Viterna v. McDonough — VA may determine whether a fee agreement covers the claim that generated past-due benefits

Michael Viterna sought direct payment of attorney fees from past-due DIC benefits awarded to his client, Pauline Pitts. Although the fee agreement provided for a 20% contingency fee, it expressly applied only to claims for which the notice of disagreement was filed after June 20, 2007. Pitts’s NOD in the underlying claim had been filed in 2005. VA therefore refused to withhold and pay fees from the award, the Board affirmed, and the Veterans Court agreed that VA could determine whether the agreement covered the claim before authorizing payment.

The Federal Circuit affirmed. The court interpreted 38 U.S.C. § 5904(d) to mean that VA may pay attorney fees only from past-due benefits awarded on the basis of the claim covered by the fee agreement. Because the agreement here excluded the claim that resulted in the award, there was no qualifying agreement for direct payment from those benefits. The court rejected the argument that VA’s authority was limited to checking reasonableness or formal validity and relied in part on Scates v. Principi to explain that fee entitlement depends on the agreement’s scope as applied to the claim that generated the award. The court expressly declined to address whether the contract could be reformed based on mutual mistake.

Under 38 U.S.C. § 5904(d), VA may determine whether a fee agreement applies to the specific claim that produced the past-due benefits and may refuse direct payment if the agreement does not cover that claim.

A fee agreement must match the claim that generated the award. Even a facially valid contingent-fee agreement will not support direct payment from past-due benefits if its own terms exclude the underlying claim.

The case gives VA authority to look at contract scope, not just fee percentage and filing mechanics, before disbursing attorney fees. It is a useful citation for disputes where counsel seeks payment from benefits awarded on a different claim or a claim outside the agreement’s temporal scope.

An attorney signs a fee agreement covering only claims with NODs filed after a certain date, but the veteran’s past-due award comes from an older NOD filed before that date. VA may deny direct payment from the award because the agreement does not cover that claim.

Use this case when arguing that fee entitlement turns on whether the agreement actually encompasses the award-producing claim. It also supports opposing direct-payment requests when counsel relies on a generalized or mismatched fee contract.

Scates v. Principi, Ravin v. Wilkie