Citation Nr: 1340794 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 11-07 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to payment of attorney fees based on a grant of compensation benefits by a rating decision of May 11, 2010. REPRESENTATION Veteran represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1943 to October 1948, and from November 1948 to May 1963. The appellant in this case is a private attorney. This matter comes before the Board on appeal of a May 2010 decision by the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania, that denied payment of attorney fees to the appellant based on his representation of the Veteran in a case that had resulted in the Veteran being paid additional compensation benefits. In a statement dated January 2011, the appellant requested a hearing before a Decision Review Officer (DRO). The requested DRO hearing was scheduled for September 5, 2013, and the appellant was notified in writing of the hearing by way of a July 2013 letter. However, the appellant did not appear for the hearing, and has not provided explanation or requested a new hearing. Thus, his hearing request is considered withdrawn. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. At the time of the September 2009 filing of a notice of disagreement (NOD) with a May 2009 rating decision and new claims for service connection for residuals of cold injury to the lower extremities, to include peripheral neuropathy, the appellant was not accredited by VA. The VA Form 21-22a executed in favor of the appellant was not accepted by VA, and the NOD and claims were accepted as a pro se filing. 2. The appellant was accredited by VA's Office of General Counsel on November 2, 2009. 3. A VA Form 21-22a, Appointment of Individual as Claimant's Representative, and contractual fee agreement between the Veteran and the appellant (signed in August 2009) were received by the RO on November 17, 2009. 4. In January 2010, the appellant filed an NOD with the December 2009 rating decision on behalf of the Veteran. 5. The Veteran filed a VA Form 21-22 in favor of New Jersey Department of Military and Veterans Affairs (NJDMVA) in March 2010. 6. A rating decision dated May 11, 2010, granted the Veteran's claims of entitlement to service connection for posttraumatic stress disorder and residuals of cold injury, which resulted in the payment of additional compensation benefits to the Veteran. 7. After a January 2010 NOD was filed by appellant, he did not perform services on behalf of the Veteran. CONCLUSION OF LAW The criteria for payment of attorney fees to the appellant by VA have not been met. 38 U.S.C.A. § 5904 (West 2002); 38 C.F.R. §§ 14.627, 14.629, 14.636, 19.100-02 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). However, 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 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). Notwithstanding the foregoing, the Board recognizes that the Veteran was not sent a copy of the January 2011 statement of the case or the appellant's January 2011 substantive appeal in accordance with procedures for contested claims. 38 C.F.R. §§ 19.100-19.102. Nevertheless, as the Board is resolving the matter in favor of the Veteran, the Board finds that he is not prejudiced by the procedural oversights and that remand would serve no useful purpose except to delay resolution of the matter. Moreover, the Board cannot find any conceivable prejudice to the appellant from the Veteran's lack of notice, and the appellant has not alleged any. Therefore, the Board will proceed with adjudication of the claim on the merits. The appellant contends that he is entitled to payment of attorney fees based on an RO award of service connection and compensation for PTSD and residuals of cold injury to the lower extremities in a May 2010 RO rating decision. He essentially asserts that he filed successful September 2009 and January 2010 NODs pertaining to those disabilities and thus, is entitled to past due benefits on those claims based on his representation of the Veteran before VA at the RO level. The relevant legal authority provides that a claimant may have attorney representation for the prosecution of claims for VA benefits. 38 U.S.C.A. § 5904(a) (West 2002). Pursuant to the Veterans Benefits, Health Care, and Information Technology Act of 2006 (P.L. 109-461), the statute governing the circumstances under which attorney fees may be charged was amended. The amended statute permits attorneys-at-law and agents to charge fees for representation after an agency of original jurisdiction has issued a decision on a claim or claims, and an NOD has been filed with respect to that decision on or after June 20, 2007. In May 2008, VA revised and renumbered the regulatory provisions governing attorney fee agreements and payment of attorney fees out of past-due VA disability compensation benefits. See 73 Fed. Reg. 29875 (May 22, 2008) codified at 38 C.F.R. §§ 14.636, 14.637 (2013). The revised regulations generally are applicable to cases where an NOD is filed with respect to a challenged VA decision on, or after, June 20, 2007. Id. Here, the NODs at issue were filed in September 2009 and January 2010. The current version of 38 U.S.C. § 5904(c)(1), as amended on December 22, 2006, states that except as [otherwise] provided, in connection with a proceeding before the