MIGRAINE

K. CONNER · 2026 · Case ID: A26039654

GRANTED

Summary

The Veteran, an Army veteran who served from January 1984 to January 1987, with subsequent service in the Army Reserve and National Guard, appeals a June 2024 fee decision that denied direct payment of attorney fees. The attorney sought fees based on a June 2024 rating decision which increased the Veteran's service-connected migraine rating from 10% to 30%, effective September 23, 2023. The attorney argued that the January 2024 supplemental claim, which led to the increased rating, was a timely appeal of the June 2023 Higher-Level Review decision, not a new claim. The Board reviewed the procedural history, noting the July 2022 rating decision was the initial decision for the migraine claim, granting service connection at 0%. Subsequent actions included a June 2023 HLR decision that denied an earlier effective date but increased the rating to 10%, and a January 2024 supplemental claim that resulted in the June 2024 decision granting the 30% rating. Citing relevant caselaw, including Jackson v. McDonough and Chisholm v. Collins, the Board found that the July 2022 decision was the initial decision for the migraine claim, and the subsequent actions constituted a continuous pursuit of an increased rating. Therefore, the Board concluded the attorney was eligible to charge fees based on the past-due benefits awarded in the June 2024 decision.

Rationale

July 2022 rating decision was the initial decision for the migraine claim.; June 2023 HLR and January 2024 Supplemental Claim constituted continuous pursuit.; Appellant eligible for fees under 38 U.S.C. § 5904(c)(1) and relevant caselaw.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

240820-465530

Full Decision Text

Citation Nr: A26039654
Decision Date: 04/28/26 Archive Date: 04/28/26

DOCKET NO. 240820-465530
DATE: April 28, 2026

ORDER

The appellant is eligible for direct payment of attorney fees in the amount of 20 percent of the past-due benefits awarded in a June 2024 rating decision which increased the rating for the Veteran's service-connected migraine including migraine variants from 10 to 30 percent, effective September 23, 2023; the appeal is granted.

FINDINGS OF FACT

1. The Veteran's appointment of the appellant as his attorney and the associated fee agreement are valid.

2. In a June 2024 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) granted an increased rating for migraine including migraine variants, from 10 to 30 percent, effective September 23, 2023, from which the past-due benefits awarded are contested.

3. The June 2024 rating decision was not the initial decision on the claim.

CONCLUSION OF LAW

The criteria for eligibility to the direct payment of attorney fees based on past-due benefits awarded in the June 2024 rating decision have been met. 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 Army from January 1984 to January 1987. He was a member of the U.S. Army Reserve from January 1987 to June 1989 and the Florida Army National Guard from September 1991 to September 1993. He again served on active duty in the U.S. Army from August 1994 to November 1994.

The appellant, Robert Chisholm, is the Veteran's attorney, appointed to represent him in other matters before the 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 in this matter due to their opposing financial interests.

The case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2024 Summary of the Case (fee decision) issued by a VA RO, Agency of Original Jurisdiction (AOJ), which determined that the appellant was not entitled to direct payment of fees resulting from a June 2024 rating decision which increased the rating for migraine including migraine variants, from 10 to 30 percent, effective September 23, 2023.

In August 2024, the appellant filed a VA Form 10182, Decision Review Request: Board Appeal (NOD), on which he identified the June 2024 Fee Decision, the issue as "Entitlement to 20 percent of the past-due benefits from the June 28, 2024 award" and elected the Direct Review docket.

Thus, the Board may only consider the evidence of record at the time of the June 2024 Fee Decision on appeal, and a brief or argument filed by the party who did not file the NOD if received within 30 days of the notice of the content of the NOD. 38?C.F.R. §§?20.400-20.405. If evidence was added to the record during an ineligible period identified above, the Board has not considered that evidence. 38 C.F.R. § 20.300.

If the parties would like VA to consider any evidence that was submitted that the Board could not consider, they may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The record reflects both the Veteran and appellant were mailed copies of the AMA Initial and Final Notification Letters December 2024 and February 2025.

