Citation Nr: 21032130 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 20-15 565 DATE: May 25, 2021 ORDER Entitlement to additional attorney fees based on past-due benefits awarded in an October 2018 rating decision is granted. FINDINGS OF FACT 1. The Veteran's appointment of the appellant as his attorney and the associated fee agreement are valid. 2. In an October 2018 rating decision, the Regional Office (RO) granted entitlement to service connection for adjustment disorder with depression, claimed as posttraumatic stress disorder (PTSD), and awarded a 30 percent evaluation, effective March 4, 2010. 3. A notice of disagreement (NOD) as to the issue of service connection for an adjustment disorder with depression had been filed. CONCLUSION OF LAW The criteria for entitlement to additional attorney fees based on past-due benefits awarded in an October 2018 rating decision have been 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 January 1966 to March 1968; from March 2003 to July 2003; from February 2004 to September 2004; and from September 2005 to October 2005. The appellant is the Veteran's former attorney representative. In March 2021, the Board remanded this matter to ensure full compliance with the contested claims procedures outlined in 38 C.F.R. §§ 19.100-02, 20.500-04. Such was completed in April 2021 when the Veteran was provided a copy of the appellant's March 2020 VA Form 9, substantive appeal. Attorney 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). 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 Jackson v. McDonald, 635 Fed. Appx. 858 (Fed. Cir. 2015); Snyder v. Nicholson, 489 F.3d 1213 (Fed. Cir. 2007); Gumpenberger v. Wilkie, 31 Vet. App. 33 (2019). 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 October 2011, VA received the Veteran's VA Form 21-22a appointing the appellant as his representative. The parties executed an attorney-client fee agreement at that time, which provided that the appellant was entitled to 20 percent of any past-due benefits awarded to the Veteran. The RO denied the Veteran entitlement to service connection for PTSD in a December 2010 rating decision. In January 2011, the Veteran submitted an NOD as to the issue. In an October 2018 rating decision, the RO granted service connection for adjustment disorder with depression, claimed as PTSD, and awarded a 30 percent evaluation, effective March 4, 2010. In a December 2018 decision, the RO found that the appellant was entitled to entitled to attorney fees in the amount of 20 percent of the past-due benefits awarded in the October 2018 rating decision. The appellant contested the December 2018 decision, arguing that an attorney fee of 20 percent of the total amount of past-due benefits awarded in the October 2018 rating decision was warranted, rather than 20 percent of the adjusted amount of past-due benefits following withholding. See February 2019 NOD. This issue was addressed by the U.S. Court of Appeals for Veterans Claims (Court) in Rosinski v. Wilkie, 32 Vet. App. 264 (2020). The essential facts in Rosinski are similar to the facts here. Part of the Veteran's past-due benefits were withheld because of his receipt of military retirement pay. In that decision, the Court clearly held that, in cases such as this one, the attorney fee calculation should be based on the total amount due prior to reductions related to military retirement pay. See 38 U.S.C. §§ 5304, 5904. The Board notes that the Veteran receives military retirement pay. Even if the Veteran's cash payment was reduced due to his receipt of military retirement pay, the appellant's fee is not to be reduced. Instead, the appellant is entitled to payment of fees in the amount of the full 20 percent of past-due benefits awarded, regardless of the amount ultimately payable to the Veteran. See Rosinski, 32 Vet. App. at 276. The appellant is thus entitled to additional attorney fees to bring him to an amount equivalent to 20 percent of the past-due benefits awarded in the October 2018 rating decision. Accordingly, the appeal is granted. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffin, Associate 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.