Snyder v. Sec’y of VA, 858 F.3d 1410 (Fed. Cir. June 8, 2017)

HELD: A veteran’s surviving spouse can seek to recover a disputed attorney fee after the veteran’s death pursuant to 38 U.S.C. § 5121.

SUMMARY: Attorney Keith Snyder began representing veteran Larry Beck pursuant to a February 2001 fee agreement that called for the payment of 20% of any past-due benefits awarded. Less than a year after entering into the agreement, Attorney Snyder asked the Board of Veterans’ Appeals to revoke his representation, stating that “irreconcilable differences” made his “continued representation of Mr. Beck . . . not possible,” and asked the Board to cancel his fee agreement immediately.

Two years later, VA granted the veteran’s appeal, and awarded past-due benefits at the 100% disability rate, retroactive to June 1992. Despite the fact that Attorney Snyder had terminated representation two years earlier, he still sought attorney fees pursuant to the fee agreement. He presented a copy of that fee agreement to the VA Regional Office (RO), which determined that he was entitled to an attorney fee of over $41,000 and withheld that fee from the past-due benefits award.

The veteran appealed this decision and sought to recover the withheld attorney fee. In November 2005, the Board remanded this matter back to the RO to readjudicate the issue of whether Mr. Snyder was entitled to the attorney fee. In December 2006, while the appeal was still pending, Mr. Beck passed away.

His widow filed an accrued benefits claim, seeking to recover the disputed fee. The RO denied the accrued benefits claim, and Mrs. Beck appealed to the Board. In 2008, the Board dismissed the veteran’s appeal pursuant to 38 C.F.R. § 20.1302 (extinguishing appeal upon veteran’s death) and remanded Mrs. Beck’s claim back to the RO.

The RO again determined that Mrs. Beck “could not recover the disputed attorney fee because her husband’s claim ceased to exist upon his death.” Mrs. Beck again appealed this decision, and the Board requested a VA General Counsel precedent opinion.

In December 2015, VA’s Office of the General Counsel issued an opinion, stating:

A claim, pending at the time of a veteran’s death, challenging an attorney’s entitlement to payment of attorney fees . . . may provide a basis for an accrued benefits claim under [38 U.S.C. §] 5121, because such a claim concerns entitlement to periodic monetary benefits allegedly due and unpaid to the veteran at the time of death.

While this appeal was pending at the Board, Attorney Snyder petitioned the Federal Circuit to review the General Counsel Precedent Opinion pursuant to 38 U.S.C. § 502, which authorizes the Federal Circuit to review agency actions that must be published in the Federal Register and VA’s rulemaking under the Administrative Procedures Act (APA), unless “such review is sought in connection with an appeal” to the Board. If that is the case, then the laws under chapter 72 – relating to Board appeals – apply.

The Secretary argued that the Federal Circuit lacked jurisdiction over this petition “because Mr. Snyder seeks review of VA action in connection with his case before the Board.” The Secretary also argued that the Federal Circuit lacked jurisdiction to review General Counsel Precedent Opinions issued in response to a Board request.

The Court rejected both arguments – yet denied the petition.

The Federal Circuit first noted that General Counsel Precedent Opinions must be published in the Federal Register and are binding on the Board. The fact that this opinion was issued in response to a Board request did not change the Court’s conclusion, since there is nothing in the relevant statute that limits the Court’s “review to only some precedential General Counsel opinions.” The only limitation would be “if Mr. Snyder sought review of the opinion in connection with his appeal.” However, the Court determined that Mr. Snyder sought review under 38 U.S.C. § 502, which applies to the General Counsel Precedent Opinion.

The Secretary argued that this position would be inconsistent with the Federal Circuit’s holding in Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 308 F.3d 1262 (Fed. Cir. 2002). The Court rejected this argument, citing an earlier case, Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000), which held that the Court had jurisdiction to review precedential opinions issued in response to a Board request. The Court stated that “[w]hen two cases decided by our court are in apparent conflict, we adopt the first in time and follow it.”

Turning its review to the General Counsel Precedent Opinion, the Court determined that it would have reached the same conclusion as the General Counsel. The Court explained that 38 U.S.C. § 5904 “provides for the payment of attorney fees from ‘past-due benefits awarded on the basis of the claim’ in which the attorney represented the veteran” and which are deducted from veteran’s past-due benefits award. Section 5121 “provides for the recovery of ‘[p]eriodic monetary benefits … due and unpaid’ at the time of a veteran’s death based on ‘existing ratings or decisions or those based on evidence in the file at date of death.’” Because attorney fees are deducted from a past-due benefits award, a dispute over such fees constitutes a dispute over the award. An accrued benefits claimant can seek to recover those fees because her clam is one “of entitlement to periodic monetary benefits allegedly due and unpaid to the veteran.” The fact that 38 C.F.R. § 20.1302 requires an appeal to be dismissed upon a veteran’s death is irrelevant to a claim for accrued benefits.

The Court upheld the General Counsel Precedent Opinion, stating: “If the evidence on file at the date of the veteran’s death shows entitlement to due and unpaid periodic monetary benefits, an accrued benefits claimant can pursue those benefits under § 5121.”