Payment of attorney or agent fees (U. S. Department of Veteran Affairs)

4. Making an Attorney or Agent Fee Eligibility Decision and Sending Notification

Introduction

This topic contains information on making an attorney or agent fee eligibility decision and sending notification, including determining what constitutes a “case” example 1 – what constitutes a “case” example 2 – what constitutes a “case” example 3 – what constitutes a “case” example 4 – what constitutes a “case” example 5 – what constitutes a “case” example 6 – what constitutes a “case” example 7 – what constitutes a “case” example 8 – what constitutes a “case” relationship between NOD and fee eligibility decision and notice NOD received on or before June 19, 2007 – final decision and retention criteria NOD received on or before June 19, 2007 – making the decision NOD received on or after June 20, 2007 – representation criteria NOD received on or after June 20, 2007 – making the decision, and discussing attorney or agent assessments in the decision

Change Date

a. Determining What Constitutes a Case

VA accredited attorneys and agents may only charge fees for services provided after the RO has issued a decision and a NOD has been filed with respect to a “case.” When making a determination on fees apply the following principles: An original claim, a reopened claim, and a claim for increase are each separate “cases,” even if they address the same disability. Each request for DIC, Pension, or Death Pension is a separate “case.” Where the benefit sought is disability compensation, the case consists of an assertion of entitlement to compensation based on a specific disability. Distinct and separate symptoms are distinct disabilities and, therefore, distinct cases. However, different diagnoses assigned to the same symptoms do not represent different disabilities and, therefore, are not necessarily separate cases. Examples in following blocks illustrate what constitutes a “case” for the purpose of determining whether fees may be charged. References: For more information on The case concept, see In the Matter of the Fee Agreement of James W. Stanley, Jr., 10 Vet.App. 104 (1997) (docket no. 96-0017) Distinct symptomatology, see Esteban v. Brown, 6 Vet. App. 259 (1994), Different diagnoses assigned to the same symptoms, see Clemons v. Shinseki, 23 Vet. App. 1 (2009).

b. Example 1 – What Constitutes a “Case”

Facts The Veteran seeks service connection for (1) posttraumatic stress disorder (PTSD) and (2) hearing loss. The RO denies service connection for PTSD and defers the issue of service connection for hearing loss. After the Veteran files an NOD with the denial of service connection for PTSD, the RO awards service connection for hearing loss. Result The Veteran’s request for service connection for PTSD and the request for service connection for hearing loss constitute separate cases because they involve distinct disabilities. Fees may not be paid based on the award of service connection for hearing loss because the award was made in the initial decision, before an NOD could have been filed.

c. Example 2 – What Constitutes a “Case”

Facts On August 4, 2008, the Veteran files a claim for depression. At that time, the Veteran was not receiving any VA benefits and did not have any other claims pending. The RO denied service connection for depression and the Veteran filed an NOD. On appeal, a Decision Review Officer (DRO) awards service connection for PTSD effective August 4, 2008. Result Assuming the POA and fee agreement requirements are met, fees may be paid based on the award of service connection. The effective date of the award indicates that the award of service connection was granted based on the claim that was initially characterized as “depression.” A new case was not created merely because VA began describing the same symptoms by a different name.

d. Example 3 – What Constitutes a “Case”

Facts On August 4, 2008, the Veteran files a claim for service connection for depression. The RO denied service connection for depression and the Veteran filed an NOD. While the appeal is pending, the Veteran submits evidence indicating that he has been unemployable due to depression since 2006. On appeal, a DRO awards service connection for depression with a 70 percent rating and total disability based on individual unemployability (IU) effective August 4, 2008. Result Assuming the POA and fee agreement requirements are met, fees may be paid based on the award of the 70 percent and IU. In this situation, IU is not a separate “case,” but rather an attempt to obtain the appropriate disability initial disability rating.

e. Example 4 – What Constitutes a “Case”

Facts On August 4, 2008, the Veteran files a claim for service connection for depression and the RO grants service connection for depression with a 30 percent rating effective date of claim. The Veteran files an NOD with the initial rating. On January 2, 2010, while the appeal regarding the initial rating for depression is pending, the Veteran files a claim for service connection for a knee condition. At the same time, the Veteran submits evidence indicating that his knee condition renders him unemployable. The RO grants service connection for the knee condition with a 50 percent initial rating effective January 2, 2010, resulting in a combined rating of 70 percent. In light of that combined rating, the RO is also able to award schedular IU effective January 2, 2010. Result Fees may not be paid. The claim for depression was separate from the claim for the knee condition. IU was part of the claim for the knee condition. No NOD had been filed regarding the knee condition. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).

