Citation Nr: A21018095 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 210603-163720 DATE: November 10, 2021 ORDER The appellant is ineligible to the direct payment of attorney fees as there is no valid direct-pay fee agreement; to this extent, the appeal is denied. FINDING OF FACT The appellant and the Veteran did not have a valid direct-pay fee agreement because the fee agreement was not filed with VA within 30 days of execution. CONCLUSION OF LAW The appellant is not entitled to the direct payment of attorney fees. 38 U.S.C. § 5904; 38 C.F.R. §§ 14.629, 14.630, 14.631, 14.636. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1995 to August 2015. The appellant is the Veteran's attorney representative. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2021 decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied acceptance of the Direct Pay Fee Agreement as it was not received within 30 days of its execution. In a June 2021 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Direct Review docket. 1. The appellant is ineligible to the direct payment of attorney fees as there is no valid direct-pay fee agreement A claimant may have attorney or agent representation for the prosecution of claims for VA benefits. 38 U.S.C. § 5904. A power of attorney, executed on either VA Form 21-22 or VA Form 21-22a, is required to represent a claimant before VA. The power of attorney shall contain the signature of the claimant and the signature of the agent or attorney and shall be presented to the appropriate VA office for filing in the Veteran's claims folder. 38 C.F.R. § 14.631(a). A power of attorney may be revoked at any time, and an agent or attorney may be discharged at any time. Unless a claimant specifically indicates otherwise, the receipt of a new power of attorney executed by the claimant and the organization or individual providing representation shall constitute a revocation of an existing power of attorney. 38 C.F.R. § 14.631(f)(1). All agreements for the payment of fees for services of agents and attorneys must be in writing and signed by both the claimant or appellant and the agent or attorney. To be valid, a fee agreement must include the following: the name of the Veteran; the name of the claimant or appellant if other than the Veteran; the name of any disinterested third-party payer and the relationship between the third-party payer and the Veteran, claimant, or appellant; the applicable VA file number; and the specific terms under which the amount to be paid for the services of the attorney or agent will be determined. Fee agreements must also clearly specify if VA is to pay the agent or attorney directly out of past-due benefits. A copy of a direct-pay fee agreement must be filed with the agency of original jurisdiction (AOJ) within 30 days of its execution. 38 C.F.R. § 14.636(g). For initial decisions issued prior to February 19, 2019, 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; an 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). In April 2018, the Veteran executed a VA Form 21-22a appointing the appellant as his representative. The parties also executed a "Fee Agreement" in April 2018, which provided that the appellant was entitled to 13 percent of any past-due benefits awarded to the Veteran. The record shows that a copy of the executed fee agreement was not received by the AOJ until June 2018. Based on the evidence of record, the Board finds that the August 2019 fee agreement between the appellant and the Veteran is not valid per the requirements of 38 C.F.R. § 14.636, and thus the appellant is not eligible to direct payment of attorney fees. Specifically, 38 C.F.R. § 14.636(g) provides the elements needed for a direct-pay fee agreement to be honored by VA. First, it must be in writing and signed by both the Veteran and the agent or attorney. It must also include: the name of the Veteran, or name of the claimant if other than the Veteran; the applicable file number; and the specific terms under which the amount to be paid for the services of the attorney or agent will be determined. 38 C.F.R. § 14.636(g) also requires that fee agreements clearly specify if VA is to pay the agent or attorney directly out of past due benefits, and to not exceed a 20 percent contingency fee, which is presumed to be a reasonable percentage. Finally, direct-pay fee agreements must be filed with the agency of original jurisdiction within 30 days of its execution. Here, the written fee agreement was signed by both the Veteran and the appellant. in April 2018 and was received by VA past the 30-day requirement, in June 2018. Therefore, it does not meet the requirements to be considered a valid fee agreement per 38 C.F.R. § 14.636(g). The regulation provides elements of validity in the conjunctive; thus, all must be met. As the requirement for the fee agreement to be filed with the AOJ within 30 days of execution is an explicitly stated element for the validity of a fee agreement, the April 2018 fee agreement is found to be invalid, and thus the appellant is ineligible to attorney fees. See Cox v. McDonough, No. 19-3317, 2021 U.S. App. Vet. Claims LEXIS 851 (May 12, 2021) (delineating that the criteria for the validity of the fee agreement must be met prior to eligibility to fees). No other fee agreement between the appellant and the Veteran has been received. The Board notes that in June 2018 the appellant reached out to the VA and stated that he had previously filed executed representative and fee agreement paperwork via facsimile in April 2018. The appellant provided a facsimile transmission receipt that noted 9 pages were received by the Department of Veterans Affairs on April 24, 2018, at 7:10pm EDT. The appellant also submitted an April 21, 2018, letter from the appellant that noted he had previously submitted the VA Form 21-22a and his retainer agreement. This would not be possible as the appellant is providing evidence of a timeline that states he filed the paperwork three days later on April 24, 2018. Later in June 2018, the appellant provided evidence and argument that he submitted a standard application package via facsimile to the Evidence Intake Center on April 24, 2018. He noted that his standard application package included a 21-22a, Privacy Act release, Retainer Agreement, FOIA Request with protective order request, Records review request with protective order request, and Electronic record access request with protective order request. The appellant argued that by applying the benefit of the doubt rule the evidence indicated that he attempted to file the Veteran's paperwork in April and an extension of the deadlines was included in that paperwork. While the benefit of the doubt rule may be applied to whether or not the appellant filed these documents and successfully requested an extension of any deadlines pending access to the Veteran's file, the benefit of the doubt doctrine is not applicable in contested claims such as the issue of attorney fees. In September 2019, the appellant sent in another facsimile confirmation receipt that noted 10 pages were received by the Department of Veterans Affairs on April 24, 2018, at 20:59:31 GMT. The appellant indicated this showed successful transmission of the Veteran's paperwork. The Board finds this problematic as it confirms a different number of pages were faxed to the VA at a different time on the same date the appellant previously claimed the documents were successfully faxed to the VA. In June 2021, the appellant argued that the Veterans Benefits Management System (VBMS) confirmed that the VA received the paperwork within the 30-day window, that the fax confirmation was submitted to VA and showed receipt by the VA, and that VA's failure to upload the filings was not the fault of the appellant or the Veteran. The Board does not find confirmation in VBMS that the fee agreement was received by VA within 30 days of execution. VBMS shows none of the documents being received in April 2018, but instead shows receipt of the documents in June 2018. The fax confirmations are inconsistent in total pages received and time of receipt. Further, it is unclear what documents were faxed at those times as no evidence has been submitted that the fax confirmations provided were relevant to the Veteran's file or those of another veteran that the appellant represents. While the Board appreciates the appellant may have attempted to file the documents in April 2018, the evidence does not show that the VA received the fee agreement within 30 days of execution as required by 38 C.F.R. § 14.636(g). The benefit of the doubt cannot be applied to simultaneously contested claims. In sum, as the April 2018 fee agreement does not meet the criteria of a valid direct-pay fee agreement, and no other valid fee agreements between the Veteran and the appellant have been filed, the appellant is ineligible for the direct payment of attorney. Accordingly, the claim of eligibility for direct payment of attorney fees is denied. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gastoukian, Kelly 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.