Jackson v. Shinseki, 26 Vet.App. 460 (Mar. 6, 2014)
ATTORNEY FEE, ACCRUED BENEFITS
An attorney is not entitled to a fee where the veteran/client died before the Regional Office implemented a favorable Board decision and where the veteran’s surviving spouse was subsequently awarded accrued benefits without signing a fee agreement and without having filed an appeal (i.e., the spouse was awarded accrued benefits on the initial application). [Note: this is a pre-2008 accrued benefits claim – so the veteran’s surviving spouse was not able to substitute for the veteran.]
The attorney in this case successfully represented the veteran in an appeal to the Board. The Board awarded service connection, but the veteran died before the RO implemented the decision. The RO denied the attorney fee because no award had been paid. The attorney submitted the surviving spouse’s accrued benefits application – and the RO awarded the claim. The Board upheld the denial of the attorney’s fee because the prior Board award “did not result in any cash payment to the Veteran.” Jackson, 26 Vet.App. at 461-62. The CAVC affirmed, finding that “a determination of service connection is not an ‘award of past-due benefits’ as contemplated by 38 U.S.C. § 5904(d), and no award was thus made in connection with [the veteran’s] claim.” Id. at 467. In a footnote, the Court recognized that its holding did not apply to post-2008 cases involving substitution. Id. n. 2.
In her dissent, Judge Schoelen pointed out the “absurd result” of an accrued benefits claimant collecting more cash benefits than what was actually “due and unpaid” to the veteran at the time of death.