f. Example 5 – What Constitutes a “Case”

Facts The Veteran files a claim for service connection for a heart condition. The RO denies service connection for the heart condition and the Veteran files an NOD. While the appeal is pending, the Veteran dies and the Veteran’s surviving spouse is substituted. A DRO grants service connection for the Veteran’s heart condition and accrued benefits are paid to the surviving spouse. Result Assuming the POA and fee agreement requirements are met, fees may be paid based on the award of accrued benefits. For fee purposes, the substitution claimant seeking accrued benefits is considered to be continuing the “case” that was pending when the Veteran died.

g. Example 6 – What Constitutes a “Case”

Facts The Veteran, who is already service-connected for a heart condition, files a claim for service connection for a knee condition. The RO denies service connection for the knee condition and the Veteran files an NOD. While the appeal is pending, the Veteran dies of the service-connected heart condition. The Veteran’s surviving spouse is substituted in the Veteran’s appeal of the knee condition, but the appeal is ultimately denied. The Veteran’s surviving spouse applies for and is awarded DIC for the Veteran’s death. Result Fees may not be paid. The only claim pending at the time of the Veteran’s death was for the knee condition and VA did not pay benefits for the knee condition. The Veteran did not have a claim pending for the heart condition. The surviving spouse’s DIC claim was a separate claim for which no NOD was ever filed.

h. Example 7 – What Constitutes a “Case”

Facts In June 2007, the Veteran files a claim for service connection for a knee condition. In 2008, the RO denies service connection for the knee condition and the Veteran does not file an NOD. In 2011, the Veteran challenges the 2008 RO decision on the grounds of CUE. The RO finds no CUE in the 2008 decision and the Veteran files an NOD. On appeal, the Board of Veterans Appeals (BVA) concludes that there was CUE in the 2008 RO decision and awards service connection effective June 2007. Result Fees may be paid. The NOD with the RO’s decision finding no CUE satisfies the requirement. Important: This requirement is only met if the NOD was filed on or after June 20, 2007.

i. Example 8 – What Constitutes a “Case”

Facts In June 2007, the Veteran files a claim for service connection for a knee condition. In 2008, the RO denies service connection for the knee condition. The Veteran does file an NOD and the RO issues an SOC, but the Veteran does not file a timely substantive appeal, rendering the underlying decision final. In 2013, after the time to file the substantive appeal has passed, the Veteran challenges the 2008 RO decision on the grounds of CUE. The RO finds CUE in the 2008 decision and awards service connection effective June 2007. Result Fees may be paid. The NOD with the 2008 decision denying service connection satisfies the requirement. CUE is not a separate case from the underlying decision being challenged. See Carpenter v. Nicholson, 452 F.3d 1379, (Fed. Cir. 2006). Important: This requirement is only met if the NOD was filed on or after June 20, 2007.

j. Relationship Between NOD and Fee Eligibility Decision and Notice

The following table provides guidance on further action to take on a qualifying case based on whether a NOD has been received, and in cases where there has been a NOD, when the NOD was filed.

If ...	Then ...
no NOD was filed in the case	deny direct payment of fees generate the decision notice, Summary of Case Fee Decision Notice, using the Letter Creator on the Rating Job Aids page of the Compensation Service website separately send the decision notice to the claimant and the attorney, and take a 290 EP credit.
an NOD was filed in the case on or before June 19, 2007	Consider additional eligibility criteria in M21-1, Part I, 3.C.4.k.-l.
an NOD was filed in the case on or after June 20, 2007	Consider additional eligibility criteria in M21-1, Part I, 3.C.4.m.

k. NOD Received on or Before June 19, 2007 –Final Decision and Retention Criteria

