Citation Nr: 21040612 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 18-06 576 DATE: July 6, 2021 ORDER Entitlement to eligibility to attorney fees of 20 percent of the past-due benefits awarded in a September 2017 rating decision is granted. FINDING OF FACT The appellant is eligible for fees and the law provides that attorney fees are payable even though compensation is recouped due to military retirement pay. CONCLUSION OF LAW The criteria for an attorney fee of 20 percent of the total amount of past-due benefits awarded in the September 2017 rating decision have been met. 38 U.S.C. § 5904(d)(1); 38 C.F.R. § 14.636. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1942 to December 1945. He died in November 2012 and his surviving spouse was substituted as the claimant in a matter appealed to the Board of Veterans' Appeals (Board) to complete the processing of his claim. The appellant is the Veteran's surviving spouse's former attorney representative. The appellant and the Veteran's surviving spouse entered into a fee agreement in May 2017. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2017 attorney fee decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in April 2018 when the Board denied entitlement to attorney fees to the appellant based on the past-due benefits awarded in a September 2017 rating decision. The appellant appealed to the United States Court of Appeals for Veterans Claims (the Court). In February 2021 the Court granted a January 2021 Joint Motion for Remand (JMR) vacating the April 2018 Board decision and remanding the case to the Board for further consideration consistent with the JMR. The matter returns to the Board for further consideration. Entitlement to additional attorney fees based on the past-due benefits awarded in a September 2017 rating decision The appellant asserts that she is entitled to an attorney fees based on the past-due benefits awarded in a September 2017 rating decision. A claimant may have attorney or agent representation for the prosecution of claims for VA benefits. 38 U.S.C. § 5904. For initial decisions issued prior to February 19, 2019, as in this case, agents and attorneys may charge claimants or appellants for representation provided: After an Agency of Original Jurisdiction (AOJ) has issued a decision on a claim or claims, including any claim to reopen under 38 C.F.R. § 3.156(a) or for an increase in rate of a benefit; the AOJ issued notice of that decision before the effective date of the modernized review system; a notice of disagreement (NOD) has been filed with respect to that decision on or after June 20, 2007; and the agent or attorney 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). 38 C.F.R. § 14.636(c)(2). 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). 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 readjudicated claim after a denial by an AOJ 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 and the date of the grant of the benefit by the AOJ, the Board, or an appellate court. 38 C.F.R. § 14.636(h)(3). 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). In May 2017, the Veteran's surviving spouse 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, the name of his surviving spouse, 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 2017. 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's claim for service connection for Parkinson's disease was initially denied in a November 2010 rating decision. The Veteran filed a timely notice of disagreement with the decision in November 2010 and appealed the case to the Board. As noted above, the Veteran's surviving spouse was substituted as the appellant in the appeal. In an August 2017 decision, the Board granted entitlement to service connection for Parkinson's disease. In a September 2017 rating decision, the RO implemented the grant of service connection for Parkinson's disease with an evaluation of 30 percent effective June 8, 2010. In an October 2017 letter, the RO found that attorney fees were not warranted based on the past-due benefits awarded in the September 2017 rating decision because there were no accrued benefits. The RO stated that the rating decision awarded compensation. However, the Veteran was receiving pension benefits during this period which was the higher benefit. The appellant appealed the decision. The Board notes that in a May 2021 appellant brief, the appellant asserted that this issue is not a simultaneously requested claim and requested that the Board find that this is not a simultaneously contested claim as a matter of law. The appellant asserted that here, the only money is the attorney fee. Either the appellant is entitled to the fee or not. If she is not, the money does not go to the claimant. Likewise, the claimant does not receive a lessor payment if the appellant is entitled to the fee. A "simultaneously contested claim" is defined as a claim where one claim is allowed and one is rejected. 38 U.S.C. § 7105A. A "simultaneously contested claim" is further defined as the situation in which the allowance of one claim results in the disallowance of another claim involving the same benefit or the allowance of one claim results in the payment of a lesser benefit to another claimant. 38 C.F.R. § 20.3(l). The Board finds that the issue before the Board is a contested claim. See 38 U.S.C. § 7105A, 38 C.F.R. § 20.3(l); see also Mason v. Shinseki, 26 Vet. App. 1, 7 (2012) (finding a claim for attorney fees gave "rise" to a simultaneously contested claim even though it had not been granted), aff'd, 743 F.3d 1370 (Fed. Cir. 2014). In Rosinski, the U.S. Court of Appeals for Veterans Claims (Court) held that attorney fees are based on the amount of past-due benefits awarded regardless of the amount payable to the Veteran. See Rosinski, 32 Vet. App. at 274. In Rosinski, a payment was not made to the Veteran based on past-due benefits awarded due to the receipt of military retired pay. The Court found that there was a past-due benefit awarded, unpaid but unpayable retroactive disability compensation. Id. When an attorney fee is paid to the appellant, then the award is taken from the appellant's benefits. Although in this case, no monetary payment was made to the Veteran's surviving spouse, the attorney fees are based on the past-due benefits awarded by VA. As the attorney fees are taken out of the past-due benefits, the past-due benefits award is essentially reduced. If a payment is made based on the past-due benefits, it would be reduced by the amount of attorney fees. Therefore, the allowance of one claim results in the payment of a lesser benefit to another claimant, and the claim is a contested claim. Based on the evidence of record, the Board finds that the appellant is eligible for attorney fees equal to 20 percent of the past-due benefits awarded in the September 2017 rating decision. The criteria for eligibility to attorney fees were met as there was a valid fee agreement and VA Form 21-22a of record, and a notice of disagreement was filed on the issue granted in the September 2017 rating decision. In Rosinski, 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 Rosinski, 32 Vet. App. at 274. Therefore, the Board finds that the appellant is entitled to attorney fees in the amount of the full 20 percent of past-due benefits awarded in the September 2017 rating decision. Although the cash payment was reduced to $0 due to the Veteran's receipt of military retirement pay, the appellant's fee is not to be reduced. Instead, the appellant is entitled 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. Therefore, the appellant is eligible for attorney fees equal to 20 percent of the past-due benefits awarded in the September 2017 rating decision. Nathaniel Doan 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.