Citation Nr: 1754925 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 17-07 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether the payment of $6,249.74 to the Contesting Claimant in attorney fees is proper. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from October 1974 to October 1977 in the United States Army. The Contesting Claimant is the Veteran's former representative. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2017, the Veteran withdrew his request for a Board hearing. FINDING OF FACT Under the facts and circumstances of this case, attorney fees calculated in the amount of $6,249.74, or 20 percent of past due benefits, owed as a result of the September 2016 rating decision, are not reasonable. CONCLUSION OF LAW The requirements for payment of attorney fees in the amount of 20 percent of past-due benefits payable to the Veteran, calculated in the amount of $6,249.74, have not been met. 38 U.S.C. § 5904 (West 2012); 38 C.F.R. § 14.636 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Because this is a simultaneously contested claim, special procedural regulations are applicable. All interested parties are to be specifically notified of the action taken by the agency of original jurisdiction (AOJ) in a simultaneously contested claim, and of the right and time limit for initiating appeal, as well as both hearing and representation rights. 38 C.F.R. §19.100 (2017). In this case, the Board finds that all interested parties were duly notified and provided the opportunity to present testimony and to submit evidence and argument pertaining to the issue on appeal. In this case, the Veteran disputes the payment of attorney fees to P.G., his private attorney from October 2012 to July 2014. In September 2016, the AOJ granted service connection for migraine headaches, and right and left knee disorders, effective from May 23, 2008. In October 2016, the AOJ notified the Veteran that it was withholding $6,249.74 for the possible payment of attorney fees from past-due benefits owed to him. The Veteran appealed, stating that his former attorney withdrew as his representative in July 2014 and did represent him on these issues. Under VA law, agents and attorneys may charge claimants or appellants for representation provided that the AOJ has issued a decision on a claim or claims, a Notice of Disagreement (NOD) with respect to that decision has been filed on or after June 20, 2007, the agent or attorney has complied with the power of attorney requirements set forth in 38 C.F.R. § 14.631 (2017), and has complied with the fee agreement requirements in 38 C.F.R. § 14.636(g) (2017). 38 U.S.C. § 5904(a)(5) (2012); 38 C.F.R. § 14.636(b) (2017). Fees permitted for services of an agent or attorney admitted to practice before VA must be reasonable. 38 C.F.R. § 14.636(e). They may be based on a fixed fee, hourly rate, a percentage of benefits recovered, or a combination of such bases. Factors for consideration in determining whether fees are reasonable include: (1) the extent and type of services the representative performed; (2) the complexity of the case; (3) the level of skill and competence required of the representative in giving the services; (4) the amount of time the representative spent on the case; (5) the results the representative achieved, including the amount of any benefits recovered; (6) the level of review to which the claim was taken and the level of the review at which the representative was retained; (7) rates charged by other representatives for similar services; and (8) whether, and to what extent, the payment of fees is contingent upon the results achieved. Fees which do not exceed 20 percent of any past-due benefits awarded as defined in paragraph (h)(3) of this section shall be presumed to be reasonable. Fees which exceed 33 1/3 percent of any past-due benefits awarded shall be presumed to be unreasonable. These presumptions may be rebutted through an examination of the factors in paragraph (e) of this section establishing that there is clear and convincing evidence that a fee which does not exceed 20 percent of any past-due benefits awarded is not reasonable or that a fee which exceeds 33 1/3 percent is reasonable in a specific circumstance. 38 C.F.R. § 14.636(f). The essential facts of the case are not in dispute. The Veteran originally filed claims for service connection for bilateral knee and headache conditions in May 2008. At that time, he appointed the North Carolina Division of Veterans' Affairs as his representative. In April 2010, the AOJ issued a rating decision denying service connection, and the Veteran filed a NOD in May 2010. A Statement of the Case (SOC) was issued in September 2010, and the Veteran filed a Substantive Appeal in November 2010. Following the receipt of additional evidence, Supplemental SOCs (SSOCs) were issued in April 2011 and December 2011. In September 2012, the AOJ issued a rating decision denying service connection for diabetes mellitus and hypertension, and increased ratings for fractured mandible and maxilla. In October 2012, the Veteran submitted a VA Form 21-22a, appointing a private attorney, P.G., as his representative. An October 2012 attorney fee agreement indicated that attorney fees would be 20 percent of any past-due benefits paid to the Veteran. In October 2012, attorney P.G. filed a FOIA request to obtain a copy of the Veteran's claims file. In April 2013, the Veteran filed claims for increased ratings for fractures of his mandible and maxilla. In June 2013, attorney P.G. submitted dental records on his behalf. In August 2013, the Veteran contacted the AOJ and indicated that he only wanted his attorney to represent him in conjunction with the May 2010 NOD and appeal and not with his current claim. He stated that he would submit a written statement to this effect within three days; however, instead, his attorney submitted a NOD indicating that the Veteran disagreed with the September 2012 rating decision that denied service connection for hypertension and diabetes mellitus. The attorney also submitted medical evidence in conjunction with the NOD. In April 2014, the AOJ issued a rating decision granting service connection for hypertension effective from March 22, 2012. The AOJ withheld $1,033.96 from the Veteran's past-due benefits for possible payment of attorney fees. In July 2014, the Veteran indicated that he had no objection to his attorney being paid $1,033.96. After payment of $1,033.96, attorney P.G. withdrew as the Veteran's representative and instructed the AOJ to contact the Veteran directly in the future. In September 2014, the Veteran appointed North Carolina Division of Veteran's Affairs as his representative. In July 2015, the Board remanded the issues of service connection for headaches and right and left knee disorders for additional development. VA examinations were conducted in June and July 2016. Based on the examiner's findings, the AOJ granted service connection in a September 2016 rating decision. In this case, the Veteran and attorney P.G. had a valid fee agreement that provided for a contingency fee of 20 percent of past-due benefits awarded, which is presumed reasonable. Nonetheless, the Board finds that there is clear and convincing evidence that the 20 percent contingency fee is not reasonable under these circumstances. Most of work regarding the appeal was conducted by the North Carolina Division of Veterans' Affairs. Attorney P.G. did not make an appearance until over two years after the May 2010 NOD was filed. Furthermore, attorney P.G. did not submit any correspondence or evidence regarding the pending appeal. Rather, he submitted evidence in conjunction with the Veteran's dental claim, and filed a NOD in conjunction with the denial of service connection for hypertension and diabetes mellitus. Furthermore, as soon as attorney P.G. received payment following the grant of service connection for hypertension, he withdrew representation. Attorney P.G. represented the Veteran from October 2012 to September 2014, and from what can be discerned from the record, did not do any work in conjunction with the Veteran's claims of service connection for headaches and bilateral knee disorders. Although he was provided an opportunity to present evidence and/or argument showing the reasonableness of these fees, he has not done so. Based on the foregoing, the Board finds attorney fees in the calculated amount of $6,249.74 resulting from past-due benefits for the award of service connection for migraine and headaches and right and left knee disorders not reasonable. ORDER Payment of $6,249.74 to the Contesting Claimant as attorney fees is improper. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs