Veteranclaims’s Blog

January 29, 2022

Single Judge Application; attorney fees; Notice of Disagreement filed before June 19, 2007, the relevant standard for the award of fees is found in 38 C.F.R. § 14.636(c);

Designated for electronic publication only
No. 20-8608
Before ALLEN, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
ALLEN, Judge: Appellant Sean A. Ravin is a lawyer who represented veteran Curtis D.
Skogsbergh. Mr. Skogsbergh served the Nation honorably in the United States Air Force from
April 1966 to February 1970.1 Appellant appeals a December 15, 2020, decision of the Board of
Veterans’ Appeals that denied entitlement to attorney fees based on past due benefits awarded to
the veteran in a February 2018 rating decision granting entitlement to a total disability rating based
on individual unemployability (TDIU).2 As we will explain, we will vacate the Board’s decision
and remand this matter for further proceedings.
As will become clear, the reason the Court will vacate the Board’s decision and remand
this matter is quite straightforward. However, to understand the bases for our decision, it’s helpful
to have a chronology of the veteran’s claims and appellant’s role in them.
1 Record (R.) at 6162.
2 R. at 3-11.
In July 1970, shortly after he left service, VA granted the veteran service connection for a
lumbosacral strain and assigned a 10% disability for that condition.3 Fast forwarding, in a July
2002 rating decision a VA regional office (RO) granted the veteran an increase to 20% in his
disability rating for the lumbosacral strain.4 The veteran disagreed with this decision.5
During the course of his appeal, namely in November 2006, the veteran submitted a
statement to VA concerning the effect his service-connected disabilities had on his ability to work.6
After treating the statement as a request for TDIU, the RO denied entitlement to TDIU in a May
2007 rating decision.7
The veteran’s administrative appeal concerning his lumbosacral strain rating reached the
Board, which, in January 2010, issued a decision that denied a disability rating greater than 20%
for that condition.8 The Board did not mention entitlement to TDIU.9 Acting pro se, the veteran
appealed the Board’s decision to the Court.10 In October 2010, appellant entered his appearance
for the veteran with the Court.11 In December 2011, the Court issued a memorandum decision
vacating the Board decision, holding that the Board erred by not addressing entitlement to TDIU.12
With the matter back at the Agency, in January 2012 the veteran and appellant filed a VA
Form 21-22a and a fee agreement with VA.13 In July 2012, the Board remanded the matter.14 After
a rather long period about which we’ve not been provided details, a February 2018 rating decision
granted the veteran entitlement to TDIU effective June 9, 2005.15 The RO later calculated the past
3 R. at 6126.
4 R. at 5750-52. The RO also granted the veteran service connection for hearing loss.
5 R. at 5672-76.
6 R. at 4636-40.
7 R. at 4600-14.
8 R. at 4407-36.
9 Id.
10 R. at 3948-52.
11 Id.
12 R. at 3981-87.
13 R. at 3955-62.
14 R. at 3889-917.
15 R. at 1124-31.
due TDIU benefits for the veteran to be $193,196.16 and it withheld payment of 20% of that
amount ($38,361.91) for potential payment to appellant as attorney fees.16
After originally sending the notice to an incorrect address, the RO sent appellant a letter in
June 2019 denying entitlement to fees.17 The RO also released the withheld $38,361.91 to the
veteran.18 Appellant disagreed with the RO’s fee decision and elected direct review to the Board.19
This led to the decision on appeal in which the Board also denied entitlement to fees.
We’ll begin with the significant agreements between the parties. First, the parties agree—
and the Court concurs—that because the Notice of Disagreement that is germane to the dispute
was filed before June 19, 2007, the relevant standard for the award of fees is found in 38 C.F.R. §
, particularly as follows:
(2) In cases in which a Notice of Disagreement was filed on or before June
19, 2001, agents and attorneys may charge a fee 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 agent or attorney was retained not later than 1 year following the
date that the decision by the Board was promulgated. (This condition will
be considered to have been met with respect to all successor agents or
attorneys acting in the continuous prosecution of the same matter if a
predecessor was retained within the required time period.) [20]
The second ground of agreement is that the Board erred when it determined that the January
2010 Board decision (the relevant decision for fee purposes) was not a final Board decision for
purposes of the regulation. The Board reasoned that the January 2010 decision did not qualify for
fee purposes because “the Court vacated the Board’s decision and remanded TDIU for further
adjudication. Therefore, the January 2010 decision was not a final Board decision.”21
16 R. at 1106.
17 R. at 758-64.
18 R. at 1056.
19 R. at 232-35.
20 38 C.F.R. § 14.636(c)(2)(i) (2008).
21 R. at 8.
As the Secretary concedes,22 the Board’s conclusion that its January 2010 decision was not
a final decision because the Court vacated it was incorrect. The law is clear that such an action by
the Court does not render the Board’s decision non-final for purposes of an award of fees.23 So,
that resolves the question whether the Board erred. It did.
And this brings us to the disagreement between the parties. The Secretary argues that even
though the Board erred when it determined the January 2010 did not qualify as a final decision for
fee purposes, the error was harmless. He reasons that the facts are clear that appellant does not
qualify for a fee under the regulation because he did not file a fee agreement at the Agency within
1 year of the January 2010 Board decision. In reply, appellant argues that the Board favorably
found that the agreement was valid and properly filed, thereby preventing the Court from
addressing that issue.
We conclude that the Board’s decision is ambiguous on the question that divides the parties.
The Board stated: “The Board finds the [fee] agreement to be valid, as it was properly filed with
VA and contains all the required information in accordance with 38 C.F.R. § 14.636(g).”24 This
statement could—could—support appellant’s view that the Board favorably found that all the
requirements for receipt of fee other than a final Board decision had been established. But the
statement is also consistent with the Secretary’s view that the Board was merely making a general
comment about the nature of the fee agreement that was filed, regardless of the requirement that it
be filed within a year of a Board decision. The reality is that we can’t tell. The best course is to
remand this issue for the Board to specifically address it. And we remind the Board that it must
fully explain its decision, including addressing its previous finding we quoted above.
After consideration of the parties’ briefs, the governing law, and the record, the Court SETS
ASIDE the December 15, 2020, Board decision and REMANDS this matter for further
proceedings consistent with this decision.
22 See Secretary’s Brief (Br.) at 6.
23 See In the Matter of the Fee Agreement of Cox, 11 Vet.App. 158, 162 (1998); In the Matter of the Fee Agreement
of Smith, 10 Vet.App. 311, 314 (1997).
24 R. at 5-6.
DATED: January 27, 2022
Copies to:
Sean A. Ravin, Esq.
VA General Counsel (027)

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