Citation Nr: 18123223 Decision Date: 08/01/18 Archive Date: 08/01/18 DOCKET NO. 15-08 807A DATE: August 1, 2018 ORDER Entitlement to attorney fees from benefits resulting from a September 2013 rating decision is denied. FINDING OF FACT The September 2013 grant of a total disability rating based on individual unemployability (TDIU) and increased ratings were in response to a separate claim; they were not the result of a Notice of Disagreement (NOD) submitted on or after June 20, 2007. CONCLUSION OF LAW The criteria for entitlement to attorney fees based on a September 2013 rating decision have not been met. 38 U.S.C. § 5904; 38 C.F.R. §§ 14.627, 14.629, 14.636. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is the Veteran’s former attorney representative. The appellant has asserted that he is entitled to attorney fees for past due benefits granted in a September 2013 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 into an Attorney-Client Fee Contract in May 2010. The Veteran and the appellant signed a VA Form 21-22a Appointment of Individual as Claimant’s Representative in June 2010. In a June 2008 rating decision, the RO had denied entitlement to service connection for kidney disease, diabetes mellitus, peripheral neuropathy and posttraumatic stress disorder (PTSD). In a July 2008 rating decision, the RO confirmed and continued the denial of service connection for PTSD. In July 2008, the Veteran filed a notice of disagreement with the denial of service connection for diabetes and peripheral neuropathy. In May 2009, the RO issued a Statement of the Case denying the claims for service connection for diabetes mellitus and peripheral neuropathy. In a June 2009 statement, the Veteran appealed the denial. In a May 2010 statement, the appellant stated that the Veteran was requesting a higher rating for prostate cancer, and wanted to file a notice of disagreement on the issues of entitlement to service connection for diabetes mellitus and neuropathy of the upper and lower extremities. In a September 2010 rating decision, the RO denied the Veteran’s claim for a rating in excess of 20 percent for prostate cancer. In a September 2010 statement, the appellant requested examinations addressing the claims for service connection for diabetes, neuropathy, PTSD and ischemic heart disease. In an August 2010 statement, received in October 2010, the appellant filed a notice of disagreement with the denial of a higher rating for prostate cancer on behalf of the Veteran. The appellant also noted that the Veteran had appealed the denial of service connection for diabetes and peripheral neuropathy, and wanted to add claims for ischemic heart disease and PTSD. In a September 2011 statement, the appellant requested another examination addressing whether the Veteran had diabetes mellitus, type II, secondary to his exposure to Agent Orange. In a November 2011 rating decision, the RO granted entitlement to service connection for PTSD with an evaluation of 50 percent, effective October 4, 2010, and denied service connection for ischemic heart disease. In a January 2012 letter, the Veteran and the appellant were notified that the RO was denying attorney fees to the appellant because a notice of disagreement had not been filed on the issue of entitlement to service connection for PTSD. The appellant did not appeal the decision. In a May 2012 rating decision, the RO granted service connection for diabetes mellitus and for peripheral neuropathy of the right and left upper and lower extremities. In June 2012, the RO issued a Statement of the Case denying a higher rating for prostate cancer. The Veteran did not file a timely substantive appeal of the denial. In June 2012, the Veteran filed a claim for a total disability rating based on unemployability (TDIU). In May 2013 letters, the RO notified the Veteran and the appellant that attorney fees in the amount of $5,070.80 would be released to the appellant. In a September 2013 rating decision the RO granted entitlement to a TDIU from October 31, 2010, to June 13, 2012; entitlement to a higher rating of 70 percent for PTSD, effective June 13, 2012; entitlement to a higher rating of 40 percent for peripheral neuropathy of the right upper extremity, effective June 13, 2012; entitlement to a higher rating of 30 percent for peripheral neuropathy of the left upper extremity, effective June 13, 2012; entitlement to a higher rating of 20 percent for peripheral neuropathy of the right lower extremity, effective June 13, 2012; and denied higher ratings for peripheral neuropathy of the left lower extremity, diabetes mellitus, prostate cancer, and erectile dysfunction. The Veteran is rated as 100 percent disabling from June 13, 2012. In October 2013 letters, the Veteran and the appellant were notified that attorney fees in the amount of $7,596.26 for the award of benefits in the September 2013 rating decision were denied because there had been no notice of disagreement filed with respect to the case. In October 2013, the appellant filed a timely NOD with the denial of attorney fees. In the NOD, the appellant stated that he had filed numerous NODs on the Veteran’s behalf and the NODs led to the current rating. The appellant specifically cited the NODs from May 2010, September 2010, October 2010, and September 2011. In a December 2013 letter, the appellant withdrew his appointment of representation for the Veteran. In a February 2015 Statement of the Case, the RO again denied entitlement to attorney fees. The appellant submitted a substantive appeal in March 2015. The appellant asserted that he had filed numerous notices of disagreement as well as initial claims on the Veteran’s behalf. The attorney stated that it was through the collectiveness of the NODs that the Veteran’s ratings, including a notice of disagreement that led to the September 2013 decision, that the Veteran received the grant of benefits. The Board finds that attorney fees are not 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). However, the Board finds that the grant of a TDIU and higher ratings in the September 2013 rating decision stemmed from the Veteran’s separate claim for a TDIU filed in June 2012. The appellant has argued that the Veteran received the grant of a TDIU and higher ratings due to NODs submitted by the appellant in May 2010, September 2010, October 2010 and September 2011. However, none of the statements cited by the appellant are NODs on the issue of entitlement to a TDIU or higher ratings for PTSD or peripheral neuropathy. The May 2010 statement addresses the Veteran’s claim for a higher rating for prostate cancer and claims seeking service connection for diabetes and peripheral neuropathy. The September and October 2010 statements, address entitlement to a higher rating for prostate cancer, and service connection for diabetes, peripheral neuropathy, ischemic heart disease, and PTSD. The September 2011 statement addresses the Veteran’s claim for service connection for diabetes mellitus. The September 2013 award of benefits was based on the Veteran’s claim for a TDIU and no NOD was filed on the issue of entitlement to a TDIU. The claim for a TDIU in June 2012 was separate from the previous notice of disagreements. The Veteran did not indicate an intent to appeal the initial ratings assigned for diabetes mellitus and peripheral neuropathy of the right and left upper and lower extremities in the May 2012 rating decision. A May 2012 Decision Review Officer Conference Report indicated that the issue of entitlement to a TDIU was inferred, and that the Veteran would be sent a TDIU application with the award letter for the May 2012 grant. The letter also noted that the decision was considered a full grant of the benefits on appeal for those issues. 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). In this case, the NODs identified by the attorney were filed in conjunction with the Veteran’s appeals seeking service connection for diabetes, peripheral neuropathy, ischemic heart disease, and PTSD. These issues for service connection were granted in full and the Veteran did not appeal the initial ratings assigned. The Conference Report did not indicate the TDIU claim was inferred as part of the claim for a higher rating for residuals of prostate cancer. The grants of higher ratings in the October 2013 rating decision were based on development conducted for the separate claim for a TDIU. Accordingly, as a NOD was not filed on the issues granted in the September 2013 rating decision, including entitlement to a TDIU, the Board finds that payment of attorney fees on that award is not warranted. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Marenna, Counsel