Excerpt from decision below:
“All the issues in this case ultimately turn on the meaning of § 3.652(b). As to the contingency fee, under the version of the statute applicable to this case, “in connection with a
proceeding before the Department . . . , a fee may not be charged, allowed, or paid for services of agents and attorneys with respect to services provided before the date on which a notice of disagreement is filed with respect to the case.”4 38 U.S.C. § 5904(c)(1) (2012). Thus, a contingency fee is only permissible if the April 30, 2014, document submitted by Mr. Perciavalle on the veteran’s behalf constitutes a valid and timely NOD as to the April 22, 2014, rating decision. At the time of the appellant’s submission, an NOD was defined as “[a] written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result.” 38 C.F.R. § 20.201 (2014)”
JAMES J. PERCIAVALLE, APPELLANT,
ROBERT L.WILKIE, SECRETARY OF VETERANS AFFAIRS,APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Argued September 17, 2019 Decided October 25, 2019)
Michael S. Just, of Providence, Rhode Island, for the appellant. Dustin P. Elias, with whom James M. Byrne, General Counsel; Mary Ann Flynn, Chief Counsel; and Richard A. Daley, Deputy Chief