Citation Nr: 21009463 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 20-18 050 DATE: February 22, 2021 ORDER As the attorney is not entitled to fees for past-due benefits arising from an October 2018 rating decision, the Veteran’s appeal is granted. FINDINGS OF FACT 1. The Veteran’s October 2010 appointment of the attorney and the associated fee agreement are valid. 2. The attorney’s December 2013 withdrawal from representation is valid. 3. In November 2018, the Office of General Counsel (OGC) determined the attorney was not entitled to fees related to the TDIU claim granted in the October 2018 rating decision. 4. The attorney did not represent the Veteran during the phase of the appeal when the Veteran sought an increased rating for his service-connected back disability, separate ratings for pain and paresthesia of his bilateral lower extremities, entitlement to a TDIU, and entitlement to an earlier effective date for a TDIU. CONCLUSION OF LAW The criteria for entitlement to attorney fees from past due benefits awarded in an October 2018 rating decision have not been met. 38 U.S.C. § 5904; 38 C.F.R. § 14.636. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is the appellant in this case. He has appealed the determination that attorney fees were owed. The Veteran was represented by an attorney, S.K., (hereinafter “attorney”) in a claim for service connection for a low back disability, which also included claims for service connection for radiculopathy of the bilateral lower extremities. As both the Veteran and the attorney have a substantial interest in the outcome of this appeal, it is considered a simultaneously contested claim. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 fee decision of the Department of Veterans Affairs (VA). In January 2019, OGC, on own motion, informed the parties, the Veteran and the attorney, that it intended to review the prior fee agreement between the parties as to the reasonableness (the amount) of attorney fees withheld. See Correspondence (January 2019). Nevertheless, the issue of whether the attorney in this appeal is entitled to attorney fees for past due benefits arising from the October 2018 rating decision remains within the jurisdiction of the Board. Therefore, the Board will address the issue below. Whether the attorney is entitled to fees for past-due benefits arising from an October 2018 rating decision. The Veteran contends that payment of attorney fees to his former attorney, S.K., is not warranted because he fired the attorney prior to filing the appeal for higher ratings and earlier effective dates for a service-connected low back disability and radiculopathy of the bilateral lower extremities as well as entitlement to TDIU; and because the attorney had withdrawn his representation of the Veteran prior to the Veteran’s filing of the appeal. Given this, the Veteran argues that he was not represented by the attorney for the appeal granted in an October 2018 rating decision. See NODs (January 2019)(2) and Correspondence (January 2019). The relevant law provides that 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, “Appointment of Veterans Service Organization as Claimant’s Representative,” or VA Form 21-22a, “Appointment of Attorney or Agent as Claimant’s Representative,” 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). Agents and attorneys may charge claimants or appellants for representation provided: After an AOJ (Agency of Original Jurisdiction) 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). 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). For VA purposes, 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, 2020 U.S. App. LEXIS 27759 (Fed. Cir. Sept. 1, 2020); Jackson v. McDonald, 635 Fed. Appx. 858 (Fed. Cir. 2015); Snyder v. Nicholson, 489 F.3d 1213 (Fed. Cir. 2007). When the benefit granted on appeal, or as the result of the readjudicated claim, is service connection for a disability, the “past-due benefits” will be based on the initial disability rating assigned by the AOJ following the award of service connection. The sum will equal the payments accruing from the effective date of the award to the date of the initial disability rating decision. If an increased rating is subsequently granted as the result of an appeal of the disability rating initially assigned by the AOJ, and if the agent or attorney represents the claimant or appellant in that phase of the claim, the agent or attorney will be paid a supplemental payment based upon the increase granted on appeal, to the extent that the increased amount of disability is found to have existed between the initial effective date of the award following the grant of service connection and the date of the rating action implementing the appellate decision granting the increase. 38 C.F.R. § 14.636(h)(3)(i). The question before the Board is whether the attorney is entitled to fees for past due benefits arising from an October 2018 rating decision that effectuated a September Board decision, which granted (1) a 40 percent rating for service-connected low back disability effective July 22, 2020, (2) an earlier effective date of July 22, 2002 for the assignment of a 20 percent rating for radiculopathy of the right lower extremity (RLE) , (3) an earlier effective date of July 22, 2002 for the 20 percent rating for radiculopathy of the left lower extremity (LLE), and (4) an earlier effective date of July 22, 2002, for the ward of TDIU. The Board concludes that the attorney is not entitled to fees from past due benefits arising from the October 2018 rating decision because the attorney did not represent the Veteran during the phase of the appeal when the Veteran sought (1) an increased rating for his service-connected back disability, (2) separate ratings for pain and paresthesia of his bilateral lower extremities, (3) entitlement to a TDIU, and (4) an earlier effective date for a TDIU. In July 2002, VA received the Veteran’s claim for service connection for a low back disability. See VA 21-526 (July 2002). A May 2003 rating decision denied the claim for service connection for a low back disability. The AOJ issued a Statement of the Case (SOC) in January 2004, at which time the Veteran was represented by Disabled American Veterans. VA received in February 2004 the Veteran substantive appeal to the Board. See Form 9 (February 2004). The AOJ issued Supplemental Statement of the Case (SSOC) in May 2004 and certified the appeal to the Board for appellate review in August 2004. See Form 8 (August 2004). In October 2006 and again in July2009, the Board remanded the appeal for additional evidentiary development. Then, following the development, an August 2010 Board decision denied the claim for service connection for a low back disability. Thereafter, in October 2010, VA received the Veteran signed and properly executed VA Form 21-22a (Power of Attorney) appointing S.K. as his authorized