Jackson: What Happens to the Attorney Fee when the Veteran Dies

Francis J. Jackson v. Shinseki, Opinion Number 12-0738, was decided March 6, 2014 and concerns the what happens to the attorney fee agreement when the veteran dies after a favorable decision granting service connection but before the Regional Office implements that decision by assigning a disability rating and effective date and paid the funds to the surviving spouse.

The Court determined the amount stated as the award for success in pursuant of a claim for benefits had not been determined at the veteran’s death.  The Court admits the accrued benefits claim is derivative of the veteran’s claim for service connection and the accrued benefits claimant is only entitled to what was properly due the veteran at the time of his death, but which was unpaid.

The attorney argued that because the claim for accrued benefits was derivative of the veteran’s claim the award of past due benefits to the spouse was on the basis of the veteran’s claim and that award satisfied the final requirement for him to be paid in fulfillment of his agreement with the veteran.  The Court instead found the spouse was a separate claimant from her husband she was never a part of the fee agreement and thus the attorney cannot collect a percentage of the spouse’s accrued benefits award.

Judge Schoelen dissented and found the result was absurd because essentially he was “not entitled to collect a fee for legal services provided to the veteran because the regional office (RO) failed to calculate the amount of past-due benefits owed to the veteran prior to his death.”  Id. at *12.  Judge Schoelen found the “past-due benefits were, in fact, awarded” and focused on the fact the accrued benefits claim was entirely derivative of the veteran’s claim.

Judge Schoelen laid out a path to a challenge of the majority’s decision by saying the statute and regulation regarding attorney fees do not speak to the precise issue presented by the facts of this case and then finding “it is illogical to conclude that her claim, the substance of which is purely derivative of the veteran’s claim, can result in a payment of accrued benefits that is greater than what the veteran would have been entitled to receive but for the unfortunate timing of his death.”  Id. at *14.

She also found the majority holding is inconsistent with Congress’s desire to promote freedom for VA claimants to obtain access to judicial review and secure capable legal representation.  Id. at *16.  She acknowledged some attorneys might avoid very old and infirm veteran’s for fear of death, especially in light of the fact it takes the VA 923 days to process an appeal from the time a claimant files a Notice of Disagreement.

This case represents another attempt by the VA to limit the ability of claimant’s to obtain legal representation. Unfortunately, the Court went along with the reasoning. However, Judge Schoelen’s piercing dissent offers a perfect basis for an appeal, which has been filed with the federal circuit court of appeals.

Decision by Judge Moorman and joined by Judge Davis.  A dissenting opinion was filed by Judge Schoelen.