Citation Nr: A25035887 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 240904-471772 DATE: April 18, 2025 ORDER The issue of the reasonableness of attorney fees based on past-due benefits awarded in a May 2021 rating decision and addressed in a May 2021 fee decision is dismissed. FINDINGS OF FACT 1. The Veteran did not dispute the reasonableness of the amount of fees awarded in a May 2021 fee decision within 120 days of the decision. 2. The VA Office of General Counsel (OGC) did not undertake review of the reasonableness of the fees awarded in the May 2021 fee decision within 120 days of the decision. CONCLUSION OF LAW The criteria for dismissal of the issue of the reasonableness of attorney fees based on past-due benefits awarded in a May 2021 rating decision and addressed in a May 2021 fee decision have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 14.636, 20.400-20.405. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the U.S. Army from January 1970 to September 1971. D.S. is the Veteran's former attorney. In August 2024, the OGC issued a decision on the reasonableness of attorney fees based on past-due benefits awarded in a May 2021 fee decision. In September 2024, the Veteran submitted a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement (NOD)) on which he selected the evidence submission docket. He subsequently submitted additional VA Form 10182s selecting other dockets. However, a docket change is not permitted in this case as they Veteran. See 38 C.F.R. §§ 20.303, 20.400 20.405. D.S. did not elect to change the docket. Because this is a contested claim, the Board may only consider the evidence of record at the time of the August 2024 OGC decision on appeal; a brief or argument filed by D.S. if received within 30 days of the December 23, 2024, notice of the substance of the NOD; and any evidence received within 90 days following the March 24, 2025, notice that the appeal had been docketed. 38 C.F.R. §§ 20.400 20.405. If evidence was submitted either (1) during the period after the OGC issued the decision on appeal and prior to the date the Board notified the parties that their appeal had been docketed and the evidence submission period had begun, or (2) more than 90 days following the Board notification to the parties that their appeal had been docketed, the Board did not consider it in this decision. 38 C.F.R. §§ 20.300, 20.405, 20.801. The August 2024 OGC decision also adjudicated the issue of the reasonableness of fees based on a December 2021 grant of past-due benefits. The OGC stated that D.S. waived his right to any fees associated with that grant of past-due benefits, and the money withheld for fees was subsequently released to the Veteran. Therefore, the issue of fees from that award of past-due benefits is not part of this appeal. The Board notes that D.S. requested copies of the documents that the Veteran submitted with his VA Form 10182, which have not been provided to D.S. However, because this decision is fully favorable to D.S., the Board will proceed to adjudicate the case without sending D.S. the requested documents. The issue of the reasonableness of attorney fees based on past-due benefits awarded in a May 2021 rating decision and addressed in a May 2021 fee decision is dismissed. The regulation for requesting OGC review of the reasonableness of fees awarded to an attorney or agent changed effective April 1, 2025. Prior to that date, however, a fee allocation notice was not issued to the parties. Therefore, the Board will apply the fee regulations in effect prior to that date. Before the expiration of 120 days from the date of final VA action on an award of fees, the OGC may review a fee agreement between a Veteran and an agent or attorney on its own motion or on the motion of the Veteran. 38 C.F.R. § 14.636(i). In May 2021, VA issued a fee decision awarding fees to D.S. based on past-due benefits awarded in a May 2021 rating decision. The decision informed the Veteran that if he disagreed with the fee decision, he should file an NOD with the Board within 60 days. The fee decision did not inform the Veteran that he had 120 days to request OGC review of the reasonableness of the fees. The Veteran did not file an NOD with the Board and did not submit any document indicating that he disagreed with the award of fees until February 2022. In its August 2024 decision, the OGC stated, "As neither [the Veteran] nor OGC raised a timely dispute with the May 2021 fee decision, OGC is precluded from reviewing the reasonableness of fees from the [May 2021] rating decision." The Board finds that the OGC was correct in its analysis. The OGC has 120 days to undertake review of the reasonableness of a fee award on its own motion. It did not take such action in this case. Additionally, the Veteran has 120 days from the date of the fee decision to request OGC review of the reasonableness of the award. Although the May 2021 fee decision did not inform of this time limit, it did inform him that he had 60 days to file an NOD with the Board if he disagreed with the decision. VA will refer the issue of reasonableness to the OGC when timely raised by the Veteran, even if a motion was not properly filed with OGC. See Accreditation of Agents and Attorneys; Agent and Attorney Fees, 73 Fed. Reg. 29,852, 29,868 29,869 (May 22, 2008); M21-5, 8.B.5.c. The Veteran did not file an NOD, and did not inform VA in any way that he disagreed with the fee award until February 2022. That was more than 120 days after the fee decision. Because the Veteran took no action to dispute the May 2021 fee award, the OGC did not adjudicate the issue of the reasonableness of that award. The Board also does not have the authority to adjudicate the reasonableness of the award given the lack of a timely request for review. Therefore, this appeal is dismissed. 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.