Citation Nr: A21008397 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 200413-77666 DATE: April 27, 2021 ORDER Entitlement to eligibility to attorney fees based on the past-due benefits awarded in an August 2018 rating decision is granted. FINDINGS OF FACT 1. The notice of disagreement underlying the August 2018 grant of past due benefits based on the grant of service connection for cystitis was filed before June 19, 2007. 2. The Board promulgated a final decision with respect to the issue of entitlement to service connection for cystitis in February 2017. CONCLUSION OF LAW The criteria for eligibility to attorney fees to the appellant based on the past-due benefits awarded in an August 2018 rating decision are met. 38 U.S.C. § 5904; 38 C.F.R. § 14.636.   REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1970 to April 1972, and from June 1974 to August 1977. The appellant is the Veteran’s attorney representative. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to attorney fees based on the past-due benefits awarded in an August 2018 rating decision. The appellant submitted a timely notice of disagreement with the rating decision in October 2018. In February 2020, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC). The appellant opted the claim into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting an April 2020 VA Form 10182, Decision Review Request: Board Appeal, identifying the February 2020 SOC. Therefore, the February 2020 SOC is the decision on appeal. In the April 2020 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the February 2020 SOC. 38 C.F.R. § 20.301. Entitlement attorney fees based on the past-due benefits awarded in an August 2018 rating decision The appellant has asserted that she is entitled to attorney fees based on the past-due benefits awarded in an August 2018 rating decision, which granted service connection for chronic cystitis. The RO initially denied the Veteran’s claim for service connection for cystitis in an April 2005 rating decision. The Veteran filed a timely notice of disagreement with the decision in May 2005 and completed an appeal to the Board. In a December 2008 decision, the Board denied the Veteran’s claim for service connection for chronic cystitis. In May 2010, the Veteran and appellant signed VA Form 21-22a, Appointment of Individual as Claimant’s Representative and a fee agreement stating that the attorney’s fee to be paid will be 20 percent of past-due benefits, paid directly to the attorney by VA. The attorney fee agreement included the name of the Veteran, his VA file number, and specific terms under which the amount to be paid for the services of the attorney would be assessed. A copy of the agreement was received by VA in May 2010. The Board finds the agreement to be valid, as it was properly filed with VA and contains all required information in accordance with 38 C.F.R. § 14.636(g). The Veteran appealed the Board’s December 2008 decision to the United States Court of Appeals for Veterans Claims (Court). In April 2010, pursuant to a Joint Motion for Remand (JMR), the Court issued an Order remanding the appeal to the Board for compliance with instructions in the JMR. In January 2011, the Board remanded the issue for additional development. In an August 2012 decision, the Board denied service connection for a genitourinary disability, claimed as chronic cystitis. The Veteran appealed the decision to the Court, and in February 2014, the Court issue a Memorandum Decision vacating the Board’s August 2012 decision and remanding the case for action consistent with the Memorandum Decision. In September 2014, the Board remanded the case for additional development. In a February 2017 decision, the Board granted service connection for a genitourinary disorder, to include chronic cystitis. The RO implemented the Board’s decision in an August 2018 rating decision, granting service connection for chronic cystitis with an evaluation of 20 percent effective June 4, 2004, and an evaluation of 40 percent effective March 9, 2016. In a September 2018 Summary of the Case, the RO found that the appellant was not entitled to attorney fees based on the past-due benefits awarded in the August 2018 rating decision. The RO found that the notice of disagreement in the case was filed on May 31, 2005, and based upon the law in effect at that time, the requirement that the attorney was retained not later than one year following the date that the Board decision was promulgated had not been met. The RO noted that the Board denied service connection for chronic cystitis in December 2008 and the VA Form 21-22a was dated May 3, 2010. The appellant filed a notice of disagreement with the denial of eligibility to attorney fees in October 2018. The appellant asserted that she was eligible for attorney fees because she was retained by the Veteran while the case was at the Court and within a year of the December 2008 Board decision. A claimant may have attorney or agent representation for the prosecution of claims for VA benefits. 38 U.S.C. § 5904. In cases in which a Notice of Disagreement was filed on or before June 19, 2007, agents and attorneys may charge fees only for services provided after both of the following conditions have been met: (i) A final decision was promulgated by the Board with respect to the issue, or issues, involved in the appeal; and (ii) The agent or attorney was retained not later than 1 year following the date that the decision by the Board was promulgated. 38 C.F.R. § 14.636(c)(3). 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). Based on a full review of the evidence of record, the Board finds that the appellant is eligible for attorney fees based on the grant of service connection for cystitis in the August 2018 rating decision. The notice of disagreement on the issue of entitlement to service connection for cystitis was filed prior to June 19, 2007. Therefore, for attorney fees to be warranted, a final decision must have been promulgated by the Board and the attorney must have been retained not later than one year following the date the decision by the Board was promulgated. The issue of entitlement to service connection for cystitis was granted in a final Board decision in February 2017. A valid VA Form 21-22a and fee agreement were timely filed in May 2010. The appellant represented the Veteran during the appeal of the issue of service connection for cystitis, including prior to the February 2017 Board decision. The Board also notes that the December 2008 and August 2012 Board decisions were vacated by the Court in April 2010 and February 2014, respectively, and were thus not final Board decisions. Therefore, the criteria for eligibility to attorney fees are met. Accordingly, the Board finds that the appellant is eligible for attorney fees based on the past-due benefits awarded in the August 2018 rating decision. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Marenna, 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.