal. In light of the above, the Board finds that the requirements for eligibility of attorney fees from past-due benefits have been met. However, the Board would like to emphasize that its decision that attorney Mark R. Lippman is eligible for attorney fees does not reflect any determination as to whether the attorney fees assigned by the RO in the calculated amount of $14,880.11 are reasonable, as this will be the subject of a separate Board decision. ORDER The attorney is eligible for attorney fees from past-due benefits and the appellant's appeal of this issue is denied. ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs