Citation Nr: A21018985 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 210517-160551 DATE: November 29, 2021 ORDER Eligibility to the direct payment of attorney fees based on a March 2021 rating decision (that granted entitlement to a total disability rating based on individual unemployability (TDIU) and Basic eligibility to Dependents' Educational Assistance (DEA), each from October 20, 2020) is granted. FINDINGS OF FACT 1. The appointment of the Appellant as the veteran's attorney in April 2018 and the associated fee agreement are valid. 2. The AOJ granted entitlement to a TDIU and basic eligibility to DEA in the March 2021 rating decision based on the underlying claim for a higher rating for service-connected thoracolumbar spine strain with residual spondylosis (low back disability). CONCLUSION OF LAW The criteria for eligibility to the direct payment of fees from past-due benefits awarded in a March 2021 rating decision have been met. 38 U.S.C. § 5904; 38 C.F.R. §§ 14.627, 14.629, 14.636. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant was listed as the veteran's appointed attorney and represented the veteran in claims for a higher rating for a low back disability and TDIU, among other claims. The fee decision on appeal (Summary of the Case) was issued in March 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In May 2021, the Board of Veterans' Appeals (Board) received VA Form 10182, Decision Review Request: Board Appeal, wherein the appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38C.F.R. § 20.301. Eligibility to the direct payment of attorney fees based on a March 2021 rating decision (that granted entitlement to a TDIU & DEA) The appellant contends he is eligible to the direct payment of attorney fees from past-due benefits awarded based on a March 2021 rating decision, which granted entitlement to a TDIU and DEA. Specifically, he argues that the claim for TDIU was submitted part-and-parcel to the veteran's ongoing claims for higher ratings for his service-connected low back disability and bilateral hearing loss. As such, VA's denial of attorney fees on the assertion that there was no qualifying request to review the decision is erroneous. See VA Form 10182 (May 2021) and Third Party Correspondence (April 2021). A. Applicable Law Regarding Attorney Fees A claimant may have attorney or agent representation for the prosecution of claims for VA benefits. 38 U.S.C. § 5904. A power of attorney, executed on either VA Form 21-22, "Appointment of Veterans Service Organization as Claimant's Representative," or VA Form 21-22a, "Appointment of Attorney or Agent as Claimant's Representative," is required to represent a claimant before VA. The power of attorney shall contain the signature of the claimant and the signature of the agent or attorney and shall be presented to the appropriate VA office for filing in the veteran's claims folder. 38 C.F.R. § 14.631(a). A power of attorney may be revoked at any time, and an agent or attorney may be discharged at any time. Unless a claimant specifically indicates otherwise, the receipt of a new power of attorney executed by the claimant and the organization or individual providing representation shall constitute a revocation of an existing power of attorney. 38 C.F.R. § 14.631(f)(1). 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; an 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); see also Gumpenberger v. Wilkie, 973 F.3d 1379 (Fed. Cir. 2020); Jackson v. McDonald, 635 Fed. Appx. 858 (Fed. Cir. 2015); Snyder v. Nicholson, 489 F.3d 1213 (Fed. Cir. 2007). When the benefit granted on appeal, or as the result of the readjudicated claim, is service connection for a disability, the "past-due benefits" will be based on the initial disability rating assigned by the AOJ 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 rating is subsequently granted as the result of an appeal of the disability rating initially assigned by the AOJ, 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)(3)(i). B. Factual Background This case has a lengthy factual history. For clarity, a brief recitation is necessary. In October 2017, the veteran filed several claims for VA compensation, to include, claims for higher ratings for a service-connected low back disability and bilateral hearing loss. See VA 21-526EZ, Fully Developed Claim (October 2017). The veteran was afforded a VA examination to assess the severity of his back in December 2017. In the report, the examiner opined the veteran's low back disability impacted his ability to work in that it required him to avoid heavy lifting. A January 2018 rating decision denied claims for higher ratings for service-connected low back disability and bilateral hearing loss and notified of the parties in a February 2018 letter. In April 2018, VA received the appellant's signed and properly executed a VA 21-22a (Power of Attorney) naming the appellant as his representative; a fee agreement; and notice of disagreement (NOD) with the January 2018 rating decision as to the evaluation of his service-connected low back and bilateral hearing loss disabilities "to include TDIU." In the cover letter to the NOD, the appellant asked VA to note that the request for TDIU was not a new claim for benefits, but rather, part-and-parcel of the veteran's pending appeal for an increased rating. Subsequently, the AOJ issued a Statement of the Case (SOC) in September 2019, which in pertinent part, addressed the issues of higher ratings for low back disability and bilateral hearing loss. The appellant filed a substantive appeal (VA Form 9) in October 2019 appealing all of the issues listed on the September 2019 SOC. The claims were certified to the Board for appellate review in May 2020. In September 2020, VA afforded the veteran a VA examination to assess the severity of his service-connected bilateral hearing loss. Next an October 2020 rating decision granted a higher rating for bilateral hearing loss, from 0 percent to 10 percent, effective August 31, 2020. See Rating Decision (October 2020). In October 2020, VA received a VA 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), wherein the veteran asserted his service-connected disabilities prevented him from securing or following any substantially gainful occupation, including service-connected low back disability, bilateral hand cold injury, cervical spine degenerative disc disease (neck disability), right knee strain, tinnitus, asthma, and restrictive lung disease. The appellant submitted a brief with the TDIU application, where he once again asserted that the claim for TDIU was not a new claim, but rather part of the veteran's increased rating