Citation Nr: A25035226 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240103-404932 DATE: April 16, 2025 ORDER Eligibility for attorney fees based on past-due benefits awarded in a December 2023 rating decision is granted. FINDINGS OF FACT 1. The Veteran's appointment of the appellant as his representative and the associated fee agreement are valid. 2. In a November 1967 rating decision, the Agency of Original Jurisdiction (AOJ), inter alia, granted service connection for right shoulder bursitis and assigned a 10 percent rating, effective October 1, 1967. 3. In December 1968, Department of Veterans Affairs (VA) medical records were associated with the claims file, including an examination which noted glenohumeral function at 40 percent. 4. In an August 2023 decision, the Board found, inter alia, that the VA medical records received in December 1968 constituted an appeal as to the initial rating assigned for the Veteran's right shoulder bursitis and that such appeal remained pending before the AOJ. The Board remanded the pending appeal for AOJ adjudication. 5. In a December 2023 rating decision, the AOJ assigned an initial rating for the Veteran's right shoulder bursitis of 20 percent, effective October 1, 1967. A 30 percent rating was assigned effective January 24, 1968, and a 20 percent rating was assigned effective September 14, 1972. Such resulted in an award of past-due benefits. CONCLUSION OF LAW The criteria for eligibility for attorney fees based on the past-due benefits awarded in rating decisions, dated December 20, 2023, have been met. 38 U.S.C. § 5904; 38 C.F.R. § 14.636. REASONS AND BASES FOR FINDINGS AND CONCLUSION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2024 Fee Decision issued by a VA regional office. In a January 2024 VA Form 10182, the appellant requested review of the January 2024 Fee Decision under the Board's direct review docket. Under direct review, a Board decision is based on the evidence at the time of the prior decision. The Board cannot hold a hearing or accept additional evidence into the record in its direct review. 38 C.F.R. § 20.301. Accordingly, the Board may only consider evidence of record as of January 2, 2024, the date of the decision on appeal. Procedural Requirements As an initial matter, the Board notes that a claim for attorney fees constitutes a contested claim and, therefore, is subject to special procedural requirements. See Mason v. Shinseki, 26 Vet. App. 1 (2012). Specifically, under applicable criteria, upon the filing of a notice of disagreement (NOD) in a contested claim, all interested parties are to be furnished a copy of the substance of the NOD, including the type of review requested. 38 C.F.R. § 20.403. Thereafter, the non-appealing party has 30 days within which to file a brief, argument, or request a different type of review. 38 C.F.R. § 20.404. Here, in a June 2024 correspondence, the Veteran was notified that the appellant had submitted a VA Form 10182 regarding entitlement to attorney fees, that the appellant had requested review under the Board's direct review docket, and notified the Veteran of the 30-day window within which to file a brief, argument, or request a different type of review. The Veteran was also provided a redacted copy of the January 2024 VA Form 10182. See June 2024 Board Correspondence. Therefore, the Board finds that the procedural requirements with regards to contested claims have been met, and the Board may proceed with adjudication of this appeal. Analysis Eligibility for attorney fees based on past-due benefits awarded in a December 2023 rating decision is granted. The appellant seeks attorney fees for representation provided in conjunction with a December 2023 rating decision award of increased initial ratings for the Veteran's service-connected right shoulder bursitis. A claimant may have attorney or agent representation for the prosecution of claims for VA benefits. 38 U.S.C. § 5904. To represent a claimant before VA, a representative must execute a power of attorney, 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." Agents or attorneys may charge claimants fees for representation once: (a) the agent or attorney has complied with regulatory power of attorney (POA) and fee agreement requirements; and (b) an AOJ has issued notice of an initial decision on a claim. See 38 U.S.C. § 5904; 38 C.F.R. §§ 14.631, 14.636. In other words, agents or attorneys are eligible for the payment of fees, based on the amount of past-due benefits awarded in a decision, only if there is a valid POA and Fee Agreement AND the decision which awarded the past-due benefits was the result of a valid appeal. Here, the appellant complied with the regulatory POA and fee agreement requirements. Specifically, the appellant and the Veteran submitted a valid VA Form 21-22a in November 2013, which was resubmitted in June 2018. See November 2013 VA Form 21-22a; June 2018 VA Form 21-22a. Additionally, a Fee Agreement was submitted in June 2015, providing for direct payment of 20 percent of past-due benefits. See June 2015 Fee Agreement. As such, the first element to establish eligibility for attorney fees has been met. The remaining question is whether the AOJ had issued an initial decision on the claim. In other words, this matter turns on whether the issue of entitlement to a higher initial rating for the Veteran's service-connected right shoulder bursitis was on appeal at the time of the December 2023 rating decision. Here, as explained in the Board's August 2023 decision, the November 1967 rating decision which granted service connection for right shoulder bursitis had not become final as new and material evidence, in the form of VA medical records containing a VA examination, had been received within one year of such decision and, therefore, such records constituted a claim for a higher initial rating for the Veteran's right shoulder bursitis. In other words, the Board found that an appeal as to the initial rating assigned for the Veteran's right shoulder bursitis was pending before the AOJ. The Board referred such appeal to the AOJ for adjudication. (Continued on the next page) ? Given the above, the Board finds that the December 2023 rating decision was issued in response to an appeal of the November 1967 rating decision. As such, the attorney fees specified in the Fee Agreement are warranted and the claim is granted. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Martin III, 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.