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Attorney Fees After BVA Grant: Calculating Past-Due Correctly?


acesup

Question

Back on August 7 of last year, the BVA granted me TDIU and SMC (s) back to 2009.  So, last week on the 13th, (9 months and 6 days after that BVA Decision) I received a dozen deposits into my bank accounts, 9+ years of retro.

Now, it was my understanding that Attorney Fees of 20% would be owed up to the date of the BVA grant, which would be August 7, and that all money after that date was entirely mine.

However, the VA also withheld 20% from those last 9 months.  That means the attorney will get an extra $3,600+ from me because it took over 9 months for the RO to implement my new rating.  Is this a mistake?

Here's what the M21 says, which seems to me that nothing should be withheld after August 1:  

c.  The Period to Use for Calculating Past- Due Benefits

Past-due benefits are calculated 

from the effective date of the award
to the date of the decision awarding benefits,
not the date of the notification letter
not the last day of the month in which the decision awarding benefits was made. See VAOPGCPREC 18-95 and 38 CFR 14.636(h)(3) regarding definition of past due benefits  

Am I misunderstanding this?  If there is an error, do I just call Peggy, or contact Office of General Counsel who is technically holding the money now?

FWIW, I already felt the Attorney Fee is excessive (I may not gain anything doing this, but I have my reasons for protesting it), and was preparing to ask the OGC to review it for reasonableness. 

Edited by acesup
typo (see edit history)
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From what I understand it is when they implement the decision.  The way this is worded sounds that way.  Maybe someone else has some experience here?

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If you feel the attorney fee is excessive, start by discussing that with your attorney.

If you and your attorney can not come to an agreement, you can contact the BVA about the disputed fees.  

You probably signed a contract with an attorney (a fee agreement).  What did it say? 

Its been my experience that 20 percent of the retro is considered "routine".  If they charge more, some up to 33 percent, they often have to "justify" the increase fee.  

As for me, I hope my attorney gets a new boat, a new car, and a bunch of other stuff with my fees..because that means I will get 5 times more.  (20 percent times 5 equals 100 percent).  

If your fee paid to the attorney is 20 percent, or less, then its probably not excessive.  

If its greater than 20 percent, I would first ask, "why"?

If the attorney had to hire IMO's and stuff..then you should pay them.  

    You had a choice on whether or not to hire an attorney or self represent or VSO.  You chose the attorney.   

     No, you dont always see what they do behind the scenes.  One thing they need to do, among others, is read your file.  That may take a week or more, depending on how long it is.  

     Of couse, the attorney can have legal assistants go through some of that stuff...as well as organize and index it.  

Edited by broncovet (see edit history)
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I don't feel the attorney fee was excessive, I do feel the attorney's effort was sub-par.  I won't go into detail here, but I have my reasons for feeling this way.  I am informing this lawyer that I plan ask the OGC to perform a review, and why I feel that way.  I expect I'll get a minor apology and the OGC will approve the 20%, and that will be the end of it.  Whatever the OGC decides, I won't protest any further.  I do hope that by getting some attention, maybe this firm will be a bit more straightforward with/attentive to the next veteran.

I would like to think that if I had lost at BVA, this person would have come through with representation to the CAVC, but I guess I'll never know, and I'm glad I didn't have to depend on such a wild card.  

If I had to do it over again, I'd still retain an attorney, but I'd be pickier.  I simply went along with a recommendation from my first attorney, who started out as a blustering lion, but then had a meltdown and quit handling veterans' appeals (because she couldn't stand dealing with, if I recall her exact phrasing,  "a den of vipers and demons").

All in all, it didn't cost money out of my pocket, and all's well that ends well.  So far, it's ending quite nicely.

 

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Many years ago I helped a local vet succeed. He had been to the CAVC twice and VA withheld quite a chunk of cash from his backpay, for legal fees.

I searched for his appeal rights on legal fees, and found them. 

They involve as I recall, a 5 or 6 point criteria.

I prepared a letter for him to sign and mail-I guess it was to his VARO, appealing these fees under the legal fee criteria.

I  also enclosed a letter that I, an unpaid disabled veterans advocate, found his service nexus myself, and then I added what information I found on his lawyers, to include the startling fact that they had never even read his BVA  denials, because the last one contained a clue, and I followed that clue, to support his claim.....

This was a veteran who had started to pressure me relentlessly-one of the last local vets I ever helped.

I knew if the VA did end up paying those legal fees , he would have been calling me and emailing me a lot-but I never heard from him again, so I believe the VA never paid their fees and sent him the money they had withheld.

This is one of the regulations I found:

https://www.ecfr.gov/cgi-bin/text-idx?SID=7c8f90d08160838eff7394bf01103d9e&mc=true&node=se38.1.14_1636&rgn=div8

I will try to find the legal fee criteria.

GEEZ, there are 73,177 decisions at the BVA since 1994 on the search I did for  attorney fees- I deleted  the link, I dont think it would help-

 

Edited by Berta (see edit history)
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The regulations for attorney fee appeals apparently changed in 2008- long after the experience I had above with the local veteran.

Did the RO send you any appeal criteria at all ,for the amount the are withholding?

But you said "I don't feel the attorney fee was excessive, I do feel the attorney's effort was sub-par."

I wonder if OGC would review it on that basis.

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Thanks, Berta.  The RO sent a letter with excerpts from that regulation that you posted.  In all fairness, since I did win, I expect they will say that no matter how I feel about the attorney, the bottom line is that I won.  I'm not going to get too bent out of shape about it.  All along, I did figure on the attorney getting 20%, and I knew it would be a lot of cash.

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2 hours ago, acesup said:

In all fairness, since I did win, I expect they will say that no matter how I feel about the attorney, the bottom line is that I won.  I'm not going to get too bent out of shape about it.  All along, I did figure on the attorney getting 20%, and I knew it would be a lot of cash.

That is the best attitude to have.  My attorney received ten years equivalent when he only represented me for five years.  It is hard to see that much money go away but focus on what you gained.  Without an attorney I might have gotten nothing.

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Thanks for the replies!

After fighting the VA for so long, I'm just tired of fighting.  It's funny how the mind can sometimes settle things by nothing more than the passage of time. 

With that said, I think I'm just going to not send the draft letters I wrote complaining about this.  I knew what I was signing when I inked that Fee Agreement, and there is nothing for me to be unhappy about. 

I think I'm learning how to relax, and I like it.

 

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The results (whether the attorney won or not) is far more important than how nice the attorney was to you.  

I would rather have a gruff, mean attorney win me benefits, than a super nice one who calls and encourages me 3 times per week, but loses my case anyday.  

Its been my experience that attorney's dont call us often enough to "research EVERY theory of entitlment I propose".  

And, frankly, I dont care.  I really dont need my attorney to be a psychiatrist or friend.  I need him/her to focus on winning.  

If the attorney presented each and every arguement to VA exactly like I proposed, then I could have done it myself.  Instead, he discards some of my ideas, and spins others into winners, and creates his own ideas that I never thought of to win.  

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