Citation Nr: 21000632 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-10 910A DATE: January 5, 2021 ORDER Entitlement to an attorney fee of 20 percent of the total amount of past-due benefits awarded in a June 2016 rating decision is granted. FINDING OF FACT The appellant is eligible for attorney fees of 20 percent of the total award of past-due benefits awarded in the June 2016 rating decision. CONCLUSION OF LAW The criteria for an attorney fee of 20 percent of the total amount of past-due benefits awarded in the June 2016 rating decision, prior to withholdings, have been met. 38 U.S.C. § 5904; 38 C.F.R. § 14.636.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1989 to September 1993. The appellant is the Veteran’s attorney representative. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted attorney fees based on the past-due benefits awarded in a June 2016 rating decision. The case was previously before the Board in March 2020 when it was remanded for further development to comply with contested claims procedures. In a September 2020 letter, the Veteran was notified of the appeal and of the content of the appellant’s substantive appeal. Therefore, the Board finds that there has been substantial compliance with the remand order and contested claims procedures. 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).   In this case, the issue before the Board is whether the appellant is entitled to additional attorney fees based on the past-due benefits awarded in the June 2016 rating decision. The appellant has asserted that attorney fees should have been based on the total amount of past-due benefits awarded, prior to any withholdings. In March 2014, the Veteran and appellant signed a VA Form 21-22a, Appointment of Individual as Claimant’s Representative and a fee agreement stating that the attorney’s fee to be paid will be 20 percent of past-due benefits, paid directly to the attorney by VA. The attorney fee agreement included the name of the Veteran, his VA file number, and specific terms under which the amount to be paid for the services of the attorney would be assessed. A copy of the agreement was received by VA in March 2014. The Board finds the agreement to be valid, as it was properly filed with VA and contains all required information in accordance with 38 C.F.R. § 14.636(g). In a July 2013 rating decision, the RO denied the Veteran’s claim for a higher rating for left shoulder bursitis. The Veteran filed a timely notice of disagreement with the decision in June 2014. In a September 2014 rating decision, the RO denied entitlement to service connection for tinnitus. The Veteran filed a timely notice of disagreement with the decision in September 2014. In a June 2016 rating decision, the RO granted a higher rating for left shoulder bursitis of 20 percent effective January 20, 2012, and entitlement to service connection for tinnitus effective March 23, 2016. In a July 2016 Summary of the Case, the RO granted the appellant entitlement to attorney fees of $159.42, 20 percent of the past-due benefits awarded in the June 2016 rating decision, after withholding for retired pay. A portion of the Veteran’s benefits were withheld pending a Combat-Related Special Compensation (CRSC) and/or Concurrent Retired and Disability Pay (CRDP) adjustment to prevent an overpayment of benefits due to the receipt of military retired pay. The appellant filed a notice of disagreement with the amount of attorney fees in July 2016. The appellant asserted that additional attorney fees were warranted because the fees should have been based on the amount awarded rather than the amount paid to the Veteran. The Board initially finds that the appellant is entitled to an attorney fee of 20 percent of the past-due benefits awarded to the Veteran based on the June 2016 rating decision. A VA Form 21-22a and attorney fee agreement were properly completed in March 2014 and filed with the RO. The appellant represented the Veteran during the appeal. A notice of disagreement was filed on the issues granted in the June 2016 rating decision in June 2014 and September 2014. Accordingly, the criteria for attorney fees based on the past-due benefits awarded in the June 2016 rating decision were met. In Rosinski v. Wilkie, 32 Vet. App. 264 (2020), the Court held that VA obligations to attorneys under 38 C.F.R. § 5904 are to be determined by the total amount of past due benefits awarded by VA and not by the amount the Veteran is actually entitled to receive. In Rosinski, the Veteran’s attorney had received 20 percent of the amount paid to the Veteran following withholding for military retired pay. The Court found that the attorney should have been awarded 20 percent of the total amount awarded to the Veteran, prior to the withholding for military retired pay. The facts of Rosinski are similar to the facts of this case. The appellant is entitled to 20 percent of the total amount of past-due benefits the Veteran is entitled to be paid. Therefore, attorney fees should have been based on the total award of past due benefits awarded to the Veteran, prior to the withholding for military retired pay. A review of the claims file does not reflect that additional attorney fees have been granted to the appellant based on the past-due benefits awarded in the June 2016 rating decision following the July 2016 Summary of the Case. Therefore, the   Board finds that additional attorney fees equal to the difference between 20 percent of the total past-due benefits awarded to the Veteran in the June 2016 rating decision, prior to withholding, and the amount already paid to the appellant, are warranted. 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.