Citation Nr: 21016210 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 16-17 751 DATE: March 22, 2021 ORDER Attorney fees resulting from past-due benefits awarded in a December 2015 rating decision which granted, in pertinent part, an increased rating for the Veteran’s migraine type chronic headaches, are granted. FINDING OF FACT 1. The Veteran’s appointment of the appellant as his attorney and the associated fee agreement are valid. 2. In a December 2015 rating decision, the Regional Office (RO) granted an increased rating for migraine type chronic headaches from 10 percent to 50 percent. 3. A notice of disagreement (NOD) had been filed in April 2015 as to the initial rating assigned for migraine type chronic headaches following the August 2014 grant of service connection and the March 19, 2015, notice of the August 2014 rating decision. CONCLUSION OF LAW The criteria for the award of attorney fees based on past-due benefits awarded in the December 2015 rating decision which granted, in pertinent part, an increased rating for the Veteran’s migraine type chronic headaches have 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 April 2000 to March 2003. The appellant is the Veteran’s attorney. Entitlement to attorney fees based on past-due benefits awarded in the December 2015 rating decision which granted, in pertinent part, an increased rating for the Veteran’s migraine type chronic headaches. 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 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). In December 2013, the Veteran executed a VA Form 21-22 on which the appointed the appellant as his representative. At that time, the Veteran and appellant also executed an attorney-client fee agreement. The Veteran’s appointment of the appellant and the associated fee agreement are valid. In an August 2014 rating decision, the RO granted service connection for migraine type chronic headaches and assigned an initial rating of 10 percent. The Veteran was notified of that decision in a March 19, 2015 letter. Attorney fees based on that decision were also awarded in a March 2015 fee decision. In a March 19, 2015, rating decision, the RO proposed reducing the Veteran’s rating for migraine type chronic headaches from 10 percent to noncompensable. In April 2015, the Veteran submitted a VA Form 21-0958, Notice of Disagreement on which he indicated that he disagreed with the rating assigned for migraine headaches. He listed the date of the notification letter which he was appealing as March 19, 2015. In December 2015, the RO sent a letter to the Veteran informing him that the April 2015 NOD could not be an NOD as to the March 2015 proposed reduction because an appeal could only be filed after the action had been taken and the March 2015 action was only a proposal of action. In a December 2015 rating decision, the RO granted an increased rating for migraine type chronic headaches from 10 percent to 50 percent effective June 23, 2014. In a January 2016 fee decision, the appellant was denied attorney fees and he appealed. On the April 2015 NOD, the Veteran indicated that he disagreed with the rating assigned for his migraine type chronic headaches. This NOD was filed within one year of the August 2014 rating decision which granted service connection and assigned an initial 10 percent rating. Additionally, it listed the date of the March 19, 2015, letter which notified the Veteran of the August 2014 rating decision. Therefore, this NOD was a valid appeal of the initial rating assigned for migraine type chronic headaches. In December 2015, the rating for this disorder was increased to 50 percent. The appellant is entitled to attorney fees as a result of the past due benefits awarded in the December 2015 grant of an increased rating for migraine type chronic headaches. The appellant was the Veteran’s appointed representative at the time of the award, and the Veteran and the appellant had executed a valid attorney client fee agreement. An NOD had been filed in April 2015 with the initial rating assigned for migraine type chronic headaches. Although the appellant had been granted attorney fees for the initial grant of service connection, he was entitled to a subsequent award of fees following the increased rating assigned in December 2015. See 38 C.F.R. § 14.636(h)(1)(i). The appeal is granted. 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.