On November 28, 2012, the Court of Appeals for Veterans Claims (CAVC) issued an opinion in Cameron v. Shinseki. The CAVC held that the veteran’s attorney was not entitled to fees based upon a filed claim for increase in disability rating before the Regional Office (RO) when there was a concurrent, but separate, claim for a similar disability pending on appeal. Prior to the adjudication of the claim on appeal, the RO had granted the Veteran a 100% disability rating for major depression.
The opinion is fact specific, however, does provide an overview for when an attorney is entitled to attorney fees for representing a veteran before Department of Veterans Affairs (VA). In 2006, Congress amended Title 38 to relax the rules regarding paid representation before the VA. Under 38 U.S.C. § 5904(c)(1), attorneys or accredited agents can charge fees for services rendered after the institution of an Notice of Disagreement (NOD) “with respect to the case.”
The implementing rules regarding the award of attorney fees are contained within 38 C.F.R. § 14.636 and permit a VA-accredited attorney to charge “reasonable” fees once: (1) the VA has issued a decision on a claim beneficial to the claimant; (2) a NOD was filed with respect to that decision on or after June 20, 2007; and (3) the attorney had filed a power of attorney and fee agreement with the VA.
In lay terms, what does this mean for a veteran or claimant? In essense, an attorney can only obtain “reasonable” attorney fees (commonly 20% of retroactive back benefits) once the veteran wins on appeal. An attorney is not entitled to charge a veteran a fee for filing an application for benefits and is not entitled to future monthly benefits.
If you have any questions about your VA disability claim or are uncertain of the status of your claim, please do not hesitate to contact me for a free consultation at sdirector@FRE-L.com or (732) 382-6070.