Citation Nr: 1308501 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 10-42 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to payment of attorney fees based on a grant of compensation benefits by a rating decision of April 7, 2010. ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from September 1944 to July 1946. The appellant in this case is the Veteran's accredited representative before VA, to include the Regional Office (RO) and the Board of Veterans' Appeals (Board). This matter comes before the Board on appeal of a May 2010 administrative decision by the Muskogee, Oklahoma RO that denied the appellant's request for payment of attorney fees based his representation of the Veteran in a case that had resulted in the Veteran being paid additional compensation benefits. FINDINGS OF FACT 1. A decision by the Board dated March 29, 2010, granted the Veteran's claim of entitlement to an earlier effective date of service connection for multiple keratosis and sun damage. The Board's decision was implemented by an RO rating decision issued on April 7, 2010, that resulted in the payment of additional compensation benefits to the Veteran. 2. The contractual fee agreement between the Veteran and the appellant was received by the Agency of Original Jurisdiction on April 30, 2010. CONCLUSION OF LAW Entitlement to payment of attorney fees based on a grant of compensation benefits by a rating decision of April 7, 2010, is not shown. 38 U.S.C.A. §§ 5903, 5904 (West 2002 & Supp. 2012); 38 C.F.R. §§ 14.627, 14.636 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). An attorney fee dispute is not a "claim" for disability compensation benefits. The Court has held that VA's duties to notify and assist do not apply to cases where, as here, the applicant is not seeking benefits under Chapter 31 of Title 38 of the United States Code, but rather is seeking a decision on how those benefits will be distributed under another Chapter (in this case, Chapter 59). See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). Nevertheless, the appellant has been afforded appropriate notice and assistance. He was provided a Statement of the Case (SOC) in August 2010 that advised him of the reasons and bases for the RO's decision and provided him with the full text of the appropriate regulations. The appellant was afforded an appropriate opportunity to respond before the case was presented to the Board for adjudication. The appellant has been advised of his entitlement to hearings before the RO's hearing officer and/or before the Board in conjunction with his appeal, but he has not requested such a hearing. The appellant has been afforded adequate process under 38 U.S.C.A. § 7105 in regard to his appeal. As the issue before the Board is not related to a medical condition, there is no purpose to be served by obtaining medical records or providing medical examination. The appellant has not asserted, and the record does not show, that any existing documents should be acquired before the appeal is adjudicated. For the reasons set forth hereinabove, no further notification or assistance is necessary, and the appellant is not prejudiced by adjudication of his claim at this time. Applicable Legal Principles All agreements for the payment of fees for services of agents and attorneys must be in writing and signed by the claimant and appellant and the agent or attorney. A copy of the fee agreement must be filed with the Office of General Counsel within 30 days of its execution. 38 C.F.R. § 14.636(g)(3). The claimant or appellant and an agent or attorney may enter into a fee agreement providing that payment for the services of the agent or attorney will be made directly to the agent or attorney by VA out of any past-due benefits awarded an any proceeding before VA or the United States Court of Appeals for Veterans Claims. 38 C.F.R. § 14.636(h)(1). In addition to filing a copy of the fee agreement with the Office of General Counsel as required by paragraph (g), the agent or attorney must notify the agency of original jurisdiction within 30 days of the execution of the agreement of the existence of the agreement providing for the direct payment of fee out of any benefits subsequently determined to be past due, and provide that agency with a copy of the fee agreement. 38 C.F.R. § 14.636(h)(4). "Agency of original jurisdiction" means the VA activity or administration that made the initial determination on a claim or matter or that handles any subsequent adjudication of a claim or matter in the first instance, and includes the Office of the General Counsel with respect to proceedings to suspend or cancel accreditation or to review fee agreements. 38 C.F.R. § 14.627(b). Evidence and Analysis The factual background in this case is not in dispute. A June 2007 rating decision by the VARO in Muscogee, Oklahoma granted service connection for a claimed skin disorder and established an effective date of July 24, 2006. The Veteran appealed the effective date. The Board upheld the assigned effective date by a decision in December 2008, and the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In November 2009 the Court granted a Joint Motion of the Parties to vacate the Board's denial and remanded the case back to the Board for further consideration. The appellant submitted two documents to the Board that were date-stamped as received by the Board (BVA) on December 11, 2009. The first document is a VA Form 21-22a (Appointment of Individual as Claimant's Representative) that was signed by the Veteran on November 27, 2009, and signed by the appellant on December 4, 2009. The second document is a Contingent Fee Contract for Representation before the U.S. Department of Veterans Affairs that was signed by the Veteran on November 27, 2009, and signed by the appellant on December 1, 2009. The Board issued a decision on March 29, 2010, that granted an earlier effective date of May 19, 1992, for the service-connected