Citation Nr: A25035338 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 231218-401704 DATE: April 16, 2025 ORDER Eligibility to the direct payment of attorney fees to the appellant from the past due benefits awarded in a December 2023 rating decision granting entitlement to an increased rating of 100 percent for posttraumatic stress disorder with major depressive disorder and psychotic features (PTSD) from June 2023 is granted to the extent there is additional entitlement not covered in the July 1, 2024, release of attorney fees in the amount of $18,159.46. FINDINGS OF FACT 1. The Veteran filed a new claim of increased rating for his PTSD in January 2019; the agency of original jurisdiction (AOJ) issued a July 2019 rating decision granting an increased rating of 70 percent from January 2019. 2. In November 2022, the Department of Veterans Affairs (VA) received a valid VA Form 21-22a appointing the appellant as the Veteran's representative before VA and an accompanying fee agreement authorizing the direct payment of 20 percent of past due benefits awarded. 3. On the Veteran's behalf, the appellant submitted a January 2023 VA Form 21-0996 Higher Level Review (HLR) request identifying the July 2019 rating decision, specifically the issue of whether the issue of entitlement to a total disability rating based on individual unemployability (TDIU) should have been inferred and adjudicated, and requesting a good cause extension to file the appeal based on the COVID-19 pandemic. 4. The AOJ issued an April 2023 HLR decision finding that a duty to assist error occurred while adjudicating the issue of a higher rating for PTSD. 5. In June 2023 the appellant filed a VA Form 21-8940 TDIU application contending that the Veteran's PTSD solely prevented him from finding and maintaining gainful employment. 6. A December 2023 rating decision (identical to a decision issued in September 2023) granted entitlement to a 100 percent PTSD rating from June 2023 and dismissed the issue of TDIU as moot; the AOJ later issued an April 2024 HLR rating decision granting a TDIU from 2019. 7. The June 2023 TDIU application was not a new claim but rather evidence filed in connection with the April 2023 HLR return, and the December 2023 rating decision after the April 2023 HLR return was a partial grant of the same benefits sought from the administrative review request of the July 2019 rating decision. CONCLUSION OF LAW The criteria for eligibility to the direct payment of attorney fees to the appellant from the past due benefits awarded in a December 2023 rating decision granting entitlement to a 100 percent rating for PTSD from June 2023 have been met subject to payment already made in the July 1, 2024, release of attorney fees in the amount of $18,159.46. 38 U.S.C. § 5904; 38 C.F.R. § 14.636. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Marine Corps from June 2007 to February 2011; the appellant is his representative in other matters before VA. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2023 VA Fee Decision issued by the AOJ regarding a December 2023 rating decision granting a 100 percent rating for PTSD from June 2023. As this was an initial fee decision, the contested claims procedures of the Appeals Modernization Act apply. Pursuant to these procedures, a redacted copy of the appellant's substantive appeal was sent to the Veteran's address on file. Letters were also sent to each contested claimant in January 2024 and March 2024, respectively informing them of their appellate rights and the docketing of the appeal at the Board. 38 C.F.R. §§ 20.400-20.404. As the appellant elected the Direct Review docket in her timely December 2023 VA Form 10182 Board Appeal and the Veteran has not requested a different docket, the Board may only consider the evidence of record at the time of the December 2023 Fee Decision on appeal. 38 C.F.R. § 20.301. However, based on the arguments advanced by the appellant in her VA Form 10182, the Board takes judicial notice of subsequent March and April 2024 rating decisions in which the AOJ respectively adjudicated the issues of entitlement to a higher PTSD rating and a TDIU based on a review of VA clinical records identified in the April 2023 HLR decision as not of record at the time of the initial July 2019 rating decision. See, e.g., Monzingo v. Shinseki, 26 Vet. App. 97, 103 (2012). 