Per 38 CFR 14.636(c)(2), where the NOD in the case was received on or before June 19, 2007, an accredited attorney or agent is eligible to receive fees from past-due benefits only if the following two eligibility conditions are also met: the appeal initiated by the NOD resulted in a final BVA decision on the issue involved, and the attorney or agent was retained no later than one year after the date BVA promulgated its decision, and prior to the date of the decision granting the award of benefits from which fees are to be paid. See Cameron v. Shinseki, 721 F.3d 1365 (2013). Important: On the first prong (a final BVA decision) BVA remands are generally not considered final decisions. 38 CFR 20.1100. The Federal Circuit concluded in Stanley v. Principi, 283 F.3d 1350 (Fed.Cir. 2002) that in original proceedings there can be no entitlement to attorneys' fees until an appealable decision has been rendered. However, if pursuant to a request to reopen a claim BVA reopens the claim and remands it to the AOJ for a decision on the merits, the BVA remand would meet the regulatory criteria of a final decision for the purpose of direct payment of fees (see Stanley v. Principi, 283 F.3d 1350 (Fed. Cir. 2002). On the second prong (attorney retention) The attorney or agent may be hired before the first BVA decision (as long as a valid declaration of representation remained in effect for that attorney at the time the first BVA decision is made), but must be hired no later than one year after the final BVA decision. The attorney or agent is considered hired once both the Veteran and the attorney or agent have signed the fee agreement. See Mason v. Shinseki, 25 Vet. App. 83 (2011). The one-year limitation is met with respect to all successor attorneys acting in the continuous prosecution of the same matter if a predecessor was retained within the required time period, and is met if there is a subsequent VA decision in the same case and the attorney or agent is hired no more than one year after that decision becomes final, see Stanley v. Principi, 283 F.3d 1350 (Fed. Cir. 2002); and does not apply if the attorney was hired when the case was before a court. Attorneys need not have been accredited under the current requirements in 38 CFR 14.626-14.637 if representation valid under the prior law was initiated, and the claim was filed, before the effective date of those regulations, June 23, 2008. Reference: For guidance on referral for reasonableness review in cases involving multiple eligible attorneys or agents, see M21-1, Part I, 3.C.6.h.

l. NOD Received on or Before June 19, 2007 – Making the Fee Decision

The table below includes guidance on making a decision and taking related actions on direct payment of fees in cases where the NOD was received on or before June 19, 2007.

If ...	Then ...
one or both of the criteria listed above in M21-1, Part I, 3.C.4.k are not met (there was not a final BVA decision and/or there was not qualifying attorney retention)	deny direct payment of fees generate the decision notice, Summary of Case Fee Decision Notice, using the Letter Creator on the Rating Job Aids page of the Compensation Service website separately send the decision notice to the claimant and the attorney, and take a 290 EP credit.
all of the requirements described above in M21-1, Part I, 3.C.3.l are met, and a portion of the claimant’s past due benefits have been withheld for payment of fees	award direct payment of fees generate the decision notice, Summary of Case Fee Decision Notice, using the Letter Creator on the Rating Job Aids page of the Compensation Service website separately send the decision notice to the claimant and the attorney, and take a 290 EP credit.
all of the requirements described above are met, and all of the past due benefits were released to the claimant without a portion being withheld for payment of fees	award direct payment of fees generate the decision notice, Summary of Case Fee Decision Notice, using the Letter Creator on the Rating Job Aids page of the Compensation Service website separately send the decision notice to the claimant and the attorney, and generate the due process notice Debt to Veteran for Failure to Withhold Attorney Fee Letter, using the Letter Creator on the Rating Job Aids page of the Compensation Service website Send the due process notice only to the claimant and representative, if any, at the same time as the fee eligibility is sent to the claimant and the attorney or agent, and after the due process period expires, send the claimant the final notice, Fee Recoupment Procedures – Final Notice, shown in M21-1, Part I, 3.C.13, Exhibit 6, and take a 290 EP credit. Note: The due process notice advises the claimant that VA has found the attorney or agent entitled to fees, and will be creating a debt against the claimant’s account at the same time that VA pays the attorney or agent.

Note: In any case where more than one attorney or agent is eligible for payment of fees, send the decision notice Direct-Pay Fee Decision Notice – Direct-Pay Fee Agreement Filed by More Than One Attorney/Agent in M21-1, Part I, 3.C.12, Exhibit 5 to each attorney/agent and the claimant along with appeal rights, and refer to M21-1, Part I, 3.C.6.d and f on reasonableness reviews based on eligibility of multiple attorney s/agents.

