Citation Nr: 21024658 Decision Date: 04/23/21 Archive Date: 05/06/21 DOCKET NO. 20-25 569A DATE: April 23, 2021 ORDER The appeal contesting the determination that the attorney fee of $6,674.80 withheld from past-due benefits awarded in an October 2012 rating decision was unreasonable and that the attorney fee should be reduced to $623.44 is denied. FINDING OF FACT There is clear and convincing evidence that the attorney fees that were awarded in the amount of $6,674.80 are not reasonable, and that the attorney fee should be reduced to $623.44. CONCLUSION OF LAW The attorney fee of $6,674.80 withheld from past-due benefits awarded in an October 2012 rating decision is not reasonable, and the attorney fee is reduced to $623.44, pursuant to the February 2017 Department of Veterans Affairs (VA) Office of the General Counsel (OGC) opinion. 38 U.S.C. § 5904; 38 C.F.R. § 14.636. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1943 to April 1946. The Veteran died in May 2018, and his surviving spouse has been substituted for the Veteran in this case. The appellant in this matter is the Veteran’s former attorney representative. As an initial matter, the Board notes that the Veteran did not contest the appellant’s eligibility for attorney fees. Instead, the Veteran contested the reasonableness of the appellant’s attorney fees. After a determination was rendered in the Veteran’s favor, the appellant appealed that decision to the Board. As such, the issue of eligibility for attorney fees will not be addressed in this decision. Furthermore, in compliance with contested claims procedures, all interested parties have been provided with all pertinent procedural documents. Relevant Procedural History In a January 2012 rating decision, the Regional Office (RO) granted service connection for major depressive disorder, claimed as posttraumatic stress disorder (PTSD), with an evaluation of 70 percent, effective December 20, 2010. In February 2012, the Veteran submitted a statement indicating that his service-connected disabilities prevented him from being gainfully employed and that he wanted to apply for unemployability. In a February 2012 correspondence, the RO informed the Veteran that it was working on his claim for a total disability based on individual unemployability (TDIU). In September 2012, the RO received a VA Form 21-22a appointing the appellant as the Veteran’s attorney representative. In October 2012, the RO received a copy of a fee agreement that was executed by both parties in September 2012. Subsequently in October 2012, the RO received a notice of disagreement (NOD) filed by the appellant on behalf of the Veteran disagreeing with the rating assigned in the January 25, 2012 rating decision. The RO received the Veteran’s VA Form 21-8940 shortly thereafter. In an October 2012 rating decision, the RO granted entitlement to a TDIU, effective December 20, 2010. The rating decision indicated that the decision related to the Veteran’s claim for service connection for major depressive disorder, claimed as PTSD, filed on December 20, 2010. No reference was made to the October 2, 2012 NOD filed by the appellant. In a November 2012 decision, the RO determined that the appellant met the requirements for direct payment of attorney fees from the Veteran’s past-due benefits in the amount of $6,674.80. In January 2013, the RO received a letter from the appellant indicating that he was withdrawing as the Veteran’s representative. Subsequently in January 2013, the RO received an NOD from the Veteran contesting the decision that the appellant met the requirements to receive the fee payment addressed in the November 2012 decision and claiming that the appellant was not entitled to receive an attorney fee in the amount of $6,674.80, for his time and “brief” effort. The Veteran reported that instead, his efforts combined with the efforts of his Member of Congress on his behalf had more effect on the October 2012 rating decision than the October 2012 NOD filed by the appellant, and that the appellant was attempting to take advantage of an unusual timing opportunity. Following this, in January 2013, the RO misunderstood the Veteran’s contentions from a telephone call and found that the Veteran was withdrawing his appeal. The RO further found that the Veteran agreed to allow the RO to recoup the amount of $6,674.80. Shortly thereafter, the Veteran explained this was a misunderstanding; the Veteran was not withdrawing his appeal; he did not consent to paying the appellant the attorney fee of $6,674.80; and that the telephone call was taking place during a medical emergency, which the RO representative had understood and insisted on continuing the call in spite of