United States Court of Appeals 

for the Federal Circuit ______________________ 

MICHAEL R. VITERNA,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2022-1061

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 19-2940, Judge Joseph L. Toth.

______________________ 

Decided: April 20, 2023

______________________ 

KENNETH M. CARPENTER, Law Offices of Carpenter 

Chartered, Topeka, KS, argued for claimant-appellant. 

 NATHANAEL YALE, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented 

by BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.

MCCARTHY; NATHAN KROES, CHRISTA A. SHRIBER, Office of 

General Counsel, United States Department of Veterans 

Affairs, Washington, DC. 

 ______________________ 

Case: 22-1061 Document: 34 Page: 1 Filed: 04/20/2023
2 VITERNA v. MCDONOUGH

Before DYK, LINN, and CHEN, Circuit Judges.

DYK, Circuit Judge. 

Michael R. Viterna appeals a decision of the United 

States Court of Appeals for Veterans Claims (“Veterans 

Court”). The Veterans Court affirmed a Board of Veterans’ 

Appeals (“Board”) decision affirming the Department of 

Veterans Affairs (“VA”) determination that it would not 

pay Mr. Viterna attorneys’ fees because he was not owed 

such fees under his agreement with his client. Mr. Viterna 

argues that the VA does not have the statutory authority 

to interpret and apply the agreement. We affirm. 

BACKGROUND

I 

Before 1988, Congress barred attorneys from charging 

more than $10 per claim to represent claimants before the 

VA. See Stanley v. Principi, 283 F.3d 1350, 1355 (Fed. Cir. 

2002). In 1988, Congress enacted the Veterans’ Judicial 

Review Act (“Review Act”), Pub. L. No. 100–687, 102 Stat. 

4105 (1988). That statute “allow[ed], for the first time, judicial review of VA decisions.” Mil.-Veterans Advoc. v. Sec’y 

of Veterans Affs., 7 F.4th 1110, 1135 (Fed. Cir. 2021). 

“[R]ecognizing the importance of retaining legal counsel in 

both judicial proceedings and administrative appeals,” 

Congress relaxed “the [then-]existing limitations on attorneys’ fees.” Id. In doing so Congress viewed the existence 

of written fee agreements as critical. 

Congress provided that when there is an agreement 

stating that the fee “is to be paid to the . . . attorney . . . 

directly from any past-due benefits awarded on the basis of 

the claim,” 38 U.S.C. § 5904(d)(2)(A)(i), the VA will disburse fees directly to the attorney up to a maximum of 20%

of the proceeds from “past-due benefits awarded on the 

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VITERNA v. MCDONOUGH 3

basis of the claim.” Id. § 5904(d)(1).1 See Ravin v. Wilkie, 

956 F.3d 1346, 1349–50 (Fed. Cir. 2020); Scates v. Principi, 

1 Subsection 5904(d) was previously codified at 

§ 3404(d). See Review Act, Pub. L. No. 100–687, § 104, 102 

Stat. at 4108–09. The current provision reads in full: 

(d) Payment of fees out of past-due benefits.—(1) 

When a claimant and an agent or attorney have entered into a fee agreement described in paragraph 

(2), the total fee payable to the agent or attorney 

may not exceed 20 percent of the total amount of 

any past-due benefits awarded on the basis of the 

claim.

(2)(A) A fee agreement referred to in paragraph (1) 

is one under which the total amount of the fee payable to the agent or attorney— 

(i) is to be paid to the agent or attorney by 

the Secretary directly from any past-due 

benefits awarded on the basis of the claim; 

and

(ii) is contingent on whether or not the matter is resolved in a manner favorable to the 

claimant. 

(B) For purposes of subparagraph (A), a claim shall 

be considered to have been resolved in a manner 

favorable to the claimant if all or any part of the 

relief sought is granted.

(3) To the extent that past-due benefits are 

awarded in any proceeding before the Secretary, 

the Board of Veterans’ Appeals, or the United 

States Court of Appeals for Veterans Claims, the 

Secretary may direct that payment of any fee to an 

agent or attorney under a fee arrangement 

Case: 22-1061 Document: 34 Page: 3 Filed: 04/20/2023
4 VITERNA v. MCDONOUGH

282 F.3d 1362, 1366 (Fed. Cir. 2002). Attorneys were required to file fee agreements with the Board, which could 

“review such a fee agreement and . . . order a reduction in 

the fee called for . . . if [it] finds that the fee is excessive or 

unreasonable.” Review Act, Pub. L. No. 100–687, § 104(a), 

102 Stat. at 4108 (codified as amended at 38 U.S.C. 

§ 5904(c)(3)(A)). 

Between 1988 and 2006, attorneys were only allowed 

to charge fees for representing claimants in VA proceedings 

after the Board “first [made] a final decision in the case.” 

