This case is before the Court, in the main, on an October 27, 1995, petition by an attorney seeking extraordinary relief in the form of an order that the Board of Veterans’ Appeals (BVA or Board) issue a final decision on his claim to entitlement — under 38 U.S.C. § 5904(d) and pursuant to a valid fee agreement — to payment of 20% of past-due benefits that the Department of Veterans Affairs (VA) awarded to his client and that he asserts that the Secretary wrongfully failed to withhold. Alternatively, he seeks an order from the Court that the BVA pay him those fees. Both parties have filed multiple pleadings. The petitioner has also purported to file a Notice of Appeal (NOA) from an August 31,1995, action by a Deputy Vice Chairman of the Board denying the petitioner’s motion that the Board issue a final decision on his claim to have VA pay him those fees. For the reasons that follow, the Court will deny the petition and dismiss the appeal.
I. Procedural History and Facts
Pursuant to a December 10, 1991, attorney-fee agreement, a veteran retained the petitioner, attorney Hugh D. Cox, to represent him in a claim for VA benefits and promised to pay the petitioner 20% of any past-due benefits that VA awarded. Petition [hereinafter Pet.] at Exhibit (Ex.) A; Answer to Pet. for Extraordinary Relief [hereinafter Ans.] at Ex. 8; see also In re Fee Agreement of Cox, No. 95-1068,
I ... instruct the VA, VARO, DVA, BVA, COVA [this Court], or other court to set aside one fifth (20 percent) of any such benefits I (or my family) receive after my attorney has been successful in recovering such past due benefits for the purpose of paying attorney’s fees. I understand that my contract with my attorney is to pay him the amount of twenty percent of past due benefits which will be set aside by the VA, VARO, BVA, COVA or other courts for such payment.
Ibid.; Pet. at Ex. A. On October 20,1992, the VARO awarded the veteran a 100% rating on his reopened claim (Ans. at Ex. 9); on October 30, 1992, the RO so notified the veteran (Ans. at Ex. 10); and on October 30, 1992, VA made payment of all past-due benefits directly to the veteran (Ans. at Ex. 11).
In a November 3,1992, letter, the petitioner advised the RO that his client had informed him of communications relating to the claim and that the petitioner had received no copies of these communications; he asked the RO to assist in recovering his fee. Pet. at Ex. C; Ans. at Ex. 12. In a December 4, 1992, letter, the RO informed the petitioner of the total award to the veteran ($37,408.00) and the petitioner’s resultant 20% fee ($7,481.60); the RO explained:
We have reviewed this case and find that you are entitled to a fee of 1/5 of past due benefits____
Since this case was not referred to the [BVA] the award procedure did not include consideration for payment of attorney fees. Payment was made to the claimant and the VA will be unable to pay your fee from past due benefits as these benefits have already been disbursed. We regret the error but any adjustment of the fee must be arranged between you and [the veteran]. We will inform [him] of our error and the fee that is payable to you.
Pet. at Ex. B; Ans. at Ex. 13.
On January 11,1993, the petitioner filed in this Court a petition for extraordinary relief seeking a writ of mandamus to compel the Secretary to show cause why he should not immediately pay the fees due the petitioner. Pet. at Ex. D; Ans. at Ex. 15. A February 23, 1993, order of this Court consolidated that petition with two other like petitions, and the Court thereafter held that, because this petitioner “did not represent an appellant before this Court and the agreement was not reviewed by the BVA, we lack jurisdiction ...” over his claim under 38 U.S.C. §§ 5904(c)(2) and 7263(c). In re Smith,
The petitioner then filed with the BVA an April 1993 motion seeking payment of attorney fees. Pet. at Ex. F; Ans. at Ex. 17. In a May 7, 1993, letter, counsel to the BVA Chairman responded that the BVA would not act on the motion pending resolution of the appeal in In re Wick, which, by then, had been appealed to the U.S. Court of Appeals for the Federal Circuit; the letter further stated: “Your ‘motion for payment of attorney’s fees’ does not meet the requirements of a motion for review of a fee agreement under 38 C.F.R. § 20.609(f).” Pet. at Ex. G; Ans. at Ex. 18. The appeal in In re Wick was resolved in November 1994, with the Federal Circuit reversing this Court and holding that the Court had no original jurisdiction to order the Secretary to pay an attorney the equivalent amount to a contingency fee that
I have found no authority that would allow the Board to issue an order compelling the RO to pay a fee to an attorney when the elient/elaimant had received all the past-due benefits awarded. Indeed, in a 1992 precedent opinion of the VA General Counsel (O.G.C.Prec.27-92), it was held that because of the prohibition in 38 U.S.C. § 5904[d] against the withholding of benefits payable after the date of the decision awarding past-due benefits for the purpose of paying attorney fees, VA has no legal authority to pay attorney fees when payment of the complete amount of past-due benefits has been made to the claimant.
Pet. at Ex. I; Ans. at Ex. 22. In an April 20, 1995, letter, the RO similarly informed the petitioner that, in light of the Federal Circuit’s reversal in In re Wick and O.G.C. Prec 27-92, it was unable to create an overpayment against the veteran. Pet. at Ex. H; Ans. at Ex. 20.
In a June 23, 1995, motion directed to the BVA, the petitioner, for the stated purpose of providing himself with a basis for an appeal to this Court, requested a final decision from the BVA related to payment or nonpayment of attorney fees in his ease. Pet. at Ex. J; Ans. at Ex. 23. The BVA Deputy Vice Chairman denied that motion in an August 31,1995, letter concluding: “[T]he Board has no authority to order the regional office to pay a fee to an attorney in the circumstances of this case.” Pet. at Ex. K; Ans. at Ex. 24.
This case is now before the Court on an October 27, 1995, petition for extraordinary relief and a separate NOA. That petition seeks a Court order compelling a final decision by the BVA on the issue of payment of attorney fees or the payment of those attorney fees to the petitioner by VA; the petition also requests sanctions against VA pursuant to 28 U.S.C. § 2412(b) for its “bad faith” in not notifying him of payment to his client. An April 1996 order by this Court concluded that sanctions pursuant to 28 U.S.C. § 2412(b) were not available to the petitioner in this Court. In re Fee Agreement of Cox,
II. Analysis
A. Introduction
Section 5904(d)(3) of title 38, U.S.Code, provides:
To the extent that past-due benefits are awarded in any proceeding before the Secretary, the [BVA], or the United States Court of Veterans Appeals, the Secretary may direct that payment of any attorney’s fee under a fee arrangement [complying with the other provisions of section 5904] ... be made out of such past-due benefits.
38 U.S.C. § 5904(d). Section 403 of the VJRA provides:
The amendment to section [5904](e) of title 38, United States Code, made by section 104(a) shall apply only with respect to services of agents and attorneys in cases in which a notice of disagreement is filed with the [VA] on or after the date of the enactment of this division [Division A of the VJRA],
VJRA, § 403,
The VA regulation, 38 C.F.R. § 20.609(h) (1996), implementing section 5904(d) requires VA payment of an attorney fee up to 20% of past-due VA benefits awarded, see In re Smith, A Vet.App. at 494 (quoting Aronson v. Derwinski,
As an initial matter, it is clear that the petitioner’s claim, in premise, satisfies the requirements of 38 U.S.C. § 5904(d) and VJRA § 403 for the direct VA payment of attorney fees from an award of VA back-due benefits: The petitioner was retained by the veteran on December 10, 1991, within one year after a final BVA decision (December 19, 1990); there was an NOD for that decision filed after November 18, 1988; and the agreement does not provide for payment of more than 20% of past-due benefits. See 38 U.S.C. § 5904(d); VJRA § 403,
There is, then, no dispute about what should have taken place and about the fact that the petitioner was entitled to direct pay•ment by the Secretary of the full $7,481.60. The only reason we are here considering this matter at this late date and at this stage in the proceedings is because of the Secretary’s admitted error in not making that payment.
Nevertheless, as the Federal Circuit emphasized in In re Wick, the Court has jurisdiction to review VA adjudicative actions only under 38 U.S.C. § 7252(a) and pursuant to a final Board decision; neither section 5904 nor any other section of title 38 confers jurisdiction upon the Court to review an attorney-fee agreement absent a final Board decision over which the Court has jurisdiction. In re Wick,
B. AWA Authority
Hence, the only matters before the Court are those raised by the petition for extraordinary relief, and that petition implicitly raises the following three questions: (1) Does the Court have the power, pursuant to the All Writs Act (AWA), 28 U.S.C. § 1651(a), to issue an extraordinary writ in this case; (2) can the Court, pursuant to the AWA, order the BVA to issue a final decision on the petitioner’s claim in this ease; and (3) can the Court, pursuant to the AWA, order VA to pay the petitioner the attorney fees wrongfully not withheld by VA?
The AWA provides: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). As this Court held in one of its first opinions, because this Court is one “established by Act of Congress”, see 38 U.S.C. § 7251 (establishing this Court “under Article I of the Constitution of the United States [as] a court of record”), it has the jurisdiction to issue extraordinary writs pursuant to the AWA Erspamer v. Derwinski,
Indeed, the Court’s enabling legislation quite clearly contemplates the Court’s issuance of writs. See 38 U.S.C. § 7265(a)(3) (“Court shall have power to punish by fine or imprisonment such contempt of its authority as [ ] disobedience or resistance to its lawful writ ... ”), (b) (“Court shall have such assistance in the carrying out of its lawful writ ... as is available to a court of the United States”); 28 U.S.C. § 451 (defining “court of the United States” as used in title 28, U.S.Code, as not including Article I courts such as this Court).
Athough the Secretary has specifically chosen not to contest the Court’s authority to issue a writ of mandamus in this case, see Ans. at 5, the Court takes judicial notice of the fact that the Secretary has sometimes, in his pleadings before this Court, argued vigorously that the Court lacks such authority. See, e.g., Respondent’s Memorandum of Law in Ruger v. Brown, No. 94-681 (memorandum filed Oct. 3,1994). The Secretary there contended: “While literally the All Writs Act applies to ‘courts established by Act of Congress,’ logically the Act applies solely to those courts which have inherent powers derived from the Constitution.” Id. at 2-3. The Secretary cites to Northern Pipeline Constr. Co. v. Marathon Pipe Line Co.,
1. Other Court Caselaw. Neither the Federal Circuit nor the Supreme Court has, thus far, supplied any direct precedent to confirm or reject this Court’s conclusion that it possesses AWA authority. In the only
The Secretary’s position that Article I courts have been found not to possess the inherent powers of Article III courts does have some support. See Northern Pipeline Const., supra (Article I courts cannot be given the plenary powers of Article III courts); In re United States,
2. Plain Meaning of AWA. As an initial matter, the Court notes that “all federal courts, except the Supreme Court, are established by Congress”. In re United States,
3. AWA as Specific Statutory Authority. Although the foregoing analysis should end the matter, because this Court is an Article I court the question may remain whether, if this Court requires a “specific” grant of AWA authority, that specificity has been satisfied. The Court could appropriately conclude that the AWA itself is that specific act of Congress whereby, through use of the word “all”, Congress sweeps into its grant of AWA authority all courts established by federal law, both those Article III courts pos
As to conclusions (1) and (2), this Court will not infer such an obligation where “ah” makes the meaning of the statute plain, see Gardner v. Brown,
Finally, the Court notes again that its enabling legislation specifically contemplates in two places the issuance of writs by the Court. See 38 U.S.C. § 7265(a), (b).
4. Other Specific Authority. However, even if the Court were to conclude that the AWA is not itself a specific grant to the Court of the authority therein, the Court nevertheless possesses AWA authority pursuant to the specific grant in 38 U.S.C. § 7261(a)(2) (Court “shall compel action of the Secretary unlawfully withheld or unreasonably delayed”). See Ebert, supra. The Secretary has sometimes appeared to have contended that this Court lacks the authority to “compel action of the Secretary unlawfully withheld or unreasonably delayed” in the absence of a final Board decision. However, this position equates a grant of power with a grant of jurisdiction. It is plain that section 7261(a) is not a jurisdictional statute. See In re Wick,
5. Circumstances Justifying AWA Writ. Ultimately, even where a court possesses the authority to issue a writ of mandamus, that remedy “is a drastic one, to be invoked only in extraordinary situations.” Kerr v. U.S. Dist. Ct.,
The court will not interfere by mandamus with the executive officers of the Government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, the court having no appellate power for that purpose; but when they refuse to act in a case at all, ... a mandamus may be issued to compel them.
United States v. Black,
C. Jurisdiction over Petition for Writ Ordering BVA to Issue Final Board Decision and Petitioner’s Right to Writ
Even though the Court is empowered pursuant to the AWA to issue a writ of mandamus, the question remains whether the Court possesses jurisdiction to issue a writ ordering the BVA to issue the final, appealable decision sought by the petitioner in this ease.
1. In Aid of Prospective Jurisdiction. The Court has jurisdiction to review a final BVA decision only where an NOD was filed on or after November 18,1988, as to the underlying RO decision. See VJRA § 402. In the instant case, it is true that there is no BVA decision for the Court to review; however, the Court is not here concerned with the direct appeal of a BVA decision but with the petitioner’s right to a BVA decision that would confer upon this Court jurisdiction to review the legal conclusion underlying the BVA’s refusal to issue such a decision. As the following discussion demonstrates, jurisdiction to issue a writ of mandamus pursuant to the AWA relies upon not actual jurisdiction but potential jurisdiction. In other words, the Court’s jurisdiction to issue the order sought by the petitioner depends upon whether the Court would have jurisdiction to review the final BVA decision that would issue pursuant to that order. As the Supreme Court has held:
As the jurisdiction of the circuit court of appeals is exclusively appellate, its authority to issue writs of mandamus is restricted*371 by statute to those cases in which the writ is in aid of that jurisdiction. Its authority is not confined to the issuance of writs in aid of jurisdiction already acquired by appeal but extends to those eases which are within its appellate jurisdiction although no appeal has been perfected.
Roche v. Evaporated Milk Ass’n,
The U.S. Court of Appeals for the District of Columbia Circuit summarized the applicable AWA law as follows:
[Statutory commitment of review ..., read in conjunction with the [AWA], affords this court jurisdiction over claims of unreasonable Commission delay.... Here, of course, there is no final order— indeed, the lack of a final order is the very gravamen of the petitioner’s complaint. This lack of finality, however, does not automatically preclude our jurisdiction.... [AWA authority] extends to support an ultimate power of review, even though it is not immediately and directly involved.... In other words, section 1651(a) empowers a federal court to issue writs of mandamus necessary to protect its prospective jurisdiction.
Telecommunications Research and Action Ctr.,
As the D.C. Circuit has stated: “Before entertaining the [AWA] application, then, we must identify a jurisdiction that the issuance of the writ might assist.” Christian,
2. Indisputable Right to Writ. The Secretary erroneously argues that, because In re Wick suggests that the Court’s review of a fee agreement under 38 U.S.C. §§ 7252(a) and 7263 is limited to reviewing and ordering a reduction if the agreement is “excessive or unreasonable”, In re Wick,
The Secretary argues that the BVA’s jurisdiction is limited by 38 U.S.C. § 7104(a) to matters under section 511(a) of title 38, U.S.Code, and that the Board therefore “lacks jurisdiction to order the VARO to pay an attorney’s fee.” Ans. at 8. However, whether the Board lacks authority to order payment of the fee is a matter entirely separate from whether it lacks jurisdiction to hear that claim and issue a decision on its merits or lack thereof. Section 511(a) provides:
The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans.
38 U.S.C. § 511(a). Section 7104(a) provides:
All questions in a matter which under section 511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board.
38 U.S.C. § 7104(a).
By its very wording, section 5904(d) is a statute “affect[ing] the provision of benefits” by VA as referred to in section 511(a) — it gives the Secretary the authority to withhold a portion of past-due benefits otherwise due to a VA claimant and pay those withheld benefits to an attorney, pursuant to an otherwise valid fee agreement. Had the Secretary, for instance, withheld more than was called for under the provisions of an otherwise valid fee agreement and delivered that amount to an attorney, the “provision of benefits” to the veteran would plainly be “affect[ed]”, and the veteran would have recourse before the RO, the BVA, and this Court (as long as all of the other jurisdictional requirements were met). Moreover, the language of section 511(a) appears specifically to deny a person in such a situation the opportunity to seek a writ of mandamus before any other court, see 38 U.S.C. § 511(a) (“Subject to subsection (b) [which includes “matters covered by chapter 72 of this title” — matters that can be appealed to this Court], the decision of the Secretary as to any such question shall be final and conclu
Section 511(a) bases the Secretary’s jurisdiction not upon an actual effect upon a particular claimant’s benefits but upon whether the law to be interpreted is one that “affects the provision of [VA] benefits”. 38 U.S.C. § 511(a) (emphasis added). Section 5904(d) is clearly such a law. Furthermore, because section 511(a) is mandatory — “the Secretary shall decide”, ibid, (emphasis added) — VA is without discretion to refuse to review and issue a decision on a matter within its jurisdiction, and the Board’s derivative section 7104(a) jurisdiction is likewise mandatory — “shall be subject to one review” — for an appeal properly before it. See Mintz v. Brown,
In this case, as the discussion in part II. C.3., below, indicates, it appears that there was not a jurisdiction-conferring NOD that would have supplied the Board with jurisdiction to review the petitioner’s claim. However, the Court need not reach a definite conclusion on whether the petitioner has shown an indisputable right to the writ — the first requirement for a writ of mandamus — -because it is clear that the second requirement is not satisfied insofar as the petitioner possesses an adequate alternative means to obtain the relief sought.
3. Alternative Remedy to Obtain Relief. As to the availability of an alternative remedy, although the Secretary has contended that the petitioner has recourse against the veteran for payment of attorney fees, the existence of such an alternative remedy has no bearing upon the petitioner’s entitlement to a final BVA decision on the question of VA’s liability for payment of such fees. See part H.D., below. Nevertheless, for the reasons that follow, the Court concludes that the requirements for the writ are not satisfied in this case because the appellant still possesses adequate alternative means to obtain the relief — an appealable Board decision — he seeks.
a. Appealable RO decisions: In order to determine whether the petitioner has an adequate alternative remedy, we must decide what options have been and presently are open to him to obtain the relief he seeks, and to do that we must start by determining the nature of the RO actions already taken pertaining to this matter. See Tablazon v. Brown,
We have reviewed this case and find that you are entitled to a fee of 1/5 of past due benefits____
Since this case was not referred to the [BVA] the award procedure did not include consideration of payment of attorney fees. Payment was made to the claimant and VA will be unable to pay your fee from past due benefits as these benefits have already been disbursed. We regret the error but any adjustment of the fee must be arranged between you and [the veteran]. We will inform [the veteran] of our error and the fee that is payable to you.
Pet. at Ex H; Ans. at Ex. 13. The 1995 letter, which came after the Federal Circuit’s decision in In re Wick, came to a similar conclusion:
On November 7, 1994, the U.S. Court of Appeals for the Federal Circuit reversed the CVA decision in Wick v. Brown,40 F.3d 367 (Fed.Cir.1994), finding that the CVA lacked jurisdiction to review Mr.*374 Wick’s petition to compel VA to pay attorney fees.
Under the circumstances, we are constrained to follow a 1992 precedent opinion of the VA General Counsel (O.G.C.Prec.2792) in which it was held that VA has no legal authority to pay attorney fees when payment of the complete amount of past-due benefits has been made to the claimant.
Pet. at Ex. H; Ans. at Ex. 20.
In the normal course of VA adjudication, a claimant who wishes to appeal an adverse RO decision files an NOD and then, after the RO has filed a SOC, perfects an appeal to the Board by filing a VA Form 9 (Substantive Appeal to BVA). See Grantham,
The Court’s January 9, 1997, order sought additional filings from the parties to determine whether a VJRA § 402 jurisdiction-conferring NOD had been filed as to the petitioner’s claim. The petitioner’s response contends that the jurisdiction-conferring NOD is the one underlying the claim of the veteran he represented. Memorandum in Response at 1. Although it is true that, absent a VJRA § 403 jurisdiction-conferring NOD as to the veteran’s underlying claim, the Court possesses no authority to review a fee agreement, see Matter of Smith in Case No. C 21 317 717,
Rather, the instant issue is whether a writ of mandamus may properly issue where the petitioner had adequate alternative means that he left unpursued by failing to file an NOD. The Secretary contends that “there can be no notice of disagreement within the meaning of 38 U.S.C. § 7105 and 38 C.F.R. § 20.201 where, as here, there has been no adjudicative decision by the agency of original jurisdiction over a matter cognizable under 38 U.S.C. § 511.” Reply at 2. However, as the Court concluded above, the matter in question was certainly “cognizable” under section 511. Moreover, the Court concludes that the 1992 and 1995 RO letters constituted appealable decisions of the RO insofar as they rejected the petitioner’s claim by concluding that he was entitled to no redress for VA’s wrongful failure to withhold attorney fees from past-due benefits. The petitioner’s appropriate remedy, subsequent to either or both of these decisions, was to initiate the appellate process for obtaining review by the BVA; absent an NOD, an SOC, and a Form 1-9, the BVA was not required — indeed, it had no authority, see Bernard, supra — to proceed to a decision. Here, the Court can find no NOD as to the 1992 or 1995 RO decisions denying him the payment he sought that would require the RO to issue an SOC and initiate the appellate process. A petitioner who has administrative alternatives and who loses them by failing to pursue them is not entitled to a writ of mandamus. See Anderson, supra (taxpayers who failed to file available appeal from decision could not later seek mandamus remedy). Thus, because the petitioner had means to effectuate an appeal — which he neglected by failing to file an NOD and choosing, instead, to file motions directly with the Board and petitions to this Court — mandamus would normally not be in order. However, the tale does not end yet, because the Court must determine whether the petitioner has, indeed, failed to pursue such a direct appeal to the BVA
b. Lack of notice of appellate rights: Section 5104(a) states that, in the case of a decision under section 511(a), notice
The Court notes that this claim would still be open if notice of appellate rights as to that claim had not been provided with the denial of the claim (the ROA does not indicate one way or the other). See 38 U.S.C. § 5104(a); Hauck v. Brown,6 Vet.App. 518 , 519 (1994) (per curiam order) (holding that where appellant “never received notification of any denial ..., the one-year period within which to file an NOD, which commences with the ‘date of mailing of notice of the result of initial review or determination,’ did not begin to run”).
