Citation Nr: A25035260 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 220420-239915 DATE: April 16, 2025 REMANDED Eligibility to attorney fees, based on benefits awarded in a November 2021 rating decision, is remanded. ? REASONS FOR REMAND The Veteran served on active duty from April 1997 to April 2001. The appellant is the Veteran's former attorney representative. The case is on appeal from a November 2021 decision. In August 2022, the Board denied the appellant's claim for attorney fees. The appellant appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In an August 2024 Memorandum Decision, the Court vacated the decision and remanded the case for readjudication. Attorney fees based on benefits awarded in a November 2021 rating decision. In the August 2022 Board decision, it was found that while the appellant is eligible to fees, no fees were warranted from the November 2021 rating decision grant of service connection for gastroesophageal reflux disease (GERD). This was because the agency of original jurisdiction (AOJ) correctly calculated attorney fees at $0, based on the gross entitlement of $0 payable to the Veteran, without withholdings, as a result of the November 2021 award. As rationale, the Board found a distinction with the facts of this case from the facts found in Rosinski v. Wilkie, 32 Vet. App. 264 (2020). The Rosinski case involved past-due benefits that were reduced from the Veteran's award as a result of concurrent receipt of military retired pay and disability compensation per the provisions in 38 C.F.R. § 3.750. Rosinski allows for payment of fees based on the total amount of past-due benefits awarded, regardless of the amount ultimately payable to the Veteran based on reductions. Id. Here, the AOJ did not reduce or withhold from a retroactive cash payment amount to the Veteran. Rather, for the period prior to February 2011, the Veteran was already compensated the full amount of the benefits available to him when he was granted nonservice-connected pension in March 2010, as the greater financial benefit per U.S.C. § 1523. See also 38 C.F.R. § 3.151(a). Further, he was also fully compensated in June 2016 for the full amount of the benefits available to him for the period after February 2011, when he was granted a total disability rating based on individual unemployability. In its August 2024 Memorandum Decision, the Court found that "the Board correctly distinguished this case on appeal from Rosinski." However, the Court was "unclear as to how VA determined that the calculated gross amount of past-due benefits is $0, in light of the increase in retroactive payments awarded after the RO granted service connection for GERD with enteritis." The Court points to discrepancies, or an "increase" in monthly payment amounts found when comparing the June 2016 rating decision award, and the November 2021 award printout numbers. The Board notes that increases and decreases displayed on an award printout reflect not only adjustments made in relation to the current decision which may impact monthly payment amounts, but it typically also includes prior adjustments made for internal VA accounting purposes. Many events occurred between the June 2016 and November 2021 rating decisions that separately altered the Veteran's payments, that are unrelated to the November 2021 award. For example, the payment adjustments in the time periods specifically listed by the Court in its decision relate to special monthly compensation adjustment, changes in dependency awards, and Cost of Living Adjustments (COLA). Although the Board believes these prior payment adjustments are unrelated to the November 2021 award, and thus should not be calculated as past-due benefits for this case, the Board finds a remand is warranted to ensure substantial compliance with the August 2024 Court decision. See Stegall v. West, 11 Vet. App. 268 (1998). Both the appellant and the Veteran have since voiced concerns with the calculation of past-due benefits warranted to the Veteran. See July 2024 Report of General Information and March 2025 Third Party Correspondence. Thus, upon remand, the AOJ should conduct an audit of the Veteran's compensation payments from January 2009 to November 2021. Further, a new financial document should be created that reflects any and all adjustments to the Veteran's VA compensation payments for that time period, to include the reason for the adjustment (e.g. COLA, minor child dependency award, grant of SMC), and the date the adjustment occurred. The matters are REMANDED for the following action: 1. Conduct an audit of the Veteran's VA compensation payments from January 2009 thru November 2021. 2. Create and associate with the Veteran's claims folder, a new financial document that displays all adjustments made to the Veteran's compensation payments from January 2009 thru November 2021, the reason for each adjustment, and the date the adjustment originally occurred. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, 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.