Citation Nr: A21020650 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 210513-160460 DATE: December 29, 2021 ORDER Appellant P.G. is not liable for restitution of any amount of attorney's fees. FINDINGS OF FACT 1. The Office of General Counsel's April 2021 opinion ("OGC Opinion") found that attorney E.L. should be awarded 10 percent of fees withheld based on past-due benefits awarded. 2. The OGC Opinion also found that the appellant, attorney P.G., must return the $8,111.96 fee allegedly paid to him to E.L. 3. Appellant terminated his representation of the Veteran in 2016; he did not receive fees in this appeal, and waived receipt of any fees. CONCLUSION OF LAW The OGC's determination that the appellant must return $8,111.96 to E.L. is erroneous. 38 C.F.R. § 14.636. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1965 to February 1969. Appellant P.G. is his former attorney, as is E.L.. In response to an April 2021 OGC Opinion, the appellant filed a VA 10182 in May 2021. Accordingly, this appeal is decided from the Appeals Modernization Act (AMA) Direct Docket. Attorney Fees 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." 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); see also Gumpenberger v. Wilkie, 973 F.3d 1379 (Fed. Cir. 2020); Jackson v. McDonald, 635 Fed. Appx. 858 (Fed. Cir. 2015); Snyder v. Nicholson, 489 F.3d 1213 (Fed. Cir. 2007). Before the expiration of 120 days from the date of the final VA action, the Office of the General Counsel may review a fee agreement between a claimant or appellant and an agent or attorney upon its own motion or upon the motion of the claimant or appellant. The Office of the General Counsel may order a reduction in the fee called for in the agreement if it finds by a preponderance of the evidence, or by clear and convincing evidence in the case of a fee presumed reasonable under paragraph (f) of this section, that the fee is unreasonable. The Office of the General Counsel may approve a fee presumed unreasonable under paragraph (f) of this section if it finds by clear and convincing evidence that the fee is reasonable. The Office of the General Counsel's review of the agreement under this paragraph will address the issues of eligibility under paragraph (c) of this section and reasonableness under paragraph (e) of this section. The Office of the General Counsel will limit its review and decision under this paragraph to the issue of reasonableness if another agency of original jurisdiction has reviewed the agreement and made an eligibility determination under paragraph (c) of this section. Motions for review of fee agreements must be in writing and must include the name of the veteran, the name of the claimant or appellant if other than the veteran, and the applicable VA file number. Such motions must set forth the reason, or reasons, why the fee called for in the agreement is unreasonable and must be accompanied by all evidence the moving party desires to submit. 38 C.F.R. § 14.636 (h)(4)(i). Whether the fees awarded in a March 2021 Office of General Counsel (OGC) decision were reasonable. In his May 2021 Form 10182, appellant P.G. objects to the portion of the April 2021 OGC Opinion ordering him to return $8,111.96 money he states he never received. P.G. is the sole appellant in this particular appeal, as neither the Veteran nor any other stakeholders have objected to the OGC Opinion. As the OGC opinion notes, this appeal relates to the past-due benefits related to decisions in February and August 2018. In its determination, OGC found that 20 percent of each of these decisions in the amount of $9,761.40 and $8.112.96, respectively (totaling $17,874.36) should be withheld. That this was the correct amount to withhold for attorney fees has not been disputed by any of the parties. Moreover, the OGC determined that, for her services, attorney E.L. was entitled to 10 percent of the past due benefits in the amount of $8,937.18, or essentially half of the withheld benefits. Therefore, the remining issue is whether the appellant received or is even liable to any party for the remaining benefits. For his part, the appellant dispute whether he is entitled to fees. Rather, he disputes the OGC determination that he was actually paid attorney fees, and that he never received any money out of past-due benefits, and so he does not owe any money to any party. First, regarding entitlement to fees, since E.L. has already received attorney fees per the OGC determination, the only party to this appeal who is even eligible to receive any of the remaining attorney fees is the appellant. While it is true that the appellant was previously in a firm together with another private attorney, M.D, there is no indication that M.D. specifically was ever named as a representative. Notably, the original VA 21-22a, Fee Agreement, and Form 9, appealing the above issues to the Board from May 2014 do not include M.D. was a co-counsel, nor there any apparent intent to include M.D. in his appeal. Moreover, the Board may not presume that the VA 21-22a meant to cover every attorney working at the firm. However, the appellant has since waived entitlement to any fees in a personal capacity. Therefore the Board will presume that he is also not entitled to any of the remaining withheld fees. As a result, there is no party that has entitlement to the remaining attorney fees, and they should revert back to the Veteran. The only question left to address then, is where these remaining withheld benefits, in the amount of $8,937.18, are currently located. As the OGC determination noted, a July 2019 administrative decision indicates that VA released $8,111.96 to the appellant via his law firm. However, there is no indication that the appellant was personally enriched by this, as he had not been part of the firm for two years by that point. There is no evidence of record that appellant received and cashed any attorney fees paid by VA. Furthermore, a March 2019 settlement agreement, a July 2019 administrative decision, and a June 2021 letter from M.D. all corroborate that appellant never received any fee from VA, but was instead paid to the account of their previous firm. Therefore, for purposes of this appeal, based on the attestations of the parties involved, the appellant is not liable for any repayment of attorney fees, as it does not appear that he ever actually received them. As a final matter, however, the Board does take issue with M.D.'s assertion in his May 2021 letter that he had "long since arranged with [E.L.] to split the fee 50-50 with her office," and that he had already sent half of the fees paid to his office by VA to attorney E.L. in the amount of $4,006.47. He has also offered to send the other half of the fees to E.L. in order to divest his office of any further involvement in these funds. To be clear, as far as the benefits that were originally released to M.D.'s office in July 2019 (in the amount of $8,111.96) are concerned, neither M.D's nor E.L's office is entitled to them. E.L. has already received her share of fees (as was determined by the OGC) and M.D. had no entitlement to them. Regardless of where this money is now, it belongs to the Veteran and should be returned to him. Therefore, for purposes of this appeal, the appellant is not liable for the repayment of any attorney fees, as he never actually received them. The appeal is granted to this extent. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Maskatia