Citation Nr: 18150406 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-26 471 DATE: November 15, 2018 ORDER Entitlement to attorney fees based on past due benefits granted in a May 2014 rating decision is granted. FINDING 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 entitlement to service connection for posttraumatic stress disorder (PTSD) and major depressive disorder which was part of the claim for service connection for traumatic brain injury (TBI) residuals for which a notice of disagreement had been filed. CONCLUSION OF LAW The criteria for entitlement to attorney fees based on past due benefits from the May 2014 rating decision granting service connection for PTSD and major depressive disorder have been met. 38 U.S.C. § 5904; 38 C.F.R. § 14.636. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1990 to June 1991 and from February 2003 to August 2003 and an earlier period of active duty for training (ACDUTRA) from June 1977 to September 1977. The appellant is the Veteran’s former attorney. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to attorney fees in the amount of $7,622.38 based on past due benefits granted in a May 2014 rating decision. Entitlement to attorney fees based on past due benefits granted in a May 2014 rating decision The appellant attorney asserts that he is entitled to attorney fees for past due benefits granted in the May 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). Regulations provide that agents and attorneys may charge fees only for services provided after both of the following conditions have been met: (i) a final decision was promulgated by the Board with respect to the issue, or issues, involved in the appeal; and (ii) the agent or attorney was retained not later than one year following the date that the decision by the Board was promulgated. 38 C.F.R. § 14.636(c)(2). 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. Id. Also, under VA regulations, “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 agency of original jurisdiction 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 agency of original jurisdiction, 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 agency of original jurisdiction 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 agency of original jurisdiction, 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 NOD 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 in to an Attorney-Client Fee Contract in August 2011. The Veteran and the appellant signed a VA Form 21-22a Appointment of Individual as Claimant’s Representative in August 2011. In a January 2009 rating decision, the RO denied entitlement to service connection, in pertinent part, for a concussion. The Veteran appealed the denial in January 2010. The RO found the notice of disagreement was not timely and construed the claim as a claim to reopen. In a January 2011 rating decision, the RO denied the Veteran’s claim to reopen his claim for service connection for a concussion. In an August 2011 notice of disagreement with the January 2011 rating decision, the attorney appellant asserted that VA erred in failing to consider and evaluate a claim for depression secondary to TBI (or other service-connected conditions) clearly presented by the record. The appellant noted that even if not raised by the Veteran, when the claims file reasonably raises the issue of service-related injury or disease, the VA is required to consider that theory and disability. The appellant noted treatment records in the claims file “were replete with the diagnosis of depression under varying levels of control. Despite these clear notations, no claim for secondarily caused depression was considered.” In June 2013, the Veteran filed a claim for entitlement to service connection for “PTSD-depression.” In a May 2014 rating decision, the RO granted entitlement to service connection for PTSD and major depressive disorder with an evaluation of 70 percent effective April 30, 2013 and entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). In June 2014, the RO notified the Veteran and the appellant attorney that since no notice of disagreement was filed on the issues, the attorney was not eligible for a direct payment of fees by VA of $7,622.38 (20 percent of the past due benefits awarded). In June 2014, the appellant filed a notice of disagreement with the denial of attorney fees for the grant of service connection for PTSD/major depressive disorder. The appellant waived entitlement to any portion withheld due to the award of individual unemployability. In regard to entitlement to attorney fees for the grant of service connection for PTSD/major depressive disorder, the appellant stated that a notice of disagreement was filed in August 2011 and there was a subsequent Form 9 in December 2011. The appellant stated that the currently rated mental health claims are a natural extension of those appealed issues. It appears the appellant was referring to the Veteran’s claim for entitlement to service connection for a concussion, which was filed in January 2010. In a July 2015 substantive appeal, the appellant argued that VA was separating the mental disorders for which service connection was granted from the mental disorder