this. See January 2013 correspondence. In February 2013, the RO established an appeal in the case and apologized for any prior confusion regarding this matter. In a June 2015 letter, the RO notified the Veteran that the issue at hand was a disagreement as to the reasonableness of the attorney’s fee, which was not the jurisdiction of the RO. The RO notified the Veteran that all motions challenging the reasonableness of the attorney fee had to be filed with OGC and enclosed a fact sheet regarding filing a motion with OGC; however, the letter did not include notification of appellate rights. In September 2015, OGC received a letter from the Veteran, dated September 9, 2015, requesting review of the reasonableness of the attorney fee. Proof of service on the appellant was included in the letter. The Veteran argued that the fee was unreasonable based on the amount of time that the appellant had spent on the case. The Veteran further asserted that the appellant’s services did not result in the award of past-due benefits, but that it was an “odd fluke of timing.” In a March 2016 letter, OGC informed the appellant that a September 2015 correspondence from the Veteran had been received and was accepted as a motion requesting a review of the reasonableness of the fee agreement. A copy of the September 2015 letter was enclosed. OGC informed the appellant that if he wished to file a response it must include a showing of sufficient cause, as the 30-day limit to respond to the Veteran’s motion had expired. A copy of the March 2016 letter was also sent to the Veteran. In April 2016, OGC received the appellant’s response, dated April 8, 2016. The appellant asserted that good cause existed for filing the response out of time because the Veteran’s motion was filed almost three years after VA paid attorney fees to the appellant, and that the appellant’s expectation was that whenever fees are paid to an attorney, the fee dispute was resolved, and that any motion filed by the Veteran would be well out of time. The appellant argued that, if he was paid erroneously and prematurely, VA would be prohibited from collecting back any overpayment based on administrative error, based on 38 U.S.C. § 5112(b). The appellant further argued that the “the lack of post-fee agreement time is not enough to rebut the presumption” that a 20 percent fee is reasonable. The appellant reported that he spent less than an hour preparing the NOD after the fee agreement was filed, but that he had previously spent hours reviewing the Veteran’s file in 2010 and 2012, prior to entering into the fee agreement. The appellant contended that his services contributed to the favorable decision because the Veteran “had no pending claim with VA until the appeal was filed.” The appellant argued that there was, therefore, no legal mechanism for the RO to grant the Veterans claim without an appeal being filed. Proof of service on the Veteran was included in the response. Subsequently in April 2016, OGC received the Veteran’s reply, dated April 20, 2016. The Veteran argued that the appellant did not earn the full fee called for in the contract because the appellant’s actions did not affect him in being awarded benefits. The Veteran contended that the consultation the appellant provided in 2010 was “gratis.” The Veteran further contended that the appellant’s fee should not include hours worked outside the period from late September 2012 to early October 2012 because the client relationship started with the signing of the fee agreement in September 2012. Proof of service on the appellant was included in the reply. In February 2017, OGC determined that the total attorney fee called for in the fee agreement was not reasonable and that the attorney fee should be reduced from $6,674.80 to $623.44. In March 2017, OGC received an NOD from the appellant contesting the reasonableness determination. In May 2020, OGC issued a statement of the case (SOC), and in June 2020, the appellant through his attorney contested the reasonableness determination by filing a VA Form 9, substantive appeal. Reasonableness of Attorney Fees A VA-accredited attorney or agent may charge a reasonable fee for services provided after a notice of disagreement has been filed with respect to a decision on a claim. 38 U.S.C. § 5904(c)(1); 38 C.F.R. § 14.636(c) and (e). Under 38 U.S.C. § 5904(a)(5) and 38 C.F.R. § 14.636(f), a fee of 20 percent of past-due benefits awarded on a claim is presumed to be reasonable. The presumption may be rebutted through an examination of the factors in 38 C.F.R. § 14.636(e) establishing that there is clear and convincing evidence that the fee is not reasonable in a specific circumstance. 