Citation Nr: A25035152 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240216-418678 DATE: April 16, 2025 ORDER The appellant is not entitled to attorney fees based on past-due benefits awarded in a May 2023 rating decision, which granted a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) effective January 16, 2023. The appeal is denied. FINDINGS OF FACT 1. The Veteran's appointment of the appellant as his attorney is valid. 2. The May 2022 and November 2022 fee agreements are valid as to claims where a notice of disagreement (NOD) had been filed after an agency of original jurisdiction (AOJ) decision. 3. No NOD was filed as to the issues granted in the May 2023 rating decision. CONCLUSION OF LAW The criteria for entitlement to attorney fees based on past-due benefits awarded in the May 2023 rating decision 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 July 1970 to February 1972. The appellant is the Veteran's attorney. The fee decision on appeal was issued in December 2023 and constitutes an initial decision of the issue of attorney fees; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. On a February 2024 VA Form 10182, Decision Review Request: Board Appeal (NOD), the appellant elected the direct review docket. The Veteran did not elect to change the docket. Therefore, the Board may only consider the evidence of record at the time of the December 2023 fee decision on appeal, and a brief or argument filed by the Veteran if received within 30 days of the April 2, 2024, notice of the substance of the NOD. 38 C.F.R. §§ 20.400 20.405. Whether appellant is entitled to attorney fees based on past-due benefits awarded in a May 2023 rating decision. 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, "Appointment of Veterans Service Organization as Claimant's Representative," or VA Form 21-22a, "Appointment of Attorney or Agent as Claimant's Representative," is required to represent a claimant before VA and to authorize VA's disclosure of information to any person or organization representing a claimant before the Department. Without the signature of a person providing representation for a particular claim under § 14.630 of this part or an accredited Veterans service organization (VSO) representative, agent, or attorney, the appointment is invalid, and the person appointed to provide representation is under no obligation to do so. The power of attorney shall meet the following requirements: (1) Contain signature by: (i) The claimant, or (ii) The claimant's guardian, or (iii) In the case of an incompetent, minor, or otherwise incapacitated person without a guardian, the following in the order named - spouse, parent, other relative or friend (if interests are not adverse), or the director of the hospital in which the claimant is maintained; and (iv) An individual providing representation on a particular claim under § 14.630 of this part or an accredited VSO representative, agent, or attorney; and (2) 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 direct-pay fee agreement is a fee agreement between the claimant or appellant and an agent or attorney providing for payment of fees out of past-due benefits awarded directly to an agent or attorney. A fee agreement that does not clearly specify that VA is to pay the agent or attorney out of past-due benefits or that specifies a fee greater than 20 percent of past-due benefits awarded by VA shall be considered to be an agreement in which the agent or attorney is responsible for collecting any fees for representation from the claimant without assistance from VA. 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); see also 38 U.S.C. § 5904(d). Agents and attorneys may not charge fees for services provided before the date on which a claimant or appellant is provided notice of the AOJ's initial decision with respect to the case. This limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. 38 U.S.C. § 5904(c)(1). 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). Fees which do not exceed 20 percent of any past-due benefits awarded shall be presumed to be reasonable if the agent or attorney provided representation that continued through the date of the decision awarding benefits. 38 C.F.R. § 14.636(f)(1). 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); Jackson v. McDonald, 635 Fed. Appx. 858 (Fed. Cir. 2015); 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). In a May 2021 rating decision, the AOJ, in pertinent part, granted service connection for a lumbar spine disability and right and left lower extremity radiculopathy. In November 2021, the Veteran submitted a VA Form 21-526EZ on which he requested reconsideration of his lumbar spine disability rating and stated that he had sleep impairment caused by that disability. In a February 2022 rating decision, the AOJ continued the ratings for the lumbar spine and radiculopathy disabilities and granted service connection for insomnia. In April 2022, the Veteran submitted a VA Form 21-526EZ on which he indicated additional symptoms associated with his lumbar spine disability. In May 2022, the Veteran completed a VA Form 21-22a on which he appointed the appellant as his attorney. At that same time, the Veteran and the appellant executed a fee agreement which provided that the appellant was entitled to fees of 