Gumpenberger: Fees and Claims included under a NOD

Gumpenberger v. McDonough, Case Number 19-4633, decided March 3, 2022 discusses eligibility for fees for representing a veteran.

This involves a non-attorney practitioner who assisted a veteran and whether he was entitled to fees related to benefits related to a TBI and TDIU.  The issue involved whether a 2013 NOD concerning a 2013 decision enclosed a TBI rating.  The 2013 NOD dealt with entitlement to TDIU and service connection for a mental health disability, but did not include an appeal of the disability rating assigned for a TBI.  The Court concluded that “The NOD did not include an appeal of the disability rating assigned for TBI. Thus, under the applicable VA regulation, 38 C.F.R. § 20.201, the NOD was effective only as to TDIU and service connection for the psychiatric condition. And because appellant's entitlement to fees is tied to the submission of this June 2013 NOD under section 5904, he is not entitled to fees awarded on other matters, something he seeks in this action.”

The Court reasoned: “The reality is that appellant made a tactical choice in how he proceeded in representing the veteran, choosing to pursue an administrative appeal concerning entitlement to TDIU (and, originally, service connection for an acquired psychiatric disorder) and not a higher schedular rating for TBI. That tactical choice dictates the outcome of this appeal because there is no NOD concerning the assignment of a TBI disability rating, the font of funds from which appellant seeks to take a fee out of benefits awarded to the veteran. And a 100% TBI schedular rating and TDIU are distinct benefits such that an appeal of TDIU does not encompass a dispute about a schedular rating for TBI. Therefore, we will affirm the Board's July 2019 decision.”

The veteran’s attorney had argued:

“the relevant statutes does not require any specificity in an NOD, even when multiple issues were decided in an initial determination.  Therefore, he asserts that it does not matter that the June 2013 NOD did not refer to a disagreement with the TBI rating. He contends that neither 38 U.S.C. § 5904(c)(1), which allows for representatives to be paid for services after an NOD is "filed with respect to the case," nor 38 U.S.C. § 7105(a), which at the relevant time required an NOD be in writing and filed within 1 year of the underlying determination, requires that a claimant identify the issue(s) he or she wishes to appeal. Thus, he maintains that the Board erred in requiring that the June 2013 NOD link to a specific issue in the May 2013 rating decision or ask for a precise benefit.  He contends that the pro-veteran canon of interpretation, when applied to section 7105(a), supports his reading of the statute. Under this interpretation of the statutes, appellant asserts that once the June 2013 NOD was filed, he became entitled to agent fees for any ensuing award of benefits, including, as relevant here, the 100% disability rating VA awarded for TBI.”

The case is not solely about fee agreements but the scope of a NOD and the Court focuses on the veteran’s need to identify what issues are appealed.  The Court stated: “section 7105, when read as a whole, plainly requires specificity in the NOD because it mandates that an SOC address evidence and development only as to the issues a claimant

identifies as those on appeal. Therefore, we hold that the Secretary's regulation is a reasonable interpretation of section 7105, and we reject appellant's request that we invalidate it.” 

This case has been appealed to the Federal Circuit.

Decision by Judge Allen and joined by Judges Falvey and Pietsch.

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