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Snyder v. Secretary of Veterans Affairs

United States Court of Appeals, Federal Circuit

June 8, 2017

KEITH D. SNYDER, Petitioner

         Petition for review pursuant to 38 U.S.C. Section 502.

          Kenneth M. Carpenter, Law Offices of Carpenter Chartered, Topeka, KS, argued for petitioner.

          Shari A. Rose, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Eric Peter Bruskin, Scott D. Austin, Robert E. Kirschman, Jr., Benjamin C. Mizer; Y. Ken Lee, Bryan Thompson, Office of General Counsel, United States Department of Veterans Affairs.

          Before Moore, Taranto, and Chen, Circuit Judges.

          Moore, Circuit Judge.

         Keith D. Snyder petitions for review of a precedential opinion of the Department of Veterans Affairs' ("VA") General Counsel. Mr. Snyder requests that we hold unlawful and set aside the General Counsel opinion based on its misinterpretation of 38 U.S.C. §§ 5121 and 5904. For the reasons discussed below, we deny Mr. Snyder's petition.


         Mr. Snyder began representing a veteran, Larry S. Beck, in February 2001 pursuant to a fee agreement under 38 U.S.C. § 5904. The fee agreement required Mr. Beck to pay Mr. Snyder a fee "equal to 20 percent of the total amount of any past-due benefits awarded" for Mr. Beck's claim with the VA. J.A. 2. Eight months later, Mr. Snyder sent the Board of Veterans' Appeals ("Board") a letter stating "irreconcilable differences have arisen such that my continued representation of Mr. Beck is not possible, " and requested that his fee agreement be cancelled effective immediately. J.A. 31.

         In June and August 2003 the VA granted Mr. Beck service connection and awarded past-due benefits based on a 100% disability rating effective June 24, 1992. Despite the fact that he had terminated his representation of Mr. Beck nearly two years earlier, after Mr. Beck's victory, Mr. Snyder sought attorney fees pursuant to his § 5904 fee agreement based on the past-due benefits awarded to Mr. Beck. A VA regional officer ("RO"), based on Mr. Snyder's presentation of the initial fee agreement, determined that Mr. Snyder was entitled to $41, 920.47 (20% of the past-due benefits), which were to be deducted from the past-due benefits otherwise due to Mr. Beck. Because Mr. Snyder had terminated his representation of Mr. Beck and not participated in the nearly two years of proceedings which lead to Mr. Beck's successful recovery of his veteran's benefits, Mr. Beck contested the attorney fee award Mr. Snyder claimed he was entitled to. Mr. Beck filed a notice of disagreement objecting to Mr. Snyder's request for fees. On November 21, 2005, the Board remanded the fee determination back to the RO to readjudicate Mr. Snyder's eligibility for fees. Mr. Beck died in December 2006 while the fee dispute was pending.

         Mr. Beck's widow sought to recover the disputed fees in the form of accrued benefits. Accrued benefits are due and unpaid periodic monetary benefits "to which the individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death." 38 U.S.C. § 5121(a). A veteran's surviving spouse may recover accrued benefits upon the veteran's death. Id. § 5121(a)(2)(A). The RO denied Mrs. Beck's request for accrued benefits and Mrs. Beck pursued her claim with the Board.

         In February 2008, the Board issued two decisions related to the attorney fees dispute. The Board dismissed Mr. Beck's pending dispute over attorney fees pursuant to 38 C.F.R. § 20.1302, which requires dismissal of a veteran's pending appeal before the Board upon the veteran's death. The Board separately remanded Mrs. Beck's claim for accrued benefits to the RO. The RO determined Mrs. Beck could not recover the disputed attorney fees because her husband's claim ceased to exist upon his death and notified Mr. Snyder of his entitlement to $41, 920.47 in attorney fees. Mrs. Beck appealed the RO's determination and the Board requested an opinion from the VA's General Counsel.

         On December 3, 2015, the General Counsel published a precedential opinion stating in relevant part:

A claim, pending at the time of a veteran's death, challenging an attorney's entitlement to payment of attorney fees under section 5904 from the veteran's retroactive periodic monetary benefits may provide a basis for an accrued benefits claim under section 5121, because such a claim concerns entitlement to periodic monetary benefits allegedly due and unpaid to the veteran at the time of death.

J.A. 70. Mr. Snyder petitions for review of the General Counsel opinion pursuant to 38 U.S.C. ยง 502. Mr. Snyder and Mrs. Beck's attorney fee dispute ...

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