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

10. Exhibit 3: Decision Notice – No NOD Filed (Survivor)

Introduction

This topic contains a sample direct fee decision notice to send when, in a case involving a survivor, no NOD had been filed.

Change Date

July 31, 2015

a. Decision Notice – No NOD Filed (Survivor) Page 1

Below is page 1 of a sample notice to send in a case involving a survivor when a NOD has not been filed. Important: Use the same format below to send separately addressed notices to both the attorney or agent and the claimant.

[Attorney/Agent’s OR Claimant’s Name] [Attorney/Agent’s OR Claimant’s Address] Re: [Veteran’s claim number and claimant’s name] Dear [attorney/agent’s OR claimant’s name]: Summary of the Case An accredited^1 attorney or agent properly filed a valid direct-pay fee agreement per the provisions of 38 CFR 14.636(g) in the above-cited case. (See generally 38 CFR 14.636 for regulatory provisions relating to the payment of fees.) The fee agreement shows that the claimant and attorney/agent request that the Department of Veterans Affairs (VA) pay [percentage] of the claimant’s award of past-due benefits directly to the attorney/agent if all legal criteria for the payment of fees are met. In a rating decision dated [date], the following claims were awarded to the claimant: [list claims]. The amount of past-due benefits, which is computed from the effective date of the award through the date of the decision, is [amount]. Requirements for Direct Payment of Fees Per 38 U.S.C. 5904, fees may not be charged, allowed, or paid with respect to services of agents and attorneys before the date on which a notice of disagreement (NOD) is filed with respect to the case. In addition to the requirement that services must be performed after the filing of a NOD, VA’s regulation, 38 CFR 14.636(h), provides that if a fee agreement specifies that fees are to be paid directly by VA to an agent or attorney from past due benefits, the following requirements must be met for direct payment of fees: The total fee payable cannot exceed 20 percent of past-due benefits. The fee must be contingent on a favorable outcome, and The award of past-due benefits must result in a cash payment to the claimant. __________________________ ^1. Attorneys need not have been accredited under current 38 CFR 14.626-14.637 if representation was initiated, and the claim was filed, before the effective date of those regulations, June 23, 2008.

b. Decision Notice – No NOD Filed (Survivor) Page 2

Below is page 2 of a sample notice to send in a case involving a survivor when a NOD has not been filed.

For NODs filed on or after June 20, 2007, if the above conditions are met, fees may be paid directly to the agent or attorney. In addition to the above requirements, section 14.636(c)(2) provides that for NODs filed on or before June 19, 2007, agents and attorneys may charge only for services provided after both of the following additional conditions have been met: A final decision was promulgated by the Board of Veterans’ Appeals (BVA) with respect to the issue, or issues, involved in the appeal, and The attorney or agent was retained not later than one year following the date that the BVA decision was promulgated. This condition will be met with respect to all successor attorneys or agents acting in the continuous prosecution of the same matter if the predecessor was hired within the required timeframe. This limitation does not apply if the agent or attorney was retained while the case was pending before a court. What We Decided and Why There was no NOD filed at any time in connection with the award in this case. As a result, direct payment of fees is denied. A survivor’s entitlement to benefits is separate and distinct from the entitlement of the deceased veteran or another survivor. Therefore, an NOD filed by one of those individuals is not sufficient to support eligibility for direct payment of fees in this case. See Hyatt v. Shinseki, 566 F.3d 1364, 1367 (Fed. Cir. 2009); Hanlin v. Nicholson, 19 Vet. App. 350, 354-355 (2005). If You Think We Are Wrong If you disagree with this determination, you may file a notice of disagreement with this decision. For more information on filing an appeal, see the enclosed VA Form 4107c, Your Rights to Appeal Our Decision – Contested Claims. Sincerely, Veterans Service Center Manager OR Pension Management Center Manager Enclosure: VA Form 4107c

11. Exhibit 4: Decision Notice – No Cash Payment to the Claimant

Introduction

This topic contains a sample direct fee decision notice to send when there has not been any cash payment to the claimant.