38 C.F.R. § 14.636(f). Factors considered 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; (8) whether, and to what extent, the payment of fees is contingent upon the results achieved. 38 C.F.R. § 14.636(e). The Secretary may, upon the Secretary’s own motion or at the request of the claimant, review a fee agreement and may order a reduction in the fee called for in the agreement if the Secretary finds that the fee is excessive or unreasonable. 38 U.S.C. § 5904(c)(3)(A). Before the expiration of 120 days from the date of the final VA action, the Office of the General Counsel may review a fee agreement between a claimant or appellant and an agent or attorney upon its own motion or upon the motion of the claimant or appellant. 38 C.F.R. § 14.636(i). The Office of the General Counsel may order a reduction in the fee called for in the agreement if it finds by a preponderance of the evidence, or by clear and convincing evidence in the case of a fee presumed reasonable under paragraph (f) of this section, that the fee is unreasonable. Id. The Office of the General Counsel may approve a fee presumed unreasonable under paragraph (f) of this section if it finds by clear and convincing evidence that the fee is reasonable. Id. Motions for review of fee agreements must be in writing and must include the name of the veteran, the name of the claimant or appellant if other than the veteran, and the applicable VA file number. Id. Such motions must set forth the reason, or reasons, why the fee called for in the agreement is unreasonable and must be accompanied by all evidence the moving party desires to submit. Id. A claimant‘s or appellant’s motion for review of a fee agreement must be served on the agent or attorney and must be filed at the following address: Office of the General Counsel (022D), 810 Vermont Avenue, NW., Washington, DC 20420. 38 C.F.R. § 14.636(i)(1). The agent or attorney may file a response to the motion, with any relevant evidence, with the Office of the General Counsel not later than 30 days from the date on which the claimant or appellant served the motion on the agent or attorney. Id. Such responses must be served on the claimant or appellant. Id. The claimant or appellant then has 15 days from the date on which the agent or attorney served a response to file a reply with OGC. Id. Such replies must be served on the agent or attorney. Id. In this case, the appellant’s representation continued until January 2013, which was several months after the October 2012 rating decision was issued. Therefore, the attorney fee of 20 percent of past-due benefits is presumed to be a reasonable fee. Accordingly, the Board will next determine whether there is clear and convincing evidence that the fee is not reasonable in this specific circumstance based on the factors in 38 C.F.R. § 14.636(e). Notably, OGC issued an opinion in February 2017 analyzing the 8 factors outlined in 38 C.F.R. § 14.636(e) with respect to the specific case at hand, which the Board will summarize below. 1. The extent and type of services the representative performed, and 4. the amount of time the representative spent on the case. The February 2017 OGC opinion, drafted by the Deputy General Counsel, noted that the RO received the Veteran’s appointment of the appellant as his attorney representative on October 1, 2012. The appellant’s October 2012 submissions to the RO consisted of (1) an NOD contesting the initial rating assigned for major depressive disorder and asserting that entitlement to a TDIU was warranted, and (2) a fax cover sheet and VA Form 21-8940. The OGC opinion noted that the NOD contained generic language asserting that the Veteran was entitled to a higher initial rating and a TDIU was warranted with no summary or case-specific analysis. The February 2017 OGC opinion noted that the appellant reported that he spent less than one hour preparing the NOD. The Deputy General Counsel also noted that the Paperwork Reduction Act estimate for completion of the VA Form 21-8940 is 45 minutes. The Deputy General Counsel found that, assuming the appellant spent 45 minutes on any advice to the Veteran regarding completion of the form and on submitting the form to VA, the appellant spent approximately one hour and 45 minutes on the Veteran’s case after entering into a fee agreement with the Veteran in September 2012. The Deputy General Counsel explained that submission of a generic NOD and a VA form accompanied by a fax cover sheet within a single month is not representative of provision of extensive services. The Deputy General Counsel further found that the appellant could not charge a fee for representation provided prior to the September 2012 fee agreement and such time was not for consideration in determining whether the fee was reasonable. 