Citation Nr: 21002082 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-19 565 DATE: January 12, 2021 ORDER Entitlement to attorney fees based on the past-due benefits awarded in a June 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 issue of entitlement to a total disability rating based on individual unemployability (TDIU) was part of the claim seeking increased ratings for lumbar spine osteoarthritis, PTSD, and radiculopathy of the right and left lower extremities, for which a notice of disagreement had been filed. CONCLUSION OF LAW The criteria for the award of fees to the appellant based on the past-due benefits awarded in the June 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 November 1990 to June 1991, and from February 2003 to June 2004. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to attorney fees based on the past-due benefits awarded in a June 2013 rating decision. The appellant is the Veteran’s attorney representative. The case was previously before the Board in February 2019 when it was remanded for further development. In August 2020, the RO sent the Veteran a copy of the March 2016 Statement of the Case and the appellant’s May 2016 substantive appeal, in substantial compliance with the Board’s remand. The appellant has asserted that he is entitled to attorney fees based on the past-due benefits awarded in a June 2013 rating decision, which granted entitlement to a TDIU. In this case, as the initial decision on the claim was prior to February 19, 2019, the effective date of the Appeals Modernization Act (AMA), the regulatory criteria in effect for attorney and agent fees prior to the AMA applies. 38 C.F.R. § 14.636(c)(1)(i). 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 23, 2008, as in this case, agents 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 notice of disagreement has been filed with respect to that decision on or after June 20, 2007; and the agent 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). 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). In February 2013, the Veteran and appellant signed VA Form 21-22a, Appointment of Individual as Claimant’s Representative and a fee agreement stating that the attorney’s fee to be paid will be 20 percent of past-due benefits, paid directly to the attorney by VA. The attorney fee agreement included the name of the Veteran, his VA file number, and specific terms under which the amount to be paid for the services of the attorney would be assessed. A copy of the agreement was received by VA in February 2013. The Board finds the agreement to be valid, as it was properly filed with VA and contains all required information in accordance with 38 C.F.R. § 14.636(g). In a March 2012 decision, the RO granted higher ratings of 40 percent for lumbar spine osteoarthritis; and 50 percent for posttraumatic stress disorder (PTSD), and entitlement to service connection for radiculopathy of the left lower extremity, rated as 40 percent rating disabling; and radiculopathy of the right lower extremity, rated as 10 percent disabling. In September 2012, the Veteran filed a claim for a TDIU based on his service-connected low back disability. In February 2013, the appellant filed a notice of disagreement on the Veteran’s behalf with the ratings assigned in the March 2012 rating decision. The notice of disagreement also stated that, “This appeal will be satisfied with a finding of entitlement to a total individual unemployability . . .” In a June 6, 2013 rating decision, the RO denied entitlement to a TDIU. In a June 18, 2013 rating decision, the RO granted the Veteran entitlement to a TDIU effective May 16, 2012, the date that the Veteran last worked. The RO stated that the Veteran’s claim for a TDIU was received on September 24, 2012. The RO stated that the decision was based on an April 2012 opinion indicating he should no longer work because of his chronic lower back pain and included consideration of all of the Veteran’s service-connected disabilities. In a September 2014 decision, the RO found that attorney fees were not warranted because the claim for a TDIU was based on a new claim for benefits received in September 2012. In argument submitted in April 2016 with his substantive appeal, the appellant asserted that the issue of entitlement to a TDIU was not a separate new claim under Rice v. Shinseki, 22 Vet. App. 447 (2009). With respect to the issue of entitlement to a TDIU, as noted by the appellant, the United States Court of Appeals for Veterans Claims (Court) has held that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Roberson v. Principi, 253 F.3d 1378, 1384 (Fed. Cir. 2001). In this case, the appellant filed a notice of disagreement on the Veteran’s behalf in February 2013, which appealed the ratings assigned in the March 2012 rating decision and noted that the appeal would be satisfied with a grant of entitlement to a TDIU. In the June 2013 rating decision, the RO noted that the Veteran’s claim for a TDIU was received in September 2012. However, the Board finds that the issue of entitlement to a TDIU was also part of the Veteran’s claim for increased ratings for lumbar spine osteoarthritis, PTSD, and radiculopathy of the right and left lower extremities. The appellant also specifically raised the issue of entitlement to a TDIU in the notice of disagreement and the June 2013 rating decision reflects that entitlement to a TDIU was granted based on the service-connected disabilities for which he requested a higher rating. Therefore, the Board finds that the TDIU claim was part and parcel of the increased rating claims for lumbar spine osteoarthritis, PTSD, and radiculopathy of the right and left lower extremities, for which the appellant had filed a notice of disagreement. In conclusion, the appellant’s appointment as the Veteran’s representative is valid, the fee agreement is valid, and TDIU is part of the claim for a higher initial rating for lumbar spine osteoarthritis, PTSD, and radiculopathy of the right and left lower   extremities for which a notice of disagreement had been filed prior to the award of TDIU. Therefore, the criteria for the award of fees to the appellant based on past due benefits to the Veteran for TDIU are met. 38 C.F.R. § 14.636. 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.