Citation Nr: A25024167
Decision Date: 03/14/25	Archive Date: 03/14/25

DOCKET NO. 220909-276525
DATE: March 14, 2025

ORDER

The appellant is not eligible to receive attorney fees based on an August 2022 rating decision that granted increased ratings for the Veteran's bilateral upper and lower extremity disabilities, including bradykinesia due to Parkinson's disease; the appeal is denied.

FINDINGS OF FACT

1. For purposes of this appeal, the Veteran's May 2019 appointment of the appellant as his attorney, and the associated fee agreement, are valid. 

2. An August 2022 rating decision (dated August 11, 2022, mailed on August 15, 2022) awarded increased disability ratings for various conditions related to the Veteran's Parkinson's disease, increasing his combined rating to a total (100 percent) disability rating effective as of January 23, 2020. The appellant was paid an attorney fee of $7,639.79 from the past-due benefits derived from this rating decision.

3. A second rating decision in August 2022 (dated August 19, 2022, mailed on August 22, 2022) awarded additional increased disability ratings for four disabilities of the bilateral upper and lower extremities, including bradykinesia due to Parkinson's disease, also effective as of January 23, 2020. This second rating decision did not increase the Veteran's combined disability rating and resulted in no additional past-due benefits paid to the Veteran.  

CONCLUSION OF LAW

The criteria have not been met to establish eligibility for attorney fees based on past-due benefits awarded from the August 19, 2022, rating decision. 38 U.S.C. § 5904; 38 C.F.R. §14.636.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty in the United States Army from December 1965 to September 1968, including service in Vietnam. While this appeal was pending, the Veteran died in July 2023 without substitution by another individual to assume the Veteran's role in the appeal. 

The appellant is the Veteran's former attorney, appointed to represent him in other matters before VA. The present matter is a simultaneously contested claim because the Veteran, or his estate, and the attorney have a competing financial interest in the monetary amount involved. For that reason, the attorney does not represent the Veteran, nor the estate of the Veteran, in this matter due to the opposing financial interests. 

The fee decision on appeal was issued in August 2022 and constitutes an initial decision in the matter of eligibility to attorney fees arising from the August 19, 2022 rating decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the September 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the appellant elected the Direct Review docket. 

Simultaneously contested claims are subject to special procedural actions. In the present case, both the Veteran and the appellant were notified of the August 2022 rating and fee decisions issued by the agency of original jurisdiction (AOJ). Following the death of the Veteran, his estate was also provided a copy of the appellant's September 2022 Notice of Disagreement in November 2024 and given the opportunity to file a brief, argument, or request for a different type of review within 30 days from the date the content of the Notice of Disagreement was furnished. 38 C.F.R. §§ 20.400-20.404. The estate did not request a change in the docket assigned. Therefore, the Board of Veterans' Appeals (Board) now proceeds with direct review of the appeal.

The appellant is not eligible to receive attorney fees based on an August 2022 rating decision that granted increased ratings for the Veteran's bilateral upper and lower extremity disabilities; the appeal is denied.

Legal Criteria

A claimant may have attorney or agent representation for the prosecution of claims for VA benefits. 38 U.S.C. § 5904. 

A power of attorney, executed on either VA Form 21-22 or VA Form 21-22a, is required to represent a claimant before VA. The power of attorney shall contain the signature of the claimant and the signature of the agent or attorney and shall be presented to the appropriate VA office for filing in the Veteran's claims folder. 38 C.F.R. § 14.631(a). A power of attorney may be revoked at any time, and an agent or attorney may be discharged at any time. Unless a claimant specifically indicates otherwise, the receipt of a new power of attorney executed by the claimant and the organization or individual providing representation shall constitute a revocation of an existing power of attorney. 38 C.F.R. § 14.631(f)(1).

All agreements for the payment of fees for services of agents and attorneys must be in writing and signed by both the claimant or appellant and the agent or attorney. To be valid, a fee agreement must include the following: the name of the Veteran; the name of the claimant or appellant if other than the Veteran; the name of any disinterested third-party payer and the relationship between the third-party payer and the Veteran, claimant, or appellant; the applicable VA file number; and the specific terms under which the amount to be paid for the services of the attorney or agent will be determined. Fee agreements must also clearly specify if VA is to pay the agent or attorney directly out of past-due benefits. A copy of a direct-pay fee agreement must be filed with the AOJ within 30 days of its execution. 38 C.F.R. § 14.636(g). Fee agreements must be reasonable; those which do not exceed 20 percent of past-due benefits are presumed reasonable. 38 C.F.R. § 14.636(f).

For initial decisions issued on or after the effective date of the modernized review system (AMA) of February 19, 2019, agents and attorneys may charge claimants or the appellants for representation provided: After an AOJ has issued an initial 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; a review request (such as a notice of disagreement (NOD), higher-level review (HLR), or supplemental claim) of the initial AOJ decision has been filed with respect to that decision; 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). See 38 U.S.C. § 5904(c)(1); see also Military-Veterans Advocacy v. Sec'y of Veterans Affairs, 7 F.4th 1110 (Fed. Cir. 2021).

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); see also Gumpenberger v. Wilkie, 973 F.3d 1379 (Fed. Cir. 2020); Snyder v. Nicholson, 489 F.3d 1213 (Fed. Cir. 2007).

When the benefit granted on appeal, or as the result of the readjudicated claim, is service connection for a disability, the "past-due benefits" will be based on the initial disability rating assigned by the AOJ 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 AOJ, 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)(3)(i).

Analysis

The Board finds that the attorney is not eligible for attorney fees based on the August 19, 2022, rating decision that awarded increased ratings for the Veteran's bilateral upper and lower extremity bradykinesia (with associated symptoms) because this rating decision did not produce any past-due benefits from which an attorney fee could be derived.  

First, for the purposes of this decision, the Board finds that the representation and fee agreements between the parties are valid. Notably, the May 2019 fee agreement did not contain the applicable VA file number, instead listing the Veteran's social security number which is not used as the file number for this Veteran. However, because the May 2019 fee agreement document was submitted along with a VA Form 21-22a, Appointment of Individual as Claimant's Representative, which did properly contain the VA file number, the Board will find both documents to be valid for the purposes of this decision. 

However, the Board finds that the August 19, 2022, rating decision that is central to this appeal did not create a retroactive monetary award of past-due benefits that could be subject to fees. Specifically, the earlier August 11, 2022, rating decision increased the Veteran's combined rate of disability compensation to 100 percent, effective from January 23, 2020. Although the second August 2022 rating decision granted increased ratings for additional disabilities not addressed by the first August 2022 rating decision, the second decision did not result in a higher disability rating (greater than 100 percent) and resulted in no additional monetary award to the Veteran. For that reason, in the absence of any past-due benefits awarded, there is no additional monetary amount owed to the Veteran from which an attorney fee may be paid. 

This circumstance is distinguishable from the line of cases including Rosinski v. Wilkie, 32 Vet. App. 264, and Gumpenberger v. Wilkie, 973 F.3d 1379, mentioned above because those cases dealt with circumstances where a past-due benefit was awarded, but not payable to the Veteran due to a separate impediment to payment such as a veteran's incarcerated status, outstanding debt, or receipt of retirement pay. Instead, in this circumstance, the controlling factor is the regulatory meaning of "past-due benefits" defined as "a nonrecurring payment resulting from a benefit, or benefits, granted...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...." 38 C.F.R. § 14.636(h)(3). 

In plain terms, because this Veteran was already compensated based upon a combined 100 percent disability rating, and the second August 2022 rating decision did not result in any additional cash payment owed to the Veteran, the second rating decision did not produce past-due benefits, and no attorney fee is payable where no past-due benefits were produced. 38 U.S.C. § 5904(d); 38 C.F.R. § 14.636. To the extent that the first August 2022 rating decision did produce past-due benefits, the attorney already received a fee based on that award, and that matter is not subject to the present appeal which encompasses only the August 23, 2022, fee decision based on the August 19, 2022, rating decision. 

In all, no attorney fee is payable in the absence of past-due benefits in this matter, and the attorney's appeal must be denied. 

 

VICTORIA MOSHIASHWILI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. McDonald, 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.