Citation Nr: A21016922 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 191105-48193 DATE: October 19, 2021 ORDER The February 2021 Board decision granting additional attorney fees of $1,870.29 based on the past-due benefits awarded in a February 2019 rating decision is vacated. Entitlement to additional attorney fees of $1,876.74 based on the past-due benefits awarded in a February 2019 rating decision is granted. FINDINGS OF FACT 1. The amount of additional attorney fees granted to the appellant in the February 2021 Board decision was incorrect. 2. The appellant is eligible for attorney fees based on the total amount of past-due benefits awarded in the February 2019 rating decision, and the attorney fees were incorrectly calculated by the RO. CONCLUSIONS OF LAW 1. Vacatur of the Board's February 2021 decision addressing the issue of entitlement to additional attorney fees based on the past-due benefits awarded in a February 2019 rating decision is warranted. 38 U.S.C. §§ 7103(c), 7104(a); 38 C.F.R. § 20.904. 2. The criteria for additional attorney fees of $1,876.74 based on the past-due benefits awarded in a February 2019 rating decision are met. 38 U.S.C. § 5904; 38 C.F.R. § 14.636. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1990 to June 1993, from May 2001 to August 2001, September 2001 to April 2003, and from December 2003 to May 2006. The appellant is the Veteran's attorney representative. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2019 decision of a Department of Veterans Affairs (VA) Regional Office (RO) which granted attorney fees based on the past-due benefits awarded in a February 2019 rating decision. In November 2019, the appellant submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and requested Direct Review by a Veterans Law Judge. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Vacatur of February 2021 Board Decision The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on its own motion, when a claimant has been denied due process of law or has been granted benefits based on false or fraudulent evidence. 38 C.F.R. § 20.1000. For the reasons discussed below, the February 2021 Board decision is vacated. In the February 2021 Board decision, the Board found that the appellant was entitled to additional attorney fees of $1,870.29 based on the past-due benefits awarded in a February 2019 rating decision. The Board found that the previous amount of attorney fees was incorrect due to miscalculations by the RO in determining the amount of past-due benefits owed to the Veteran. However, the Board unfortunately overlooked additional miscalculations by the RO in the amount of past-due benefits awarded from January 1, 2014 to January 31, 2014, from December 1, 2014 to November 30, 2015, and from December 1, 2015 to December 19, 2015. As the amount of additional attorney fees calculated by the Board in the February 2021 decision was incorrect, the decision is vacated and the issue will be readjudicated. Entitlement to additional attorney fees based on the past-due benefits awarded in a February 2019 rating decision A claimant may have attorney or agent representation for the prosecution of claims for VA benefits. 38 U.S.C. § 5904. For initial decisions issued prior to February 19, 2019, as in this case, agents and attorneys may charge claimants or appellants for representation provided: After an AOJ has issued a decision on a claim or claims, including any claim to reopen under 38 C.F.R. § 3.156(a) or for an increase in rate of a benefit; the AOJ issued notice of that decision before the effective date of the modernized review system; a notice of disagreement (NOD) has been filed with respect to that decision on or after June 20, 2007; and the agent or 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). Agents and attorneys may charge fees for representation provided with respect to a request for revision of a decision of an Agency of Original Jurisdiction (AOJ) or the Board based on a clear and unmistakable error (CUE) if notice of the challenged decision was issued before the effective date of the modernized review system; an NOD was filed with respect to the challenged decision on or after June 20, 2007; and the agent or 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). 38 C.F.R. § 14.636(c)(2). When a claimant or appellant and an attorney or agent 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 attorney by the Secretary directly from any past-due benefits awarded on the basis of the claim, and (ii) is contingent on whether the matter is resolved in a manner favorable to the claimant or appellant, the total fee payable to the attorney or agent 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 or appellant 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), 14.636(h)(2). The term "past-due benefits" means a nonrecurring payment resulting from a benefit, or benefits, granted on appeal or awarded on the basis of a readjudicated claim after a denial by an AOJ 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 and the date of the grant of the benefit by the AOJ, the Board, or an appellate court. 38 C.F.R. § 14.636(h)(3). The fees are payable to the attorney based on the amount of past-due benefits awarded regardless of the amount payable to the Veteran. See Rosinski v. Wilkie, 32 Vet. App. 264 (2020). In this case, the appellant asserts that he is entitled to additional attorney fees based on the past-due benefits awarded in a February 2019 rating decision. In October 2013, the Veteran and appellant signed 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 October 2013. 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 an August 2013 rating decision, the RO denied entitlement to a compensable rating for migraine headaches and entitlement to service connection for hypertension and sleep apnea. The Veteran filed a timely notice of disagreement with the decision in August 2013. In a July 2015 Statement of the Case, the RO confirmed the denial. The Veteran filed a timely VA Form 9 appeal to the Board in July 2015. In a July 2015 rating decision, the RO granted, in pertinent part, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) effective January 22, 2014. In June 2016, the Veteran filed a timely notice of disagreement with the effective date assigned for TDIU. The RO denied the claim for entitlement to an earlier effective date in a March 2017 Statement of the Case. The appellant filed a timely VA Form 9, substantive appeal, on the Veteran's behalf in March 2017. In an August 2018 decision, the Board granted entitlement to service connection for sleep apnea and hypertension, a higher rating of 50 percent for migraines, and entitlement to an earlier effective date of March 4, 2013 for the grant of a TDIU and eligibility to Dependents' Educational Assistance. The RO implemented the Board's decision in a February 2019 rating decision, which granted entitlement to a 50 percent rating for migraine headaches effective May 31, 2012, entitlement to service connection for sleep apnea with an evaluation of 50 percent effective May 31, 2012, entitlement to service connection for hypertension with an evaluation of 10 percent effective May 31, 2012, and entitlement to an earlier effective date of March 4, 2013 for the grant of entitlement to a TDIU and the grant of eligibility to Dependents' Educational Assistance. In a March 2019 Summary of the Case, the RO found that the appellant was entitled to attorney fees of $6,696.78, 20 percent of the past-due benefits awarded in the February 2019 rating decision. The RO stated that the amount of past-due benefits was calculated as $33,483.88. In September 2019, the RO issued an amended attorney fee decision. In the Summary of the Case, the RO stated that the RO had found a mistake in the calculations. The RO stated that the prior calculations ended on February 25, 2019 instead of February 20, 2019, the date of the rating. The RO stated that the amount of past-due benefits, computed from the effective date of the award through the date of the decision was $22,576.34. Therefore, the amount withheld for fees was $4,515.27, 20 percent of the past-due benefits. After the appellant asked the RO how the amount of past-due benefits was calculated, in an October 2019 letter the RO clarified that they had discovered two errors in the fee calculation. In addition to the incorrect date of the rating decision being used, the calculations indicated that effective December 1, 2013, the Veteran was previously paid $99.78, instead of $999.78, the correct amount. In November 2019, the appellant filed a notice of disagreement requesting direct review. The appellant asserted that the September 2019 Summary of the Case was incorrect. The appellant stated that his calculations indicated the expected past-due benefits was $32,583.88 with an expected attorney fee of $6,416.78. The appellant noted that based on the Calculation of Attorney Fees to Withhold, it appeared the RO did not put the Veteran's 100 percent rating (TDIU rating) into effect until December 1, 2013, when it should have been effective April 1, 2013. Therefore, the calculated benefits were incorrect. The Board notes that in December 2019, the appellant withdrew as the Veteran's representative, but did not waive his right to collect attorney fees. The Board initially finds that the appellant is eligible for attorney fees based on the past-due benefits awarded in the February 2019 rating decision. A notice of disagreement was filed on the issues granted in the decision, the appellant represented the Veteran during the appeal, and signed a valid fee agreement. After reviewing the file and attorney fee calculations, the Board agrees with the appellant that the RO calculated the past-due benefits, and subsequently fees, incorrectly. The Calculation of Attorney Fees to Withhold spreadsheet indicates that the Veteran was paid at a rate of $2,003.00 a month from December 1, 2012, to November 30, 2013, and at $3,166.00 a month beginning on December 1, 2013. The Veteran's rate reflects that he had a spouse and two children under 18 as dependents. As the Veteran was granted a TDIU rating effective April 1, 2013, the Veteran's monthly payment should have increased on April 1, 2013 to the 100 percent rate. The March 2019 notice letter to the Veteran indicates the Veteran should have been paid at a rate of $3,166 a month from April 1, 2013. Therefore, the Board finds that the past-due benefits were calculated incorrectly, and the Veteran's past-due benefits should have been calculated as 100 percent disabling from April 1, 2013, the effective date of TDIU. Accordingly, the Board finds that additional attorney fees are warranted based on the recalculation of benefits from April 1, 2013, through December 1, 2013, to reflect a 100 percent rating from April 1, 2013. Based on the Veterans Compensation Benefits Rate Table, effective December 1, 2012, a Veteran with a 100 percent disabling rating with a spouse and child was paid at a rate of $3,088 per month. For each additional child under age 18, $78, was to be added to the rate, for a total payment of $3,166 per month. Therefore, the Veteran should have been paid at the rate of $2,003 per month from December 1, 2012 to April 1, 2013, and at a rate of $3,166 per month from April 1, 2013 to December 1, 2013. The total from December 1, 2012 to April 1, 2013 is $8,012 ($2,003 x 4), and the total from April 1, 2013 to December 1, 2013 is $25,328 ($3,166 x 8), for a total payment of $33,340, instead of the $24,036 calculated for that period of time in the RO's Calculation of Attorney Fees. The difference in the calculated award was $9,304. The Boards finds that the amount of past-due benefits calculated for December 1, 2013 to December 31, 2013 was also incorrect. The RO stated that the payment should be $3,166 for that month, but the Veterans Compensation Benefits Rate Table changed effective December 1, 2013. The amount due for a Veteran with a spouse and 2 minor children from December 1, 2013, is $3,213.49 ($3,134.32 for a spouse and child plus $79.17 for an additional child). The difference in the award was $47.49. In the September 2019 attorney fee calculations, the RO calculated attorney fees of $3,213.00 from January 1, 2014, to January 31, 2014. However, a March 2019 notification letter indicates that the correct amount per month was $3,213.49 for January 2014. Consequently, past-due benefits were calculated as $0.49 less than the correct amount from January 1, 2014, to January 31, 2014. The Board also finds that the past-due benefits were calculated incorrectly from December 1, 2014, to November 30, 2015, and from December 1, 2015, to December 19, 2015. An August 2015 letter reflects that there was a cost of living adjustment on December 1, 2014, that changed the monthly amount to $3,268.12. However, the September 2019 attorney fee calculation spreadsheet indicated that the amount per month was $3,213.49, for a total of $38,561.88. As the correct amount per month was $3,268.12, the total benefits from December 1, 2014, to November 30, 2015 should have been $39,217.44. As a result of the error, the past-due benefits were calculated as $655.56 less than the correct amount from December 1, 2014, to November 30, 2015. A November 2015 letter indicates that from December 1, 2015, to December 19, 2015, the Veteran's benefits would be reduced due to the receipt of drill pay, resulting in a reduction to $2,283.12 from December 1, 2015 to December 19, 2015. The September 2019 attorney fee calculation spreadsheet indicated the rate from December 1, 2015 to December 19, 2015 was $3,268.12, for a total of $2,069.81. The correct amount from December 1, 2015, to December 19, 2015 was $1,445.98. Therefore, the past-due benefits calculated from December 1, 2015, to December 19, 2015 were calculated as $623.83 more than the correct amount. As the past-due benefits were calculated as $655.56 less than the correct amount from December 1, 2014, to November 30, 2015, and as $623.83 more than the correct amount from December 1, 2015, to December 19, 2015, the difference between the attorney fee calculations from December 1, 2014 to December 19, 2015, and the correct amount is $31.73 ($655.56 minus $623.83). Adding the difference due to the errors of $79.71 ($0.49 plus $47.49 plus $31.73), to the original calculated new award of $9,304, the Board finds that the total new award amount should have been $250,161.33 instead of $240.777.62. After subtracting the amount previously paid from the new award amount ($250,161.33 minus $218,201.28), the total amount of payment due is $31,960.05. 20 percent of that amount is $6,392.01. As the appellant was paid attorney fees of $4,515.27, the Board finds that additional attorney fees of $1,876.74 ($6,392.01 minus $4,515.27) are owed to the appellant. 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.