claims on appeal. In November 2020, VA obtained individual employability statements, completed by a VA examiner, to assess the impact of the veteran's various service-connected disabilities on his ability to work. Notably, a VA examiner opined the veteran's service-connected low back disability rendered the veteran unable to perform sedentary work. In addition, VA afforded the veteran a VA examination the same month to assess the severity of his low back disability. In the report, the examiner opined the veteran's low back disability impacted his ability to work because is required the veteran to retire/become unemployed; two to four weeks of work were lost in the 12 months prior to the exam. Also, the veteran could lift no more than five pounds and sit for no more than 10 minutes at a time, due to pain. Thereafter, a November 2020 rating decision granted a higher rating for the service-connected low back disability, from 20 percent to 40 percent, effective October 20, 2020; and a March 2021 rating decision granted TDIU and basic eligibility to DEA, each effective October 20, 2020. The award of TDIU was based on the veteran's service-connected low back disability, cold injury of the bilateral hands, neck disability, right knee strain, asthma and restrictive lung disease. A December 2020 VA letter notified the appellant and the veteran of this decision. In March 2021, the AOJ issued the fee decision on appeal to the parties wherein the AOJ determined the appellant was not eligible to the direct payment of attorney fees for the awards of TDIU and basic eligibility to DEA because VA never received a qualifying request to review the decision. See Correspondence (November 2020). This appeal arises from the appellant's disagreement with that March 2021 fee decision. See VA Form 10182, (May 2021). C. Analysis The Board finds that the veteran's TDIU claim was part-and-parcel of the appeal for a higher rating for low back disability. Therefore, the Board concludes that the criteria for eligibility to the direct payment of fees from past-due benefits awarded in a March 2021 rating decision have been met. 38 U.S.C. § 5904; 38 C.F.R. §§ 14.627, 14.629, 14.636. 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 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 other words, the 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, 22 Vet. App. 477 (2009). A March 2021rating decision granted entitlement to a TDIU and basic eligibility to DEA due to the nature and severity of his low back disability. The Board acknowledges the appellant's argument that the claim for TDIU was part-and-parcel with the claim for a higher rating for bilateral hearing loss. However, the bilateral hearing loss was not part of the basis of the AOJ's March 2021 grant nor did the veteran assert his bilateral hearing loss was the cause of his unemployability in the October 2020 TDIU application. Nonetheless, the claim for TDIU was part-and-parcel to the higher rating for a low back disability as TDIU was reasonably raised by the record since a December 2017 VA examination report. The report showed the veteran's service-connected low back disability impacted his ability to work in that it required him to avoid heavy lifting. In addition, the November 2020 VA individual unemployability statement shows the veteran's low back rendered him unable to perform sedentary work and the November 2020 VA examination report of the low back shows the veteran retired and/or was unemployed due to his low back. It showed he lost two to four weeks of work within the last 12 months prior to the exam due to his condition. The veteran could lift no more than 5 pounds or sit for more than 10 minutes at a time due to his pain. Even more compelling evidence is the April 2018 NOD, which denotes the veteran was appealing the evaluation of his low back disability to seek the "highest evaluation possible, to include TDIU." It is clear that the veteran's appeal for a higher rating for his service-connected low back disability was an attempt to obtain a total disability rating. However, the AOJ failed to adjudicate the claim when it was initially raised by the record. Rather, it was not until the appellant, on behalf of the veteran, filed both the April 2018 NOD seeking a TDIU and the October 2020 TDIU application, that the AOJ adjudicated the claim on the merits. Rice v. Shinseki, 22 Vet. App. 447 (2009) (TDIU is part and parcel of a claim for increased compensation when evidence of unemployability is submitted). To that end, the claim for a higher rating for service-connected low back disability were already on appeal at the time of the October 2020 formal TDIU application. In the application for TDIU, the Veteran specifically asserted he was unable to work due to his service-connected disabilities, including his low back disability. See VA 21-8940 TDIU application. (August 2018). Collectively, these actions, along with the facts of this specific case, as raised by the veteran and the record, demonstrates the claim for TDIU was indeed intertwined with the outcome of the claim for a higher rating for service-connected low back disability in excess of 20 percent. As such, the Board finds that the TDIU claim was part-and-parcel of the appeal for a higher rating for service-connected low back disability, that was on appeal at that time. Cf. Jackson v. Shinseki, 587 F.3d 1106 (2009) (denying attorney's fees for TDIU because the TDIU arose out of a subsequent claim of service connection for a depressive disorder, and not the claim for an increased rating for a low back disability for which the attorney was entitled to fees). The Board also notes that the remaining criteria for eligibility of fees have been met. 38 C.F.R. § 14.636(c)(2). The veteran filed an NOD in April 2018 with the January 2018 rating decision, seeking a higher rating in excess of 20 percent for the veteran's service-connected low back disability, of which TDIU was part-and-parcel of the claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The AOJ issued proper notice of the decision to the parties in February 2018. A valid power of attorney and fee agreement are of record as well, naming the appellant the veteran's attorney since April 2018. See VA Form 21-22a. Accordingly, the appellant is entitled to fees from past due benefits for the grant of entitlement to a TDIU and basic eligibility to DEA awarded in the March 2021 rating decision. 38 C.F.R. § 14.636. The appellant is entitled to 20 percent of past due benefits for the grant of entitlement to a TDIU. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pendleton, N. 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.