Citation Nr: 18157733 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 15-27 452A DATE: December 13, 2018 ORDER Entitlement to attorney fees based on a grant of past-due benefits in an August 2013 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 February 2012 letter was a notice of disagreement with the ratings assigned in the January 2012 rating decision and the claim for entitlement to a TDIU is part of the claim for a higher rating for the ratings assigned. CONCLUSION OF LAW The criteria for entitlement to attorney fees based on past due benefits from the August 2013 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 1966 to July 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to attorney fees in the amount of $7,241.92 based on past due benefits granted in an August 2013 rating decision. The appellant is the Veteran’s former attorney. The appellant attorney asserts that he is entitled to attorney fees on the past due benefits granted in the August 2013 rating decision based on the grant of entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). 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, for fee agreements entered into on or after June 23, 2008, 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 (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). 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). In this case, the appellant and the Veteran entered into an Attorney-Client Fee Contract and VA Form 21-22a Appointment of Individual as Claimant’s Representative in April 2010. In a claim received in June 2011, the Veteran filed a claim for neuropathy, including as secondary to service-connected diabetes, in both hands and feet and chronic kidney disease. In a January 2012 rating decision, the RO granted entitlement to service connection for chronic kidney disease and hypertension, denied service connection for sleep apnea, denied a rating in excess of 20 percent for diabetes mellitus, and deferred a decision on entitlement to neuropathy of the upper and lower extremities. In a February 2012 statement, the appellant requested that the statement be construed as a notice of disagreement on the issue of lack of consideration of a TDIU in the January 2012 rating decision. The appellant stated that the rating decision did not address entitlement to a TDIU. The appellant stated, “When you look at his service-connected conditions together it is clear that the veteran is unable to work. Please review all of his health conditions and grant Individual Unemployability.” In a February 2012 letter, the RO informed the Veteran that they were unable to accept the notice of disagreement as it did not specify the issue he was in disagreement with concerning the January 2012 rating decision. The RO stated that no further appellant action would be taken on the claim until they received his response. In May 2012, the Veteran submitted an Application for Increased Compensation Based on Unemployability. In a May 2013 rating decision, the RO denied a rating in excess of 80 percent for chronic kidney disease, denied a rating in excess of 60 percent for coronary artery disease, denied a rating in excess of 20 percent for diabetes mellitus, denied service connection for depression, and denied entitlement to a TDIU. In July 2013, the Veteran submitted another Application for Increased Compensation Based on Unemployability. A kidney conditions Disability Benefits Questionnaire, signed in June 2013 was added to the file. The physician stated that “it is not reasonable nor do I expect that [the Veteran] is able to work due to his advanced stage of this disease process.” In August 2013, the RO granted entitlement to a TDIU effective June 7, 2011, because he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disability chronic kidney disease. The RO noted the February 2012 letter from the appellant in the list of evidence and stated that the Veteran filed a claim for an increased evaluation that was received in May 2012. In the August 2013 decision on attorney fees, the RO stated that the August 2013 rating decision was based on a new claim for increased benefits that was received in May 2012 and was not related to the Veteran’s previous appeal decision. The RO noted that the grant of TDIU was based on the Veteran’s service-connected chronic kidney disease condition. In a September 2013 notice of disagreement, the appellant noted that the effective date of the grant of TDIU is based on the application filed in June 2011 and decided in the January 2012 rating decision. The appellant noted that a notice of disagreement was filed by their office in February 2012 in response to the January 2013 rating decision. In a November 2017 Brief, the appellant noted that a notice of disagreement was filed on the January 2012 rating decision in February 2012. VA requested they file a TDIU application, which was submitted in May 2012. The Veteran was granted a TDIU in August 2013 with an effective date of June 7, 2011, the same effective date assigned to the award of service connection for chronic kidney disease in the January 2012 rating decision. The appellant asserted that the claim for a TDIU should have been intertwined with the notice of disagreement as the Veteran met the schedular criteria at that point. Based on the evidence of record, the Board finds that attorney fees are warranted on the grant of entitlement to a TDIU. 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 Board finds that the February 2012 letter was a notice of disagreement on the ratings assigned in the January 2012 rating decision. The appellant clearly stated that the disagreement was with the failure to address entitlement to a TDIU. In the February 2012 letter, the RO informed the Veteran that they were unable to accept the notice of disagreement as it did not specify the issue he was in disagreement with concerning the January 2012 rating decision. The RO stated that no further appellant action would be taken on the claim until they received his response. In May 2012, the Veteran submitted the Application for Increased Compensation Based on Unemployability. A claim to a TDIU can be part and parcel of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 477 (2009). The February 2012 letter was essentially a notice of disagreement with the ratings assigned in the January 2012 rating decision because the RO did not consider higher ratings based on TDIU. Therefore, the Board finds that a valid notice of disagreement was filed prior to the award of entitlement to a TDIU. The appellant’s appointment as the Veteran’s representative is valid, the fee agreement is valid, and the Veteran’s attorney filed a NOD on the issue of entitlement to a TDIU. 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 a TDIU in the August 2013 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