Citation Nr: 21061955 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 19-29 591 DATE: October 5, 2021 ORDER Entitlement to eligibility to attorney fees based on the past-due benefits awarded in a June 2017 rating decision is granted. FINDING OF FACT The Veteran's appointment of the appellant as his attorney representative and associated fee agreement are valid, and a valid notice of disagreement was filed on the issues granted in the June 2017 rating decision. CONCLUSION OF LAW The criteria for entitlement to eligibility to attorney fees based on the past-due benefits awarded in a June 2017 rating decision have been met. 38 U.S.C. § 5904 (2012); 38 C.F.R. § 14.636 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1986 to May 1991. The appellant is the Veteran's attorney representative. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2017 fee decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied attorney fees based on the past-due benefits awarded in a June 2017 rating decision. In January 2021, a hearing was held before the undersigned with the Veteran and the appellant. A transcript of the hearing is of record. Entitlement to eligibility to attorney fees based on the past-due benefits awarded in a June 2017 rating decision The appellant asserts that he is eligible for attorney fees based on the past-due benefits awarded in a June 2017 rating decision because a notice of disagreement was filed on the issue granted in the decision. A claimant may have attorney or agent representation for the prosecution of claims for VA benefits. 38 U.S.C. § 5904. For initial decisions issued prior to February 19, 2019, agents and attorneys may charge claimants or appellants for representation provided: After an AOJ has issued a decision on a claim or claims, including any claim to reopen under 38 C.F.R. § 3.156(a) or for an increase in rate of a benefit; the AOJ issued notice of that decision before the effective date of the modernized review system; a notice of disagreement (NOD) has been filed with respect to that decision on or after June 20, 2007; and the agent or 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). 38 C.F.R. § 14.636(c)(2). When a claimant or appellant and an attorney or agent 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 attorney by the Secretary directly from any past-due benefits awarded on the basis of the claim, and (ii) is contingent on whether the matter is resolved in a manner favorable to the claimant or appellant, the total fee payable to the attorney or agent 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 or appellant 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), 14.636(h)(2). The term "past-due benefits" means a nonrecurring payment resulting from a benefit, or benefits, granted on appeal or awarded on the basis of a readjudicated claim after a denial by an AOJ 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 and the date of the grant of the benefit by the AOJ, the Board, or an appellate court. 38 C.F.R. § 14.636(h)(3). The fees are payable to the attorney based on the amount of past-due benefits awarded regardless of the amount payable to the Veteran. See Rosinski v. Wilkie, 32 Vet. App. 264 (2020). The analysis of attorney fees generally requires the consideration of four concepts: the validity of a fee agreement; the eligibility of counsel for a fee; counsel's entitlement to a fee in a given situation; and, finally, the reasonableness of any fee that is ultimately awarded. See Cox v. McDonough, 2021 U.S. App. Claims LEXIS 851, *9 (May 12, 2021). In this case, the issue of eligibility to attorney fees has been raised by the appellant. In regard to the validity of the fee agreement, in October 2016, the Veteran and appellant signed a 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 October 2016, within 30 days of its execution. 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 January 2015, the Veteran filed a claim for service connection for esophageal conditions, including gastroesophageal reflux disease (GERD), hiatal hernia and other esophageal disorders. In an April 2015 rating decision, the RO denied service connection for esophageal conditions, including GERD, hiatal hernia and other esophageal conditions. A December 2015 Report of General Information reflects that the Veteran requested reconsideration of the April 2015 rating decision based on new and material evidence. In a March 2016 rating decision, the RO granted service connection for adenoma of the esophagus with an evaluation of 10 percent effective January 28, 2015. In an April 2016 rating decision, the RO noted that a special review of the file was mandated in March 2016, and based on the review, the RO proposed that the disability rating for adenoma of the esophagus be reduced from 100 percent to 30 percent. In a July 2016 rating decision, the disability rating of adenoma of the esophagus was decreased to 30 percent disabling effective October 1, 2016. In September 2016, the Veteran filed a NOD expressing disagreement with the proposal to reduce benefits for adenoma of the esophagus and the failure to infer a claim for a total disability rating based on individual unemployability (TDIU). The NOD indicated that he was disagreeing with the April 2016 rating decision. In another September 2016 NOD, the Veteran expressed disagreement with the failure to service-connect the Veteran's colon removal, failure to service-connect abdominal scars from colon removal, failure to service-connect TDIU, and failure to service-connect damage to the vocal chords. The