38 C.F.R. § 14.636(c). The Deputy General Counsel concluded that the aforementioned factors weighed heavily against the reasonableness of a 20 percent fee. The Deputy General Counsel noted that the appellant’s normal hourly rate was $150 per hour, and that a 20 percent fee would result in the appellant receiving over $6,000 for less than two hours of work, which was more than 20 times his hourly rate. 2. The complexity of the case. In the February 2017 OGC opinion, the Deputy General Counsel found that this case was of moderate complexity, requiring the presentation of evidence to establish that the Veteran’s service-connected disabilities rendered him unemployable. The Deputy General Counsel concluded that this factor did not weigh either for or against the reasonableness of a 20 percent attorney fee. 3. The level of skill and competence required of the representative in giving the services. In the February 2017 OGC opinion, the Deputy General Counsel found that this case required an average level of skill and competence. The Deputy General Counsel noted that the appellant’s submission of an NOD that did not include any case-specific analysis or detailed legal argument and a VA form accompanied by a fax cover sheet show that the tasks were completed with an adequate level of skill or competence. 4. The amount of time the representative spent on the case. This element is discussed above in connection with element 1. 5. The results the representative achieved, including the amount of any benefits recovered. In the February 2017 OGC opinion, the Deputy General Counsel noted that the appellant had argued that his services contributed to the award because the Veteran did not have a pending claim with VA until the appeal was filed. The Deputy General Counsel disagreed with the appellant’s assertion that there was no pending claim, as the RO had sent the Veteran a letter informing him that it was working on his claim for entitlement to a TDIU. The Deputy General Counsel noted further that the appellant’s submissions did not include any case-specific argument and essentially repeated what the Veteran already asserted regarding his unemployability. The Deputy General Counsel found that the appellant’s submission on behalf of the Veteran did not contribute significantly to the result achieved and concluded that this factor weighed against the reasonableness of a 20 percent attorney fee. 6. The level of review to which the claim was taken and the level of the review at which the representative was retained. In the February 2017 OGC opinion, the Deputy General Counsel noted that the appellant was appointed in October 2012 and represented the Veteran while this case was pending at the RO level. The Deputy General Counsel found that this factor weighed neither for nor against the reasonableness of the fee. 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. In the February 2017 OGC opinion, the Deputy General Counsel noted that the appellant was retained on a 20 percent contingent fee contract, which is a typical contract in a Veteran’s disability benefits claim. The Deputy General Counsel noted that such agreements carry an element of risk for both parties, but that the appellant assumed very little risk by expending a small amount of effort on this case before the Veteran’s claim for a TDIU was granted. The Deputy General Counsel found that these factors weighed against the reasonableness of a 20 percent attorney fee. After applying the factors listed in 38 C.F.R. § 14.636(e), the Deputy General Counsel concluded that there was clear and convincing evidence that a 20 percent fee was not reasonable in this case and, therefore, found that the presumption of reasonableness was rebutted. The Deputy General Counsel reduced the attorney fee to $623.44, which represented 2.5 times the appellant’s hourly rate for noncontingent-fee work ($375) multiplied by 1.75 hours of work, minus the 5 percent assessment fee under 38 U.S.C. § 5904(a)(6), which would be $32.81. The Deputy General Counsel directed the RO to take appropriate action. The Board finds that the February 2017 OGC opinion is highly persuasive in determining the reasonableness of the attorney fee of 20 percent of past-due benefits arising from the October 2012 rating decision. The appellant’s normal hourly rate is $150 per hour, and a 20 percent fee would result in the appellant receiving over $6,000 for less than two hours of work, which is more than 20 times his hourly rate. The appellant’s submission on behalf of the Veteran did not contribute significantly to the result achieved. The appellant assumed very little risk by expending a small amount of effort on this case before the Veteran’s claim for a TDIU was granted. The Board finds that there is clear and convincing evidence to rebut the presumption that the attorney fee of 20 percent of past-due benefits awarded in an October 2012 rating decision, or $6,674.80, were reasonable. The Board finds that an attorney fee of $623.44 is reasonable, as explained by the Deputy General Counsel in the February 2017 OGC opinion. The Board further finds that the contentions made by the Veteran and his substitute disputing the reasonableness of the attorney fee award of 20 percent have been fully addressed by the February 2017 OGC opinion and May 2020 SOC. However, while many of the appellant’s assertions were addressed in the February 2017 OGC opinion and May 2020 SOC, the appellant, through his attorney, has continued to raise many of the same theories and contentions. As such, for clarity, the Board finds reason to address the appellant’s contentions below. The Appellant’s Assertions The appellant, through his attorney, has asserted numerous contentions regarding why the fee of $6,674.80 is reasonable. After review of the record, the Board finds that the appellant’s contentions are without merit, and that there is clear and convincing evidence that the attorney fee of $6,674.80 is not reasonable. As an initial matter, the Board notes that the February 2017 decision addressed the appellant’s assertion that, even if the Veteran were to prevail, that the appellant would not be required to reimburse VA because any premature payment would have been due to administrative error, citing 38 U.S.C. § 5112(b). As the Deputy General Counsel previously noted, 38 U.S.C. § 5112(b) references effective date provisions for “reduction or discontinuance of compensation, dependency and indemnity compensation, or pension.” However, attorney fees are not compensation, dependency and indemnity compensation, or pension, nor are they awards of periodic benefits as contemplated by 38 U.S.C. § 5112. Therefore, 38 U.S.C. § 5112 is not applicable. Furthermore, the May 2020 SOC explained that in Casey v. Wilkie, 31 Vet. App. 260 (2019), the United States Court of Appeals for Veterans Claims (the Court) held that 38 U.S.C. § 5112(b)(10) did not give a surviving spouse the right to retain the portion of a lump-sum accrued benefit payment that VA erroneously released to her rather than withholding for payment to a representative under 38 U.S.C. § 5904(d). The Court reasoned that the recoupment of a portion of that lump-sum payment did not involve “reduction of an ongoing monthly benefit” and was thus outside the scope of 38 U.S.C. § 5112(b)(10). As explained in the May 2020 SOC, the reasoning of Casey applies equally in this case, where a portion of a lump-sum award was paid to the representative and VA has determined, in accordance with 38 U.S.C. § 5904(c), that the representative is not entitled to retain the full amount paid to him. The May 2020 SOC found that 38 U.S.C. § 5112(b)(9) and (10) do not relieve the appellant of his obligation to remit to the Veteran’s substitute the amounts paid to the appellant that have been found to be excessive or unreasonable fees. The appellant, through his attorney, has also argued that the Veteran failed to rebut the presumption of reasonableness, and that OGC was not permitted to apply the factors set forth in 38 C.F.R. § 14.636, pursuant to Matter of Vernon, 8 Vet. App. 457, 459 (1996). The appellant further contended that an appellant’s lay assertions regarding the value and extent of legal services rendered by counsel are insufficient as a matter of law to rebut the presumption of reasonableness. However, the Deputy General Counsel addressed the appellant’s arguments in the February 2017 opinion by emphasizing that 38 C.F.R. § 14.636(f) indisputably applied to the case at hand and clearly provided that the presumption of reasonableness may be rebutted through examination of the factors in 38 C.F.R. § 14.636(e). Moreover, the Deputy General Counsel’s findings did not rely solely upon the Veteran’s assertions, but rather, upon “actual evidence” including review of the number and content of submissions filed with VA by the appellant and the Paperwork Reduction Act estimate for completion of the VA form he filed, which is evidence that the appellant did not dispute. In the June 2020 VA Form 9, the appellant through his attorney asserted numerous contentions challenging the February 2017 OGC opinion. The appellant argued that OGC’s reasonableness decision is void ab initio, contending that the Veteran’s September 2015 correspondence was not a compliant motion for review of his fee agreement with the appellant in accordance with the