Citation Nr: 21005149 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 20-15 350A DATE: January 29, 2021 REMANDED Entitlement of attorney’s fees for past due benefits awarded in a September 2017 Board decision granting service connection for PTSD, which assigned a 70 percent rating effective May 15, 2009, effectuated by a June 2018 rating decision, is remanded. REASONS FOR REMAND The Veteran served active duty from February 1983 to January 1989. The Appellant is his appointed attorney. 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). Entitlement to attorney’s fees for past due benefits awarded. The Appellant asserts the AOJ improperly calculated attorney’s fees on two bases. First, in the January 2019 attorney’s fees decision, VA informed the Veteran that his past-due benefits were previously offset due to his receipt of retirement benefits (Retired Pay Adjustment), but now they were paying him the additional amount previously withheld. Still, VA did not make a specific determination on the amount that was previously withheld in order to properly calculate the associated attorney’s fees. Second, the audits that were provided suggests the Veteran was not paid past due benefits for the period of May 15, 2009 to September 28, 2012 even though he was awarded service connection for an acquired psychiatric disability effective May 15, 2009. As a result, the Appellant was not paid attorney’s fees associated with those past-due benefits from May 2009 to September 2012. The claim for entitlement to attorney fees is a contested claim. See 38 U.S.C. § 7105A, 38 C.F.R. § 20.3(p); see also Mason v. Shinseki, 26 Vet. App. 1, 7 (2012) (finding a claim for attorney fees gave “rise” to a simultaneously contested claim even though it had not been granted), aff’d, 743 F.3d 1370 (Fed. Cir. 2014). Certain procedures must be followed in contested claims. Specifically, all interested parties will be specifically notified of the action taken by the agency of original jurisdiction in a simultaneously contested claim and of the right and time limit for submitting a Notice of Disagreement to the Board, as well as hearing and representation rights. 38 C.F.R. § 19.100. Upon the filing of a Notice of Disagreement in a simultaneously contested claim, all interested parties and their representatives will be furnished a copy of the Statement of the Case. When a substantive appeal is filed in a simultaneously contested claim, the content of the Substantive Appeal will be furnished to the other contesting parties to the extent that it contains information which could directly affect the payment or potential payment of the benefit, which is the subject of the contested claim. 38 C.F.R. § 19.102. In this case, remand is necessary because the notice requirements of 38 C.F.R. § 19.100-102 and 20.500-505 were not met. The Veteran was not notified of the contested claim, the right and time limit for submitting a Notice of Disagreement to the Board, as well as hearing and representation rights. While he was furnished with a copy of the Statement of the Case, the Veteran was not furnished a copy of the Notice of Disagreement or the content of the Substantive Appeal (Form 9). Accordingly, remand is necessary to ensure full compliance with the contested claim notice requirements. The matter is REMANDED for the following action: 1. Ensure full compliance with the contested claims procedures outlined in 38 C.F.R. §§ 19.100-19.102, 20.500-20.504. In doing so, properly notify the Veteran of the contested claim and furnish him a copy of the NOD and the content of the substantive Appeal (VA Form 9) with all attachments. If the Veteran responds, notice of the responses should be provided to the appellant. 2. Readjudicate the issue on appeal and provide the Veteran and appellant each a copy of a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Pendleton, Associate 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.