20 percent of any past-due benefits awarded to the Veteran, and that the fee was to be paid directly to the appellant by VA. The fee agreement also stated that the appellant may charge fees for his representation "after (a) an agency of original jurisdiction has issued a decision on a claim or claims... (b) an NOD has been filed with respect to that decision on or after June 20, 2007; or (c) if the NOD was filed before June 20, 2007, for work done after the first final decision of the [Board]". The Veteran's appointment of the appellant as his attorney is valid. The fee agreement is valid as to claims where an NOD had been filed after an AOJ decision. In a July 2022 rating decision, the AOJ continued the Veteran's lumbar spine disability rating and granted increased ratings for right and left lower extremity radiculopathy. In August 2022, the Veteran submitted a VA Form 21-22 appointing a state Veterans Service Organization as his representative. In August 2022, the Veteran submitted a VA Form 21-526EZ on which he indicated additional symptoms of his lumbar spine disability. In November 2022, the Veteran completed a VA Form 21-22a on which he reappointed the appellant as his attorney. At that same time, the Veteran and the appellant executed a new fee agreement which provided that the appellant was entitled to fees of 20 percent of any past-due benefits awarded to the Veteran, and that the fee was to be paid directly to the appellant by VA. The fee agreement also again stated that the appellant may charge fees for his representation "after (a) an agency of original jurisdiction has issued a decision on a claim or claims... (b) an NOD has been filed with respect to that decision on or after June 20, 2007; or (c) if the NOD was filed before June 20, 2007, for work done after the first final decision of the [Board]". The Veteran's appointment of the appellant as his attorney is valid. The fee agreement is valid as to claims where an NOD had been filed after an AOJ decision. In a November 2022 rating decision, the AOJ granted increased ratings for the lumbar spine disability and for right and left lower extremity radiculopathy. In January 2023, the Veteran submitted a VA Form 20-0995 Decision Review Request: Supplemental Claim on which he contended that he was entitled to TDIU. He also submitted a VA Form 21-8940 TDIU application at that time. In a May 2023 rating decision, the AOJ, in pertinent part, granted TDIU effective January 16, 2023. In a December 2023 fee decision, the AOJ denied fees based on the past-due benefits granted in the May 2023 rating decision because "VA never received a qualifying request to review this decision." On a February 2024 VA Form 10182, the appellant appealed the denial of fees. The appellant is not entitled to attorney fees based on the past-due benefits awarded in the May 2023 rating decision. That rating decision granted TDIU effective January 16, 2023. The fee agreement between the Veteran and the appellant provided that the appellant would charge fees in cases where the AOJ has issued a decision and an NOD had been filed. The Board may consider the agreed upon terms of the fee agreement. See Cox v. McDonough, 34 Vet. App. 112, 125 (2021). In this case, the Veteran was granted service connection for his lumbar spine disability and radiculopathy. In response to each adjudication of the Veteran's disabilities, he filed a VA Form 21-526EZ. In response to the November 2022 rating decision, the Veteran filed a supplemental claim and a VA Form 21-8940, which led to the grant of TDIU. The Veteran never filed an NOD at any time regarding the severity of his lumbar spine and lower extremity radiculopathy disabilities. Additionally, on his VA Form 21-8940, the Veteran contended that his insomnia also contributed to his inability to secure or follow a substantially gainful occupation. Service connection for insomnia was granted in a February 2022 rating decision. The Veteran did not file an NOD to that issue. There are no subsequent rating decisions addressing insomnia to which the Veteran could have filed an NOD. Indeed, no NOD has been filed to any issue in this file, other than to the denial of fees that led to this appeal. Based on the express terms of the May 2022 and November 2022 fee agreements, the appellant is not permitted to charge fees for his representation of the Veteran. The language of the agreement is clear, and states that an NOD must be filed with the decision issued by the AOJ. The appellant elected to draft the fee agreement with this specific language after the fee provisions for the AMA were enacted, and there is no evidence of record to support that there was extraneous understanding or modified agreement between the parties that amended or altered the express language used and agreed upon in May 2022 and November 2022. The appellant is not entitled to fees as a result of the past-due benefits awarded in the May 2023 rating decision. The May 2022 and November 2022 fee agreements stated that the appellant was entitled to fees in cases where, after an AOJ decision, an NOD was filed with respect to that decision. No NOD had been filed as to the issues granted in the May 2023 rating decision. Therefore, the appeal is denied. A. J. Spector 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.