Citation Nr: 18114878 Decision Date: 06/28/18 Archive Date: 06/28/18 DOCKET NO. 16-31 483 DATE: June 28, 2018 ORDER Entitlement to attorney’s fees from past-due benefits arising out of a February 2016 rating decision that effectuated the Board of Veterans’ Appeals’ (Board’s) August 2014 decision granting service connection for adjustment disorder with mixed anxiety and depressed mood (psychiatric disability) and assigned a 100 percent rating, effective February 27, 2006, is granted to the limited extent it pertains to reasonable fees charged for services rendered after the August 2014 Board decision. FINDINGS OF FACT 1. The Veteran filed a notice of disagreement (NOD) with a July 2006 rating decision that denied service connection for a psychiatric disorder in October 2006. 2. In March 2009, the appellant and the Veteran executed an attorney fee agreement. 3. In an August 2014 decision, the Board granted service connection for a psychiatric disability. 4. In a February 2016 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) effectuated the Board’s August 2014 decision granting service connection for a psychiatric disability and assigned a 100 percent rating, effective February 27, 2006. 5. The RO’s February 2016 rating decision resulted in past-due benefits being paid to the Veteran, effective February 27, 2006. CONCLUSION OF LAW The criteria for entitlement to attorney’s fees for past-due benefits arising out of a February 2016 rating decision that effectuated the Board’s August 2014 decision granting service connection for a psychiatric disability and assigned a 100 percent rating, effective February 27, 2006, have been met it to the limited extent it pertains to reasonable fees charged for services rendered after the August 2014 Board decision. 38 U.S.C. § 5904; 38 C.F.R. § 14.636. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from November 1980 to February 1981 and from December 1990 to March 1991 with additional Reserve and National Guard service. This matter comes before the Board on appeal from a February 2016 decision issued by a VA RO that determined that the Veteran’s former attorney was not entitled to payment of attorney’s fees directly from VA. 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”). Entitlement to attorney’s fees from past-due benefits arising out of a February 2016 rating decision that effectuated the Board’s August 2014 decision granting service connection for a psychiatric disability and assigned a 100 percent rating, effective February 27, 2006. The appellant contends that he is entitled to attorney’s fees based on the award of past-due benefits to the Veteran stemming from an August 2014 Board decision that granted service connection for a psychiatric disability, and the subsequent February 2016 rating decision that effectuated the award and assigned a 100 percent rating for such disability, effective February 27, 2006. Initially, the Board notes that the instant matter is considered a simultaneously contested claim as the allowance of one claim (the grant of attorney’s fees) impacts the past-due benefit amount due to the Veteran. 38 C.F.R. § 20.3(p). Here, neither the appellant nor the Veteran has claimed that the procedural regulations regarding simultaneously contested claims have not been followed and the record does not reveal any deficiencies. Turning to the law governing the payment of attorney fees, 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, as is the case here given that the subject agreement was entered in March 2009. See 73 Fed. Reg. 29,852, 29,866 (May 22, 2008). Relevant to the circumstances in this appeal, 38 U.S.C. § 5904(c)(1) provides that, in connection with a proceeding before VA 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 the Board first makes a final decision in the case. Such a fee may be charged, allowed, or paid in the case of services provided after such date only if an agent or attorney is retained with respect to such case before the end of the one-year period beginning on that date. As the NOD was filed in October 2006 (i.e., 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) (emphasis added). In fact, in connection with the issuance of the August 2014 Board decision, the appellant was notified that, if an NOD was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. In this case, a final Board decision was promulgated in August 2014, which granted service connection for a psychiatric disability. Additionally, the appellant was retained well before August 2015 (i.e., one year following the date that the decision by the Board was promulgated). Thus, the appellant is entitled to attorney’s fees from past-due benefits arising out of the February 2016 rating decision that effectuated the Board’s August 2014 decision granting service connection for a psychiatric disability and assigned a 100 percent rating, effective February 27, 2006, to the limited extent it pertains to reasonable fees charged for services rendered after the August 2014 Board decision. In reaching such determination, the Board has only determined that the appellant is eligible to receive past-due benefits for his representation of the Veteran for reasonable fees charged for services rendered after the issuance of the August 2014 Board decision. The Board intimates no opinion as to the amount of fees to be awarded upon implementation of this decision as such matter is within the purview of the AOJ to address in the first instance. If the appellant or Veteran disagrees with the fee amount determined by the AOJ, either is free to appeal the reasonableness of such fees to the Board. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel