Citation Nr: 20049985 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 19-13 126 DATE: July 28, 2020 ORDER Entitlement to attorney fees based on past due benefits granted in a May 2015 rating decision is granted. FINDINGS OF FACT 1. The notice of disagreement underlying the May 2015 grant of past due benefits was filed prior to June 20, 2007. 2. At the time of the May 2015 rating decision, the Board had promulgated a final decision with respect to the issue of entitlement to individual unemployability due to service-connected disabilities (TDIU) in May 2012 when it declined to adjudicate the matter. CONCLUSION OF LAW The criteria for payment of attorney fees to the appellant based on past due benefits granted in a May 2015 rating decision 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 October 1983 to December 1992. The appellant is the Veteran’s attorney representative. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied attorney fees based on past due benefits granted in a May 2015 rating decision. The relevant legal authority provides that a claimant may have attorney or agent representation for the prosecution of claims for VA benefits. 38 U.S.C. § 5904(a). Regarding circumstances in which fees may be charged, for fee agreements entered into on or after June 20, 2007, 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 petition 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). In cases in which an NOD was filed on or before June 19, 2007, 38 U.S.C. § 5904(c) provides that “a fee may not be charged, allowed, or paid for services of agents and attorneys with respect to services provided before the date on which the Board of Veterans’ Appeals first makes a final decision in the case. Such a fee may be charged, allowed, or paid in the case of services provided after such date only if an agent or attorney is retained with respect to such case before the end of the one-year period beginning on that date.” The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a “case” within the meaning of § 5904(c) encompasses “all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled.” Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (quoting Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001)). In this case, the Veteran and the appellant signed a VA Form 21-22a, Appointment of Individual as Claimant’s Representative, and an attorney fee agreement in April 2013. The Veteran filed a claim for increased ratings for his service-connected bilateral knee disabilities in March 2003. In an August 2004 rating decision, the RO denied an increased rating for left and right knee disabilities. The Veteran filed a timely notice of disagreement in August 2004. The Veteran perfected an appeal to the Board. In September 2007 and January 2010, the Board remanded the case for additional development. In May 2012, the Board granted separate 10 percent ratings for bilateral slight knee instability and increased the rating for the left knee from 20 percent to 30 percent, as well as for the right knee from 20 percent to 30 percent, effective September 2010. At the time of the May 2012 decision the evidence included a September 2010 VA examination report wherein the Veteran reported having left his job due to knee pain. The VA examiner concluded that the Veteran’s knees rendered him unemployable from a position requiring extensive travelling and walking, but not from very sedentary work. The Board stated the following regarding the matter of TDIU: To the extent the record has raised the issue of the Veteran’s employability due to his service-connected knee disabilities, the Board notes that the Veteran, in an April 2011 statement, explicitly stated that he did not believe consideration of his employability should be addressed by an orthopedic examiner; he believed it to be an invasion of his privacy to have his employability discussed in the context of his knee disabilities. Thus, the Board will not further address the issue. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), to the extent it did not address entitlement to a TDIU. A February 2013 order granted the parties’ joint motion for remand (Joint Motion). In April 2014, the Board remanded the claim for TDIU to the RO to have the RO initially adjudicate the issue of entitlement to a TDIU. In a May 2015 rating decision, the RO granted entitlement to a TDIU, effective December 1, 2006. In a June 2015 decision, the RO denied attorney fees based on the past due benefits granted in the May 2015 rating decision. The appellant filed a notice of disagreement with the decision in June 2015 asserting that the issue of a TDIU was on appeal and was the basis for the retroactive award. The question before the Board is whether the appellant is eligible for attorney fees based on the past due benefits granted in the May 2015 rating decision. However, the notice of disagreement for the appeal of the ratings for the knee disabilities was filed in August 2004, which is before June 20, 2007. As noted above, for notices of disagreement filed prior to June 20, 2007, attorneys may charge fees only for services provided after a final decision has been promulgated by the Board with respect to the issue involved in the appeal. In April 2020, the appellant argued that the May 2012 Board decision reflected a denial of the claim for TDIU. The appellant argued that although the Board’s decision did not address the merits of the TDIU issue, it did address whether TDIU was properly raised and made a determination that it was not raised. The appellant thus argued that the May 2012 decision should be considered a final decision on the TDIU issue. The Board finds this argument persuasive based on pertinent case law. In Jackson v. Shinseki, 587 F.3d 1106, 1109 (Fed. Cir. 2009), the Federal Circuit concluded that in order to raise the issue of entitlement to TDIU a veteran must (1) make a claim for the highest disability rating possible, (2) submit evidence of medical disability, and (3) submit evidence of unemployability. If such is done, then TDIU would be considered part of the “case” before the Board in a decision made for purposes of attorney fee determinations. Here, the Veteran had raised a claim seeking the highest rating possible for his knee disabilities, had submitted evidence of medical disability, and the September 2010 VA examination report raised questions regarding whether the Veteran was unemployable due to his knee disabilities. As such, TDIU was raised by the record at the time of the May 2012 Board decision and was part of the “case” before the Board at that time. 38 U.S.C. § 5904(c). Thus, the Board’s determination not to address TDIU in May 2012 can be seen as constituting a final decision on the matter of TDIU. As the appellant and the Veteran entered into an attorney fee agreement within a year of the May 2012 Board decision, the appellant is entitled to attorney fees based on the past due benefits granted in the May 2015 rating decision. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Marenna, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.