Citation Nr: 21006702 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 13-31 114A DATE: February 4, 2021 ORDER Entitlement to eligibility to attorney fees based on the past-due benefits awarded in a December 2011 rating decision is denied. FINDINGS OF FACT 1. The notice of disagreement underlying the December 2011 grant of past-due benefits was filed prior to June 20, 2007; and the Veteran’s surviving spouse did not file a notice of disagreement on the issue of entitlement to service connection for the Veteran’s cause of death. 2. There was no final Board decision addressing the merits of the claim for service connection for coronary artery disease, prior to the December 2011 rating decision granting the claim.   CONCLUSION OF LAW The criteria for entitlement to attorney fees to the appellant based on past due benefits granted in a December 2011 rating decision have not 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 March 1968 to December 1970. The Veteran died in January 2009. The Veteran’s surviving spouse was properly substituted as the appellant in the Veteran’s claim for service connection for ischemic heart disease, which was granted in a December 2011 rating decision. The appellant is her former attorney representative. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in October 2018 and January 2020 when it was remanded for further development. The Board notes that the Veteran’s surviving spouse was sent copies of the November 2013 Statement of the Case, the November 2016 Supplemental Statement of the Case and the appellant’s substantive appeal, and the appellant was sent copies of her correspondence, in compliance with the Board’s remands and contested claims procedures. Entitlement to Attorney Fees In this case, the appellant asserted that he was entitled to attorney fees based on the past-due benefits awarded in a December 2011 rating decision. As the initial decision on the claim was prior to February 19, 2019, the effective date of the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, 131 Stat. 1105 (2017), also known as 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). A claimant may have attorney or agent representation for the prosecution of claims for VA benefits. 38 U.S.C. § 5904. Regarding circumstances in which fees may be charged, for fee agreements entered into on or after June 23, 2008, as in this case, 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 claim 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 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 a notice of disagreement 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)). 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). 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). 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 this case, the Veteran originally filed claims for service connection for congestive heart failure, V-Tac syndrome, and Vietnam stress syndrome in October 2005. In an August 2006 rating decision, the RO granted entitlement to service connection for posttraumatic stress (PTSD) and diabetes mellitus and denied service connection for congestive heart failure. The Veteran filed a notice of disagreement with the denial of service connection for heart disease in February 2007. The Veteran filed a notice of disagreement with the initial ratings assigned for PTSD and diabetes mellitus in June 2007. The RO issued a Statement of the Case confirming the denial of entitlement to service connection for coronary artery disease in October 2007. The Veteran submitted a substantive appeal in November 2007. The RO confirmed the denial in a September 2007 Statement of the Case. In September 2007, the Veteran filed a timely substantive appeal on the issue. VA was notified of the death of the Veteran in January 2009. In March 2009, the Board dismissed the issue of entitlement to service connection for congestive heart failure due to the death of the Veteran. The surviving spouse filed a claim for Dependency and Indemnity Compensation (DIC), death pension and accrued benefits in February 2009. The Veteran’s surviving spouse filed a request for substitution in the Veteran’s claim for service connection for congestive heart failure in April 2009 for the purpose of accrued benefits. In a November 2009 rating decision, the RO denied entitlement to service connection for the Veteran’s cause of death. The Board notes that although the Veteran’s surviving spouse submitted statements to the VA regarding the Veteran’s claim for service connection for congestive heart failure within one year of the November 2009 rating decision, none of the statements specifically expressed disagreement with the November 2009 rating decision denying service connection for the Veteran’s cause of death or indicated she wished to file a notice of disagreement with the rating decision. Therefore, the Board finds that the Veteran’s surviving spouse did not file a timely notice of disagreement on the issue of entitlement to service connection for the Veteran’s cause of death in the November 2009 rating decision. In a December 2011 rating decision, the RO granted service connection for coronary artery disease with a 100 percent rating effective October 6, 2005. The RO also granted entitlement to service connection for the Veteran’s cause of death, entitlement to special monthly compensation based on housebound and aid and attendance, and eligibility to Dependents’ Educational Assistance benefits. In December 2010, the Veteran’s surviving spouse 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’s surviving spouse, the Veteran’s 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 December 2010. 