Citation Nr: 18148899 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 15-03 568A DATE: November 8, 2018 ORDER Entitlement to attorney fees based on past due benefits resulting from a February 2014 rating decision is granted. FINDINGS OF FACT 1. The Veteran’s appointment of the appellant as his attorney and associated fee agreement are valid. 2. The RO granted the Veteran TDIU based on his claim seeking an increased rating for his service-connected colon cancer status post resection with scar and left lower extremity neuropathy for which a notice of disagreement had been filed. CONCLUSION OF LAW The criteria for the award of fees to the attorney based on past due benefits from the February 2014 rating decision granting entitlement to a TDIU 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 from July 1954 to September 1957. The appellant is the Veteran’s former attorney representative. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to attorney fees based on a February 2014 rating decision which granted entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) and a higher rating for bilateral sensorineural hearing loss. Entitlement to attorney fees The appellant has asserted that he is entitled to attorney fees for past due benefits granted in a February 2014 rating decision. 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). The current version of 38 U.S.C. § 5904(c)(1), as amended on December 22, 2006, states that except as otherwise provided, in connection with a proceeding before the Department with respect to benefits under laws administered by the Secretary, a fee may not be charged, allowed, or paid for services of attorneys with respect to services provided before the date on which a notice of disagreement is filed with respect to the case. The limitation in the preceding sentence does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. The 2006 amended version is effective for notices of disagreement (NODs) filed after June 19, 2007, as is the case here. See 38 C.F.R. § 14.636; see also 2006 Acts, Pub. L. No. 109-461, tit. I, sec. 101(h), 120 Stat. 3408. The amended statute permits attorneys to charge fees for representation after an agency of original jurisdiction (AOJ) has issued a decision on a claim or claims, and a NOD has been filed with respect to that decision on or after June 20, 2007. See 38 C.F.R. §§ 14.636, 14.637. When a claimant and an agent or attorney 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 agent or attorney by the Secretary directly from any past-due benefits awarded on the basis of the claim, and (ii) is contingent on whether or not the matter is resolved in a manner favorable to the claimant, the total fee payable to the agent or attorney 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 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). Under VA regulations, such award of past-due benefits must result in a cash payment to a claimant or an appellant from which the fee may be deducted. 38 C.F.R. § 14.636(h)(1)(iii). “Past-due benefits” means a nonrecurring payment resulting from a benefit, or benefits, granted on appeal or awarded on the basis of a claim reopened after a denial by a VA 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, as determined by applicable laws and regulations, 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)(1). When the benefit granted on appeal, or as the result of the reopened 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 evaluation is subsequently granted as the result of an appeal of the disability evaluation 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)(1)(i). 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). See 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. See 38 C.F.R. § 14.636(e), (f). In this case, the appellant and the Veteran entered into an Attorney-Client Fee Contract and signed a VA Form 21-22a Appointment of Individual as Claimant’s Representative in July 2013. The Board finds that the Veteran and his attorney had a valid fee agreement. 38 C.F.R. §§ 14.636(g), (h). The agreement provided for fees of 20 percent, which is presumed reasonable. 38 C.F.R. § 14.636(f). In a February 2013 rating decision, the RO granted entitlement to service connection for left lower extremity neuropathy with an evaluation of 20 percent effective September 16, 2009. The RO also granted a rating of 40 percent for colon cancer post resection with scar, effective November 1, 2010. In March 2013, the Veteran filed a claim for entitlement to a TDIU. The application stated that his service-connected left leg nerve damage, hearing, and residuals of colon cancer prevented him from securing or following any substantially gainful occupation. In July 2013, the Veteran filed a notice of disagreement with the ratings assigned in the February 2013 rating decision for left lower extremity neuropathy and colon cancer status post resection with scar. In the February 2014 rating decision, the RO granted entitlement to a TDIU effective November 1, 2010. The decision also granted a higher rating of 40 percent for bilateral hearing loss, granted basic eligibility to Dependents’ Educational Assistance (DEA) and denied service connection for depression and anxiety and insomnia. A March 2014 VA calculation reflects that a gross payment of $61,372.63 was due and that 20 percent of the amount was $12,274.53. In a March 2014 letter, VA informed the appellant that the grant of benefits in the February 2014 rating decision was not due to a notice of disagreement. Therefore, fees were denied. In a March 2014 notice of disagreement, the appellant asserted that TDIU should have been considered as part of the notice of disagreement filed in July 2013 appealing the ratings assigned for left lower extremity neuropathy and colon cancer status post resection with scar, as he is unemployable due to those conditions. With respect to a TDIU, the United States Court of Appeals for Veterans Claims (Court) has held that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Roberson v. Principi, 253 F.3d 1378, 1384 (Fed. Cir. 2001). The Veteran filed a separate claim for a TDIU in March 2013, and filed a notice of disagreement with the ratings assigned for his service-connected left lower extremity neuropathy and colon cancer status post resection with scar in July 2013. In the grant of a TDIU, the RO specifically noted that symptoms of his service-connected colon cancer residuals and left leg neuropathy caused him to be unable to work in both a sedentary and physical capacity. The RO found that due to the severity of his combined claimed service-connected disabilities, the Veteran was unable to work in both a sedentary and physical capacity. The effective date assigned was November 1, 2010, the date he first met the schedular and factual requirements for a TDIU. As noted above, November 1, 2010, is also the effective date of the 40 percent rating for colon cancer status post resection with scar. Therefore, the Board finds that the TDIU claim was part and parcel of the increased rating claims for his service-connected colon cancer status post resection with scar and left lower extremity neuropathy, for which the appellant had filed a notice of disagreement. Cf. Jackson v. Shinseki, 587 F.3d 1106 (2009) (denying attorney’s fees for TDIU because the TDIU arose out of a subsequent claim of service connection for a depressive disorder, and not the claim for an increased rating for a low back disability for which the attorney was entitled to fees). The appellant’s appointment as the Veteran’s representative is valid, the fee agreement is valid, and the TDIU is part of the claim for a higher initial rating for left lower extremity neuropathy and a higher rating for colon cancer status post resection with scar for which a notice of disagreement had been filed prior to the award of TDIU. Therefore, the criteria for the award of fees to the attorney based on past due benefits to the Veteran for TDIU are met. 38 C.F.R. § 14.636. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Marenna, Counsel