Citation Nr: 19175294 Decision Date: 10/01/19 Archive Date: 09/27/19 DOCKET NO. 18-38 630A DATE: October 1, 2019 ORDER The claim that S.C. is not eligible for payment of attorney fees based on past due benefits granted in a March 2015 rating decision is denied. REMANDED The issue of the reasonableness of attorney fees based on past due benefits granted in a March 2015 rating decision is remanded. FINDINGS OF FACT 1. The appellant’s appointment of S.C. as his attorney and the associated fee agreement are valid. 2. S.C. was the Veteran’s representative during the appeal of the claim for a TDIU, which was granted in a March 2015 rating decision, and a notice of disagreement (NOD) was filed on the issue.   CONCLUSION OF LAW The criteria for eligibility to attorney fees based on past-due benefits awarded in the March 2015 rating decision have been met. 38 U.S.C. § 5904; 38 C.F.R. § 14.636. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1960 to December 1966. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted attorney fees to the Veteran’s former attorney, S.C., based on past due benefits granted in a March 2015 rating decision. Eligibility to Attorney Fees The Veteran asserts that S.C. is not eligible for attorney fees because S.C. was not influential in him obtaining an award of benefits and represented him a short time. The relevant legal authority provides that a claimant may have attorney or agent representation for the prosecution of claims for VA benefits. 38 U.S.C. § 5904(a). Regarding circumstances in which fees may be charged, for fee agreements entered into on or after June 23, 2008, as in this case, attorneys may charge claimants and appellants for representation before VA provided that: after an agency of original jurisdiction has issued a decision on a claim or claims, including any claim to reopen under 38 C.F.R. § 3.156 or for an increase in rate of a benefit; a NOD has been filed with respect to that decision on or after June 20, 2007; and the attorney has complied with the power of attorney requirements in 38 C.F.R. § 14.631 and the fee agreement requirements in 38 C.F.R. § 14.636(g). See 38 C.F.R. § 14.636(c)(1). Fee agreements must be reasonable; those which do not exceed 20 percent of past-due benefits are presumed reasonable. See 38 C.F.R. § 14.636(e), (f). When a claimant and an agent or attorney have entered into a fee agreement 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, 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. 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. 38 U.S.C. § 5904(d); 38 C.F.R. § 14.636(h)(1). Under VA regulations, such award of past-due benefits must result in a cash payment to a claimant or an appellant from which the fee may be deducted. Id. Also, under VA regulations, “past-due benefits” means a nonrecurring payment resulting from a benefit, or benefits, granted on appeal or awarded on the basis of a claim reopened after a denial by a VA agency of original jurisdiction or the Board or the lump sum payment that represents the total amount of recurring cash payments that accrued between the effective date of the award, as determined by applicable laws and regulations, and the date of the grant of the benefit by the agency of original jurisdiction, the Board, or an appellate court. 38 C.F.R. § 14.636(h)(1). When the benefit granted on appeal, or as the result of the reopened claim, is service connection for a disability, the “past-due benefits” will be based on the initial disability rating assigned by the agency of original jurisdiction following the award of service connection. The sum will equal the payments accruing from the effective date of the award to the date of the initial disability rating decision. If an increased evaluation is subsequently granted as the result of an appeal of the disability evaluation initially assigned by the agency of original jurisdiction, and if the agent or attorney represents the claimant or appellant in that phase of the claim, the agent or attorney will be paid a supplemental payment based upon the increase granted on appeal, to the extent that the increased amount of disability is found to have existed between the initial effective date of the award following the grant of service connection and the date of the rating action implementing the appellate decision granting the increase. 38 C.F.R. § 14.636(h)(1)(i). Two issues have been raised in this case, the first is whether S.C. is eligible for attorney fees, and the second is whether the attorney fee of 20 percent of the past due benefits granted in the March 2015 rating decision is reasonable. The Board has jurisdiction to address whether S.C. is eligible for attorney fees. Under 38 C.F.R. § 14.636(g)(1), all fee agreements must include the name of the Veteran, the applicable VA file number, and the specific terms under which the amount to be paid for the services of the attorney or agent will be determined. Fee agreements must also clearly specify if VA is to pay the agent or attorney directly out of past due benefits. 38 C.F.R. § 14.636(g)(2). The Veteran and S.C. signed a fee agreement and VA Form 21-22a, Appointment of Individual as Claimant’s Representative, in June 2014. The agreement indicated that S.C. was entitled to 20 percent of past due benefits awarded to the Veteran by VA. The agreement included the Veteran’s name and VA claims file number. Therefore, the Board finds that it satisfied the basic requirements of a fee agreement. The Veteran submitted a VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative, signed by the American Legion, in December 2014, which revoked S.C.’s representation. S.C. stated that she withdrew as the Veteran’s representative in a January 2016 letter. The Veteran filed a claim for a TDIU in May 2012. The claim for entitlement to a TDIU was denied in a February 2014 rating decision. In June 2014, the Veteran filed a notice of disagreement with the February 2014 rating decision, which included the denial of a TDIU. The NOD was submitted on his behalf by S.C. In a March 2015 rating decision, the RO granted entitlement to a TDIU effective May 29, 2012, the date of his claim.   The Board notes that prior to the grant of entitlement to a TDIU, a statement was received in December 2014 requesting a withdrawal of all pending appeals so that VA could proceed with a request to reconsider entitlement to a TDIU. The Veteran’s name and address were on the statement. However, the signature on the statement does not match the Veteran’s signature in other documents. In an August 2018 substantive appeal, the Veteran stated that he had no knowledge of the December 2014 statement requesting withdrawal of his claims. He stated that it was not initiated or approved by him. As the signature does not match the Veteran’s signature and he has denied knowledge of the statement, the Board finds that the Veteran’s claim for entitlement to a TDIU was not withdrawn in December 2014. Therefore, the issue had been pending since the May 2012 claim. In this case, a notice of disagreement was filed on the issue of entitlement to a TDIU in June 2014 by S.C. Although S.C.’s representation ended prior to the grant of a TDIU, S.C. represented him during the appeal period. As a NOD was filed with respect to the issue of entitlement to a TDIU on or after June 20, 2007, and the attorney complied with the power of attorney requirements in 38 C.F.R. § 14.631 and the fee agreement requirements in 38 C.F.R. § 14.636(g), the criteria for eligibility for attorney fees are met. See 38 C.F.R. § 14.636(c)(1). As the June 2014 fee agreement was valid, S.C. represented the Veteran during the pending appeal of the issue of entitlement to a TDIU, and a NOD was filed after June 20, 2007, the Board finds that S.C. is eligible for attorney fees. However, the Veteran has asserted that S.C. did not do enough work on his case to warrant fees of 20 percent, which raises the separate issue of whether the attorney fees are reasonable in this case. Therefore, the Board is remanding that issue, as discussed below, for the RO to refer the issue to the Office of General Counsel.   REASONS FOR REMAND The issue of reasonableness of attorney fees has been raised by the Veteran. In his notice of disagreement received in January 2016 and August 2018 substantive appeal, the Veteran stated that he believed that S.C.’s work on the appeal did not warrant attorney fees. In the August 2018 substantive appeal, he stated that during her 6 months as his representative, she was unable to provide any updates of communication to warrant her representation. Under 38 C.F.R. § 14.636(i), the issue of whether an attorney fee is reasonable is determined by VA’s Office of General Counsel (OGC) following a motion for review of fee agreement. Before the expiration of 120 days from the date of the final VA action, the OGC may review a fee agreement upon its own motion or the motion of the claimant or appellant. The OGC may order a reduction in the fee called for in the agreement if it finds by a preponderance of the evidence, or by clear and convincing evidence in the case of a fee presumed reasonable under paragraph (f), that the fee is unreasonable. 38 C.F.R. § 14.636(i). The Board finds that the Veteran’s arguments regarding the reasonableness of the attorney fee, including in the January 2016 notice of disagreement, can be construed as a motion for review of the fee agreement. Therefore, the issue must be remanded and referred to the OGC for a reasonableness review. See 38 U.S.C. § 5904(c)(3)(A); 38 C.F.R. § 14.636(i).   The matters are REMANDED for the following action: Refer the Veteran’s January 2016 motion for review of fee agreement to the Office of General Counsel for a reasonableness review of the attorney fee of 20 percent of the past due benefits granted in the March 2015 rating decision under 38 C.F.R. § 14.636(i). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Marenna, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.