1. Eligibility of the appellant to direct payment of fees from past due benefits awarded in the December 2023 rating decision granting a 100 percent rating for PTSD from June 2023 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 [VSO] 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 and to authorize VA's disclosure of information to any person or organization representing a claimant before the Department. Without the signature of a person providing representation for a particular claim under § 14.630 of this part or an accredited VSO representative, agent, or attorney, the appointment is invalid, and the person appointed to provide representation is under no obligation to do so. The power of attorney shall meet the following requirements: (1) Contain signature by: (i) The claimant, or (ii) The claimant's guardian, or (iii) In the case of an incompetent, minor, or otherwise incapacitated person without a guardian, the following in the order named - spouse, parent, other relative or friend (if interests are not adverse), or the director of the hospital in which the claimant is maintained; and (iv) An individual providing representation on a particular claim under § 14.630 of this part or an accredited VSO representative, agent, or attorney; and (2) 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). All agreements for the payment of fees for services of agents and attorneys must be in writing and signed by both the claimant or appellant and the agent or attorney. To be valid, a fee agreement must include the following: the name of the Veteran; the name of the claimant or appellant if other than the Veteran; the name of any disinterested third-party payer and the relationship between the third-party payer and the Veteran, claimant, or appellant; the applicable VA file number; and the specific terms under which the amount to be paid for the services of the attorney or agent will be determined. Fee agreements must also clearly specify if VA is to pay the agent or attorney directly out of past due benefits. A direct-pay fee agreement is a fee agreement between the claimant or appellant and an agent or attorney providing for payment of fees out of past due benefits awarded directly to an agent or attorney. A fee agreement that does not clearly specify that VA is to pay the agent or attorney out of past due benefits or that specifies a fee greater than 20 percent of past due benefits awarded by VA shall be considered to be an agreement in which the agent or attorney is responsible for collecting any fees for representation from the claimant without assistance from VA. A copy of a direct pay fee agreement must be filed with the AOJ within 30 days of its execution. 38 C.F.R. § 14.636(g); see also 38 U.S.C. § 5904(d). Agents and attorneys may not charge fees for services provided before the date on which a claimant or appellant is provided notice of the AOJ initial decision with respect to the case. This limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. 38 U.S.C. § 5904(c)(1). 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). An initial claim is any complete claim, other than a supplemental claim, for a benefit on a form prescribed by the Secretary. 38 C.F.R. § 3.1(p). The first initial claim for one or more benefits received by VA is further defined as an original claim. (See original claim, § 3.160(b)). Id. Initial claims include: (i) A new claim requesting service connection for a disability or grant of a new benefit, and (ii) A claim for increase in a disability evaluation rating or rate of a benefit paid based on a change or worsening in condition or circumstance since the last decision issued by VA for the benefit. Id. The AMA applies to all claims originally decided after February 19, 2019. See Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017). Under the AMA, a claimant has three administrative review options for an adverse decision which must be filed within one year from notice of a decision - 1) a request for Higher Level Review, 2) an appeal to the Board, or 3) the filing of a supplemental claim. 38 C.F.R. § 3.2500. Timely filing an appropriate administrative review option under 38 C.F.R. § 3.2500 may preserve an effective date from a claim which is continuously pursued. 38 C.F.R. § 3.2500(h)(1). VA intended the AMA to broadly recognize three types of claims: a supplemental claim, an initial claim, and a claim for increase. 84 Fed. Reg. 138, 139 (Jan 18, 2019). However, the Court has held that VA regulations governing administrative review options are claims processing rules, see Hall v. McDonough, 34 Vet. App. 329, 333 (2021), and recently held that a supplemental claim need not be filed on a specific VA form. See Chisholm v. Collins, No. 22-7028, 2025 U.S. App. Vet. Claims LEXIS 336, at *16-*20 (March 13, 2025). 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). By way of history, the Veteran's PTSD has been service-connected since February 2011. In January 2019, he submitted a VA 21-526EZ Fully Developed Claim seeking a higher rating for his PTSD, then rated as 10 percent disabling. In July 2019 the AOJ issued a July 2019 rating decision grating an increased rating of 70 percent for PTSD from January 2019. After being appointed his VA representative, in January 2023, the appellant chose the HLR administrative review option (VA Form 20-0996 HLR) identifying the July 2019 rating decision and arguing "disagreement with assigned rating for PTSD" and that an issue of TDIU had been reasonably raised. Notably, entitlement to TDIU is an alternative means to obtain a 100 percent rating which can be part and parcel of