Citation Nr: 18158277 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-16 829 DATE: December 14, 2018 ORDER Entitlement to past due benefits for attorney representative is denied. FINDINGS OF FACT 1. The Veteran filed a claim for compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for additional disability of the neck on February 24, 2004. 2. In a May 2005 rating decision, compensation benefits pursuant to 38 U.S.C. § 1151 were granted for degenerative disk and degenerative joint disease of the cervical spine; and secondary service was granted for myofascial strain of the cervical paraspinal and trapezius muscle of the right upper extremity, and service connection for myofascial strain of the cervical paraspinal and trapezius muscle of the left upper extremity; all were effective February 24, 2004. 3. The Veteran filed a timely notice of disagreement (NOD) in July 2005 with respect to the ratings assigned for his cervical spine disability and bilateral upper extremity muscle disabilities; a statement of the case (SOC) was issued in November 2005 and the Veteran submitted a substantive appeal, via a VA Form 9, in January 2006. 4. The Veteran retained the Appellant in March 2011. 5. A September 2013 Decision Review Officer (DRO) decision awarded service connection for tension headaches, assigned a 30 percent disability rating effective February 24, 2004, finding this was the date of the claim for entitlement to service connection for a cervical spine condition and the contentions regarding headaches had been ongoing since that time. 6. Although the issue of tension headaches addressed in September 2013 rating decision were related to the issues raised in the July 2005 NOD, at the time of this decision there had been no final decision promulgated by the Board addressing the merits of the claim for service connection for tension headaches. CONCLUSION OF LAW The criteria for entitlement to past due benefits for attorney representative have not been met. 38 U.S.C. § 5904; 38 C.F.R. § 14.636. REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. Entitlement to past-due benefits for attorney representative The regulations regarding attorney fee agreements were amended in May 2008. The record shows that the Veteran retained the Appellant in March 2011 and the fee agreement at issue was signed in March 2011. Thus, the amended regulations are applicable to the claim on appeal. See 73 Fed. Reg. 29,852, 29,866 (May 22, 2008) ("The new regulations apply to fee agreements entered on or after June 23, 2008. They do not apply to fee agreements entered before June 23, 2008."). Accordingly, the prior regulations applicable to fee agreements do not apply and are not addressed in this decision. Only accredited agents and attorneys may receive fees from Veterans for their services provided in connection with representation. 38 C.F.R. § 14.636 (b). Under 38 C.F.R. § 14.636 (c)(2), for cases in which the NOD was filed on or before June 19, 2007, agents and attorneys may charge fees only for services provided after the following conditions have been met: (i) a final decision was promulgated by the Board with respect to the issue involved in the appeal; and (ii) the agent or attorney was retained not later than one year following the date that the Board decision was promulgated. 38 C.F.R. § 14.636 (c)(2). The second condition will be considered to have been met with respect to all successor agents or attorneys acting in the continuous prosecution of the same matter if a predecessor was retained within the required time period. 38 C.F.R. § 14.636 (c)(2)(ii). As noted above, a May 2005 rating decision awarded service connection for a cervical spine disability and related myofascial strain of the cervical paraspinal and trapezius muscle of the left upper and right upper extremities. In July 2005, the Veteran filed a timely NOD with respect to the ratings assigned for each of these disabilities. Following a November 2005, SOC, the Veteran submitted a timely substantive appeal, via a VA Form 9, in January 2006. These matters were, in pertinent part, denied in a February 2010 Board decision which was appealed to the United State Court of Appeals for Veterans Claims (Court). In January 2011, the Court vacated and remanded the Board’s decision pursuant to a Joint Motion for Remand. In turn, the Board in June 2011 denied the claim for a higher rating for the Veteran’s cervical spine disability and remanded, in pertinent part, the issues of muscle strain of the bilateral upper extremities to the agency of original jurisdiction (AOJ) for additional development. In the June 2011 decision, the Board discussed the evidence of headaches in connection with the analysis of whether the Veteran was entitlement to an extraschedular rating. The June 2011 Board decision as it related to the issue of entitlement to an initial higher evaluation for the Veteran’s cervical spine disability was appealed to the Court and subsequently vacated and remanded back to the Board in February 2012. In February 2013, the Board remanded the issue of entitlement to an initial higher rating for the Veteran’s cervical spine disability for additional development to include examination of the Veteran to address, in pertinent part, whether an extraschedular rating was warranted with consideration of the Veteran’s complaint of associated headaches. The Appellant was retained in March 2011. In November 2012, the Appellant asserted that headaches, sleep disturbance and memory loss as related to the Veteran’s neck disability warranted entitlement to an extraschedular rating. Service connection for headaches claimed as secondary to cervical spine disability was denied in an August 2013 rating decision. The Appellant requested reconsideration of that determination in September 2013 as secondary to the Veteran’s myofascial disabilities and mental disability. The Board observes that the September 2013 DRO, which awarded service connection for tension headaches, assigned a 30 percent disability rating effective February 24, 2004, finding this was the date of the claim for entitlement to a cervical spine condition and the contentions regarding headaches had been ongoing since that time. Accordingly, the RO indicated in the September 2013 rating decision that the Veteran’s tension headaches arose as part and parcel of the claim for service connection for a cervical spine disability, originally claimed in February 2004 and therefore this issue also was related to those raised in the July 2005 NOD. Despite the above findings, the applicable regulations provide that, for NODs filed on or before June 19, 2007, agents and attorneys may charge fees, only for services provided, where a final decision was promulgated by the Board with respect to the issue involved in the appeal. See 38 C.F.R. § 14.636 (c)(2). At the time of the September 2013 rating decision was issued, there was no final Board decision addressing the merits of the claim for service connection for headaches, and the Board does not find that a reasonable person would construe from the prior Board’s decisions that service connection for headaches had been denied. For these reasons, the Board finds, as a matter of law, that entitlement attorney fees arising from a September 2013 award of service-connected compensation for headaches is not warranted. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saira Spicknall, Counsel