Citation Nr: 1808379 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 12-09 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to payment of attorney's fees pursuant to a May 2011 award of compensation benefits. REPRESENTATION Appellant represented by: Robert B. Gross, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Appellant in this case is the Veteran's accredited attorney representative before the Department of Veterans Affairs (VA). This matter comes on appeal before the Board of Veterans' Appeals (Board) from an October 2011 administrative decision of the Department of Veterans Affairs Regional Office (RO) in Houston, Texas which denied payment of attorney's fees pursuant to a May 2011 award of service connection for coronary artery disease and diabetes mellitus type 2. The Appellant testified at a December 2017 Board hearing. The hearing transcript is of record. FINDINGS OF FACT 1. The Veteran retained the Appellant in March 2009. 2. A timely notice of disagreement (NOD) addressing September 2003 and February 2006 denials of service connection for coronary artery disease and diabetes mellitus was not filed. 3. A May 2011 rating decision granted service connection for coronary artery disease and diabetes mellitus, resulting in the payment of retroactive compensation benefits to the Veteran. 4. At the time the May 2011 rating decision was issued, there was no final Board decision addressing the merits of the claims for service connection for coronary artery disease or diabetes mellitus. CONCLUSION OF LAW The criteria for payment of attorney's fees for services provided in connection with a May 2011 award of VA compensation benefits have not been met. 38 U.S.C. §§ 5903, 5904 (2012); 38 C.F.R. § 14.636 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The regulations regarding attorney fee agreements were amended in May 2008. The record shows that the Veteran retained the Appellant in March 2009 and the fee agreement at issue was signed in March 2009. Thus, the amended regulations are applicable to the claim on appeal. See 73 Fed. Reg. 29,852, 29,866 (May 22, 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."). Accordingly, the prior regulations applicable to fee agreements do not apply and are not addressed in this decision. Only accredited agents and attorneys may receive fees from Veterans for their services provided in connection with representation. 38 C.F.R. § 14.636 (b). Under 38 C.F.R. § 14.636 (c)(2), for cases in which the notice of disagreement was filed on or before June 19, 2007, agents and attorneys may charge fees only for services provided after the following conditions have been met: (i) a final decision was promulgated by the Board with respect to the issue involved in the appeal; and (ii) the agent or attorney was retained not later than one year following the date that the Board decision was promulgated. 38 C.F.R. § 14.636 (c)(2). The second condition will be considered to have been met with respect to all successor agents or attorneys acting in the continuous prosecution of the same matter if a predecessor was retained within the required time period. 38 C.F.R. § 14.636 (c)(2)(ii). The record shows that the RO initially denied claims for service connection for a heart condition and for diabetes mellitus in a September 2003 rating decision. In February 2006, the RO denied claims for service connection for coronary artery disease and diabetes mellitus because evidence submitted was not new and material. A May 2011 rating decision, initiated by the RO pursuant to Nehmer v. United States Department of Veterans Affairs, granted service connection for coronary artery disease and diabetes mellitus, resulting in the payment of retroactive compensation benefits to the Veteran. See 38 C.F.R. § 3.816; Nehmer v. United States Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999) (Nehmer II); Nehmer v. Veterans Admin. of the Gov't of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). The Board finds that a timely notice of disagreement to the April 2003 and February 2006 denials of service connection was not filed. The Appellant contends in statements and hearing testimony that a March 2005 Congressional Inquiry addressed a NOD that was filed in September 2004, related to the September 2003 rating decision. While congressional correspondence makes reference to a notice of disagreement received on September 27, 2004, such a notice of disagreement is not of record and would not have been timely in view of the September 24, 2003 notice of denial. The Appellant also contends in a December 2017 statement that the RO missed a Social Security Administration claim during the pendency of the appeal, and contends that such government records, to include an application for Social Security Disability, benefits constitute a notice of disagreement. The record shows that prior to issuance of the September 2003 rating decision, the Veteran submitted a July 2003 authorization to disclose information to the Social Security Administration. SSA medical records were subsequently requested and obtained by the RO and were associated with the record prior to issuance of the September 2003 rating decision. The Board finds that these records could not constitute a notice of disagreement to the September 2003 rating decision as they were obtained prior to the issuance of a decision. After the receipt of a July 2007 Veteran's Application for Increased Compensation Based on Unemployability, updated SSA records were requested and were associated with the record in August 2007. These records, similarly, do not consititue a timely notice of disagreement to the February 2006 denial of service connection. The Board finds that even if a timely notice of disagreement addressing either the September 2003 or February 2006 rating decision was filed, (i.e. within one year of the issuance of the decision), applicable regulations provide that for a notice of disagreements filed on or before June 19, 2007, agents and attorneys may charge fees, only for services provided, where a final decision was promulgated by the Board with respect to the issue involved in the appeal. See 38 C.F.R. § 14.636 (c)(2). At the time the May 2011 rating decision was issued, there was no final Board decision addressing the merits of the claims for service connection for coronary artery disease and diabetes mellitus. For these reasons, the Board finds, as a matter of law, that entitlement attorney fees arising from a May 2011 award of service-connected compensation is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to attorney's fees pursuant to a May 2011 Regional Office award of compensation benefits is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs