Citation Nr: 21025999 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-53 624 DATE: April 29, 2021 ORDER Agent fees based on past-due benefits awarded in an April 2016 rating decision and corrected in an October 2020 rating decision, which granted service connection for major depression with anxiety and stress, special monthly compensation (SMC) based on housebound criteria, and basic eligibility to Dependents’ Educational Assistance (DEA) effective March 2, 2016, are denied. FINDINGS OF FACT 1. The Veteran’s appointment of the appellant as his agent and the associated fee agreement are valid. 2. In an April 2016 rating decision, the Regional Office (RO) granted service connection for major depression with anxiety and stress, SMC based on housebound criteria, and basic eligibility to DEA. In an October 2020 rating decision, the RO found clear and unmistakable error (CUE) in the effective dates assigned in the April 2016 rating decision. The effective dates were corrected to March 2, 2016. 3. A notice of disagreement (NOD) had not been filed with respect to the April 2016 rating decision. CONCLUSION OF LAW The criteria for the payment of agent fees based on past-due benefits awarded in the April 2016 rating decision and corrected in the October 2020 rating decision, which granted service connection for major depression with anxiety and stress, SMC based on housebound criteria, and basic eligibility to DEA effective March 2, 2016, have not been met. 38 U.S.C. § 5904; 38 C.F.R. § 14.636. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the U.S. Army from December 1973 to April 1975. The appellant is the Veteran’s former agent. Entitlement to agent fees: 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). The Veteran executed a VA Form 21-22 appointing the appellant as his agent in June 2014. The appellant and the Veteran executed a fee agreement at that time which provided that the appellant was entitled to 20 percent of any past-due benefits awarded to the Veteran, which was payable directly by VA. The Veteran’s appointment of the appellant as his representative and the associated fee agreement are valid. In April 2012, the RO denied service connection for posttraumatic stress disorder (PTSD). The Veteran filed an NOD with that denial in April 2012. A statement of the case (SOC) was issued in November 2013 and the Veteran perfected an appeal that month. In a decision dated November 18, 2015, the Board denied service connection for an acquired psychiatric disorder, to include PTSD. The Veteran did not file a motion for reconsideration or appeal to the United States Court of Appeals for Veterans Claims (Court). Therefore, the Board decision was final on the date stamped on the decision. 38 C.F.R. § 20.1100. On March 2, 2016, VA received new claims of service connection for anxiety, major depression, and depression. In the April 2016 rating decision from which fees are contested, the RO granted service connection for major depression with anxiety and stress, SMC based on housebound criteria, and basic eligibility to DEA. The effective date assigned for the grant of service connection was September 8, 2010; and an effective date of November 23, 2015, was assigned for SMC and eligibility to DEA. In a July 2020 rating decision, the RO found CUE in the April 2016 grant of service connection for major depression with anxiety and stress. The RO proposed to sever service connection and discontinue SMC and basic eligibility to DEA. In an October 2020 rating decision, the RO continued service connection, but found CUE in the effective dates of the grant of service connection, and entitlement to SMC and basic eligibility to DEA. This decision granted an effective date of March 2, 2016, for service connection for major depression with anxiety and stress, SMC based on housebound criteria, and basic eligibility to DEA. The October 2020 decision found CUE in the effective dates assigned for service connection for major depression with anxiety and stress, SMC based on housebound criteria, and basic eligibility to DEA. Therefore, this decision replaced the April 2016 decision with respect to the effective dates. These benefits were granted effective March 2, 2016, which is the date VA received the Veteran’s claim of service connection. No NOD had been filed with respect to this decision. The RO granted the benefits directly after the Veteran filed the claim of service connection. The Veteran had previously filed an NOD as to the issue of service connection for PTSD. However, the November 2015 Board decision denied that claim. That decision was final on November 18, 2015, when the Board issued the decision. 38 C.F.R. § 20.1100. The March 2, 2016, application was a new claim which was granted. However, no NOD had been filed with respect to that decision; the claim was granted by the RO directly after the claim was filed. As no NOD had been filed, the appellant is not entitled to fees. 38 C.F.R. § 14.636(c)(1). 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.