Department with respect to benefits under laws administered by the Secretary, a fee may not be charged, allowed, or paid for services of agents and attorneys with respect to services provided before the date on which a notice of disagreement is filed with respect to the case. The limitation in the preceding sentence does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. The 2006 amended version is effective for NODs filed after June 19, 2007, as is the case here. See 38 C.F.R. § 14.636 (2013); see also 2006 Acts, Pub.L. No. 109-461, tit. I, sec. 101(h), 120 Stat. 3408. Additionally, in Scates v. Principi, the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that, when read in context and in the light of the statutory provisions governing the payment of attorney fees in veterans benefits cases, implicit in a contingency fee arrangement was the understanding that the attorney's right to receive the full twenty percent of past due benefits would arise only if he continued as the claimant's attorney until the case was completed successfully. Scates, 282 F.3d 1362, 1365 (Fed. Cir. 2002). Thus, the Federal Circuit held that an attorney with a contingent fee contract for payment of twenty percent of accrued Veterans benefits awarded, discharged by the client before the case is completed, is not automatically entitled to the full twenty percent fee. He may receive only a fee that fairly and accurately reflects his contribution to and responsibility for the benefits awarded. In short, based on the foregoing, the appellant here is disallowed a fee for any services rendered on the Veteran's case before a valid NOD was filed, and thereafter, is entitled only to a fee in an amount reflecting his contribution to the litigation. Turning to the facts of the present case, while the appellant alleges in written statements that he is entitled to attorney fees from past due benefits stemming from a September 2009 NOD filed with respect to the RO's May 2009 denial of service connection PTSD, the Board points out that he was not accredited by VA at that time. As noted in September 2009 VA correspondence, his representation (VA Form 21-22a) was not accepted by VA due to his lack of accreditation, and the NOD was accepted as a pro se filing. In fact, the VA Office of General Counsel confirmed in July 2013 that the appellant was not accredited by VA until November 2, 2009. Further, a properly executed VA Form 21-22a in favor of the appellant was not received by VA until November 17, 2009. Pertinent regulations provide that no individual may assist claimants in the preparation, presentation, and prosecution of claims for VA benefits as an agent or attorney unless he or she has first been accredited by VA for such purpose. 38 C.F.R. § 14.629. Therefore, prior to accreditation on November 2, 2009, the appellant was not an agent, attorney, or representative for the Veteran for VA purposes. 38 C.F.R. § 14.627. As such, he could not have validly filed the September 2009 NOD on the Veteran's behalf, as an NOD must be filed by either the claimant or his "representative." 38 C.F.R. § 20.201. Nor did any work performed by the appellant prior to November 17, 2009 (when a properly executed VA Form 21-22a was received) constitute representation, which is defined as acts performed pursuant to a properly executed and filed VA Form 21-22a. 38 C.F.R. § 14.627. Regulations provide that only accredited agents and attorneys may receive fees from claimants or appellants for their services provided in connection with representation. 38 C.F.R. § 14.636. Therefore, during the period prior to accreditation on November 2, 2009, the appellant was not entitled to any attorney fees. Moreover, as the appellant was not a representative in September 2009, the September 2009 NOD cannot serve as the basis for attorney fees. The record shows that a valid NOD was not filed by the appellant until January 2010, and therefore any potential award of attorney fees is governed by the post-2006 amended version of section 5904(c)(1). As such, any work assisting the Veteran in the adjudication of that "case" that was performed before the NOD was filed in January 2010 could not form the basis for entitlement to attorney fees. Instead, only work performed by the appellant between January 2010 and May 2010 in furtherance of the Veteran's claim can serve as the basis for an award of attorney fees. Here, the record does not show that the attorney performed work during that period that contributed to the award of benefits in such a measure that any attorney fees are warranted. During the relevant period, the record shows that the appellant submitted the January 2010 NOD accompanied by a statement in support of the Veteran's cold residuals/neuropathy of the lower extremities claim to the effect that the Veteran did complain of frozen feet in service and was given a profile for the same. He also alleged that the Veteran's service in the cold mountains of Germany, while wearing inappropriate cold weather gear "meets the criteria for creating a nexus between his condition and his service." Significantly, in that statement, the appellant also requested a copy of the Veteran's claims file and service treatment records. The record thereafter shows that in February 2010, the appellant contacted the RO and requested that the Veteran's DRO hearing scheduled