Citation Nr: A21020155 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 210209-143107 DATE: December 16, 2021 ORDER Entitlement to eligibility to attorney fees based on past-due benefits awarded in a November 2020 rating decision is granted. FINDINGS OF FACT 1. The Veteran's appointment of the appellant in December 2017 and January 2020, and the associated fee agreements, are valid for purposes of the award of attorney fees. 2. In a November 2020 rating decision, the Regional Office (RO) granted service connection for tinnitus; a notice of disagreement (NOD) as to this issue was filed in September 2017. CONCLUSION OF LAW The criteria for eligibility to meet the full amount of 20 percent of past-due benefits awarded in the November 2020 rating decision have been met. 38 U.S.C. § 5904; 38 C.F.R. § 14.636. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1977 to May 1995. The appellant is the Veteran's attorney representative. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2020 decision of a Department of Veterans Affairs (VA) RO. In February 2021, the appellant submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and elected the Evidence Submission docket. On July 19, 2021, the Board notified the parties that the appeal was placed on the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the parties with, or within 90 days from the date of the July 19, 2021 letter. Eligibility to attorney fees based on past-due benefits awarded in a November 2020 rating decision. 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 AOJ within 30 days of its execution. 38 C.F.R. § 14.636(g). 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(f). 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 (February 19, 2019); a 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). 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). The Veteran executed a VA Form 21-22a appointing the appellant as his representative in December 2017 and January 2020. The Veteran and the appellant also executed fee agreements in December 2017 and March 2020 that state that the appellant is entitled to a fee of 20 percent of any past-due benefits awarded, paid directly by VA. The fee agreements include the name of the Veteran, his VA file number, and specific terms under which the amount to be paid for the services of representation would be assessed. Copies of the agreements were received by VA in December 2017 and March 2020. Accordingly, the Board finds the agreements to be valid, as they were properly filed with VA and contain all required information in accordance with § 14.636(g). A February 2017 and April 2017 rating decision denied service connection for tinnitus. The Veteran filed a timely NOD as to these decision in September 2017; and perfected an appeal to the Board. In a November 2020 decision, the Board granted service connection for tinnitus. The AOJ implemented the Board's decision in a November 2020 rating decision, granting service connection for tinnitus, with an evaluation of 10 percent effective November 9, 2016. In a December 2020 fee decision, the AOJ determined that the cash payment awarded based on the November 2020 rating decision was reduced to $0.00 due to withholding based on the Veteran's receipt of military retired pay. Additionally, while the AOJ determined that all the requirements for direct payment of fees had been met, no fees were due to the appellant because no retroactive benefits were being awarded to the Veteran. The appellant timely filed a VA Form 10182 in February 2021 to the fee decision, arguing that attorney fees are warranted from the November 2020 rating decision. The Board finds that the appellant is eligible to attorney fees in the amount of the full 20 percent of past-due benefits awarded in the November 2020 rating decision. The December 2020 Award Print indicates that amounts were withheld from the Veteran's award from December 2016 to December 2020. Although the Veteran's cash payment was reduced due to his receipt of military retirement benefits, the appellant's fee is not to be reduced. Instead, the appellant is entitled to payment of fees in the amount of the full 20 percent of past-due benefits awarded, regardless of the amount ultimately payable to the Veteran. See Rosinski, 32 Vet. App. at 264. This is the identical scenario to Rosinski. The Board observes that an Audit Error Worksheet (AEW) was generated in August 2021 and November 2021, indicating that the Veteran was entitled to a retroactive adjustment due to previously withheld but now permitted Concurrent Retired and Disability Pay (CRDP) compensation. The claims file additionally indicates that the appellant was paid 20 percent of that calculated amount, minus administrative fees, in December 2021. However, the Board may not consider the August 2021 and November 2021 AEWs and December 2021 fiscal transaction for attorney fees in its decision, as this evidence is VA-generated evidence and was not submitted by the parties during the evidence submission window. In sum, the appellant is eligible to attorney fees based on 20 percent of the past-due benefits awarded, prior to retired military pay offset. If the December 2021 fiscal transaction payment of attorney fees following the release of CRDP funds did not correct the deficit, the appellant is entitled to be compensated to bring her to an amount equivalent to the full 20 percent of the past-due benefits awarded in the November 2020 rating decision. 38 U.S.C. § 5904; 38 C.F.R. § 14.636; see also Rosinski, 32 Vet. App. at 264. The appeal is therefore granted in the appellant's favor. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Robinson, 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.