Citation Nr: 18143064 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 15-27 795 DATE: October 17, 2018 ORDER Eligibility for payment of attorney fees from past-due benefits resulting from a February 2014 rating decision’s award of service connection for posttraumatic stress disorder (PTSD) with depression, diabetic polyneuropathy, right upper extremity, and diabetic polyneuropathy, left upper extremity, is denied. (A separate decision on the issues of entitlement to service connection for erectile dysfunction secondary to diabetes mellitus, entitlement to an increased rating in excess of 20 percent for service-connected diabetes mellitus, entitlement to an increased rating in excess of 50 percent for service-connected PTSD with depression, and entitlement to an effective date prior to February 21, 2013, for the grant of service connection for diabetic polyneuropathy of the bilateral upper extremities will be issued simultaneously under separate cover). FINDINGS OF FACT 1. A September 2012 rating decision denied service connection for peripheral neuropathy of the bilateral lower extremities, and the Veteran, through counsel, submitted a timely Notice of Disagreement to that claim which was received February 21, 2013. 2. The February 2014 rating decision’s award of service connection for PTSD with depression, diabetic polyneuropathy, right upper extremity, and diabetic polyneuropathy, left upper extremity was in response to new claims received on February 21, 2103; and it was not the result of a notice of disagreement submitted on or after June 20, 2007. CONCLUSION OF LAW The criteria for payment of attorney fees to the appellant by VA from past-due benefits resulting from the award of service connection for PTSD with depression, diabetic polyneuropathy, right upper extremity, and diabetic polyneuropathy, left upper extremity, have not been met. 38 U.S.C. § 5904; 38 C.F.R. §§ 14.627, 14.629, 14.636. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service in the United States Army from January 1966 to January 1969. The appellant in this matter was the Veteran’s representative from January 2013 to December 2017, at which time the Veteran obtained new representation. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) that the appellant was not entitled to payment of attorney fees with respect to an award of service connection for PTSD with depression, diabetic polyneuropathy, right upper extremity, and diabetic polyneuropathy, left upper extremity in a February 2014 rating decision. As a general rule, VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, an attorney fee dispute is not a “claim” for disability compensation benefits. The United States Court of Appeals for Veterans Claims (Court) has held that VA’s duties to notify and assist do not apply to cases where, as here, the applicant is not seeking benefits under Chapter 51 of Title 38 of the United States Code, but rather, is seeking a decision regarding how benefits will be distributed under another Chapter, i.e., Chapter 59. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). Further, the appellant has not contended there is any deficiency in these duties regarding his claim for attorney fees. Accordingly, the Board need not search for, or address, any such argument. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). The Board will therefore proceed to the merits of the appeal. Attorney fees By way of history, the Veteran filed a claim for entitlement to service connection for diabetes mellitus and peripheral neuropathy of the feet in an August 2012 claim. In a September 2012 rating decision, the RO granted service connection for diabetes mellitus and assigned a 20 percent disability rating, but denied the claim of peripheral neuropathy of the feet. In written correspondence received February 21, 2013, the Veteran, through counsel, expressed disagreement with the September 2012 rating decision. Specifically, the appellant stated that it was CUE [clear and unmistakable error] that the Veteran’s neuropathy was not linked to military service. He then stated that the Veteran “has neuropathy in his feet bi-laterally. He also has early onset of [n]europathy in his upper extremities bilateral (sic)”. In the same correspondence, the appellant asserted that he wanted to add additional claims to the appeal, to include a claim for service connection for PTSD. Additional correspondence was received in May 2013, which had nearly duplicative language expressing disagreement but only added that the appellant was submitting evidence to support the claim for bilateral neuropathy of the lower extremities. A September 2013 Statement of the Case continued the 20 percent rating for the diabetes mellitus claim, and continued the denial of service connection for bilateral peripheral neuropathy of the lower extremities. In October 2013, the appellant submitted a VA Form 9 appeal indicating that, since the Veteran was granted service connection for his diabetes mellitus, “it is only reasonable to assume his bi-lateral upper and lower extrems (sic) neuropathy is associated with his [service-connected diabetes mellitus]”. In November 2013 the appellant submitted a written statement expressing disagreement with the October 2013 Statement of the Case. In February 2014, the RO granted service connection for PTSD with depression and assigned a 50 percent disability rating, and for diabetic polyneuropathy of the right upper extremity and assigned 30 percent disability rating, and for diabetic polyneuropathy of the left upper extremity, and assigned a 30 percent disability rating. All of these disability ratings were assigned as of the February 21, 2013, application date. Following this rating decision the RO issued an administrative decision in February 2014 denying the appellant’s attorney fees as no notice of disagreement had been filed to these claims, which is the basis of this appeal. The appellant argued in a March 2014 statement to the Board that the RO denying entitlement to attorney fees was incorrect, and that the assertion that the appellant had not filed a notice of disagreement was “a glaring and obvious mistake”. To support his argument, the appellant’s firm argued that they had submitted three notices of disagreement and one VA Form 9 for these issues on behalf of the Veteran. The three notices of disagreement and VA Form 9 are the pieces of correspondence discussed above, received January 2013, May 2013, October 2013, and November 2013. The relevant legal authority provides that a claimant may have attorney representation for the prosecution of claims for VA benefits. 38 U.S.C. § 5904(a). Regarding circumstances in which attorney fees may be charged, attorneys may charge claimants and appellants for representation before VA provided that: after an agency of original jurisdiction has issued a decision on a claim or claims, including any claim to reopen under 38 C.F.R. § 3.156 or for an increase in rate of a benefit; a notice of disagreement has been filed with respect to that decision on or after June 20, 2007; and the attorney has complied with the power of attorney requirements in 38 C.F.R. § 14.631 and the fee agreement requirements in 38 C.F.R. § 14.636(g). 38 C.F.R. § 14.636(c)(1). 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(e), (f). The criteria for attorney fees was different prior to June 20, 2007, but as the Veteran’s first appeal was filed in August 2012, the prior criteria are not applicable to this appeal. Preliminarily, the Board will discuss the claim of entitlement to service connection for PTSD with depression. In the written correspondence received on February 21, 2013, the appellant specifically asked to add this claim to the appeal. There was no rating decision issued on that claim until the February 2014 rating decision, and therefore, there would have been nothing to express disagreement with prior to the February 2014 rating decision. Indeed, in the referenced correspondence, to include the three notices of disagreement and the VA Form 9, the arguments made pertained mainly to the Veteran's neuropathy claims (both upper and lower extremities), as well as his diabetes mellitus. The evidence does not show that the appellant filed a notice of disagreement with the PTSD with depression claim. As it pertains to this claim, the correspondence shows that the appellant instituted the claim for the Veteran in February 2013, and that the rating decision on the claim was promulgated in February 2014. As there was no notice of disagreement filed for the PTSD claim prior to February 2014, the appellant cannot collect attorney fees for that claim. The claims for service connection for diabetic polyneuropathy of the right and left upper extremity are more nuanced. The Board concedes that, beginning in the correspondence received in February 2013, the appellant cited as rationale in his notice of disagreement that the Veteran was beginning to develop bilateral upper extremity neuropathy. The appellant continued to cite the existence of upper extremity neuropathy in the May 2013 and November 2013 correspondence, as well as the October 2013 VA Form 9. In essence, all of the appellant’s cited correspondence contends that the Veteran has polyneuropathy of the bilateral extremities that is related to his service-connected diabetes mellitus. Nonetheless, prior to February 2014, there was no decision denying the claims of diabetic polyneuropathy of the right upper extremity and left upper extremity. Indeed, the Veteran’s August 2012 claim was for peripheral neuropathy of the feet, which the RO interpreted as a claim for bilateral lower extremity peripheral neuropathy. There is no indication that the Veteran claimed upper extremity diabetic polyneuropathy neuropathy until February 2013, and no rating decision was issued on the claims of diabetic polyneuropathy of the right upper extremity and left upper extremity prior to February 2014. Simply stated, although the appellant argued that the Veteran had upper extremity neuropathy in the February 2013 notice of disagreement for the claim of lower extremity neuropathy, this is not a notice of disagreement if a claim for bilateral upper extremity neuropathy was not on appeal at that time. The February 2013 correspondence served as a notice of disagreement for the claim of entitlement to service connection for lower extremity peripheral neuropathy, and also served as an inferred claim for upper extremity peripheral neuropathy (which is not a notice of disagreement). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed and the mere presence of medical evidence that a veteran suffers from a disability does not establish intent on the part of the veteran to seek service connection for that disability. See Brannon v. West, 12 Vet. App. 32 (1998). Thus, if the appellant intended to file claims for compensation benefits for diabetic polyneuropathy of the right and left upper extremity, he was free to do so, and in fact, he did so in the February 2013 correspondence. For the reasons stated, the Board must deny payment of attorney fees from past-due benefits resulting from a February 2014 rating decision’s award of service connection for PTSD with depression, diabetic polyneuropathy of the right upper extremity, and diabetic polyneuropathy of the left upper extremity in this case. See 38 U.S.C. § 5904; 38 C.F.R. §§ 14.627, 14.629, 14.636. G. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs