Citation Nr: A25041245 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 240409-431542 DATE: May 6, 2025 ORDER The appellant is not eligible for the direct payment of attorney fees based on past-due benefits awarded from a March 2024 rating decision that granted increased ratings for the Veteran's posttraumatic stress disorder (PTSD) and bilateral hearing loss; the appeal is denied. FINDINGS OF FACT 1. The Veteran's August 2022 appointment of the appellant as his attorney is valid. 2. The August 2022 fee agreement between the Veteran and the appellant is not valid because it does not include the applicable Department of Veterans Affairs (VA) file number. CONCLUSION OF LAW The criteria have not been met to establish eligibility for the direct payment of attorney fees based on past-due benefits awarded from the March 2024 rating decision. 38 U.S.C. § 5904; 38 C.F.R. §14.636. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from December 1968 to September 1971. He died in March 2025. The Board of Veterans' Appeals (Board) offers condolences to the Veteran's family and loved ones. The present appeal survives the death of the Veteran because as a contested claim where the attorney is the appellant, adjudication of the appeal continues to be necessary. The appellant is the Veteran's former attorney, appointed to represent him in other matters before VA. The present matter is a simultaneously contested claim because the Veteran and the attorney have a competing financial interest in the monetary amount involved. For that reason, the attorney does not represent the Veteran, or the Veteran's estate, in this matter due to their opposing financial interests. The fee decision on appeal was issued in March 2024 and constitutes an initial decision in the matter of eligibility for attorney fees arising from the March 2024 rating decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the April 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the appellant elected the Direct Review docket. Simultaneously contested claims are subject to special procedural regulations. In the present case, both the Veteran and the appellant were notified of the relevant rating and fee decisions issued by the agency of original jurisdiction (AOJ). The Veteran was also provided a copy of the appellant's April 2024 Notice of Disagreement in May 2024 and given the opportunity to file a brief, argument, or request for a different type of review within 30 days from the date the content of the Notice of Disagreement was furnished. 38 C.F.R. §§ 20.400-20.404. The Veteran did not request a change in the docket assigned. Therefore, the Board now proceeds with direct review of the appeal. ? The appellant is not eligible for the direct payment of attorney fees based on past-due benefits awarded from the March 2024 rating decision; the attorney's appeal is denied. Legal Criteria 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 or VA Form 21-22a, is required to represent a claimant before VA. The power of attorney shall contain the signature of the claimant and the signature of the agent or attorney and 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 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). Fee agreements must be reasonable; those which do not exceed 20 percent of past-due benefits are presumed reasonable. 38 C.F.R. § 14.636(f). 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). 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); 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). The "benefit-of-the-doubt" rule is not for application in a contested claim such as this case because the benefit of the doubt cannot be given to both parties who have competing interests. See Elias v. Brown, 10 Vet. App. 259, 263 (1997). Analysis Here, the record includes only one fee agreement document executed between the Veteran and his attorney in August 2022. The fee agreement includes a "VA Claim #" that is different from the claims file number that is assigned to identify the file by VA (as is seen at the top of each page of this decision and almost all other correspondence from VA). The August 2022 fee agreement document drafted by the attorney mistakenly identifies the Veteran's social security number as the claims file number. The incorrect file number is also included on the fax cover sheet, the attorney's statement that accompanied submission of the August 2022 fee agreement, and multiple other documents submitted to VA on the same day, as well as documents submitted since that day. The attorney has continued to habitually misidentify the applicable VA file number in correspondence and procedural filings related to this Veteran's case despite having consistently received documents from VA that correctly identified this Veteran's VA file number since August 2022. The attorney certainly had the opportunity to recognize the error and re-draft a fee agreement with the correct file number to match that used by VA if he chose to do so, but he did not, and the one fee agreement between these parties submitted to VA does not include all the elements necessary to be valid. According to the plain text of the relevant regulation, for a fee agreement to be valid, it must include the applicable VA file number. 38 C.F.R. § 14.636(g)(1)(iv). Here, the August 2022 fee agreement is not valid because it does not contain the applicable VA file number anywhere within the fee agreement, or the accompanying documents. The Board acknowledges that for many other veterans, the person's social security number is the file number assigned by VA. However, they are not factually interchangeable, and the given regulation does not specify that a fee agreement is to include the applicable VA file number or another valid identifying number. An attorney representing an individual before VA is expected to distinguish the particular individual facts involved in each separate case, including proper identification of the applicable VA file number when that number is distinguishable from the social security number. The standards of conduct for individuals providing representation before VA includes the requirement that claimants be provided with competent representation requiring the knowledge, skill, thoroughness, and preparation necessary for the representation. Competent representation includes an understanding of the issues of fact and law relevant to the claim as well as the applicable provisions of title 38, United States Code, and title 38, Code of Federal Regulations, which includes 38 C.F.R. § 14.636(g)(1) that explicitly specifies the requirements of a valid fee agreement. 38 C.F.R. § 14.632(b)(1). In a contractual document that determines monetary compensation that may be paid from a veteran to his or her representative for services provided, the representative may be expected to exercise the reasonable diligence necessary to confirm the accuracy of each required element within the contractual fee agreement. See also 38 C.F.R. § 14.632(b)(2). Also, it is settled law that any ambiguity in a written fee agreement is to be construed against the party that wrote the document in question, i.e., the attorney in this case. Beatty v. NP Corp., 581 N.E.2d 1311, 1315 (Mass. App. Ct. 1991). Here, where each required element of the fee agreement, as defined by regulation binding on VA, is not present, the fee agreement is invalid. Any reasonable doubt, even if present, cannot be resolved in favor of the attorney as it would be to the direct financial detriment of the Veteran. See Elias v. Brown, 10 Vet. App. 259, 263. In all, where there is no valid fee agreement between the parties, an attorney or agent is not eligible to receive fees based on an otherwise valid representational relationship in matters before VA. 38 U.S.C. §§ 5104C, 5904; 38 C.F.R. § 14.636. For this reason, where the fee agreement is not valid, the attorney's appeal for eligibility to receive an attorney fee derived from the March 2024 rating decision is denied. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDonald 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.