currently before the Board. The appellant asserted that VA cannot make this distinction as all mental disorders are rated in combination (without diagnostic separation) under 38 C.F.R. § 4.130. The issue of entitlement to service connection for a TBI was appealed to the Board. In July 2015, the Board remanded the issue of entitlement to service connection for a TBI, claimed as a concussion, for a VA examination. In a February 2017 rating decision, the RO granted entitlement to service connection for traumatic brain injury residuals with an evaluation of 10 percent effective January 22, 2010. Attorney fees of $2,263.40 were granted, based on the grant of past due benefits in the February 2017 rating decision. In the rating decision, the RO noted that the Veteran’s symptoms of mild memory loss and insomnia could not be used to evaluate the TBI residuals as the symptoms were previously used to evaluate the separately rated PTSD. Based on the evidence of record, the Board finds that attorney fees are warranted in this case. The Board notes that the attorney complied with the power of attorney requirements and the fee agreement provides for a fee equal to 20 percent of the total amount of any past due benefits awarded on the basis of the Veteran’s claim, which is presumed to be reasonable. See 38 C.F.R. § 14.636 (e), (f). The appellant has asserted that the grant of service connection for PTSD and major depressive disorder was an extension of the appeal of the issue of entitlement to service connection for TBI residuals. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for benefits for a particular mental disability “cannot be a claim limited to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed” by the evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As noted above, in the notice of disagreement with the January 2011 rating decision, the appellant specifically asserted that the issue of entitlement to service connection for depression secondary to TBI was raised by the record. Therefore, although the grant of service connection for PTSD and major depressive disorder effective April 30, 2013, was based on a June 2013 claim for PTSD and depression, the issue of entitlement to service connection for depression was previously raised as part of the notice of disagreement of the denial of service connection for residuals of a TBI. Further, a June 2016 VA examination indicated that the Veteran had a diagnosis of TBI with moderate symptoms, including memory difficulties, short and long-term, frequent severe headaches, constant tinnitus, and decreased hearing. The Board notes that the evidence indicates the Veteran has overlapping symptoms with his PTSD and TBI residuals. In the February 2017 rating decision, the RO noted that mild memory loss and insomnia could not be used to evaluate the residuals of a TBI as they were previously used to evaluate PTSD. The evidence indicates the Veteran’s symptoms of memory loss and insomnia are due to his service-connected TBI residuals and PTSD and major depressive disorder. The Veteran was rated separately for TBI residuals under Diagnostic Code 8045, and was rated under Diagnostic Code 8100 for tension headaches associated with TBI residuals. The Veteran is rated separately under Diagnostic Code 9411 for his PTSD and major depressive disorder. The Board finds that the appellant’s intent was to obtain service connection for a mental health disability for the Veteran, to include depression and TBI residuals, and that the August 2011 notice of disagreement reflects that intention. The benefit sought was subsequently awarded. In addition, the Veteran was awarded a rating for the service-connected TBI residuals that did not include his symptoms of memory loss and insomnia because the symptoms had already been considered in the rating for his service-connected PTSD and depression. The Board finds that the appellant assisted the Veteran with his appeal for his claim from the time of his appointment in August 2011, including the August 2011 notice of disagreement raising the issue of entitlement to service connection for depression as part of the claim for residuals of a TBI. At an April 2015 Board hearing at which the appellant appeared, the Veteran testified regarding having overlapping symptoms of memory loss due to the TBI and PTSD. The appellant’s appointment as the Veteran’s representative is valid, the fee agreement is valid, and the claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, was part of the appeal of the denial of service connection for residuals of a TBI for which a valid notice of disagreement had been filed prior to the award of service connection for PTSD and major depressive disorder. Additionally, the Veteran’s symptoms of memory loss and insomnia are related to his service-connected TBI residuals, but are rated as part of the rating for PTSD and major depressive disorder. Therefore, the criteria for the award of fees to the attorney based on past due benefits to the Veteran for the grant of entitlement to service connection for PTSD and major depressive disorder in the May 2014 rating decision are met. 38 C.F.R. § 14.636. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Marenna, Counsel