disability on appeal. The Board's decision acknowledged the appellant as being the Veteran's current accredited representative. The Board's decision was implemented by an RO rating decision dated April 7, 2010, which also acknowledged the appellant as being the Veteran's current accredited representative. The RO's Station Fee Coordinator reviewed the file on April 13, 2010, and determined there was no attorney fee agreement on record in either the file or in the Veterans Appeals Control and Locator System (VACOLS); therefore, no attorney fee decision was required and all retroactive payments should be paid directly to the Veteran. Payment was promulgated on April 19, 2010. The appellant sent the RO a letter on April 27, 2010, with subject line "request for attorney fee decision." In the letter, the appellant enclosed a copy of the Contingent Fee Agreement cited above and requested that 20 percent of the past-due benefits be withheld from the Veteran and paid directly to the appellant in accordance with the terms of the fee agreement. The appellant's letter, and the enclosed Contingent Fee Agreement, was date-stamped as received by the RO on April 30, 2010. On May 3, 2010, the RO sent a letter to the appellant advising him that the Contingent Fee Agreement was not on file at the RO prior to April 30, 2010. The RO's letter stated that because the notice of representation and the fee agreement had not been filed at the RO prior to the rating decision of April 7, 2010, attorney fees were not payable. In response, the appellant sent a letter to the RO on May 17, 2010, arguing that the fee agreement had been associated with the Veteran's claims file by the Board on December 11, 2009, and that "as a matter of law" the agreement was before the RO on that date. The appellant cited Bell v. Derwinski, 2 Vet. App. 611 (1992) for the proposition that VA has constructive, if not actual, notice with regard to all documents that it generates, including electronic records. On May 27, 2010, the RO sent the appellant the decision on appeal, notifying him that the RO had not withheld, for possible payment of attorney fees, any amount of the Veteran's past-due benefits and had not made direct payment to the appellant because there was no copy of the direct pay fee agreement between the Veteran and the appellant on file at the Agency of Original Jurisdiction (AOJ) until after the award was promulgated on April 19, 2010. The decision noted the RO/AOJ had not received the fee agreement until April 30, 2010. The appellant submitted a Notice of Disagreement (NOD) to the RO in June 2010 in which he stated that per the "presumption of regularity" the contingency fee agreement was presumed to be associated with the Veteran's claims file on December 11, 2009, the date it was received by the Board. He essentially reiterated the same argument in his substantive appeal, dated in October 2010, again asserting "as a matter of law" that the contingency fee contract was associated with the Veteran's claims file on December 11, 2009. On review, the Board acknowledges the appellant's contention that documents filed at the Board are presumptively before the AOJ. However, his interpretation is squarely inconsistent with the regulation, which states that in addition to filing a copy of the fee agreement with VA's Office of General Counsel the agent or attorney must notify the AOJ within 30 days of the execution of the agreement of the existence of the agreement and must provide that agency with a copy of the fee agreement. If a "presumption of regularity" applied to fee agreements, no such additional filing would be required by the regulation. The appellant cites Bell for the proposition that the fee agreement should have been noted in VACOLS and would thus have been before the RO at the time the rating was issued. VACOLS merely shows that a given claimant is represented by an attorney, or by a veterans service organization, or unrepresented; VACOLS does not indicate whether a current fee agreement exists. The regulation requires a representative to advise the AOJ of the existence of a direct fee agreement and to also provide the AOJ with a copy of the agreement; see 38 C.F.R. § 14.636(h)(4). An entry in VACOLS satisfies neither condition and thus does not satisfy the regulation. Finally, the appellant cites Bell for the proposition that the text of the fee agreement was constructively, if not actually, before the AOJ when it was received by the Board in December 2009 "as a matter of law." Again, this is inconsistent with the clear intent of the regulation, which carefully identifies that the fee agreement must be before the AOJ within the stipulated period and defines the AOJ to be the VA agency that made the initial determination on a claim or matter or that handles any subsequent adjudication of a claim or matter in the first instance. 38 C.F.R. § 14.627(b) (emphasis added). Adjudication in the first instance is the province of the RO, not the Board. See 38 C.F.R. § 19.37(a). These provisions do not apply in proceedings before the General Counsel conducted to cancel accreditation or to review fee agreements for reasonableness; see 38 C.F.R. § 19.37(c), which is consistent with 38 C.F.R. § 14.627(b). This narrow exception does not apply in this case because cancellation or suspension of accreditation, or reasonableness of the fee agreement, are not issues on appeal. Thus, submission of a fee agreement to the VA General Counsel, or to the Board, does not constitute submission to the AOJ as clearly required by the regulation. In sum, the Board has found the appellant's fee agreement with the Veteran was received by the AOJ after compensation was awarded. Accordingly, entitlement to payment of attorney fees from compensation benefits is not shown. ORDER The claim for payment of attorney fees from compensation benefits resulting from a rating decision of April 7, 2010, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs