Citation Nr: 20058074 Decision Date: 09/02/20 Archive Date: 09/02/20 DOCKET NO. 20-16 536 DATE: September 2, 2020 ORDER Entitlement to agent fees based on past due benefits granted in a January 2019 rating decision is dismissed. FINDING OF FACT The issue of whether the appellant is entitled to agent fees as a result of past-due benefits awarded in the January 2019 rating decision is moot, as a June 2020 rating decision reversed the January 2019 rating decision based on a finding of clear and unmistakable error in the decision. CONCLUSION OF LAW The criteria for dismissal of the appeal of the issue of entitlement to agent fees as a result of past-due benefits awarded in the January 2019 rating decision have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1965 to February 1969. The appellant is the Veteran’s representative agent. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied agent fees to the appellant based on past due benefits granted in a January 2019 rating decision, which granted an earlier effective date of April 21, 2016 for the award of service connection for prostate cancer and for the award of special monthly compensation (SMC) based on housebound status. The appellant has asserted that he is entitled to agent fees based on the award in the January 2019 rating decision of earlier effective dates. In this case, as the initial decision on the claim was prior to February 19, 2019, the effective date of the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), the regulatory criteria in effect for attorney and agent fees prior to the AMA applies. 38 C.F.R. § 14.636(c)(1)(i). 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, agents 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 notice of disagreement has been filed with respect to that decision on or after June 20, 2007; and the 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). 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). In this case, the Veteran completed a signed VA Form 21-22a appointing T.P. as his agent in September 2012. In October 2013, T.P. submitted a signed fee agreement. In an August 2016 rating decision, the RO granted, in part, service connection for prostate cancer and SMC based on housebound criteria, effective June 27, 2016. In September 2016, a signed VA Form 21-22a was received appointing the appellant as the Veteran’s representative. The appellant did not submit a fee agreement at that time. In October 2016, the appellant filed a notice of disagreement on behalf of the Veteran which included an appeal of the effective date assigned for the grant of service connection for prostate cancer. In August 2018, the Veteran opted-in to the Rapid Appeals Modernization Program (RAMP) and selected Higher Level Review. In a January 2019 Higher Level Review decision, the RO granted an earlier effective date of April 21, 2016 for the grant of service connection for prostate cancer and SMC based on housebound status. In a January 2019 decision, the RO found that the appellant was not entitled to agent fees based on the past-due benefits awarded in the January 2019 rating decision. The RO stated that the appellant had not filed a direct pay fee agreement with the Agency of Original Jurisdiction (AOJ) within 30 days of its execution, as required by 38 C.F.R. § 14.636(h)(4). In February 2019, the appellant filed a notice of disagreement with the denial of fees based on past-due benefits granted in the January 2019 rating decision. The appellant submitted a signed fee agreement dated in April 2020. In April 2020, the RO proposed to sever service connection for prostate cancer and SMC based on housebound status prior to June 27, 2016 due to a finding of clear and unmistakable error (CUE) in the January 2019 Higher Level Review decision. Subsequently, in a June 2020 rating decision, the RO severed service connection for prostate cancer and SMC based on housebound status from April 21, 2016 to June 26, 2016, returning the effective date of the award of these benefits to June 27, 2016. As a result of the severance of the earlier effective date of April 21, 2016, for the grant of service connection for prostate cancer and SMC based on housebound status, the Board finds that the appellant’s claim for agent fees is moot. As noted above agent fees are granted based on the past-due benefits awarded to the Veteran when a disability rating and effective date are assigned. See Snyder v. Nicholson, 489 F.3d 1213 (Fed. Cir. 20007); Rosinski v. Wilkie, 32 Vet. App. 264 (2020). As the January 2019 grant of an earlier effective date for service connection for prostate cancer and SMC based on housebound status was reversed due to CUE, the Veteran was not awarded an earlier effective date, and as a result there was no award of past-due benefits in this case. As there was no award of past-due benefits on which agent fees could be based, the appeal is moot. Therefore, the claim is dismissed. 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.