Citation Nr: A25035387 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240322-446577 DATE: April 16, 2025 ORDER Eligibility for attorney fees based on past-due benefits awarded in a January 2024 rating decision is granted. FINDINGS OF FACT 1. The Veteran's appointment of the appellant as her representative and the associated fee agreement are valid. 2. In a December 2022 rating decision, the Agency of Original Jurisdiction (AOJ), inter alia, granted service connection for: diabetes mellitus type II (diabetes), assigning a 20 percent rating; right lower extremity neuropathy involving the sciatic and femoral nerves, assigning 20 percent ratings each; and, left lower extremity neuropathy involving the sciatic and femoral nerves, assigning a 20 and 10 percent rating, respectively. 3. In July 2023, a VA Form 20-0995, Decision Review Request: Supplemental Claim, was filed, seeking readjudication of, inter alia, the ratings assigned for the Veteran's diabetes and lower extremity peripheral neuropathies in the December 2022 rating decision. 4. In a January 2024 rating decision, the AOJ denied an increased rating for the Veteran's diabetes but granted: a rating of 20 percent for the Veteran's left lower extremity neuropathy involving the femoral nerve; service connection for diabetic nephropathy, assigning a 30 percent rating; and, service connection for bilateral upper extremity neuropathy, assigning 20 percent ratings. Such grants 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 a January 2024 rating decision 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 Department of Veterans Affairs (VA) regional office (RO). In a March 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 24, 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 July 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 December 2023 VA Form 10182. See July 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 January 2024 rating decision is granted. The appellant seeks attorney fees for representation provided in conjunction with a January 2024 rating decision's award of a rating of 20 percent for the Veteran's left lower extremity neuropathy involving the femoral nerve, service connection for diabetic nephropathy, and service connection for bilateral upper extremity neuropathy. 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 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. Notably, when such a decision is issued in response to a supplemental claim, the payment of fees is warranted so long as the supplemental claim is seeking the same or similar benefits on the same or similar basis as the original claim. See Military-Veterans Advocacy v. Sec'y of Vet. Aff., 7 F4th 1110, 1138 (Fed. Cir. 2021). Here, the appellant is eligible for the direct payment of attorney fees in connection with the January 2024 rating decision. First, 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 December 2023. See December 2023 VA Form 21-22a. Additionally, a Fee Agreement was submitted in December 2023, providing for direct payment of 20 percent of past-due benefits. See December 2023 Fee Agreement. As such, the first element to establish eligibility for attorney fees has been met. Second, the January 2024 rating decision was issued in response to a July 2023 Supplemental Claim which sought readjudication of, inter alia, the ratings assigned for the Veteran's diabetes and lower extremity peripheral neuropathies in a December 2022 rating decision. ? In short, as the July 2023 Supplemental Claim resulted in the January 2024 rating decision, which granted a rating of 20 percent for the Veteran's left lower extremity neuropathy involving the femoral nerve, service connection for diabetic nephropathy, and service connection for bilateral upper extremity neuropathy, 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.