Citation Nr: 18152965 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 15-26 473 DATE: November 26, 2018 ORDER Entitlement to attorney fees based on the grant of entitlement to service connection for an adjustment disorder with depressed mood in a September 2012 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 entitlement to service connection for an adjustment disorder with depressed mood which was part of the claim for service connection for posttraumatic stress disorder (PTSD) for which a notice of disagreement (NOD) had been filed. CONCLUSION OF LAW The criteria for entitlement to attorney fees based on past due benefits from the September 2012 rating decision granting service connection for adjustment disorder with depressed mood 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 April 1970 to January 1972. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to attorney fees in the amount of $3,646.55 based on past due benefits, including entitlement to service connection for an adjustment disorder, granted in a September 2012 rating decision. The appellant is the Veteran’s former attorney. This case was previously before the Board in May 2017 and remanded to ensure full compliance with contested claims procedures. The appellant attorney asserts that he is entitled to attorney fees on the past due benefits granted in the September 2012 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 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 into an Attorney-Client Fee Contract in October 2010. The Veteran and the appellant signed a VA Form 21-22a Appointment of Individual as Claimant’s Representative in July 2010. In January 2009, the Veteran filed a claim for service connection for PTSD. He stated that “I have recently learned that the nervous condition that I have had for years is called PTSD.” In a July 2009 rating decision, the RO denied entitlement to service connection for PTSD. Within one year of the decision, the Veteran submitted new evidence relating to PTSD. In a June 2010 rating decision, the RO confirmed the denial of PTSD. The Veteran, through his attorney, filed a notice of disagreement with the June 2010 rating decision in December 2010. In an October 2011 PTSD Disability Benefits Questionnaire, a VA examiner diagnosed the Veteran with an adjustment disorder with depressed mood. The examiner noted that the Veteran appeared to have “depressive symptoms secondary to his past diagnosis of pancreatic cancer, current liver cancer, diabetes and life changing events, particularly no longer being able to work because of his medical issues. The examiner further found that the Veteran did not meet the criteria for PTSD, and that his symptoms were better accounted for by his depressed mood rather than PTSD. A December 2011 deferred rating decision reflects that the RO noted that a new claim had been raised including the issue of service connection for depression based on the findings of the October 2011 VA examination which was diagnosed on a secondary basis. In the September 2012 rating decision, the RO granted entitlement to service connection for an adjustment disorder with depressed mood, secondary to his service-connected diabetes mellitus. In a November 2012 decision, the RO found the appellant was not entitled to attorney fees because a NOD was not filed for the issues granted in the September 2012 rating decision. In November 2012, the appellant filed a notice of disagreement with the November 2012 decision denying attorney fees. The appellant asserted that a NOD was filed regarding the denial of the Veteran’s mental condition in December 2010. The appellant stated that VA erred in denying fees for the claim for service connection for a mental disorder by failing to consider and account for changed diagnoses and determine whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate or secondary condition. The appellant stated that the finding of “adjustment disorder” is “interwoven with the existing (and appealed) claim of PTSD.” In a July 2015 substantive appeal, the appellant stated that VA failed to explain how the rated mental disorder is separate and distinct from the mental disorder appealed previously in the December 2010 NOD. Based on the evidence of record, the Board finds that attorney fees are warranted in this case on the grant of service connection for an adjustment disorder. 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 an adjustment disorder was intertwined with his claim for service connection for PTSD. 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). In this case, the Board finds the Veteran’s claim for service connection for PTSD was a claim for an acquired psychiatric disorder, however diagnosed. In his original claim, the Veteran stated he believed his nervous condition was PTSD. As a lay person, the Veteran is competent to report symptoms capable of lay observation, but not a specific psychiatric diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Further, the grant of service connection for an adjustment disorder originated from a December 2011 VA PTSD psychiatric examination report that was part of the development of the Veteran’s claim for service connection for PTSD. The December 2011 VA examiner noted that the Veteran’s symptoms were better accounted for by his depressed mood rather than PTSD. Therefore, the Board finds that Veteran’s claim for service connection for PTSD was a claim for an acquired psychiatric disorder, and a NOD was filed on the issue of entitlement to service connection for an adjustment disorder. The appellant’s appointment as the Veteran’s representative is valid, the fee agreement is valid, and the Veteran’s claim for entitlement to service connection for PTSD was a claim for an acquired psychiatric disorder. The Veteran’s attorney filed a NOD on the issue of entitlement to service connection for PTSD. Therefore, a valid notice of disagreement was filed prior to the award of service connection for an adjustment disorder. Accordingly, 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 an adjustment disorder in the September 2012 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