Legal Criteria

A claimant may have attorney or agent representation for the prosecution of claims for VA benefits. 38 U.S.C. § 5904.

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 agency of original jurisdiction (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. See 38 C.F.R. § 14.636(f). 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
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).

A fee may not be charged, allowed, or paid for services of agents and attorneys with respect to services provided before the date on which a claimant is provided notice of the AOJ initial decision with respect to the case. 38 U.S.C. § 5904(c)(1); Jackson v. McDonough, 37 Vet. App. 277 (2024); Held v. McDonough, 37 Vet. App. 28 (2023). A case, for fees purposes, encompasses all potential claims raised by the evidence, applying all relevant laws and regulations. Perciavalle v. McDonough, 74 F.4th 1374, 1381 (Fed. Cir. 2023).

A supplemental claim is any complete claim for a VA benefit on an application form prescribed by the Secretary where an initial or supplemental claim for the same or similar benefit on the same or similar basis was previously decided. 38 C.F.R. § 3.1(p)(2). In certain circumstances, a supplemental claim need not be filed on a specified VA supplemental claim form and may be submitted on a separate form, such as the VA Form 21-8940. See Chisholm v. Collins, 38 Vet. App. 140 (2025).

A claim for service connection and a subsequent claim for an increased rating are not the same case. Id. at 146-7; see also Jackson, 37 Vet. App. at 291. However, an attorney or agent may charge fees for the filing of a supplemental claim within one year, requesting review of the initial rating assigned for a disability after the grant of service connection, including whether TDIU is warranted. Id.

In Military-Veterans Advocacy v. Sec'y of Veterans Affairs, the Federal Circuit Court of Appeals (Federal Circuit) held that agents and attorneys are eligible to receive fees pursuant to supplemental claims filed more than one year after a decision has been made under 38 U.S.C. § 5104C (b), thereby invalidating the implementing regulatory provision of 38 C.F.R. § 14.636(c)(1)(i). 7 F.4th 1110, 1135-41 (Fed. Cir. 2021). The Federal Circuit acknowledged that although § 5104C(b) supplemental claims may have a different effective date and duty to notify than § 5104C(a) supplemental claims, see §§ 5110(a)(3), 5103(a)(3), "we see no reason why these distinctions should matter in the context of charging attorneys' fees." Id. at 1139. The Court expressly rejected the government's argument that a § 5104C(b) supplemental claim filed more than a year after a prior decision is not part of the same "case" as that earlier decision, thereby barring attorneys from charging fees for any work on such claims until the supplemental claim itself is rejected. Id. at 1138.

For purposes of determining the "initial decision" on an increased rating issue pursuant to 38 U.S.C. § 5904(c)(1), a new request for an increased rating is a new claim that results in a subsequent initial decision on that claim, even if filed on a supplemental claim form under the AMA system. This is distinguished from the filing of a supplemental claim in continuous pursuit of a prior, non-final rating decision evaluation. Jackson, 37 Vet. App. at 295. Increased rating claims that are not continuously pursued are new claims for a higher rating because they rely on different evidence of worsening of symptoms. 37 Vet. App. at 294-95.

Issue: Whether the appellant is eligible for the direct payment of attorney fees from past due benefits awarded in the June 2024 rating decision granting an increased rating for migraine including migraine variants.

As explained below, the Board
increased rating is a new claim that results in a subsequent initial decision on that claim, even if filed on a supplemental claim form under the AMA system. This is distinguished from the filing of a supplemental claim in continuous pursuit of a prior, non-final rating decision evaluation. Jackson, 37 Vet. App. at 295. Increased rating claims that are not continuously pursued are new claims for a higher rating because they rely on different evidence of worsening of symptoms. 37 Vet. App. at 294-95.

As explained below, the Board finds the appellant is eligible for attorney fees from the past-due benefits awarded in the June 2024 rating decision because this rating decision was not the initial decision with respect to the case.