Veteran asserted that all of the issues were reasonably raised by the record in the January 2015 claim and specified that he was disputing the March 2016 rating decision. In a June 2017 rating decision, the RO granted the following: (1) service connection for a scar of the left side of the neck with a noncompensable evaluation effective October 1, 2016; (2) service connection for vocal chord implant with an evaluation of 10 percent effective October 1, 2016; (3) service connection for abdominal scars with a noncompensable evaluation effective October 1, 2016; (4) service connection for nonlinear scars of the abdomen with a noncompensable evaluation effective October 1, 2016; (5) entitlement to a TDIU effective October 1, 2016; (6) basic eligibility to Dependents' Education Assistance from October 1, 2016; and (7) an increased rating for residuals of adenoma of the esophagus of 60 percent effective October 1, 2016. The rating decision noted that the Veteran had filed a claim for an increased rating that was received on October 25, 2016, the date he filed a claim for a TDIU. In an October 2017 fee decision, the RO found that the appellant was not entitled to attorney fees based on the past-due benefits awarded as a result of the June 2017 rating decision. The RO found that no notice of disagreement was filed at any time in connection with the award in this case. The RO found that the September 2016 NOD was not a formal NOD because the issues stated on the NOD had never been rated. The RO stated that other September 2016 NOD was not a NOD because an April 2016 rating decision was not a final decision, but a proposal to reduce a disability rating. The appellant filed a NOD with the fee decision in November 2017, asserting the issue of entitlement to a TDIU was raised on two NODs. At the January 2021 Board hearing, the appellant testified that the rating decisions appealed in the September 2016 NODs were implied denials of disabilities related to the Veteran's esophageal cancer and a TDIU. The Veteran testified that as part of his cancer treatment, part of his esophagus was removed and part of his colon as put in place of his esophagus. He also had scars from the surgeries. The appellant noted that initially none of the complications were contemplated in the Veteran's original grant of benefits for adenoma of the esophagus. The appellant also noted that under Rice v. Shinseki, a claim for a TDIU is part of an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran testified that he believed the appellant is entitled to fees. As noted above, for initial decisions issued prior to the effective date of the modernized review system, February 19, 2019, as in this case, fees may be charged if a NOD has been filed with respect to that decision on or after June 20, 2007. In this case, the appellant has asserted that a NOD was filed on the issues granted in the June 2017 rating decision. The April 2016 rating decision, which proposed that the evaluation of adenoma of the esophagus be reduced to 30 percent, was not a final decision. As the decision was not final, it could not be appealed with a NOD. However, in the September 2016 NOD, the Veteran was appealing the rating assigned for adenoma, which was reduced to 30 percent in a final July 2016 rating decision, before the Veteran filed the NOD. Therefore, the NOD can be construed as an appeal of the rating assigned for adenoma in the final July 2016 rating decision. The March 2016 rating decision granting service connection for adenoma of the esophagus with a 100 percent evaluation was a final decision. Therefore, the September 2016 NOD appealing the March 2016 rating decision was valid. The September 2016 NOD was essentially a claim for a higher rating for the service-connected adenoma of the esophagus because the Veteran asserted that the RO failed to separately service-connect conditions that were related to the adenoma, including residuals of surgery and scars. In Morgan v. Wilkie, 31 Vet. App. 162 (2019), the Court of Appeals for Veterans Claims held that VA's duty to maximize benefits requires it to exhaust all schedular alternatives for rating a disability, including considering secondary service connection as part of an increased rating claim. In the September 2016 NOD, the Veteran also asserted that he was entitled to a TDIU. The issue of entitlement to a TDIU is part and parcel of an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that the issues granted in the June 2017 rating decision were all part of the claim for a higher rating for service-connected adenoma, including the disabilities that were service-connected secondary to the service-connected adenoma and the issue of entitlement to a TDIU. Therefore, a valid NOD was filed on the issues granted. As a valid VA Form 21-22a and fee agreement are of record, the initial decision was issued prior to the effective date of the modernized review system, a valid NOD was filed on the issues granted, and the appellant represented the Veteran during the appeal, the Board finds that the appellant is eligible for attorney fees based on the past-due benefits awarded in the June 2017 rating decision. Accordingly, the claim is granted. The Board notes that the appellant raised the issue of a potential overpayment to the Veteran due to the payment of attorney fees at the Board hearing. However, as the attorney fees have not yet been paid, there is no current case or controversy, and the Board will not address the issue at this time. B. MULLINS 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.