KEITH D. SNYDER, Petitioner
SECRETARY OF VETERANS AFFAIRS, Respondent
for review pursuant to 38 U.S.C. Section 502.
Kenneth M. Carpenter, Law Offices of Carpenter Chartered,
Topeka, KS, argued for petitioner.
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.
Moore, Taranto, and Chen, Circuit Judges.
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
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.
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.
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.
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
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
J.A. 70. Mr. Snyder petitions for review of the General
Counsel opinion pursuant to 38 U.S.C. § 502. Mr. Snyder
and Mrs. Beck's attorney fee dispute ...