for March 11, 2010, be rescheduled for a later time on the same date due to a scheduling conflict. No additional evidence or argument was submitted by the appellant between the January 2010 NOD and the February 2010 communications to VA requesting rescheduling of the DRO hearing. Then, on March 9, 2010, the Veteran executed a new VA Form 21-22 in favor of NJDMVA. That form was submitted to the RO accompanied by a fax coversheet indicating that the Veteran was "duped" into ending his previously relationship with NJDMVA and requesting that representation be reinstated immediately in light of the Veteran's pending DRO hearing on March 11, 2010. No additional evidence or argument was submitted by the appellant between the February 2010 communications regarding rescheduling of the DRO hearing and execution of the March 9, 2010, VA Form 21-22 in favor of NJDMVA. On March 11, 2010, the Veteran was represented at the DRO hearing by a service officer from NJDMVA. The service representative elicited testimony from the Veteran and his nephew regarding the claims for PTSD and cold injury residuals. Following the hearing, and based on testimony offered during the same, the Veteran was afforded April 2010 VA examinations related to his PTSD and cold injury residuals. Then, in a May 2010 rating decision, the DRO granted service connection for PTSD and cold injury residuals (claimed as cold injury and neuropathy of the lower extremities). With respect to the award of service connection and compensation for PTSD, the record does not show that the appellant performed any work in furtherance of the appellant's claim during an eligible period. The September 2009 NOD was considered pro se as the appellant was not accredited, and the appellant was not accredited until November 2, 2009. No additional medical evidence or argument was offered by the appellant regarding service connection for PTSD between November 2009, when the appellant was accredited, and May 2010, when service connection was granted. The appellant did not represent the Veteran during the March 2010 DRO hearing, nor was he the Veteran's representative before VA at the time of the April 2010 VA PTSD examination. With respect to the evidence accompanying the September 2009 NOD - namely an October 2008 Vet Center evaluation -which the appellant asserts should serve as a basis for an award of attorney fees, the Board notes that it was not relied on by the DRO in awarding service connection, as reflected in the reasons and bases of the May 2010 rating decision. What is more, notwithstanding the fact that the report was submitted prior to the period of eligibility for attorney fees, the report itself 1) was not generated by or at the request of the appellant, but instead shows that the Veteran was referred by a veterans service organization; 2) does not show a diagnosis of PTSD or a psychiatric disorder related to service, but rather a mood disorder related to general medical condition; and, 3) was generated approximately 10 months prior to the appellant's representation of the Veteran. Therefore, other than forwarding the document to VA, it does not appear that the attorney performed any significant work related to that document. In any event, the appellant did not file a valid NOD with respect to the PTSD claim as he was not accredited at the time, and is therefore not entitled to attorney fees. Next, regarding the award of service connection and compensation for residuals of cold injury/neuropathy of the lower extremities, the Board acknowledges that the appellant filed the NOD in January 2010, along with a typed statement alleging in-service treatment for cold injury and a nexus based on the Veteran's service in Germany. Short of that, however, it is not clear what "work" the appellant performed on the Veteran's behalf in support of that claim. In this regard, the appellant did not represent the Veteran during the March 2010 DRO hearing, nor did he submit or identify any relevant medical evidence in support of the Veteran's claim. Nor was he the representative of record when the Veteran was scheduled for the April 2010 VA examinations. Thus, it does not appear that the appellant performed any work on the Veteran's claim except to attempt to reschedule the March 2010 DRO hearing. In sum, the evidence shows that, while the appellant submitted an NOD in January 2010 with respect to the RO's denial of service connection for cold injury residuals, requested a DRO hearing, and offered a limited degree of argument in a single written statement, the record does not show that he performed any other work in connection with the claims granted by the May 2010 rating decision. Instead, the record shows that the Veteran was effectively represented by NJDMVA subsequent to representation by the appellant, to include during the March 2010 DRO hearing, the April 2010 VA examinations, and at the time of the May 2010 grant of benefits. The Board acknowledges the various assertions by the appellant in support of his claim and will respond to them in kind. First, as to the assertion that the Veteran "used our appeals and evidence in support of his hearing with another representative [NJDMVA]," the Board finds no merit. The appellant has not pointed to any specific evidence of his used by the Veteran or NJDMVA during the March 2010 hearing, and the record does