m. NOD Received on or After June 20, 2007 –Representation Criteria

Per 38 CFR 14.636(c), fees may only be charged for representation provided after an NOD has been filed and there is a fee agreement between the claimant and the attorney or agent. Further, per 38 CFR 14.631(a), a claimant must authorize an attorney or agent to represent them. For representation initiated on or after June 23, 2008, this requires a VA Form 21-22a signed by both the claimant and the attorney or agent. For representation initiated before June 23, 2008, the VA Form 21-22a signed by both the claimant and the attorney or agent was used for this purpose. In the alternative, an attorney could submit a statement, on his or her letterhead stating that he or she is authorized to represent the claimant. Together, 38 CFR 14.631(a) and 38 CFR 14.636(c) require that, for fees to be payable, there must have been a valid declaration of representation between the claimant and the attorney or agent in effect (that is, having been received by VA and not having been subsequently revoked) at some point between the date of the NOD and the date of the decision awarding benefits (not the notification letter). As long as the valid declaration of representation was in effect at some time between the date when the first NOD was filed with respect to the claim and the time VA made the last decision on the same claim, this requirement is met. See Lippman v. Shinseki, 23 Vet. App. 243 (2009). The table below provides guidance on for whom the representation must have been provided, in order for fees to be payable:

If the benefit awarded is...	Then there must be a declaration of representation and a fee agreement between the attorney or agent and the...
Compensation (including dependency allowances)	Veteran
Pension (including dependency allowances)	Veteran
Dependency and Indemnity Compensation / Death Pension (including dependency allowances)	Survivor
Accrued Benefits	Survivor (This requirement applies even if there has been substitution.)
Apportionments	Apportionee

Reference: For guidance on referral for reasonableness review in cases involving multiple eligible attorneys or agents, see M21-1, Part I, 3.C.6.d.

n. NOD received on or after June 20, 2007 – Making the Decision

The table below provides guidance on making a decision on entitlement to direct payment of attorney fees in a case where the NOD was received on or after June 20, 2007.

If ...	Then ...
one or more of the representation requirements described above are not met	deny direct payment of fees send the decision notice in M21-1, Part I, 3.C.8, Exhibit 1, Decision Notice No Valid POA, or (as applicable) M21-1, Part I, 3.C.9, Exhibit 2, Decision Notice – No Fee Agreement and/or Valid POA (Survivor) separately send the decision notice to the claimant and the attorney, and take a 290 EP credit.
all of the requirements described above are met, and a portion of the claimant’s past due benefits have been withheld for payment of fees	award direct payment of fees generate the decision notice, Summary of Case Fee Decision Notice, using the Letter Creator on the Rating Job Aids page of the Compensation Service website separately send the decision notice to the claimant and the attorney, and take a 290 EP credit.
all of the requirements described above are met, and all of the past due benefits were released to the claimant without a portion being withheld for payment of fees	award direct payment of fees generate the decision notice, Summary of Case Fee Decision Notice, using the Letter Creator on the Rating Job Aids page of the Compensation Service website separately send the decision notice to the claimant and the attorney, and generate the due process notice Debt to Veteran for Failure to Withhold Attorney Fee Letter, using the Letter Creator on the Rating Job Aids page of the Compensation Service website Send the due process notice only to the claimant and representative, if any, at the same time as the fee eligibility is sent to the claimant and the attorney or agent, and after the due process period expires, send the claimant the final notice, Fee Recoupment Procedures – Final Notice, shown in M21-1, Part I, 3.C.13, Exhibit 6, and take a 290 EP credit. Note: The due process notice advises the claimant that VA has found the attorney or agent entitled to fees, and will be creating a debt against the claimant’s account at the same time that VA pays the attorney or agent.

Note: In any case where more than one attorney or agent is eligible for payment of fees, send the decision notice Direct-Pay Fee Decision Notice – Direct-Pay Fee Agreement Filed by More Than One Attorney/Agent in M21-1, Part I, 3.C.12, Exhibit 5 to each attorney/agent and the claimant along with appeal rights, and refer to M21-1, Part I, 3.C.6.d and f on reasonableness reviews based on eligibility of multiple attorney s/agents. Reference: For more information on calculation of attorney or agent assessments in cases involving a NOD received on or after June 20, 2007, see M21-1, Part I, 3.C.4.o, and releasing fees where an assessment is payable, see M21-1, Part I, 3.C.5.f.

o. Attorney or Agent Assessments

For cases where the NOD was received on or after June 20, 2007 VA will charge and collect an assessment out of the fees paid directly to attorneys and agents out of past due benefits awarded. See 38 CFR 14.636(h). The actual collection of the assessment amount does not occur until amounts withheld for fees are released and this in turn is dependent on whether there is an appeal on the fee eligibility decision as provided in M21-1, Part I, 3.5. However the AAFC must calculate the assessment at the time the fee decision is made. Information on the assessment must be included in the decision notice. Moreover the attorney or agent could potentially appeal the assessment or amount thereof. The amount of the assessment is 5 percent of the past due benefit payment, up to $100, each time fees are paid.