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 an April 2012 decision, the RO found that the appellant was not eligible for direct payment of fees based on the past-due benefits awarded in a December 2011 rating decision because there was not a final Board decision on the issue, and the notice of disagreement in the case was filed on or before June 19, 2007. The appellant filed a notice of disagreement with the decision in May 2012. In a September 2013 Statement of the Case, the RO affirmed the denial of attorney fees because the notice of disagreement was filed on or before June 19, 2007, and a final decision was not promulgated by the Board on the issue. In November 2013, the appellant filed a substantive appeal. The appellant asserted that the notice of disagreement was filed on July 3, 2007, after June 19, 2007. Further, the appellant asserted that because the case fell under the Nehmer court order, it negated the previous denial. The appellant stated that the attorney performed the work which led to the claim being awarded and the NOD was after June 19, 2007, and backpay to the surviving spouse was granted. Therefore, he requested payment of attorney fees. In a November 2016 Supplemental Statement of the Case (SSOC), the RO stated that the SOC had incorrectly shown the notice of disagreement date as July 2007, when it was received in February 2007. As the notice of disagreement was received prior to June 19, 2007, and there was no final Board decision on the issue, the RO confirmed the denial of attorney fees. The appellant submitted another VA Form 9 in December 2016 stating that he believed the initial notice of disagreement was after June 2007, according to the surviving spouse. As noted above, the Veteran filed a notice of disagreement on the issues of entitlement to higher ratings for PTSD and diabetes mellitus in June 2007, but his notice of disagreement on the issue of entitlement to service connection for coronary artery disease was filed in February 2007. In this case, in the December 2011 rating decision granting the case, the RO stated that a special review of the file was mandated in July 2010 after the Secretary of VA established that ischemic heart disease warrants presumptive service connection based on the association between exposure to herbicide agents used in the Republic of Vietnam and the subsequent development of the condition. See 38 C.F.R. § 3.816; Nehmer v. United States Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999) (Nehmer II); Nehmer v. Veterans Admin. of the Gov’t of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). As noted above, the Veteran filed a timely notice of disagreement on the issue of entitlement to service connection for coronary artery disease in February 2007. However, the record does not indicate that the Veteran’s surviving spouse filed a notice of disagreement on the issue of entitlement to service connection for the Veteran’s cause of death. In a December 2010 statement, issued more than one year after the November 2009 rating decision, the Veteran’s surviving spouse indicated that she wished to appeal everything. As the statement was received more than one year after the rating decision, it cannot be construed as a timely notice of disagreement. As noted above, the applicable regulations provide that for a notice of disagreement filed on or before June 19, 2007, agents and attorneys may charge fees, only for services provided, where a final decision was promulgated by the Board with respect to the issue involved in the appeal. See 38 C.F.R. § 14.636(c)(2). On the issue of entitlement to service connection for coronary artery disease, the notice of disagreement was filed in February 2007, prior to June 19, 2007. There was not a final Board decision addressing the merits of the claim for service connection for coronary artery disease. The March 2009 dismissal of the appeal by the Board due to the Veteran’s death was not a final decision. See 38 C.F.R. § 20.1302. In the November 2013 substantive appeal, the appellant asserted that because the case fell under the Nehmer court order, it negated the previous denial. In the December 2011 rating decision, the RO stated that the grant was based on special review after the Secretary of VA established that ischemic heart disease warrants presumptive service connection based on the association between exposure to herbicide agents used in the Republic of Vietnam. However, even if the previous denial was negated, to be eligible for attorney fees a notice of disagreement must have been filed on the issue of entitlement to service connection for coronary artery disease. If the December 2011 rating decision is considered a new decision, the appellant would not be entitled to attorney fees based on the past-due benefits awarded in the decision as there was no notice of disagreement. The issue of entitlement to service connection for the cause of the Veteran’s death was also granted in the December 2011 rating decision, but the evidence does not show that the Veteran’s surviving spouse filed a notice of disagreement on this issue. In the December 2011 rating decision, the RO also granted entitlement to special monthly compensation based on housebound criteria being met and aid and attendance criteria being met. Both these awards were based on the grant of service connection for coronary artery disease. Although the appellant and the Veteran’s surviving spouse filed a valid VA Form 21-22a and fee agreement, there was not a final decision on the issue of entitlement to service connection for coronary artery disease or a notice of disagreement on the other issues granted in the December 2011 rating decision. Therefore, the Board finds that the appellant is not eligible for attorney fees based on the past-due benefits awarded in the December 2011 rating decision. Accordingly, the Board finds that as a matter of law, entitlement to eligibility to attorney fees based on the past-due benefits awarded in the December 2011 rating decision is not warranted. 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.