Citation Nr: 20041458 Decision Date: 06/17/20 Archive Date: 06/17/20 DOCKET NO. 18-41 565 DATE: June 17, 2020 ORDER Entitlement to payment of attorney fees from past-due benefits awarded in a February 2017 rating decision which granted an increased rating for left ankle instability is denied. FINDINGS OF FACT 1. The Veteran’s appointment of the appellant as his attorney is valid. 2. The June 2011 fee agreement is invalid. CONCLUSION OF LAW The criteria for payment of attorney fees based on past-due benefits awarded in the February 2017 rating decision, which granted an increased rating for left ankle instability, have not been met. 38 U.S.C. § 5904 (2012); 38 C.F.R. § 14.636 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the U.S. Navy from September 1973 to September 1977. The appellant is the Veteran’s attorney. In March 2020, the Veteran and the appellant were afforded a hearing before the undersigned Veterans Law Judge sitting at the VA Central Office. The appellant was provided notice of the hearing and an opportunity to attend. In February 2020, VA received a letter from the appellant waiving his right to appear at the hearing. The hearing proceeded and the Veteran provided testimony before the undersigned Veterans Law Judge (VLJ) in March 2020 hearing in Washington, D.C. A transcript of the hearing is of record. Entitlement to payment of attorney fees from past-due benefits awarded in a February 2017 rating decision which granted an increased rating for left ankle instability. A claimant may have attorney or agent representation for the prosecution of claims for VA benefits. 38 U.S.C. § 5904(a). Attorneys and agents may charge claimants or appellants for representation before VA provided: 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; an NOD has been filed with respect to that decision on or after June 20, 2007; and the attorney or agent 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). If a fee agreement provides that VA is to directly pay the attorney out of past-due benefits awarded to the Veteran, a copy of the fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. 38 C.F.R. § 14.636(g)(3). In June 2011, the Veteran executed a VA Form 21-22 appointing the appellant as his attorney. On June 20, 2011, VA received a letter from the appellant stating that he was enclosing a copy of the VA Form 21-22 and a copy of the fee agreement. The record indicates that a VA Form 21-22 was received with the letter, but no fee agreement was received at that time. On February 21, 2013, VA received a copy of a fee agreement indicating that VA was to pay directly to the appellant 20 percent of past-due benefits awarded to the Veteran. The agreement was signed on June 10, 2011. In February 2017, the RO granted an increased initial rating for left ankle instability. A notice of disagreement (NOD) had been filed with the initial rating and was received by VA in January 2016. In March 2017, the RO had a telephone call with the attorney regarding “verification of [the] attorney fee agreement.” In April 2017, VA received a duplicate copy of the previously-received VA Form 21 22, the fee agreement, and the June 2011 letter. In May 2017, the RO denied entitlement to fees because the fee agreement was not filed within 30 days of execution and was, therefore, invalid. The appellant was informed of this decision and told that if he had a newly signed and dated fee agreement that was filed within 30 days of execution or information regarding the timely filing of the previous agreement, that he should submit it to the RO. The appellant subsequently appealed the denial of fees. The Board finds that the fee agreement was not filed with the agency of original jurisdiction within 30 days of execution and is invalid. It was signed on June 10, 2011, and not received by VA until February 21, 2013. The appellant has provided no evidence that a copy of the fee agreement was filed within 30 days of execution. The RO has repeatedly requested that the appellant provide such evidence but he has not. He has submitted copies of documents previously received. Although the June 2011 letter states that a fee agreement was attached, there is no evidence that a fee agreement was received at that time. The appellant has contended that he filed a copy of the fee agreement within 30 days of execution but that it was lost when the Veteran’s file was transferred from one RO to another. He has provided no evidence supporting this allegation. The appellant has also contended that VA communicated with him as the Veteran’s appointed representative, including responding to Privacy Act requests, which they would not have if they had not received the documents sent in June 2011. There is no dispute that VA received the Veteran’s signed VA Form 21-22 in June 2011. Therefore, the appellant was validly appointed as the Veteran’s representative and VA could communicate with him as such. This does not mean, however, that the fee agreement was received at that time. The Board is aware that the RO has previously found the fee agreement valid and awarded fees to the appellant. The Board is not bound by incorrect decisions of the RO and is obligated to not perpetuate any errors committed by them. As a copy of the June 2011 fee agreement was not filed with the agency of original jurisdiction within 30 days of execution, the fee agreement is invalid. Therefore, the appellant is not entitled to the payment of fees based on past-due benefits awarded in the February 2017 rating decision. The appeal is denied. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Miller, 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.