not otherwise show any. On the contrary, the record shows that a representative of NJDMVA elicited relevant testimony from the Veteran and the Veteran's nephew during a DRO hearing, with no reference to any documentation or evidence submitted by the appellant. Second, the appellant alleges that "additional medical evidence was submitted in support of our appeal on [veteran's] behalf during the claim period." However, again, the appellant does not specify the "additional medical evidence," and a review of the record during the relevant period does not reveal any. The April 2010 VA examination occurred after NJDMVA was reinstated as the Veteran's representative before VA, and the October 2008 Vet Center evaluation was submitted prior to the period of eligibility for incurrence of attorney fees, and, importantly, was not relied on as a basis for the grant of service connection for PTSD. Third, the appellant alleges that the "New representative [NJDMVA] did not provide new and material evidence in addition to our submissions which would have made a measurable difference in the DRO's favorable decision in his case. We did represent [the Veteran] in a professional and effective manner." Contrary to that assertion, the record shows that NJDMVA did, in fact, provide new and material evidence by eliciting relevant testimony of the Veteran and his nephew during the March 2010 DRO hearing, which triggered VA's duty to provide the Veteran with VA examinations in April 2010. And, as discussed by the DRO in the reasons and bases of the May 2010 decision, it was on the basis of the March 2010 testimony and the April 2010 VA examinations, as well as service records and JSSRC verification obtained prior to appellant's representation of the Veteran, that the Veteran's claims were granted. Fourth, the appellant asserts that he filed a substantive appeal on January 15, 2010, in connection with the Veteran's claims. However, while a timely NOD was filed at that time, no statement of the case was issued on the PTSD or cold injury claims as the Veteran's claims were ultimately granted by the RO; no substantive appeal was filed. Finally, the Board recognizes that in a September 2010 statement in support of his claim, the appellant noted that between February 18, 2010 (when the appellant contacted VA to reschedule the DRO hearing) and March 9, 2010 (when the Veteran executed a VA Form 21-22 in favor of NJDMVA), the Veteran "was notified that we were requesting a change in hearing date" and "[w]e had several phone and in person meetings" with the Veteran. However, the Board finds that assertion not credible. In this regard, February 2010 correspondence to VA from the appellant does not reflect that a copy was sent to the Veteran, unlike other correspondence from the appellant of record. Further, the appellant listed specific dates associated with each other item listed on the statement in support of his claim, and has provided copies of other correspondence, but failed to provide specific dates for the "several" meetings with the Veteran and failed to provide copies of correspondence reflective of meetings or demonstrating work on the Veteran's claim during that period. In this regard, it does not appear that the appellant ever had in his possession a copy of the Veteran's claims file, as evidenced by his September 2009 and January 2010 requests that went unacknowledged by VA. It is unclear, then, how much work the appellant was able to perform during that period without the Veteran's claims file or records. Finally, though the Board has not relied on this to deny the appellant's claim, it questions the validity of the fee agreement filed by appellant in November 2009. In this regard, 38 C.F.R. § 14.636 provides in pertinent part that (a) "the provisions of this section apply to the services of accredited agents and attorneys" and, (g)(3) a copy of the fee agreement "must be filed with the Office of the General Counsel within 30 days of its execution." Here, a fee agreement with the appellant was signed by the Veteran on August 27, 2009. The attorney was not accredited by VA at the time of execution. In November 2009, after accreditation on November 2, 2009, the appellant simply resubmitted a copy of the same fee agreement executed in August 2009. Reading Section 14.636 as a whole, it appears that the appellant's resubmission of the August 2009 fee agreement in November 2009 would not meet the 30 day rule of 14.636(g)(3), as the earlier agreement would be invalid due to lack of the attorney's accreditation at the time of execution. Therefore, it could be reasonably concluded that the record does not, in fact, contain a valid fee agreement. In any event, notwithstanding the appellant's unfounded and somewhat absurd allegation of subornation on the part of VA in a January 2011 statement, he has not provided any evidence that he performed any degree of substantial work in furtherance of the Veteran's claims during a period in which he was eligible to incur attorney fees in representation of the Veteran before VA. Therefore, entitlement to attorney fees is denied. ORDER Entitlement to an award of attorney fees based on a May 2010 rating decision which granted service connection and compensation for PTSD and residuals of cold injury to the lower extremities, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs