Citation Nr: A21020635 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 200526-87546 DATE: December 29, 2021 REMANDED The issue of reasonableness of attorney fees from past-due benefits awarded in March 2020 is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1970 to February 1972. C.L. is the Veteran's current attorney, except that he is not providing representation as to this attorney fees matter. A claimant may have attorney or agent representation for the prosecution of claims for VA benefits. 38 U.S.C. § 5904. To represent a claimant before VA, a representative must execute a power of attorney, on either VA Form 21-22, "Appointment of Veterans Service Organization as Claimant's Representative," or VA Form 21-22a, "Appointment of Attorney or Agent as Claimant's Representative." To obtain payment, an attorney representative must also have filed a valid fee agreement, as well as a notice of disagreement with regard to an initial decision relating to the issue or issues sought on appeal. Here, the Veteran claimed entitlement to a higher rating, as well as entitlement to an earlier effective date for PTSD, in an NOD form received December 2016. The Veteran retained the appellant as his attorney, per a valid VA Form 21-22 in December 2015, and Fee Agreement. The AOJ issued a Rating Decision in September 2016. C.L. submitted a notice of disagreement (NOD) on the Veteran's behalf in December 2016, disputing the AOJ's denial of an earlier effective date for PTSD, as well as the denial of an increased rating and earlier effective date for bilateral hearing loss, a rating in excess of 70 percent for PTSD, and service connection for two eye disabilities. After several requests from the appellant for a status update, VA issued a March 2020 Statement of the Case denying an increased rating and an earlier effective date for bilateral hearing loss, denying a rating in excess of 70 percent for PTSD, and denying service connection for two eye disabilities. However, in a March 2020 Rating Decision, the AOJ also issued a Rating Decision granting the Veteran an earlier effective date of December 19, 2014 for PTSD. Thus, in a March 17, 2020 Summary of the Case, the Veteran and C.L. were notified that C.L. was entitled to 20 percent of past-due benefits for the grant of an earlier effective date of December 19, 2014 for PTSD. This sum amounted to $96.16. C.L. filed a timely Form 10182 contesting the amount of attorney fees. Accordingly, this matter centers around the specific amount of the past-due payments to which attorney C.L. is entitled, arising from the grant of an earlier effective date of December 19, 2014 for PTSD, the ultimate result of the December 2016 NOD, filed by a prior attorney, M.P., during his representation of the Veteran. In this regard, the Board notes that in 5 years of representation, C.L.'s involvement in the case has amounted to filing the December 2016 NOD, submitting numerous status requests and notifications of address change, and a December 2020 Privacy Act request. Meanwhile, the Veteran filed several statements and items of evidence on his own behalf; it is not clear to what extent these submissions reflected the advice and assistance of C.L. Regardless, appellant C.L. contests the reasonableness of the amount of fees awarded for his role in securing the Veteran's March 2020 award of entitlement to an earlier effective date of December 19, 2014 for PTSD. Before a determination can be made regarding the merit of the Veteran's argument, the Board notes that it does not have original jurisdiction to determine the validity or reasonableness of fee agreements created after June 23, 2008. See Cox v. McDonough, 34 Vet. App. 112 (2021) (discussing 38 U.S.C. § 5904 and the transition from the pre-amended 38 C.F.R. § 20.609 to the current governing regulation, 38 C.F.R. § 14.636). Under the new framework, fee agreements are first subject to review by the VA Office of General Counsel (OGC), whereas the Board has appellate jurisdiction over the OGC determination. Further, a reasonable fee for an attorney who is discharged by the claimant or withdraws for representation before the date of the decision awarding benefits, must "fairly and accurately reflect his or her contribution to and responsibility for the benefits awarded." 38 C.F.R. § 14.636 (f)(2). Questions regarding whether the retained past due benefits were reasonable in light of C.L.'s length of representation and level of assistance provided to the Veteran, have not yet been considered by OGC. As such, the issue must be referred to OGC for such an evaluation. In addition to the above, the Board notes that the Veteran was recently granted entitlement to TDIU, effective December 19, 2014. According to a January 2021 decision, 20 percent of those benefits were withheld, which may impact whether the appellant is owed any fees. The matters are REMANDED for the following action: 1. Refer the December 2015 fee agreement to the Office of General Counsel for review of validity, as well as for whether the March 2020 allocation of attorney fees from past-due benefits was reasonable under the factors enumerated in 38 C.F.R. § 14.636(e). 2. Ensure that all contested claims procedures are executed. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. 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