Citation Nr: 1807805 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-37 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to attorney fees from past-due benefits paid to the Veteran. REPRESENTATION Veteran represented by: Disabled American Veterans Appellant, Pro se ATTORNEY FOR THE BOARD J. T. Brant, Counsel INTRODUCTION The Veteran had active duty service from November 1952 to October 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that determined that the Veteran's former attorney was not entitled to payment of attorney fees directly from VA stemming from a November 2010 Board decision that granted entitlement to service connection for right and left knee disabilities and subsequent implementing decision issued by the RO in January 2011 that evaluated each knee disability as 60 percent disabling, effective December 30, 2004. The appellant, the Veteran's former attorney, perfected an appeal of the March 2011 determination. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. In April 2004, the Veteran filed a claim to reopen a previously denied claim of entitlement to service connection for a bilateral knee disability. 2. In a May 2006 rating decision, the RO denied the claim to reopen the previously denied claim of entitlement to service connection for a bilateral knee disability. 3. In May 2006, the Veteran, through his representative at the time, filed a notice of disagreement (NOD) with the May 2006 rating decision. 4. An August 2006 statement of the case (SOC) denied the claim to reopen the previously denied claim of entitlement to service connection for a bilateral knee disability. The Veteran did not perfect an appeal of this decision or submit new and material evidence within the requisite time period; therefore, the May 2006 rating decision became final. 5. In August 2006, the Veteran, through his then representative, filed a request for reconsideration of his claim to reopen the previously denied claim of entitlement to service connection for a bilateral knee disability. 6. In December 2006, the appellant and the Veteran executed an attorney fee agreement. 7. In a May 2008 rating decision, the RO continued to deny the claim to reopen the previously denied claim of entitlement to service connection for left and right knee disabilities. 8. In November 2008, the appellant and the Veteran executed another attorney fee agreement. 9. In November 2008, the Veteran, through the appellant, filed an NOD with the May 2008 rating decision, which denied the claim to reopen the previously denied claim of entitlement to service connection for left and right knee disabilities. The Veteran, through the appellant, subsequently perfected this appeal to the Board. 10. In a November 2010 decision, the Board reopened and granted the claims for entitlement to service connection for left and right knee disabilities based on evidence submitted by the appellant in September 2008. 11. In a January 2011 rating decision, the RO assigned 60 percent ratings for the left and right knee disabilities, effective December 30, 2004. 12. The RO's January 2011 rating decision resulted in past due benefits being paid to the Veteran, effective December 30, 2004. CONCLUSION OF LAW The criteria for entitlement to attorney fees for past-due benefits arising out of a January 2011 rating decision that granted entitlement to service connection for right and left knee disabilities and assigned 60 percent ratings effective December 30, 2004, pursuant to a November 2008 attorney fee agreement between the appellant and the Veteran and a November 2008 NOD submitted by the appellant, have been met. 38 U.S.C. § 5904 (2012); 38 C.F.R. § 14.636 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.326(a) (2017). However, those duties do not apply to cases where the claimant is not seeking benefits under Chapter 51 of Title 38 of the United States Code but is instead seeking a decision regarding how benefits will be distributed under another Chapter. Sims v. Nicholson, 19 Vet. App. 453 (2006). Therefore, discussion of VA's duties to notify and assist is not required in this case. A "simultaneously contested claim" refers to the situation in which the allowance of one claim results in the disallowance of another claim involving the same benefit, or the allowance of one claim results in the payment of a lesser benefit to another claimant. 38 C.F.R. § 20.3(p) (2017). As the propriety of attorney fees from the award of past-due benefits impacts the amount due to the Veteran, this matter qualifies as a simultaneously contested claim. Special procedural regulations are applicable to such claims. 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 an appeal, as well as both hearing and representation rights. 38 C.F.R. § 19.100 (2017). In a March 2011 letter to the appellant and the Veteran, the RO notified the parties of the determination and of their rights and the time limit for initiating an appeal, as well as hearing and representation rights. This fulfilled the notice requirements. In March 2011 and again in April 2011, the appellant filed an NOD. After an NOD is filed in a simultaneously contested claim, all interested parties are to be furnished with a copy of an SOC. 38 C.F.R. § 19.101 (2017). In August 2014, the Veteran and the Appellant were provided with the SOC, complying with this regulation. In September 2014, the appellant filed a substantive appeal on a VA Form 9. Pursuant to 38 C.F.R. § 19.102 (2017), when a substantive appeal is filed in a simultaneously contested claim, the content of the substantive appeal is to be furnished to the other contesting parties to the extent that it contains information which could directly affect the payment or potential payment of the benefit which is the subject of the contested claim. In a September 2014 statement, the appellant provided a certificate of service to VA reflecting that he provided the Veteran a copy of the SOC and the Form 9. Further, as the Veteran's current representative (Disabled American Veterans) had an opportunity to review and comment on the content of the substantive appeal when it submitted the informal hearing presentation in January 2018, the requirements of this regulation are satisfied. II. Factual Background, Legal Criteria, and Analysis The appellant contends that he is entitled to attorney fees based on an award of past-due benefits to the Veteran stemming from a November 2010 Board decision that granted entitlement to service connection for right and left knee disabilities and subsequent implementing decision issued by the RO in January 2011 that evaluated each knee disability as 60 percent disabling, effective December 30, 2004. This case has