Citation Nr: 1816632 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 14-41 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Eligibility for payment of attorney fees from past-due benefits in addition to a previously paid Equal Access to Justice Act (EAJA) fee. ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from December 1962 to December 1964 and from August 1965 to August 1968, to include service in the Republic of Vietnam. His decorations include the Combat Infantryman Badge and Purple Heart, among others. The appellant is the Veteran's attorney who represented him before the United States Court of Appeals for Veterans Claims (Court) and the Board of Veterans' Appeals (Board) regarding a successful claim of entitlement to service connection for a psychiatric disorder diagnosed as depressive disorder and was claimed as being posttraumatic stress disorder (PTSD). This matter comes before the Board on appeal from an April 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied the payment of 20 percent of the Veteran's past due benefits awarded to the appellant for attorney fees because of a previously awarded EAJA fee. There are multiple appeals currently before the Board that arose at different times. As such, the appeals have different docket dates. For efficiency, the Board will adjudicate all appeals over which it has jurisdiction. See Ramsey v. Nicholson, 20 Vet. App. 16, 34 (2006) (holding that 38 U.S.C. § 7107 is not an exclusive set of rules by which the Board must consider and decide cases, but rather was intended "to set broad guidelines for the general order of processing appeals at the Board to ensure fairness, efficiency, and timeliness in consideration and decision of appeals"). The issue of eligibility for payment of attorney fees from past-due benefits in addition to a previously paid EAJA fee will be addressed in this decision. The issues of entitlement to an increased rating for a service-connected psychiatric disorder and entitlement to a TDIU will be addressed in a separate decision. FINDING OF FACT The work performed by the appellant before the Court and the Board constituted the same work, as it related to the pursuit of a single claim for service connection for a psychiatric disability at various stages of the adjudication process. CONCLUSION OF LAW The appellant is not entitled to 20 percent of the Veteran's past due benefits in addition to the EAJA fee he was already awarded. 28 U.S.C. § 2412, 38 U.S.C. § 5904 (2012); Pub. L. No. 102-572, 106 Stat. 4506 (1992); Carpenter v. Principi, 15 Vet. App. 64 (2001). REASONS AND BASES FOR FINDING AND CONCLUSION Congress passed the EAJA in response to its concern that persons may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in securing vindication of their rights. Sullivan v. Hudson, 490 U.S. 877, 883 (1989). The objective of EAJA is to eliminate financial deterrents to individuals attempting to defend themselves against unjustified government action. Veterans are among the types of individuals the statute was intended to help. Abbs v. Principi, 237 F.3d 1342, 1347 (Fed. Cir. 2001). The purpose of EAJA is not to provide enhanced attorney fee awards. See Phillips v. General Services Admin., 924 F.2d 1577, 1583 (Fed. Cir. 1991). Protecting the interests of the veteran is paramount given the "uniquely pro-claimant adjudicatory system" for processing Veteran's benefits. See, e.g., Hayre v. West, 188 F.3d 1327, 1333 (Fed. Cir. 1999); cf. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) ( "[The U.S. Court of Appeals for the Federal Circuit] and the Supreme Court both have long recognized the character of veterans' benefits statutes is strongly and uniquely pro-claimant."). Particular vigilance must be employed in construing fee agreements to protect the veteran from the drafting of a fee agreement which might unintentionally, or intentionally, deprive a veteran of his rights under the law. Carpenter v. Principi, 15 Vet. App. 64, 75 (2001). Section 506(c) of the Federal Courts Administration Act of 1992 requires an attorney who receives fees for the same work under both section 5904 of title 38, United States Code, and section 2412(d) of title 28, United States Code, to refund to the claimant the amount of the smaller fee. Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (recognizing that an attorney who receives fees under the EAJA and the Social Security Act, 42 U.S.C. § 406 (b), must refund the smaller fee to the client). A brief review of the procedural history of the Veteran's claim is in order. The Veteran filed a claim for service connection for PTSD in May 1995. The claim was initially denied because the evidence showed that the Veteran did not have PTSD related to his combat stressors in Vietnam; rather, he was diagnosed by VA medical providers with depressive disorders. The Veteran appealed the denial of service connection by the RO; a long appellate history of denials and remands by the Board and remands by the Court ensued. In March 2008, the Court again remanded the Veteran's appeal, and as a result the appellant, was awarded and paid EAJA fees in the amount of $8,465.00. Ultimately, an April 2010 RO rating decision granted service connection for "depressive disorder, not otherwise specified, previously evaluated as dysthymia, claimed also as post traumatic stress disorder (PTSD)." In the instant case, there is no dispute that the appellant is eligible to receive fees under 28 U.S.C.A. § 2412 and 38 U.S.C.A. § 5904. However, the appellant asserts that he is entitled to receive the full 20 percent of the Veteran's past due benefits, calculated at $3,722.96, plus the EAJA fee previously awarded by the Court, calculated at $8,465.00. He contends that the work he performed in his representation of the Veteran before the Court was of an entirely different nature than that performed before the Board. In both a July 2011 letter and on a VA Form 9 dated October 2014, the appellant has acknowledged the amounts of money in question as those noted above. He also makes the sole argument that the work performed before the Court was "of an entirely different nature than that performed before VA." The Court has explicitly held the representation of a claimant in pursuit of a claim at all stages of the adjudication process is the "same work," regardless of the tribunal before which it is performed. Carpenter v. Principi, 15 Vet. App. at 76. As previously noted, the Court warned particular vigilance must be employed in construing fee agreements to protect veterans from the drafting of fee agreements which might unintentionally, or intentionally, deprive them of their rights under the law. Id. at 75. In the present case the Veteran had an active appeal for entitlement to service connection for PTSD. In March 2008, the appellant, as the Veteran's attorney, obtained a Remand from the Court and was awarded and paid EAJA fees in the amount of $8,465.00. Ultimately the Veteran was granted service connection for a psychiatric disability which was diagnosed as depressive disorder, not PTSD. Claims for service connection for psychiatric disorders, including PTSD, may encompass claims for service connection for all diagnosed psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). This grant of service connection was as a direct result of the pending appeal and the March 2008 remand ordered by the Court. Here, the remedy the appellant seeks would deprive the Veteran of $3,722.96, in benefits, which have already been paid. The appellant's representation of the Veteran clearly constituted the pursuit of a single claim for service connection for a psychiatric disability, which was claimed as being PTSD and had differing diagnoses, at various stages of the adjudication process, even though it took place before different tribunals. Thus, the representation constitutes the same work under the holding in Carpenter, and the appellant is not entitled to his contingency fee plus an EAJA fees for this work. As the EAJA fees paid exceed the amount of the contingency fee from the past-due benefits, no additional attorney fees are payable. In so much as this issue constitutes a contested claim, the Board finds a determination on this matter does not result in prejudice to either party. See 38 U.S.C. § 7105A (2012); 38 C.F.R. § 19.102 (2017). Although it is unclear whether the Veteran has been put on notice of the content of the appellant's pleadings regarding this issue, the Veteran is prevailing party. Adherence to the contested claims procedures will also provide no additional benefit to the appellant, as he is clearly aware of the issues in dispute. Therefore, the Board will not delay adjudication of this matter for a remand that will have no effect on the final determination. Furthermore, an attorney fee dispute is not a "claim" for disability compensation benefits. The Court has held that VA's duties to notify and assist the claimant do not apply to cases where, as here, the claimant 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). ORDER Eligibility for payment of attorney fees from past-due benefits in addition to a previously paid EAJA fee is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs