In re the Fee Agreement of Smith

10 Vet. App. 311, 1997 U.S. Vet. App. LEXIS 506, 1997 WL 355011
CourtUnited States Court of Appeals for Veterans Claims
DecidedJune 26, 1997
DocketNo. 95-307
StatusPublished
Cited by13 cases

This text of 10 Vet. App. 311 (In re the Fee Agreement of Smith) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Fee Agreement of Smith, 10 Vet. App. 311, 1997 U.S. Vet. App. LEXIS 506, 1997 WL 355011 (Cal. 1997).

Opinion

NEBEKER, Chief Judge:

William G. Smith, Esquire, appeals a March 22, 1995, decision of the Board of Veterans’ Appeals (BVA or Board) which found him not entitled to attorney fees from past-due benefits awarded to the veteran, LeRoy H. Lundgren, for services rendered before the Department of Veterans Affairs (VA), the Board, and this Court. The veteran was granted entitlement to a total disability rating based on individual unemployability (TDIU) in February 1991. Upon consideration of the parties’ briefs and the record on appeal, the Court will vacate the Board’s decision, and remand the matter.

I. FACTS

The veteran had active military service from February 1941 to April 1946. Record (R.) at 51. In December 1977, the issue of Mr. Lundgren’s entitlement to TDIU was presented to the Board, and thereafter denied. R. at 12-16. That denial was continued in a January 1989 regional office (RO) decision. R. at 24r-25. In February 1991, Mr. Lundgren submitted this statement to VA: “I do believe I am [entitled to] 100%. I [tried] working, and thought I would die from it.” R. at 43-44. In May 1992, the Board determined that the claim for TDIU might have been raised by the veteran as part of other claims he had filed, and referred that claim back to the RO for appropriate development. R. at 51. The attorney, Mr. William Smith, submitted a copy of his fee agreement with the veteran in September 1992. R. at 59, 65-67.

In December 1993, the Court, inter alia, declined to review the issue of TDIU because no final decision had been rendered by the Board in that regard. Lundgren v. Brown, U.S. Vet.App. No. 92-1072, 1993 WL 554617 (mem. dec. Dec. 30, 1993) [hereinafter Lundgren I], In March 1994, the Court granted the appellant’s motion for reconsideration, and vacated Lundgren I as to the TDIU issue. Lundgren v. Brown, U.S. Vet.App. No. 92-1072, 1994 WL 81572 (mem. dec. March 4, 1994) [hereinafter Lundgren II]. Citing Travelstead v. Derwinski, 1 Vet.App. 344, 346 (1991) for the proposition that a decision of the BVA not to address an issue raised at the RO level confers jurisdiction on this Court, the Court held that the “issue of [TDIU] was reasonably raised by the record on appeal,” and should have been addressed by the Board, and specifically remanded that issue to the Board for adjudication. Lundgren II, supra. The Board, in an April 1994 preliminary order which refers only to Lundgren I, was apparently unaware of the superseding decision of the Court directing adjudication of the TDIU claim, and did not mention the Court’s remand for adjudication of the TDIU issue. R. at 103-05.

[313]*313A September 1994 RO rating action granted TDIU to the veteran, effective February 1991. R. at 114 — 21. In the BVA decision here on appeal, the Board denied Mr. Smith’s entitlement to attorney fees from past-due benefits awarded, finding that no final BVA decision had been rendered as to the issue of TDIU for which the benefits were granted. R. at 3-8. The Board stated:

The RO has previously denied the veteran[’]s claims for [TDIU], and the Board did deny this issue in a decision dated December 19, 1977. The dispositive consideration is that there has not been a final decision by the Board concerning the veteran’s claim for [TDIU] which arose from a notice of disagreement issued on or after November 18,1988____ It is true that the matter of entitlement to [TDIU] was referred to the regional office by the Board in its decision of May 5, 1992. That reference, however, was plainly not a final decision by the Board on that issue.

R. at 7. In addition to the Secretary’s assertion that jurisdiction is predicated on section 7252 of title 38, United States Code, this Court’s jurisdiction is also based on sections 7263(d) (pertaining to representation of parties and review of fee agreements) and 7266(a) (notice of appeal provision). See also 38 U.S.C. § 5904(e)(2) (recognition of agents and attorneys generally).

II. ANALYSIS

The issue presented for review is whether a final BVA decision exists with respect to the veteran’s claim for TDIU, which in turn, will entitle Mr. Smith to payment of attorney fees. Before today, this Court has held that pursuant to section 5904(c)(1), “[a] fee agreement may be entered into between a claimant and an attorney for services provided only after the BVA makes a final decision on the issue or issues involved in the case.” In the Matter of the Fee Agreement of Smith, 4 Vet.App. 487, 490 (1993). The Court has also held that, “while an attorney is not precluded from performing services prior to the issuance of a first final BVA decision, the attorney is precluded from charging a fee for such services.” Ibid. Title 38 of the United States Code reads in pertinent part:

(c)(1) Except as provided in paragraph (3), in connection with a proceeding before the Department with respect to benefits under laws administered by the Secretary, afee 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 of Veterans’ Appeals 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. The limitation in the preceding sentence does not apply to services provided with respect to proceedings before a court.

38 U.S.C. § 5904(e)(1) (emphasis added). The regulation which interprets the statute reads in pertinent part:

(e) Circumstances under which fees may be charged. Except as noted ... attorneys-at-law and agents may charge claimants or appellants for their services only if all of the following conditions have been met:
(1) A final decision has been promulgated by the Board of Veterans’ Appeals with respect to the issue, or issues, involved.

38 C.F.R. § 20.609(e)(1) (1996). In the case of In the Matter of the Fee Agreement of James Stanley, Jr., 10 Vet.App. 104, 107 (1997), the Court held that the “issue or issues” requirement of the regulation is consistent with the language and legislative history of “the case” requirement of section 5904. Therefore, the issue or issues extant in the final BVA decision in a veteran’s case must be the same issue or issues for which the attorney is seeking payment. Ibid. In Stanley, the veteran’s claim for hearing loss had been denied by a final BVA decision, and the Court held that “[ffurther pursuit of service connection for that disability would warrant the assistance of a paid representative.” Id. at 108. Moreover, the veteran’s claim for a psychiatric disorder “was never the subject of a final BVA decision,” service connection having been granted by the non-adversarial process of the RO, and therefore, no pay[314]*314ment of attorney fees related to that claim was warranted or permitted. Ibid.

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Bluebook (online)
10 Vet. App. 311, 1997 U.S. Vet. App. LEXIS 506, 1997 WL 355011, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-fee-agreement-of-smith-cavc-1997.