Holland,
c. Futility of pursuing alternative remedy: That does not end the matter, however. It is well-settled under AWA law that a petitioner need not pursue an alternative remedy that is futile. See Bankers Life & Cas. Co. v. Holland,
Therefore, the Court holds that the petitioner has an adequate alternative means to obtain the specific relief he seeks, a final BVA decision on the fee-payment matter. See Hahnemann Univ. Hosp.,
D. Jurisdiction over Petition for Writ Ordering Payment of Attorney Fees
To the extent that the petition before the Court is simply one for the payment of attorney fees owed to the petitioner, the
As a tangential matter, the Secretary and his agents at the RO and BVA have suggested that the petitioner’s recourse is with the veteran, to whom the Secretary paid the full amount of past-due benefits. In his October 1995 petition, the petitioner stated that the veteran had already made payments totaling $4,100 of the $7,481.60 owed him (Pet. at 6-7), but his response to the Court’s January 9, 1997, order states that he has received no additional payments. Nonetheless, it would seem that the petitioner retains a contract-law remedy against the veteran for the remainder of the fee owed. See, e.g., Contemporary Mission, Inc. v. Famous Music Corp.,
III. Conclusion
This matter has now been in dispute between the parties for more than five years. The long delay highlights the complexities surrounding the interaction of 38 U.S.C. §§ 7263 and 5904. The Court today concludes both that, if the petitioner files a timely NOD, the Secretary and Board possess authority — indeed, the obligation — pursuant to sections 511(a) and 7104(a), to issue a Board decision stating whether the petitioner is entitled to VA payment of attorney fees, and that any such interpretation of law ensconced in a BVA decision may be appealed to this Court for review under 38 U.S.C. § 7252(a). Nevertheless, under current caselaw, it appears — as a result of the Federal Circuit’s decision in In re Wick — that the Court has jurisdiction to review a fee agreement, per se, only to “order a reduction in the fee called for in the agreement if it finds that the fee is excessive or unreasonable”, 38 U.S.C. § 7263(d), and lacks the authority to provide any other remedy — such as enforcement or even perhaps a declaration that an agreement is invalid. If the intent of Congress was or is to the contrary, this Court appears to lack the means to effectuate any such contrary intent under its current statutory authority, and a legislative remedy may be in order. However, an authoritative decision as to whether, and to what extent, the limitations of In re Wick and section 7263(d) constrain any decision concerning the Board’s interpretation of section 5904(d) must await a decision on direct review to this Court in this or some other case.
In light of the long delay — delay occasioned in part, no doubt, by this Court’s prior conclusion in In re Smith, 4 Vet.App. at 500, that the petitioner’s appropriate remedy was to file with the Board a motion for review of a fee agreement pursuant to 38 C.F.R. § 20.609(i), a conclusion that the Court has no occasion to revisit today in light of its conclusion that, upon the petitioner’s filing of an NOD with the RO, the Board would have jurisdiction over his claim pursuant to section 511(a) and 7104(a) — the Court expects that the Board will provide an expeditious decision on that claim if the petitioner now files an NOD as to either the 1992 or 1995 RO decisions.
APPEAL DISMISSED; PETITION DENIED.