Citation Nr: 21012110 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 20-08 873 DATE: March 3, 2021 ORDER Attorney fees based on past-due benefits awarded in in a February 2017 rating decision, which granted service connection for a mood disorder, are denied. FINDING OF FACT A valid fee agreement was not filed with the VA Regional Office (RO) within 30 days of execution. CONCLUSION OF LAW The criteria for eligibility to payment of attorney fees based on past-due benefits awarded in the February 2017 rating decision, which granted service connection for a mood disorder, have not been met. 38 U.S.C. § 5904; 38 C.F.R. § 14.636. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from November 1966 to November 1968. The appellant is the Veteran’s former attorney. Entitlement to attorney fees based on past-due benefits awarded in a February 2017 rating decision, which granted service connection for a mood disorder. A claimant may have attorney or agent representation for the prosecution of claims for VA benefits. 38 U.S.C. § 5904(a). Attorneys and agents may charge claimants or appellants for representation before VA provided: after an 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 or for an increase in rate of a benefit; an NOD has been filed with respect to that decision on or after June 20, 2007; and the attorney or agent 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). See 38 C.F.R. § 14.636(c)(1). When a claimant 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, the total fee payable to the attorney 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 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). Such award of past-due benefits must result in a cash payment to a claimant or an appellant from which the fee may be deducted. Id. 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 claim reopened after a denial by a VA agency of original jurisdiction 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, as determined by applicable laws and regulations, and the date of the grant of the benefit by the agency of original jurisdiction, the Board, or an appellate court. 38 C.F.R. § 14.636(h)(1). When the benefit is granted on appeal, or as the result of the reopened claim, is service connection for a disability, the “past-due benefits” will be based on the initial disability rating assigned by the agency of original jurisdiction 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 agency of original jurisdiction, 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)(1)(i). However, a copy of a direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. 38 C.F.R. § 14.636(g)(3). In March 2013, VA denied service connection for depression. On May 21, 2013, VA received a letter from the appellant stating that he represented the Veteran and requesting a copy of the Veteran’s VA claims file. This letter from the appellant was dated May 14, 2013. A VA Form 70-3288 Request for and Consent to Release of Information from Claimant’s Records was signed by the Veteran on May 14, 2013. It states that a copy of his claims file should be sent to the appellant. In July 2013 and September 2013, VA received follow-up letters from the appellant about the request for a copy of the Veteran’s claims file. None of the documents received by VA in May, July, or September 2013 indicate that the appellant was submitting either a VA Form 21-22a, Appointment of Individual as Claimant’s Representative, or an attorney-client fee agreement. On November 13, 2013, the appellant faxed the RO with a cover letter stating “Here are the documents you requested. If you need anything else, please let me know. Thank you in advance for your assistance in this matter.” Attached were a VA Form 21-22a, Appointment of Individual as Claimant’s Representative on which the Veteran appointed the appellant to represent him before VA, and an attorney-client direct pay fee agreement. Both the VA Form 21-22a and the fee agreement were signed by the Veteran and the appellant on May 14, 2013. The Veteran filed an NOD as to the issue of service connection for depression in February 2014. In February 2017, VA granted service connection for a mood disorder. VA then informed the appellant that he was not entitled to attorney fees because he had not filed a timely attorney-client fee agreement with VA. In March 2017, the appellant filed an NOD with the denial of attorney fees. In June 2020, the appellant filed a motion to withdraw his representation of the Veteran. The Board granted the appellant’s motion in August 2020. The appellant is not entitled to attorney fees based on past-due benefits awarded in the February 2017 rating decision because the fee agreement was not filed with the RO within 30 days of execution. The fee agreement was executed on May 14, 2013, but the RO did not receive a copy of the fee agreement until November 13, 2013. Although the appellant submitted multiple requests for copies of the Veteran’s file in May, July, and September 2013, there is no indication in any of these documents that the appellant was submitting a fee agreement. The November 2013 fax cover sheet indicates that the RO had contacted the appellant for a copy of the VA Form 21-22a and the fee agreement, at which time the appellant sent them to VA. The fax cover sheet did not state that the appellant had previously submitted the documents to VA and there is no indication that the RO said they had received them and misplaced them. The note did not refer to the documents as copies or previously-submitted documents. Instead, the fax cover sheet note could indicate that the documents were being sent to VA for the first time. It simply said, “Here are the documents you requested.” On his March 2017 NOD, the appellant stated that the Veteran contacted him in October 2013 because VA informed him that the appellant was not listed as his valid representative. The appellant then contacted the RO who asked that the appellant fax a copy of the VA Form 21-22a and the fee agreement, which they did on November 13, 2013. The appellant stated that they had mailed the fee agreement and VA Form 21-22a to VA on May 14, 2013, and that they had the Postal Service return receipt. No such receipt was submitted to VA at that time. In February 2020, the appellant submitted his VA Form 9. He again asserted that the VA Form 21-22a and the fee agreement were mailed on May 14, 2013, and then re-sent on November 13, 2013, at VA’s request. He attached Postal Service documents which he claimed alleged was supporting evidence that he had sent the fee agreement to VA on May 14, 2013. The first document was a Certified Mail Receipt which contains a handwritten note with the Veteran’s name; the date of May 14, 2013; and power of attorney/fee agreement. There is no indication that this receipt was ever used by the Postal Service and no evidence that it was generated in May 2013. In fact, there is a location for the Postal Service to postmark it which they did not do. Therefore, the Certified Mail Receipt does not provide any evidence that the appellant submitted the fee agreement within 30 days of its execution in May 2013. The appellant also attached a Postal Service Domestic Return Receipt to his VA Form 9, which indicated that a package was mailed to the RO in Augusta, Maine. It was postmarked May 17, 2013, and has the same tracking number as the Certified Mail Receipt discussed above. This document, which was postmarked, states only that it was regarding the Veteran. It includes no information about the contents. Neither of these documents provide conclusive evidence that the appellant filed the fee agreement within 30 days of execution. VA practice and procedure is to associate with the appropriate file any document received in that Veteran’s case. Therefore, had the fee agreement been received by VA in May 2013, it would have been associated with the Veteran’s file. Instead, the evidence of record indicates that the fee agreement was first received by VA in November 2013. (Continued on next page) The evidence does not support that the appellant filed the fee agreement with the RO within 30 days of execution in May 2013. The fee agreement must be filed within 30 days. Therefore, the appellant is not entitled to attorney fees as a result of past-due benefits awarded in the February 2017 rating decision. The appeal is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Miller, 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.