Mil.-Veterans Advoc., 7 F.4th at 1135 (citation omitted). In 

2006, Congress amended § 5904 to allow attorneys to 

charge for VA representation earlier in the process—as 

soon as a claimant had filed a Notice of Disagreement 

(“NOD”) seeking review of an adverse regional office 

(“R.O.”) decision. See Veterans Benefits, Health Care, and 

Information Technology Act of 2006, Pub. L. No. 109–461,

§ 101(c), 120 Stat. 3403, 3407 (codified at 38 U.S.C. 

§ 5904(c)(1)). This change was effective June 20th, 2007. 

See Pub. L. No. 109–461, § 101(h), 120 Stat. at 3408; Cameron v. McDonough, 1 F.4th 992, 994–96 (Fed. Cir. 2021).2 

Under the current statute, the Secretary of Veterans 

Affairs “may, upon the Secretary’s own motion or at the request of the claimant, review a fee agreement filed pursuant to [§ 5904(c)(2)] and may order a reduction in the fee

called for in the agreement if the Secretary finds that the 

fee is excessive or unreasonable.” 38 U.S.C. § 5904(c)(3)(A). 

described in paragraph (1) be made out of such 

past-due benefits.

2 Congress has subsequently permitted fee-based 

representation even earlier in the administrative process, 

but that change is not relevant here. See Mil.-Veterans Advoc., 7 F.4th at 1136.

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VITERNA v. MCDONOUGH 5

Such determinations are reviewable by the Board. See id. 

§§ 5904(c)(3)(B), 7104(a).

II

In this case, Pauline O. Pitts, the surviving spouse of a 

U.S. Army veteran, filed for dependency and indemnity 

compensation from the VA in 2001. After the R.O. denied 

the claim, Ms. Pitts filed an NOD, which the agency received on October 17, 2005. After further proceedings not 

relevant here, Ms. Pitts appealed the denial of her benefits 

to the Board, which after a remand continued the denial. 

In 2012, Ms. Pitts employed Mr. Viterna to represent 

her before the VA. The following year, she and Mr. Viterna 

signed a fee agreement, which was filed with the VA. The 

agreement provided that Mr. Viterna was owed 20% of any 

past-due benefits Ms. Pitts recovered, less certain expenses. By its terms, the agreement did not apply to the 

2001 claim, because it was “only effective as to those claims 

for which a notice of disagreement (NOD) has been filed 

after June 20th, 2007,” Joint Appendix (“J.A.”) 61, and the 

NOD covering that claim had been filed in 2005. This provision of the agreement was apparently designed to take 

account of the prevailing statute limiting attorneys’ fees for 

work performed as to NODs filed before June 20th, 2007 

for which there was no first final Board decision. Mr. 

Viterna asserts that the date in this limitation was an “unintentional drafting error.” J.A. 7. Because Mr. Viterna’s 

services were performed after the Board made a first final 

decision in this case, there was no statutory bar to his receiving fees as to this claim. In 2014, Mr. Viterna secured 

past-due benefits on Ms. Pitts’ dependency and indemnity

claim, which related back to the NOD filed in 2005. 

By regulation, the agency with original jurisdiction 

over a claim “shall determine whether an . . . attorney is 

eligible for fees” drawn from past-due benefits. 38 C.F.R. 

§ 14.636(c)(4). Here, the agency of original jurisdiction (the 

R.O.) informed Mr. Viterna that it would not pay him 20%

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6 VITERNA v. MCDONOUGH

of Ms. Pitts’ past-due benefits because her NOD in the case 

had been filed in 2005, and their fee agreement only covered NODs filed after June 20th, 2007.3 Mr. Viterna appealed, arguing that, despite the agreement, he was 

entitled to a fee. The Board affirmed. 

Mr. Viterna then appealed to the Veterans Court. He 

argued that Congress only gave the VA the power to assess 

whether a fee agreement was valid and if its terms were 

excessive or unreasonable—not whether the agreement 

covered the claim at issue in the first place. The court disagreed. It held that “the [VA] has the authority to review 

a fee agreement for the purposes of determining whether it 

applies to the claim for which it is being proffered because 

that is a predicate act necessarily implied by the [VA’s] explicit statutory responsibilities.” J.A. 6; see also J.A. 5 (“Before VA can determine whether an agreement is valid or 

whether an attorney is eligible for fees . . . the Agency must 

ascertain whether the agreement even applies to the specific claim to which it is purported to apply.”). 

Mr. Viterna appeals. We have jurisdiction under 38 

U.S.C. § 7292, and we review statutory interpretations by 

the Veterans Court without deference. See Stanley, 283 

F.3d at 1354. 

DISCUSSION

Mr. Viterna argues that the VA could not refuse to pay 

him pursuant to the agreement because it lacks the power 

to ensure that its attorney fee withholdings “compl[y] with 

the provisions of . . . § 5904(d).” Appellant’s Br. 11; see also 

Appellant’s Br. 13. We disagree. 

3 At about this same time, Ms. Pitts wrote to the VA 

noting that she was dissatisfied with Mr. Viterna’s performance and requesting that it no longer recognize him as 

her attorney. 