an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Additionally, a 100 percent rating is the only higher available rating for a psychiatric disability under the rating schedule. See 38 C.F.R. § 4.130, Diagnostic Code 9411. An April 20, 2023, HLR Informal Conference reflected that the attorney was not disputing the 70 percent schedular rating for PTSD, but was arguing that a June "2022" VA examination report reasonably raised the issue of entitlement to TDIU. Notably, based on the facts cited by the attorney, a June 2019 VA examination report was actually being referenced. An April 2023 HLR decision accepted the timeliness of the HLR request, and returned the case to the AOJ for readjudication due to a duty to assist error in failing to obtain VA clinical records. After the HLR return, on June 12, 2023, the Veteran submitted a VA Form 8940, Veteran's Application for Increased Compensation Based on Unemployability, claiming that the Veteran's PTSD solely prevented him from finding and maintaining gainful employment. The AOJ then developed the evidentiary record including requesting employer information and obtaining another VA examination. The confusion sets in from a September 2023 AOJ rating decision which awarded a 100 percent schedular rating for PTSD effective June 12, 2023. The effective date was set by the AOJ's determination that the TDIU application on June 12, 2023, was a "new claim for benefits." The AOJ also determined that the TDIU issue was moot. The Veteran's attorney seeks attorney fees from this decision. Notably, the AOJ issued an identical rating decision in December 2023, which the attorney has identified as the rating decision in dispute. For purposes of this decision, the Board will now reference the December 2023 rating decision. At the outset, the Board finds that in November 2022 the appellant submitted a valid VA Form 21-22a appointing her as the Veteran's representative before VA, as well as a duly signed fee agreement stipulating the direct payment of 20 percent of past due benefits awarded. Agents and attorneys may not charge fees for services provided before the date on which a claimant or appellant is provided notice of the AOJ's initial decision with respect to the case. Held v. McDonough, 37 Vet. App. at 28. (2023). In Held, the Court of Appeals for Veterans Claims (Court) discussed when agents and attorneys may charge fees for services provided pursuant to 38 U.S.C. § 5904(c)(1), holding that the term "initial decision" under section refers to the decision that triggers an attorney's ability to charge fees for representation of a claimant with respect to the case. Id. at 28. In Military-Veterans Advocacy v. Sec'y of Vet. Aff., 7 F.4th 1110 (Fed. Cir. 2021), the Federal Circuit found that a supplemental claim is part of the same case as the initial rating decision, regardless of when the supplemental claim is filed. However, the Court has emphasized that the claimant filing a supplemental claim "must have previously filed a claim for the same or similar benefits on the same or similar basis." Jackson v. McDonough, 37 Vet. App. 277, 295 (2024). Finally, the Court recently held that a supplemental claim need not be filed on a specific VA form. See Chisholm v. Collins, No. 22-7028, 2025 U.S. App. Vet. Claims LEXIS 336, at *16-*20 (March 13, 2025). Sequentially, the AOJ issued a rating decision in July 2019 on the appropriate rating for PTSD, the Veteran's attorney entered the case and chose the HLR administrative review option of this decision, the HLR decision returned the case for AOJ development in April 2023, and in December 2023, the AOJ issued a rating decision finding that PTSD warranted a 100 percent schedular rating and mooting out the TDIU issue. This is an adjudication on the same underlying benefit appealed from the July 2019 AOJ rating decision, see Jackson, 37 Vet. App. at 295, and the Board finds that the TDIU application was a form of evidence and not a new claim in this context. As such, the Veteran's attorney is entitled to attorney fees stemming from the December 2023 AOJ rating decision, which is more accurately characterized as a partial grant of the benefits continuously pursued on appeal. Thus, the Board finds disagreement with the AOJ's determination that the June 2023 TDIU application was a new, independent claim. Ultimately, in an April 2024 decision, the AOJ agreed that the initial application in January 2019 included the issue of entitlement to TDIU, awarded TDIU benefits effective February 26, 2019 (based on the Veteran's last day worked), and awarded attorney fees based on these past due benefits. In sum, the Board finds eligibility to attorney fees from the December 2023 rating decision to the extent there is additional entitlement not already paid in the July 1, 2024, release of $18,159.46, in attorney fees to the appellant. To this extent, the appeal is granted. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Schumacher, Kyle C. 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.