In November 2022, the Veteran executed a VA Form 21-22a, Appointment of Individual as Claimant's Representative, on which he appointed the appellant as his attorney. The VA Form 21-22a did not limit the scope of the representation. This document was received by VA on December 6, 2022. There was no accompanying fee agreement. However, the appellant indicated a valid fee agreement was executed on December 6, 2022, and their office has a copy of record. See Correspondence dated August 18, 2023. The Board is unable to locate a copy of the December 2022 Fee Agreement in the electronic claims file.

In August 2023, the appellant submitted copies of an updated VA Form 21-22a. The parties also executed an August 2023 Fee Agreement which provided that the appellant was entitled to fees of 20 percent of any past-due benefits awarded to the Veteran, and that the fee was to be paid directly to the appellant by VA. The fee agreement was not limited to a particular issue. See Attorney Client Fee Agreement and VA Form 21-22a signed August 9, 2023. These documents were received by VA on August 18, 2023.

Both the August 2023 Fee Agreement and VA Form 21-22a contained the necessary signatures and were filed in the Veteran's claims folder. 38 C.F.R. § 14.631(a). The record contains no indication that the Veteran thereafter revoked those powers of attorney. The August 2023 Fee Agreement was also signed by both parties and included the Veteran's name, VA file number; and the specific terms under which the amount to be paid for the services of the attorney were to be determined. Specifically, the fee agreement explained that the attorney was entitled to a fee of 20 percent of any past-due benefits awarded to the Veteran. The fee agreement also clearly specified that VA was to pay the attorney directly out of past-due benefits. Finally, the fee agreement was filed with VA within 30 days of its execution. 38 C.F.R. § 14.636. As the Veteran's appointment of the appellant as his attorney and the associated fee agreement both meet the criteria specified in the applicable regulations, the Board finds that both are valid.

Turning to the procedural history, earlier, in a July 2022 rating decision, the RO granted service connection for migraine including migraine variants (claimed as migraines) and assigned an initial 0 percent rating, effective April 21, 2022.

Within one year of the July 2022 rating decision, on June 15, 2023, the appellant submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR) and requested review of the July 1, 2022 rating decision seeking an increased rating for migraine including migraine variants and an earlier effective date for the award of service connection.

In a June 2023 HLR decision, the RO denied an earlier effective date for the grant of service connection for migraine; but granted an increased rating for migraine including migraine variants, from 0 to 10 percent, effective April 21, 2022.

On January 5, 2024, the appellant submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, requested review of March 2023 and June 2023 rating decisions, and listed multiple issues including increased rating for migraines. The appellant also submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, on which he claimed that he was unable to work due to his service-connected disabilities including migraines.

In response to the January 2024 claim, in a June 2024 rating decision, the RO, in the pertinent part, granted an increased rating
from 0 to 10 percent, effective April 21, 2022.

In response to the January 2024 claim, in a June 2024 rating decision, the RO, in the pertinent part, granted an increased rating for migraine including migraine variants, from 10 to 30 percent, effective September 23, 2023, the date the AOJ determined that the evidence showed the disability had increased in severity. This is the decision from which the past-due benefits awarded are contested.

In the resulting June 28, 2024 Fee Decision, the decision on appeal, the AOJ denied eligibility to attorney fees. The AOJ determined that "VA never received a qualifying request to review this decision. Therefore, this award warrants no direct payment of fees."

In August 2024, the appellant filed a Notice of Disagreement (VA Form 10182) and argued the AOJ's determination was "incorrect" because he filed "at least two qualifying requests for review, and because [he] rendered services after an initial decision with respect to the case, all the requirements for the direct payment of fees are met." See Appellant's Brief dated August 20, 2024. The appellant argued that the January 2024 supplemental claim was not a new claim but a timely appeal of the June 2023 HLR rating decision. The appellant further asserted that the RO "appears to have taken the VA Form 21-8940 submitted with this appeal as a new claim." Id.