representative along with a limited fee agreement. The parties, the Veteran and the attorney, signed the limited fee agreement, which permitted the attorney to represent the Veteran before the United States Court of Appeals for Veterans Claims (the Court). It also indicated the attorney was entitled to 20 percent of any past-due benefit awarded on the basis of the client’s claims with the U.S. Department of Veterans Affairs. The Veteran appealed the August 2010 Board decision to the Court and the Courted, in February 2011, granted a Joint Motion to Remand (JMR) and vacated the August 2010 Board decision. Hence, the appeal was returned to the Board for action consistent with the JMR. In May 2011, the Board remanded the claim for further development, to include obtaining an adequate VA examination. In a December 2013 letter, the attorney withdrew representation from the appeal for service connection for a low back disability. He stated the Veteran decided to terminate his representation. He requested VA to withdraw his power of attorney, but note that that the fee agreement would remain in place and he expressly did not waive his right to attorney fees. An April 2014 Board decision granted the claim for service connection for a low back disability. In May 2014, VA received from the Veteran a copy of a letter he sent to the attorney notifying him that he was terminating their representation agreement for lack of performance. In a November 2014 rating decision, the AOJ effectuated the April 2014 Board’s grant of service connection for a low back disability and the AOJ assigned an initial 10 percent rating from July 22, 2002, a 20 percent rating from September 21, 2011, and a 40 percent rating from February 3, 2012. The AOJ also granted service connection for LLE radiculopathy at 20 percent effective October 27, 2014, and RLE radiculopathy at 20 percent effective October 27, 2014. In the same month, the AOJ issued a fee decision, awarding fees to the attorney from past due benefits granted in the November 2014 rating decision. See Notification Letter (November 2014). In December 2014, VA received the Veteran’s notice of disagreement (NOD) disputing the attorney’s entitlement to fees from past-due benefits arising from the November 2014 rating decision. In January 2015, the Veteran filed an NOD with the November 2014 rating decision, seeking a higher rating for his service-connected low back disability; additional separate ratings for pain and paresthesia of his bilateral lower extremities; and entitlement to a TDIU. He also filed an application for entitlement to a TDIU. See VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability (January 2015). In a May 2015 letter, VA notified the Veteran that his appeal disputing the attorney’s entitlement to fees was referred to OGC to conduct a reasonableness review. See Notification letter (May 2015). In a September 2015 rating decision, the AOJ granted the Veteran’s claim for entitlement to a TDIU effective January 20, 2015. In a May 2016 letter, OGC notified the Veteran of their intent to review the reasonableness of the attorney fees awarded in the November 2014 fee decision. See Notification letter (May 2016). In September 2018, OGC determined the attorney fee of 20 percent of past due benefits awarded as a result of the grant of service connection for a low back disability was reasonable, but a reduced award for the grant of service connection for radiculopathy of the bilateral lower extremities was more appropriate. See Third Party Correspondence (September 2018). As a result, the Veteran withdrew his appeal on attorney fees. See Correspondence (September 2018). In a September 2018 decision, the Board granted an initial 40 percent rating for low back disability effective July 22, 2002, an earlier effective date of July 22, 2002 for a 20 percent rating for radiculopathy of the left lower extremity (LLE), an earlier effective date of July 22, 2002 for a 20 percent rating for radiculopathy of the right lower extremity (RLE), and an earlier effective date for TDIU, July 22, 2002. In an October 2018 rating decision, the AOJ effectuated the September 2018 Board decision. In an October 2018 fee decision, the AOJ withheld 20 percent of the past-due benefits awarded to the Veteran as a result of the September 2018 Board decision. The AOJ also noted that the case was referred to OGC to determine if said fees should be afforded to the attorney. In November 2018, OGC determined the attorney was not entitled to fees for the grant of entitlement to a TDIU. See Status Letter (February 2019). Subsequently, the AOJ issued a corrected fee decision in December 2018, finding the attorney was entitled to attorney fees. See Correspondence (December 2018). The Veteran filed a NOD in response in January 2019. See Correspondence (January 2019 and February 2019).The AOJ issued an SOC in February 2020. The claim was certified to the Board in June 2020. See Form 8 (June 2020). Based on the evidence of record, the Board finds that attorney fees are not warranted from the claims granted in the October 2018 rating decision. The criteria set forth in 38 C.F.R. § 14.636(c)(2) have not been met. In the appeal at issue, the attorney did not represent the Veteran during the phase of the appeal when the Veteran sought an increased rating for his service-connected back disability, separate ratings for pain and paresthesia of his bilateral lower extremities, entitlement to a TDIU, and entitlement to an earlier effective date for a TDIU. Indeed, the attorney withdrew from representation in December 2013, prior to the filing of the January 2015 NOD with respect to the November 2014 rating decision that granted service connection for a low back disability and radiculopathy of the bilateral lower extremities. The Veteran filed the January 2015 NOD on his own volition. When the Veteran filed the January 2015 NOD, seeking increased and separate ratings and a TDIU, he effectively filed “a separate appeal”, downstream issues to which the attorney no longer represented him in. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of “downstream” issues such as the compensation level assigned for the disability or the effective date of service connection). As such, the attorney is not entitled to fees relating to the separately appealed downstream issues, which was filed solely by the Veteran. Moreover, in the November 2018 decision, OGC specifically determined the attorney was not entitled to fees for entitlement to a TDIU. Therefore, the attorney is not entitled to attorney fees from past-due benefits awarded in the October 2018 rating decision. Accordingly, the Veteran’s appeal is granted as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim must be terminated or denied as without legal merit). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Pendleton, N. 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.