Citation Nr: A21016782 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 200212-60812 DATE: October 15, 2021 ORDER The February 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), was timely filed; to this extent, the appeal is granted. The December 2019 fee decision incorrectly determined the amount of fees to which the appellant was entitled because it miscalculated the assessment due to VA; to this extent, the appeal is granted. FINDINGS OF FACT 1. The February 2020 VA Form 10182 was postmarked within 60 days of the December 2019 fee decision on appeal. 2. The December 2019 fee decision stated that a $100 fee would be assessed on the appellant's attorney fee award. The correct assessment due, however, was $54.09. CONCLUSIONS OF LAW 1. The criteria for a timely appeal of an attorney fee decision have been met. 38 C.F.R. §§ 20.110(a), 20.402. 2. The criteria for an assessment of $54.09 on an award of attorney fees based on past-due benefits awarded in a December 2019 rating decision have been met. 38 C.F.R. § 14.636(h)(1). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Navy from August 1961 to January 1962. The appellant is the Veteran's former attorney. In June 2020, the Board dismissed this appeal as untimely. The appellant subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In February 2021, the Court granted the Parties' Joint Motion for Remand (JMR); vacated the June 2020 Board decision; and remanded the appeal. The fee decision on appeal was issued in December 2019 and constitutes an initial decision of the issue of attorney fees; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. On a February 2020 VA Form 10182, the appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the December 2019 fee decision on appeal. 38 C.F.R. § 20.301. The Veteran was not sent the substance of the appellant's VA Form 10182 and was not provided the opportunity to select a docket other than the Direct Review docket. However, the error was harmless because the assessment only impacts VA and the appellant; it has no impact on the amount payable to the Veteran. Because the error was harmless, the Board will adjudicate the issue on appeal. Whether the February 2020 VA Form 10182 was timely filed. Attorney fee cases are simultaneously contested claims. In simultaneously contested claims, a notice of disagreement with the decision awarding fees must be filed within 60 days from the date of mailing of the notification of the fee decision to the parties. 38 C.F.R. § 20.402. When VA requires that any written document be filed within a specified period of time, a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. 38 C.F.R. § 20.110(a). The fee decision was mailed to the appellant on December 12, 2019. The postmark date of the VA Form 10182 is February 4, 2020. The VA Form 10182 was received by VA on February 12, 2020. Because the VA Form 10182 was postmarked within 60 days of the December 2019 fee decision, the appeal was timely. Whether VA incorrectly calculated the assessment when it awarded the appellant attorney fees based on past-due benefits awarded in a December 2019 rating decision. VA will charge and collect an assessment out of the fees paid directly to attorneys from past-due benefits awarded. The amount of such assessment shall be equal to five percent of the amount of the fee required to be paid to the attorney, but in no event shall the assessment exceed $100. 38 C.F.R. § 14.636(h)(1). In a December 2019 fee decision, the appellant was awarded attorney fees based on past-due benefits awarded in a December 2019 rating decision. The fee decision stated that the appellant was entitled to $1,081.84 in fees. The decision also stated that VA would collect a $100 assessment and the appellant would be paid $981.84. Some VA financial calculation documents associated with the file indicate that the appellant would be charged a $100 assessment, and others indicate a $54.09 assessment. $54.09 is five percent of the attorney fees awarded in the December 2019 fee decision. On the February 2020 VA Form 10182, the appellant stated that the assessment was calculated incorrectly. The correct assessment is $54.09 because that is less than $100. An assessment is to be five percent of the attorney fees awarded, not to exceed $100. In this case, five percent of the fees is less than $100 and the assessment, therefore, is to be five percent of the fees. The appellant is entitled to a total payment of $1,027.75, and a refund of a portion of the assessment may be warranted. The appeal is granted. Documents added to the file after the VA Form 10182 indicate that the appellant was paid $1,027.74. Prior to refunding any portion of the assessment, VA should determine whether the appellant was correctly paid subsequent to his appeal, or whether VA owes the appellant a refund. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Miller, Counsel The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.