provisions of 38 C.F.R. § 14.636(i). The appellant reported that the plain language of 38 C.F.R. § 14.636(i) required that a motion for review of a fee agreement for reasonableness must be made “before the expiration of 120 days from the date of the final VA action.” The appellant asserted that OGC relied upon a misinterpretation of the phrase “the date of the final VA action,” because a fee decision that the appellant was not entitled to a fee would have rendered moot the issue of the reasonableness of the fee called for in the fee agreement. The appellant contended that because the Veteran’s September 2015 correspondence was not received by OGC “before the expiration of 120 days from the date of the final VA action,” it was not compliant or timely filed, and OGC had no authority to review the fee agreement as a matter of law. The appellant further argued that OGC’s reasonableness determination is premature; that he is entitled to the benefit of the statutory and regulatory presumption that the fee called for in his fee agreement was reasonable unless there is clear and convincing evidence to the contrary; and that in the event that the Board finds the fee called for in the appellant’s fee agreement to be unreasonable, such a finding would not provide the Board with the authority to either create an overpayment or to order the appellant to repay the attorney fees withheld and paid to him by VA. Regarding the appellant’s contentions challenging OGC’s authority to review the fee agreement between the Veteran and the appellant, the Board finds that this argument holds no merit. In the February 2017 OGC opinion, the Deputy General Counsel found that the period for filing a motion for review did not expire prior to the receipt of the Veteran’s letter in September 2015, and that the 120-day period for filing a motion for review for the fee agreement did not begin to run in November 2012, as the Veteran’s January 2013 NOD prevented the decision from becoming final. The Deputy General Counsel noted that even if the June 2015 response from the RO to the Veteran’s NOD could be considered a final VA action, the Veteran’s motion requesting review of the fee agreement was received by OGC and served on the appellant prior to the expiration of the 120 day period. The Board also acknowledges the appellant’s contention that OGC prematurely reviewed the reasonableness of the fee agreement between the Veteran and the appellant, as OGC relied on an interpretation of the provisions of 38 C.F.R. § 14.636(i) that a motion from the Veteran for review of a fee agreement can be made before the expiration of 120 days from the date of the final VA action, and that OGC cannot make a determination on the reasonableness of the fee until there is a final disposition of the Veteran’s appeal of the November 2012 fee decision. The Board concludes that the appellant’s assertions hold no merit in this regard. The appellant’s contention that OGC cannot make a determination on the reasonableness of the fee until there is a final disposition of the Veteran’s appeal challenging the reasonableness of the fee is not logical and, as argued by the appellant through his private attorney, would effectively eliminate a veteran’s opportunity to challenge an attorney’s fee based on past-due benefits. Regarding the appellant’s contention that an attorney’s fee must not be found to be unreasonable simply due to an “inordinate” amount of time spent on the matter, as established in Carpenter v. Principi, 15 Vet. App. 64 (2001), the Board notes that the February 2017 OGC decision on the matter of reasonableness of fees has been determined based on the 8 elements as outlined in 38 C.F.R. § 14.636(e). The Board has weighed the elements and found that the presumption of reasonableness has been rebutted. The Board acknowledges the appellant’s assertion that the Board does not have the authority to either create an overpayment or to order the appellant to repay the attorney fees withheld and paid to him by VA. However, the Board finds this argument also holds no merit. The appellant relied on 38 U.S.C. § 5904(c)(3)(A) to claim that the authority for OGC to act as the designate of the Secretary to review fee agreements and order reduction in fees does not include authority to either create an overpayment or to order the appellant to repay the attorney fees withheld and paid to him by VA. The appellant concluded that 38 U.S.C. § 5904(c)(3)(C) does not contemplate the circumstances in this matter. Notably, 38 U.S.C. § 5904(c)(3)(C) contemplates circumstances where the Secretary, under 38 U.S.C. § 5904(b), suspends or excludes from further practice before the Department any agent or attorney who collects or receives a fee in excess of the amount authorized under this section, the suspension shall continue until the agent or attorney makes full restitution to each claimant from whom the agent or attorney collected or received an excessive fee. The appellant has not been suspended or excluded from further practice before the Department. Regarding OGC’s authority to act as designate of the Secretary to review fee agreements and order reduction in fees, as well as the Board’s contended limitation to the narrow issue of whether the fee called for in the appellant’s fee agreement was unreasonable, the Board relies on 38 C.F.R. § 14.636(i) to respectfully disagree. 