Gumpenberger v. McDonough, 20-4155

CourtUnited States Court of Appeals For Veterans Claims
Writing for the CourtALLEN, JUDGE
PartiesAllen Gumpenberger, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee.
Docket Number20-4155
Decision Date03 March 2022

Allen Gumpenberger, Appellant,

Denis McDonough, Secretary of Veterans Affairs, Appellee.

No. 20-4155

United States Court of Appeals For Veterans Claims

March 3, 2022

Argued January 19, 2022

On Appeal from the Board of Veterans' Appeals

Kenneth H. Dojaquez, of Topeka, Kansas, for the appellant.

James L. Heiberg, with whom Richard A. Sauber, General Counsel; Mary Ann Flynn, Chief Counsel; and Dustin P. Elias, Deputy Chief Counsel, all of Washington, D.C., were on the brief for the appellee.

Before ALLEN, FALVEY, and JAQUITH, Judges.


Arturo Valadez served the Nation honorably in the United States Marine Corps. He is in receipt of VA benefits for numerous conditions related to his military service. The backdrop of this appeal concerns Mr. Valadez's efforts to obtain certain benefits related to a traumatic brain injury (TBI) and a total disability rating based on individual unemployability (TDIU).

We say that Mr. Valadez's claims provide the "backdrop" for this appeal because these matters are not directly before us. Instead, this appeal, which is timely and over which the Court has jurisdiction, [1] concerns appellant Allen Gumpenberger, a non-attorney practitioner accredited to represent claimants before VA, and his assertion that he is entitled to a fee to be taken from certain benefits VA awarded to Mr. Valadez. Specifically, Mr. Gumpenberger appeals a July 17, 2019, decision of the Board of Veterans' Appeals that denied entitlement to agent fees based on past-due benefits VA awarded to the veteran for his TBI. Mr. Gumpenberger is only entitled to a portion of the veteran's past-due benefits if a Notice of Disagreement (NOD) he filed on the


veteran's behalf in June 2013 concerning a May 2013 rating decision encompassed a TBI rating claim.[2] Appellant has failed to show that the Board erred when it determined he was not entitled to a fee under 38 U.S.C. § 5904, the statute setting out the requirements for receiving such a fee.

As we explain below, the NOD appellant filed on the veteran's behalf in June 2013 expressly and unambiguously appealed the Board's decision on two issues: Entitlement to TDIU and denial of service connection for an acquired psychiatric disorder (an appeal the veteran later withdrew). 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 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.


Appellant represented Mr. Valadez[3] before VA at the time of a May 2013 rating decision that granted the veteran a 70% disability rating for TBI and various other ratings for TBI residuals but denied (1) service connection for an acquired psychiatric disorder secondary to TBI and (2) entitlement to TDIU.[4]


In June 2013, the veteran, through appellant, filed an NOD specifically identifying entitlement to TDIU and the denial of service connection for an acquired psychiatric condition as the matters with which the veteran disagreed.[5] An August 2014 Statement of the Case (SOC) listed service connection for an acquired psychiatric disorder and entitlement to TDIU as the only issues on appeal, consistent with the NOD.[6] The veteran perfected an appeal as to those two issues in October 2014, noting he wanted to appeal "all of the issues listed" on the SOC and specifically mentioning the acquired psychiatric disorder claim and TDIU.[7] In a December 2015 letter, appellant notified VA that the veteran continued to seek entitlement to TDIU but that he was withdrawing his appeal as to the acquired psychiatric disorder claim.[8]

In July 2016, VA sent the veteran and appellant a letter that explained VA was reviewing TBI cases in which a VA examination had been conducted and that the veteran qualified for such a review.[9] The veteran responded to VA's letter, indicating he wanted his case reprocessed under VAs special TBI review.[10] As a result of that review, VA granted the veteran a 100% schedular rating for TBI in a September 2016 rating decision.[11]

Thereafter, appellant sought fees from VA based on the veteran's award of a 100% disability rating for TBI. In a March 2017 letter, VA denied him entitlement to agent fees, [12] noting that VA "reprocessed [the veteran's] TBI claim in accordance with Secretary of Veterans Affairs authority to award equitable relief such that "the resultant favorable decision is not due to an appeal, so direct payment of fees is denied."[13] Appellant filed an NOD, challenging VA's denial of fees.[14] He explained that VA misinterpreted his December 2015 withdrawal letter and that he


withdrew the veteran's psychiatric disorder claim because "the symptoms overlapped TBI," but that the veteran still sought a 100% rating for TBI at that time.[15] He stated that "[t]he mere fact that your office elected to award[] a schedular 100% for TBI residuals rather than awarding individual unemployability doesn't negate the fact that the issue of an increased evaluation to total was on appeal."[16]

Appellant perfected an appeal of the denial of agent fees, arguing in an August 2018 Substantive Appeal that the withdrawal of the veteran's acquired psychiatric claim was "conditional upon the grant of [TDIU]. "[17] Therefore, he asserted, the veteran's acquired psychiatric claim, as a residual of TBI, was still on appeal. Additionally, appellant argued that "the avenue to establish a 100% [rating] ... is immaterial," whether through TDIU or a 100% schedular rating.[18]Thus, he concluded that the NOD he filed for the veteran in June 2013 "created the avenue to entitlement" to a 100% rating.[19] In a January 2019 letter, appellant contended that the TBI rating remained on appeal, intertwined with the issue of TDIU.[20]

In the July 2019 decision on appeal, the Board concluded that agent fees were not warranted because no NOD had been filed as to the issue of the proper disability evaluation for TBI after service connection was granted in May 2013.[21] Instead, the Board found "the NOD filed by appellant in June 2013 was to the issues of service connection for an acquired psychiatric disorder and to entitlement to TDIU."[22] The Board noted that the award of a 100% disability rating for TBI


was "based on VA's own internal review" and that a September 2016 notification letter that accompanied the grant of the 100% TBI rating explained that the veteran's "combined evaluation. . .was lOO[%]" and "TDIU was not granted."[23] Thus, the Board concluded that because no NOD was filed as to the schedular rating for TBI, agent fees based on that award were not warranted. This appeal ensued.


Appellant asks the Court to reverse the Board's finding that no NOD was filed with respect to the veteran's TBI rating. He argues that the language of 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, [24] 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.[25] 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.

Appellant also contends that to the extent 38 C.F.R. § 20.201, VA's regulation concerning NODs, requires greater specificity in the June 2013 NOD, the Court should hold the regulation is invalid because it is inconsistent with section 7105(a). He argues that "[a]ny reading of § 20.201 that narrows an [NOD] to only the specific entitlements identified by the claimant is not supported by the plain language of the statute."[26] If no specificity is required in an NOD, then, appellant contends, once the June 2013 NOD was filed, VA was on notice that the veteran disagreed with


some aspect of the rating decision and all issues contained therein were subject to an administrative appeal and, correspondingly, could lead to entitlement to agent fees.

Alternatively, appellant argues that even if § 20.201 is a valid interpretation of section 7105 such that specificity in the NOD is required as to the issues appealed, the...

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