Attorney fees

[Berta]

This subject comes up from time to time and there is a lot to it.

I am posting a few things here from the BVA site to basically try to explain the way VA handles attorney fees:

in part:

"Regarding initial entitlement to an attorney fee award, fees may not be charged, allowed, or paid regarding services provided before the date on which a notice of disagreement is filed. 38 U.S.C. § 5904(c)(1). Rather, attorney fees may be charged only if a final Board decision has been issued and the attorney or agent was retained not later than one year following the date of the Board decision. 38 C.F.R. § 20.609(c)(1). All attorney fee agreements must be in writing, be signed by the claimant or appellant and the attorney, and include the name of the veteran, the name of the claimant or appellant if other than the veteran, the VA file number, and the specific terms under which the amount to be paid for the services of the attorney will be determined. 38 C.F.R. § 20.609(g). The termination of representation does not terminate the attorney's right under a valid contract, that is, a fee agreement, to collect fees for work performed prior to termination that resulted in the claim being resolved in a manner favorable to the Veteran if all or any part of the relief sought is granted. 38 U.S.C. § 5904(d)(2). In determining reasonable attorney fees under the circumstances of this case, the standard is quantum meruit or "as much as deserved," as noted above. The Board has considered the factors outlined in Scates, as well as the contentions advanced by the Veteran. The Board concludes that the payment of 20 percent from past-due benefits is warranted. The Board recognizes that this award constitutes a substantial sum due the attorney but concludes such a payment is not unreasonable or excessive within the broader scope of contingency fee-based legal representative of veterans. The Veteran willingly entered into a fee agreement in 2001 for such a payment and did not knowingly terminate said agreement, and service connection was granted, in part, for a psychiatric disorder other than PTSD. Thus, the relief from payment of attorney's fees of $16, 712.60, as sought by the Veteran, is denied."

https://www.va.gov/vetapp18/files1/1802505.txt

Accordingly, as a NOD was not filed on the issues granted in the September 2013 rating decision, including entitlement to a TDIU, the Board finds that payment of attorney fees on that award is not warranted.

https://www.va.gov/vetapp18/files8/18123223.txt

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.

https://www.va.gov/vetapp18/files6/18114878.txt

There are thousands of attorney fee claims at the BVA.

Some were filed by veterans and in some cases the appellant was an attorney.

I used 38 C.F.R. § 20.609 many many years ago when VA withheld 8 thousand dollars from a local vet's disability.

The CFR has not changed much and I went over the above regs very carefully and prepared a NOD that seemed to cver all bases, and that the lawyers did nothing to help with his claim.I signed the NOD myself and told the VA exactly what I did- which the lawyers did not do- to get his claim to succeed.

This vet was one of the worse vets I ever dealt with- calling me constantly at one point and trying to bully me- but the fact remained that he had a great claim, and his lawyers did nothing to help him.

I never heard from him after he got a copy of the NOD to send to the VA with a 4138 from him. I guess they did not pay his lawyers at all.

The regs for attorney payments are complex but many veterans do not appeal fees they think are wrong.

But the truth is most attorneys for veterans know what they are doing and are worth every penny of their fee.

Vet attorneys are like IMO/IME doctors- none of them can perform a  miracle, if the claim lacks the evidence it needs.

 

 

 

 

 

 

 

[SgtStelmo]

 Berta,

Great post, but I would like to expand on one thing you said.  Namely, "ut the truth is most attorneys for veterans know what they are doing and are worth every penny of their fee."

While I support every word you say there is an even better option.  That is an attorney that works pro bono.  I realize they are not a dime a dozen but persistence can pay off.

In another of your posts you referenced the class action case of Monk. 

He was represented pro bono by an attorney named Michael Wishnie, Esquire.  This attorney runs the Yale Law School law institute.  The students do the work but Mr. Wishnie reviews it and signs his name to the pleadings.  If you live in Connecticut this organization will consider handling your appeal free of charge.

For those outside of Connecticut you will find most law schools have a similar program.  But it takes patience and persistence to locate them, and then apply.  In this regard the sooner the better is applicable.

And so now having my say, let me again repeat that you have done an above excellent job with your post.