Change Date

July 31, 2015

a. Decision Notice – No Cash Payment, Page 1

Below is page 1 of a sample notice to send in a case where there has not been any cash payment to the claimant. Important: Use the same format below to send separately addressed notices to both the attorney or agent and the claimant.

[Attorney/Agent’s OR Claimant’s Name] [Attorney/Agent’s OR Claimant’s Address] Re: [Veteran’s claim number and claimant’s name] Dear [attorney/agent’s OR claimant’s name]: Summary of the Case An accredited^1 attorney or agent properly filed a valid direct-pay fee agreement per the provisions of 38 CFR 14.636(g) in the above-cited case. (See generally 38 CFR 14.636 for regulatory provisions relating to the payment of fees.) The fee agreement shows that the claimant and attorney/agent request that the Department of Veterans Affairs (VA) pay [percentage] of the claimant’s award of past-due benefits directly to the attorney/agent if all legal criteria for the payment of fees are met. In a rating [or Court or Board of Veterans’ Appeals] decision dated [date], the following claims were awarded to the claimant: [list claims]. The amount of past-due benefits, which is computed from the effective date of the award through the date of the decision, is subject to offset due to the claimant’s [insert reason for offset [e.g. concurrent receipt of military retired pay, recoupment of a prior overpayment]]. Therefore, this award will not result in a cash payment of past-due benefits to the veteran. Requirements for Direct Payment of Fees Per 38 U.S.C. 5904, fees may not be charged, allowed, or paid with respect to services of agents and attorneys before the date on which a notice of disagreement (NOD) is filed with respect to the case. In addition to the requirement that services must be performed after the filing of a NOD, VA’s regulation, 38 CFR 14.636(h), provides that if a fee agreement specifies that fees are to be paid directly by VA to an agent or attorney from past due benefits, the following requirements must be met for direct payment of fees: The total fee payable cannot exceed 20 percent of past-due benefits. The fee must be contingent on a favorable outcome, and The award of past-due benefits must result in a cash payment to the claimant. __________________________ ^1. Attorneys need not have been accredited under current 38 CFR 14.626-14.637 if representation was initiated, and the claim was filed, before the effective date of those regulations, June 23, 2008.

b. Decision Notice – No Cash Payment, Page 2

Below is page 2 of a sample notice to send in a case where there has not been any cash payment to the claimant.

For NODs filed on or after June 20, 2007, if the above conditions are met, fees may be paid directly to the agent or attorney. In addition to the above requirements, section 14.636(c)(2) provides that for NODs filed on or before June 19, 2007, agents and attorneys may charge only for services provided after both of the following additional conditions have been met: A final decision was promulgated by the Board of Veterans’ Appeals (BVA) with respect to the issue, or issues, involved in the appeal, and The attorney or agent was retained not later than one year following the date that the BVA decision was promulgated. This condition will be met with respect to all successor attorneys or agents acting in the continuous prosecution of the same matter if the predecessor was hired within the required timeframe. This limitation does not apply if the agent or attorney was retained while the case was pending before a court. What We Decided and Why The NOD in this case was filed on [date]. Based upon the law in effect at the time the NOD was filed, direct payment of fees is denied. Direct payment of fees is denied because the following requirement has not been met: The award of past-due benefits did not result in a cash payment to the claimant. [Insert this sentence if the offset was due to concurrent receipt of military retired pay and the veteran may be entitled to CRDP or CRSC.] In the event that the Department of Defense determines that the veteran is eligible for concurrent receipt of military retired pay and VA Compensation, thereby creating a cash payment to the veteran, VA will issue another decision regarding direct payment of attorney fees]. If You Think We Are Wrong If you disagree with this determination, you may file a notice of disagreement with this decision. For more information on filing an appeal, see the enclosed VA Form 4107c, Your Rights to Appeal Our Decision – Contested Claims. Sincerely, Veterans Service Center Manager OR Pension Management Center Manager Enclosure: VA Form 4107c