Case: 22-1061 Document: 34 Page: 6 Filed: 04/20/2023
VITERNA v. MCDONOUGH 7

The VA will only pay fees pursuant to agreements between attorneys and clients in which “the total amount of 

the fee payable to the . . . attorney [under the agreement] 

. . . is to be paid . . . by the [VA] directly from any past-due 

benefits awarded on the basis of the claim.” 38 U.S.C. 

§ 5904(d)(2)(A) (emphasis added). Subsection 5904(d) also 

provides that “the total fee payable to the . . . attorney may 

not exceed 20 percent of the total amount of any past-due 

benefits awarded on the basis of the claim.” Id. § 5904(d)(1) 

(emphasis added). 

In other words, the VA may draw on past-due benefits 

to pay attorneys what they are owed under agreements 

that cover “the claim” that resulted in the award of “pastdue benefits.” Id. To accomplish that task, the VA must 

determine whether an agreement covers claims that resulted in the past-due benefits. Here, as the Veterans 

Court found, there was no qualifying agreement between 

Mr. Viterna and Ms. Pitts providing for a payment of a fee 

for the claim in question. The agreement provided only 

that Ms. Pitts had agreed to pay Mr. Viterna for claims 

with NODs filed after June 20th, 2007, and no such claim 

had resulted in the award of past-due benefits. 

Mr. Viterna admits that Ms. Pitts’ claim was not covered by their contract. See Oral Arg. at 3:50–4:15. But he 

argues that because their agreement was valid under 

§ 5904—in that it was contingent on securing benefits, 

charged a reasonable and permissible fee, and covered 

work in a period permitted by Congress—the VA cannot 

decline to pay him out of the claim award. See Appellant’s 

Br. 9–10. We disagree.

Subsection 5904(d) only permits the VA to pay attorneys’ fees on the basis of agreements that require payment 

from “past-due benefits awarded on the basis of the claim,” 

38 U.S.C. § 5904(d)(1), (d)(2)(A)(i), and as the Veterans 

Court found, the agreement here did not apply to the claim 

that resulted in past-due benefits. The fact that Mr. 

Case: 22-1061 Document: 34 Page: 7 Filed: 04/20/2023
8 VITERNA v. MCDONOUGH

Viterna’s agreement could have validly resulted in payment as to other claims is irrelevant. As Mr. Viterna conceded at oral argument, if a lawyer had a fee agreement 

with a veteran concerning a toe arthritis disability and succeeded in getting compensation for post-traumatic stress 

disorder, the fee agreement would not call for compensation out of the PTSD award. See Oral Arg. at 1:27–2:00. 

The same is true here.

Our decision here is supported by our prior ruling in 

Scates v. Principi. 282 F.3d 1362 (Fed. Cir. 2002). In that 

case, a veteran in the midst of claim proceedings replaced 

his attorney with a veterans organization, which successfully pursued his claim. See id. at 1363–64. Though the

relevant fee agreement on its face provided that the VA 

would pay the attorney 20% of any past-due benefits, we 

read the agreement to mean that the VA would only pay

the full amount if the attorney represented the veteran until the end of the case. Id. at 1365. We therefore agreed 

with the VA that the attorney was not automatically owed 

the full 20% of past-due benefits. Id. at 1366–68. While 

some may argue as to whether Scates was based on the contract under § 5904(d) or the statutory provision concerning 

reasonableness, now codified at § 5904(c)(3)(A), we read 

the decision as based on the fee agreement provision codified at § 5904(d). See Scates, 282 F.3d at 1368. 

The Secretary is therefore charged with both determining whether the fee is payable under the qualifying attorney fee agreement and ensuring that the fee is reasonable.4 

4 At the time Scates was decided, § 5904 gave the authority to review the reasonableness of fees in the first instance to the Board. See 38 U.S.C. § 5904(c)(2) (2005). In 

2006, Congress gave the authority to review fees for reasonableness to the Secretary more generally. See Pub. L. 

No. 109–461, § 101(d), (e)(3), 120 Stat. at 3407–08 (codified 

at 38 U.S.C. § 5904(c)(2)–(3)). 

Case: 22-1061 Document: 34 Page: 8 Filed: 04/20/2023
VITERNA v. MCDONOUGH 9

See 38 U.S.C. § 5904(c)(3), (d); see also Ravin, 956 F.3d at 

1350–51 (holding that the VA is not required to withhold 

attorneys’ fees if an attorney failed to comply with regulations requiring timely filing of fee agreements with the 

agency). 

Our decision is only that the VA correctly interpreted 

§ 5904(d) in declining to pay Mr. Viterna a fee out of pastdue benefits on a claim excluded from his agreement with 

Ms. Pitts. We have not addressed whether the VA has the 

authority to reform the contract on a theory of mutual mistake, an issue that may be governed by federal law, see 

Scates, 282 F.3d at 1369–70, because Mr. Viterna has not 

sought that relief here. See Oral Arg. at 19:10–40. 

AFFIRMED

COSTS

No costs. 

Case: 22-1061 Document: 34 Page: 9 Filed: 04/20/2023