Citation Nr: A21020103 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 210621-167177 DATE: December 16, 2021 ORDER Eligibility to the direct payment of attorney fees from past-due benefits awarded based on a March 2020 rating decision (that granted a total disability rating based on individual unemployability (TDIU) and Dependents' Educational Assistance (DEA) from November 18, 2019) is granted. FINDINGS OF FACT 1. The appointment of the appellant as the veteran's attorney in September 2018 and the associated fee agreement are valid. 2. A March 2020 rating decision granted entitlement to a TDIU and basic eligibility to DEA based on underlying claims for higher ratings for service-connected total left knee replacement (left knee disability) and arthrofibrosis post right total knee arthroplasty (right knee disability). CONCLUSION OF LAW The criteria for eligibility to the direct payment of fees from past-due benefits awarded in a March 2020 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 and represented the veteran in claims for higher ratings for bilateral knee disabilities as well as a claim for a TDIU, among other claims. The fee decision on appeal (Summary of the Case) was issued in June 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In June 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 2020 rating decision (that granted a TDIU & DEA). The appellant contends he is eligible to the direct payment of attorney fees based on a March 2020 rating decision, which granted entitlement to a TDIU and DEA. Specifically, he argues that the veteran was awarded retroactive payment, and therefore, all of the criteria for direct payment of fees have been met. See VA Form 10182 (June 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). B. Factual Background This case has a lengthy factual history. For clarity, a brief recitation is necessary. In September 2018, VA received from the appellant several claims for VA compensation for the Veteran, to include, claims for higher ratings for service-connected bilateral knee disabilities. See VA 21-526b, Veteran Supplemental Claim (September 2018). VA also received the Veteran's signed and properly executed a VA 21-22a (Power of Attorney) naming the appellant as his representative and an associated fee agreement that provided the Veteran agreed to pay the appellant 20 percent of any past-due benefits owed by the VA to the Veteran. In October 2018, the Veteran was afforded a VA examination to assess the severity of his bilateral knee disabilities. In the report, the examiner noted that: the Veteran was retired and lost 01-week work time in the last 12 months; and the left knee disability impacted the Veteran's ability to work in that it required prolonged sitting, standing and walking; also, heavy lifting, kneeling, squatting, climbing and forward bending aggravated the condition. A November 2018 rating decision denied claims for higher ratings for service-connected bilateral knee disabilities. A November 2018 letter VA notified the parties of that decision. In November 2019, the appellant, on behalf of the Veteran, filed a notice of disagreement (NOD) with the November 2018 decision. VA also received a VA 21-8940 (Veterans Application for Increased Compensation Based on Unemployability (TDIU application), wherein the Veteran asserted his service-connected disabilities prevented him from securing or following any substantially gainful occupation, which included the bilateral knee disabilities. In December 2019, VA obtained individual unemployability statements, completed by a VA examiner, to assess the impact of the veteran's various service-connected disabilities on his ability to work. Of note, a VA examiner opined the Veteran's service-connected knee disabilities limited his capacity to work, in that he could only perform sedentary work. Subsequently, the AOJ issued a Statement of the Case (SOC) in December 2019 The appellant filed a substantive appeal (VA Form 9) in February 2020. In a March 2020 rating decision, the AOJ granted TDIU and basic eligibility to DEA, each effective November 18, 2019. The award of TDIU was based on the veteran's service-connected bilateral knee disabilities. Specifically, the AOJ noted the Veteran's age and education were limiting factors in being able to obtain employment of a fashion congruent with his prior employment. As it was conceivable that his age, education and limited work history made it highly unlikely that gainful employment that required only sedentary work could be obtained, TDIU based on his bilateral knee disabilities was warranted. A March 2020 letter notified the parties of this decision. In April 2021, the AOJ issued a fee decision 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 the award did not result in a retroactive cash payment to the Veteran; since no retroactive amount was due to the Veteran, no attorney fee was warranted. In June 2021, the AOJ issued a corrected fee decision, the decision on appeal, 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, in part, the grant of benefits was not based on a qualifying request to review a prior decision. The updated basis for denial of attorney fees was placed in the "Summary of the Case" section rather than in the "What We Decided and Why" section. See Notification Letter (June 2021). This appeal arises from the appellant's disagreement with that June 2021 fee decision. See VA Form 10182 (June 2021). C. Analysis The Board finds that the Veteran's TDIU claim was part-and-parcel of the appeal for the claims for higher ratings for his bilateral knee disabilities. Therefore, the Board concludes that the criteria for eligibility to the direct payment of fees from past-due benefits awarded in a March 2020 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 2020 rating decision granted entitlement to a TDIU and basic eligibility to DEA due to the nature and severity of his bilateral knee disabilities. The claim for TDIU was part-and-parcel with the claim for higher ratings for bilateral knee disabilities as TDIU was reasonably raised by the record since the October 2018 VA examination report. The report showed the Veteran's service-connected left knee disability impacted his ability to work in that it required prolonged sitting, standing, and walking; the examiner also noted heavy lifting, kneeling, squatting, climbing and forward bending aggravated the condition. The report shows the veteran was retired and had lost 0 to 1 week of work within the last 12 months prior to the exam due to his condition. Furthermore, the December 2019 VA individual unemployability statements show the Veteran's bilateral knee disabilities limited him to sedentary work. 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 the November 2019 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 claims for higher ratings for service-connected bilateral knee disabilities were already on appeal at the time of the November 2019 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 bilateral knee disabilities. See VA 21-8940 TDIU application. (November 2019). 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 higher ratings for service-connected bilateral knee disabilities. As such, the Board finds that the TDIU claim was part-and-parcel of the appeal for higher ratings for service-connected bilateral knee disabilities, that were 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). Finally, the Board notes that the remaining criteria for eligibility of fees have been met. 38 C.F.R. § 14.636(c)(2). The veteran filed a NOD in November 2019 with the November 2018 rating decision, that in pertinent part, sought higher ratings for the veteran's service-connected bilateral knee disabilities, 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 initial November 2018 decision to the parties in a November 2018 letter. A valid power of attorney and fee agreement are of record as well, naming the appellant the Veteran's attorney since September 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 2020 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.