The appellant argued that filing of a supplemental claim qualifies as a proper administrative review option, citing to Military Veterans Advocacy v. Sec'y of Veterans Affairs, 7 F.4th 1110, 1138-1141 (Fed. Cir. 2021) (MVA) (an attorney or agent may charge fees when past-due benefits are awarded after a veteran has filed a supplemental claim because the decision after the supplemental claim is not the initial decision with respect to the case.) Additionally, citing to Held v. McDonough, 37 Vet. App. 28, 36 (2023), the appellant argued that fees are permissible "after notice of the initial decision with respect to the case regardless of whether said initial decision is in legacy or AMA." See Appellant's Brief dated August 20, 2024.

Applying the facts in this case to the applicable legal criteria, the Board finds the appellant eligible to the direct payment of attorney fees based on past-due benefits awarded in the June 2024?rating decision. The Board concludes the July 2022 rating decision was the initial decision with respect to the case, allowing for the appellant to charge fees.

The fee provisions for decisions issued on or after the effective date for AMA appeals are applicable. Under 38 U.S.C. § 5904(c)(1), a fee may not be charged, allowed, or paid for services of agents and attorneys, provided before the date on which a claimant is given notice of the AOJ initial decision with respect to the case. The "initial decision" under section 5904(c)(1) is the decision that "triggers" an attorney's ability to charge fees for representation of a claimant. Held, 37 Vet. App. at 28.

In the case of Jackson, the United States Court of Appeals for Veterans Claims (Court) addressed what is considered the "initial decision" pursuant to 38 U.S.C. § 5904(c)(1). 37 Vet. App. at 277. Particularly, the Court found a new request for an increased rating is a new claim that results in a subsequent initial decision on that claim, even if filed on a supplemental claim form under the AMA system. Id. at 291. This is distinguished from the filing of a supplemental claim in continuous pursuit of a prior, non-final rating decision evaluation. Id. at 295.

Further, an attorney or agent may charge fees for the filing of a supplemental claim within one year, requesting review of the initial rating assigned for a disability after the grant of service connection. See Chisholm v. Collins, 38 Vet. App. 140 (2025). In certain circumstances, the supplemental claim need not be filed on a specified VA
Court found a new request for an increased rating is a new claim that results in a subsequent initial decision on that claim, even if filed on a supplemental claim form under the AMA system. Id. at 291. This is distinguished from the filing of a supplemental claim in continuous pursuit of a prior, non-final rating decision evaluation. Id. at 295.

Here, the July 2022 rating decision which granted service connection for migraine including migraine variants (claimed as migraines) and assigned an initial 0 percent rating, was the initial decision. That decision was continuously pursued as evidenced by the June 2023 HLR (VA Form 20-0996) and January 2024 Supplemental Claim (VA Form 20-0995).

To that end, Board finds recent caselaw instructive. An attorney or agent may charge fees for the filing of a supplemental claim within one year, requesting review of the initial rating assigned for a disability after the grant of service connection. See Chisholm, 38 Vet. App. at 140; see also Jackson v. McDonough, 37 Vet. App. 277 (2024) (representatives may receive fees for aiding claimants with continuous pursuit of claim or disability rating assigned from supplemental claim). Thus, the appellant was allowed to charge fees after the July 2022 rating decision surrounding the issue of the rating for migraine including migraine variants. 38 U.S.C. § 5904(c)(1).

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In sum, the Board finds that the July 2022 rating decision was the initial decision with respect to the case on the issue of the evaluation assigned for migraine including migraine variant, and thus the Board concludes the appellant was allowed to charge fees. 38 U.S.C. § 5904(c)(1). As the grant was a result of continuous pursuit of an increased rating, the appellant is eligible for attorney fees based on the past-due benefits awarded in the June 2024 rating decision.

K. Conner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board SA, 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.

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