38 C.F.R. § 14.636(i) states that, unless either party files a Notice of Disagreement, the agent or attorney must refund any excess payment to the claimant or appellant not later than the expiration of the time within which the OGC’s decision may be appealed to the Board. An NOD has been filed, so the appellant was not previously required to refund any excess payment to the substituted claimant. However, as the attorney fees awarded to the appellant in the November 2012 decision are found to be unreasonable, 38 C.F.R. § 14.636(i) provides that the attorney must refund any excess payment to the claimant. Furthermore, as explained in the May 2020 SOC, 38 C.F.R. § 14.636(j) provides that in addition to whatever other penalties may be prescribed by law or regulation, failure to comply with the requirements of this section may result in proceedings under § 14.633 of this chapter to terminate the agent’s or attorney’s accreditation to practice before VA. The May 2020 SOC concluded that there is, therefore, ample support for the guidance to the appellant to repay the excess fees to the substituted claimant, or face potential termination of accreditation by VA. Regarding the appellant’s June 2020 assertion that the appeal of the November 2012 fee decision has not been completed because VA never submitted a statement of the case, the Board finds this is also without merit, and furthermore, not logical. The appellant’s assertion is found in the argument accompanying the June 2020 VA Form 9, which was filed after OGC sent all parties the May 2020 SOC. The May 2020 SOC specifically addressed the appeal regarding the reasonableness of the November 2012 fee award. The Board acknowledges the appellant’s June 2020 lay statement asserting that it was never communicated to him from OGC or the RO that the Veteran objected to the payment of the fee, and that two years passed before he received notice that the Veteran had an ongoing appeal contesting the reasonableness of the attorney fee. The appellant further asserted that the situation was not fair, as the appellant represents several hundred veterans at one time. The appellant further argued that he should not have to repay an “administrative error.” The Board is unmoved by the appellant’s contentions. Unfortunately, appeals can take lengthy amounts of time, specifically to include those regarding complex issues such as reasonableness of attorney fees that must be determined in the first instance by OGC. Furthermore, notice requirements for contested claims do not specify that interested parties must be informed immediately of pending appeals. Rather, when a VA Form 9 substantive appeal is filed in a simultaneously contested claim, all interested parties are to be specifically notified of the contents of the substantive appeal 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. 38 C.F.R. § 19.102. All parties were provided notice, when appropriate and required in this case, and all contested claims procedural requirements have been fulfilled. The appellant’s claim that a fee reduction would be unreasonable simply because he did not receive notice that the Veteran had an ongoing appeal for two years after the appellant received the fee holds no merit in determining the reasonableness of the fee he received. It is the appellant’s choice to represent “several hundred veterans at one time.” The contentions regarding administrative error have been fully addressed in the above decision. (Continued on the next page)   Based on the foregoing, the Board finds that there is clear and convincing evidence to rebut the presumption that the attorney fee of 20 percent of past-due benefits awarded in an October 2012 rating decision, or $6,674.80, were reasonable. The Board finds that the appellant is entitled to an attorney fee of $623.44. The AOJ should undertake all appropriate steps to address any overpayment to the appellant created by this decision. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffin, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.