a rather complicated procedural history. By way of background, in April 2004, the Veteran filed a claim to reopen, in pertinent part, a previously denied claim of entitlement to service connection for a bilateral knee disability. In a May 2006 rating decision, the RO denied to reopen the Veteran's claims for entitlement to service connection for right and left knee disabilities. In May 2006, the Veteran, through his representative at the time, the Disabled American Veterans (DAV), filed an NOD with the RO's denial. Following the submission of the May 2006 NOD, an August 2006 SOC denied the claim to reopen the previously denied claim of entitlement to service connection for a bilateral knee disability. In August 2006, the Veteran, through the DAV, filed a request for reconsideration of his claim to reopen the previously denied claim of entitlement to service connection for a bilateral knee disability. In December 2006, the appellant and the Veteran executed an attorney fee agreement. In a May 2008 rating decision, the RO continued to deny the claim to reopen the previously denied claim of entitlement to service connection for left and right knee disabilities. In November 2008, the appellant and the Veteran executed another attorney fee agreement. In November 2008, the Veteran, through the appellant, filed an NOD with the May 2008 rating decision, which denied the claim to reopen the previously denied claim of entitlement to service connection for left and right knee disabilities. The Veteran, through the appellant, subsequently perfected this appeal to the Board. In a November 2010 decision, the Board reopened and granted the claims for entitlement to service connection for left and right knee disabilities based on evidence submitted by the appellant in September 2008. In a January 2011 rating decision, the RO assigned 60 percent ratings for the left and right knee disabilities, effective December 30, 2004. The RO found that the appellant was not eligible for a direct payment of fees by VA. The appellant has asserted that he is entitled to fees related to this favorable decision. The Board notes that the regulations regarding attorney-fee agreements were amended in May 2008. The new regulations apply to fee agreements entered on or after June 23, 2008. They do not apply to fee agreements entered before June 23, 2008. See 73 Fed. Reg. 29,852, 29,866 (May 22, 2008). Regarding circumstances in which attorney fees may be charged, under the old regulations, fees may not be charged, allowed, or paid regarding services provided before the date on which a notice of disagreement is filed. 38 U.S.C.A. § 5904(c)(1) (West 2002). Rather, attorney fees may be charged only if a final Board decision has been issued and the attorney or agent was retained not later than one year following the date of the Board decision. 38 C.F.R. § 20.609(c)(1) (2007). Under the new regulations, attorneys may charge claimants and appellants for representation before VA provided that: after an agency of original jurisdiction has issued a decision on a claim or claims, including any claim to reopen under 38 C.F.R. § 3.156 or for an increase in rate of a benefit; a notice of disagreement has been filed with respect to that decision on or after June 20, 2007; and the attorney has complied with the power of attorney requirements in 38 C.F.R. § 14.631 and the fee agreement requirements in 38 C.F.R. § 14.636(g). See 38 C.F.R. § 14.636(c)(1) (2017). In cases where a notice of disagreement was filed on or before June 19, 2007, attorneys may charge fees only for services provided after both of the following conditions have been met: (i) a final decision was promulgated by the Board with respect to the issue, or issues, involved in the appeal; and, (ii) the attorney was retained not later than one year following the date that the decision by the Board was promulgated. See 38 C.F.R. § 14.636(c)(2). Here, there are two fee agreements of record between the Veteran and the appellant: one that was entered into prior to the June 23, 2008, effective date of the regulation change (the initial December 2006 fee agreement) and one that was entered into after the June 23, 2008, effective date of the regulation change (the subsequent November 2008 fee agreement). In order to determine which regulations are applicable in this case, the Board must determine which fee agreement controls. The Board finds that because the Veteran did not perfect an appeal of the May 2006 rating decision or submit new and material evidence within the requisite time period, the May 2006 rating decision became final. See 38 C.F.R. § 3.156(b). Accordingly, the August 2006 request for reconsideration started a new claim that was appealed to the Board through the submission of the November 2008 NOD by the appellant. This appeal ultimately resulted in the November 2010 Board decision that granted entitlement to service connection for right and left knee disabilities and subsequent implementing decision issued by the RO in January 2011 that evaluated each knee disability as 60 percent disabling, effective December 30, 2004. As such, because the appeal stream which resulted in the payment of past-due benefits was initiated after the effective date of the regulation change on June 23, 2008 (November 2008 fee agreement and November 2008 NOD), the new regulations under 38 C.F.R. § 14.636 are applicable in this case. Moreover, because the NOD resulting in the payment of past-due benefits was filed after the June 20, 2007, NOD requirement under the new regulations, there is no prerequisite that a final decision be promulgated by the Board with respect to the issues involved in the appeal. See 38 C.F.R. 14.636(c). In sum, as the Veteran and the Appellant entered into a fee agreement in November 2008; the agency of original jurisdiction has issued a decision on a claim; a notice of disagreement has been filed with respect to that decision on or after June 20, 2007; and the Appellant has complied with the power of attorney requirements in 38 C.F.R. § 14.631 and the fee agreement requirements in 38 C.F.R. § 14.636(g), the Board finds that the Appellant may charge a fee related to the January 2011 rating decision that granted entitlement to service connection for right and left knee disabilities and assigned 60 percent ratings effective December 30, 2004. See 38 C.F.R. § 14.636(c)(1). ORDER Entitlement to attorney fees from past-due benefits arising out of a January 2011 rating decision that granted entitlement to service connection for right and left knee disabilities and assigned 60 percent ratings effective December 30, 2004, is granted. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs