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"ATTORNEYS FOR VETERANS" GUIDELINES ISSUED BY
VA --
NEW LAW TAKES EFFECT JUNE 20th -- VA prepares
Regional
Offices with detailed information for employees
and veterans.
On June 20, 2007, new laws regarding attorneys
representing veterans in the VA claims process go into effect.
Background with backlinks here...
http://www.vawatchdog.org/07/
nf07/nfMAY07/nf051307-1.htm
The VA document below was obtained by Veterans'
Advocate Jim Strickland who writes a regular column for VA Watchdog dot
Org...Jim's archive here...
http://vawatchdog.
org/jim%20strickland.htm
The document is self-explanatory and spells out
the information veterans will need to know if they choose to hire an
attorney to help them in the VA claims process.
To view or download original document...
click here...
VA document below:
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June 6, 2007
Director (00/21) In Reply Refer To: 211A
All VA Regional Offices and Centers Fast Letter 07-15
Subject: Public Law 109-461
This letter provides information concerning the new legislation
governing the recognition of agents and attorneys representing claimants
before VA. Enclosure One provides general answers to questions employees
may receive during interviews or when answering telephones.
Background
On December 22, 2006, the President signed Public Law 109-461. Section
101 of Public Law 109-461, the Veterans Benefits, Health Care, and
Information Technology Act of 2006, amends chapter 59 of title 38,
United States Code, governing the recognition of individuals for the
preparation, presentation, and prosecution of claims for benefits before
VA. The provisions shifting the entry point for paid representation are
effective on June 20, 2007, and the provisions relating to fee
assessments and review of fee agreements are effective upon publication
of VA's final rule.
Summary of New Legislation
Section 101 of Public Law 109-461 makes the following amendments to 38
U.S.C. §§ 5902, 5903, 5904 and 5905:
• Eliminates the current prohibition on the charging of fees for
services of an attorney or agent provided before the Board of Veterans’
Appeals (Board) makes its first final decision in the case. As amended,
section 5904 will allow accredited attorneys and agents to charge fees
for services provided after a notice of disagreement (NOD) has been
filed with the VA Regional Office (RO) in the case.
• Authorizes the Secretary to collect an assessment from an individual
recognized as an agent or attorney under section 5904 in any case where
VA pays the agent’s or attorney’s fees from past-due benefits owed to a
claimant. The amount of the assessment shall be equal to five percent of
the amount of the fee paid to the agent or attorney from past-due
benefits. The assessment may not exceed $100. An agent or attorney who
is charged an assessment may not receive reimbursement for such
assessment from the claimant. VA will deposit the amounts collected in
an account available for administrative expenses for veterans’ benefits
programs.
• Authorizes VA to regulate the qualifications and standards of conduct
applicable to agents and attorneys.
• Adds four additional categories to the list of grounds for suspension
or exclusion of agents or attorneys from further practice before VA.
• Authorizes VA to review fee agreements between agents or attorneys and
claimants and order a reduction in the fee if the Secretary finds that
the fee is excessive or unreasonable, although a fee that does not
exceed 20 percent of the past due amount of benefits awarded on the
claim will be presumed to be reasonable.
• Eliminates fee matters as grounds for criminal penalties under 38
U.S.C. § 5905.
• Subjects Veterans Service Organization representatives to suspension
on the same grounds as apply to agents and attorneys.
Regulations
VA is amending its regulations governing the representation of claimants
for veterans’ benefits in order to implement provisions of Public Law
109-461. VA published its proposed regulations in the Federal Register
for notice and comment on May 7, 2007. After the proposed regulations
are finalized, we will issue further guidance on the new regulations.
Enclosure Two provides interim guidance for adjudicating attorney fee
decisions after the entry point for paid representation changes on June
20, 2007, and the date the final regulations are effective.
Questions
Questions concerning this fast letter and other issues related to agent
and attorney representation should be submitted to the VAVBAWAS/CO/21Q&A
mailbox.
/S/
Bradley G. Mayes, Director
Compensation & Pension Service
Enclosure One – Guidelines for Answering Inquiries on Agent and Attorney
Representation
When did the law change?
On December 22, 2006, the President signed Public Law 109-461. The
provisions shifting the entry point for paid representation are
effective on June 20, 2007.
What forms do I need to complete to authorize an agent or attorney to
represent me?
Under current law, a claimant must provide VA with a signed VA Form
21-22a to appoint an agent or individual VSO representative for purposes
of representation. Attorneys may continue to provide representation
based on a letterhead declaration of representation or may use a VA Form
21-22a. No signature is required for claimants to appoint attorneys;
however, VA still requires a VA Form 21-22a, signed by the claimant, to
authorize the disclosure of claimant information to an agent or
attorney.
May I limit the scope of the agent’s or attorney’s representation?
You may limit the scope of your agent’s or attorney’s representation
regarding a particular claim by describing the limitation on VA Form
21-22a. As an example, you may limit your agent’s or attorney’s
representation to only your claim for Post Traumatic Stress Disorder.
When is an agent or attorney allowed to represent me on a fee basis?
Prior to this new law, an accredited agent or attorney was only
permitted to charge fees for services after the Board of Veterans’
Appeals issued a first final decision in the case. Under the new law, an
accredited agent or attorney may charge fees for services after a notice
of disagreement (NOD) has been filed with respect to the case. Such
notice of disagreement must have been filed on or after June 20, 2007.
How does VA accredit agents and attorneys?
VA’s Office of the General Counsel is responsible for managing VA’s
accreditation program. Prospective agents must submit a written
application to the Office of General Counsel on which they provide
background information relevant to a determination of good character and
reputation. Following a satisfactory determination of character and
fitness, agents must successfully complete a written examination
administered by the Regional Counsel of jurisdiction. To be accredited
under current law, attorneys must be a member in good standing of a
State bar and indicate in writing that they are authorized to provide
representation. Proposed regulations would add additional requirements
for attorney accreditation to represent claimants before VA, but these
have not been published as final rules, and, as a result, are not
effective at this time.
How do I pay my agent or attorney his or her fees?
Fee agreements must be in writing and signed by both the claimant and
agent or attorney. Generally, there are two types of fee agreements. If
you sign a fee agreement that indicates you wish VA to pay attorney fees
directly out of past-due benefits, VA will pay the agent’s or attorney’s
fees out of any past-due benefits awarded to you. If you sign a fee
agreement that indicates otherwise or is unclear whether VA is to pay
past-due benefits directly to an attorney, you are responsible for
paying the attorney’s fees.
What is the maximum fee that an agent or attorney is allowed to charge
me?
The agent’s or attorney’s fees must be reasonable. Fees may be based on
a fixed fee, an hourly rate, a percentage of benefits recovered, or a
combination of such bases. Fees that do not exceed 20 percent of any
past-due benefits are presumed to be reasonable. However, agents and
attorneys may charge more than 20 percent for their services.
If I think that the fee is unreasonable or excessive, can I request VA
to take action?
If you believe that your agent’s or attorney’s fee is unreasonable or
excessive, you may contact the Office of General Counsel (OGC) at the
following address: Office of General Counsel (022D), 810 Vermont Avenue,
NW, Washington, DC 20420. OGC will review the fee agreement and
determine whether the fee is unreasonable or excessive.
May I terminate my agent’s or attorney’s representation?
You may terminate your agent’s or attorney’s representation at any time.
However, your agent or attorney may still be entitled to a fee.
Do I need to hire an agent or attorney to represent me before VA?
You do not need to hire an agent or attorney to
represent you before VA. Specifically, VA has a duty to notify you of
the information and evidence necessary to substantiate a claim and to
assist you in obtaining such evidence. Veteran Service Organization (VSO)
representatives are also available to guide you through the claims
process, without charge. VSO representatives are well-versed in veterans
benefits law and are well-equipped to successfully assist you through
the claims process.
Is my attorney or agent allowed to call the
regional office and speak with a VA employee?
Each regional office has an Attorney Fee
Coordinator who is designated to serve as a liaison for attorney and
agent matters. Please refer the attorney or agent to the regional
office’s Attorney Fee Coordinator.
Enclosure Two – Interim Guidance for Adjudicating Agent and Attorney Fee
Decisions
Beginning June 20, 2007, agents and attorneys may charge fees for
representation provided after a notice of disagreement has been filed
with respect to a case. This provision applies only to those notices of
disagreement filed on or after June 20, 2007. VA is amending its
regulations governing the representation of claimants for veterans’
benefits in order to implement provisions of Public Law 109-461. On May
7, 2007, VA published its proposed regulations in the Federal Register
for notice and comment. However, until VA publishes the final
Representation Regulations, continue to follow the current regulations
and manual chapters with the following exceptions outlined below.
Overview of Exceptions
1. When an attorney or agent may charge fees for services.
The new legislation eliminates the current prohibition on charging fees
for services of an attorney or agent provided before the Board of
Veterans’ Appeals (Board) makes its first final decision in the case. As
amended, section 5904 will allow an attorney or agent to charge fees for
services provided after the date on which the claimant files a notice of
disagreement with the VA regional office in the case. This amendment
applies to those cases in which a notice of disagreement is filed on or
after June 20, 2007.
2. When the attorney or agent must be hired.
The new § 5904 eliminates the requirement that the attorney or agent is
retained within one year from the date of Board’s first final decision
in the case. Under the new legislation, there is no requirement that the
attorney or agent be hired within a specified time frame.
3. To whom may VA directly pay fees.
Under the previous § 5904, VA was only authorized to directly pay an
attorney his or her fees from past-due benefits. VA was not authorized
to pay fees directly to an agent. Under the new § 5904, VA is authorized
to pay both attorney’s and agent’s fees from past-due benefits owed to a
claimant. Until new regulations implementing this change are published,
VA regional offices should administer direct-pay fee agreements
involving agents in the same manner as attorney direct-pay fee
agreements are administered.
Process for Determining Agent or Attorney Eligibility for Direct-Fee
Agreements
Follow the four criteria below to determine whether VA is authorized to
directly pay fees to an attorney or agent from the claimant’s past-due
benefits.
1. Has the claimant filed a notice of disagreement with respect to the
case?
• If yes, go to Step 2.
• If no, the attorney or agent is not eligible for fees to be paid by
VA.
2. Will the past-due benefits result in a cash payment?
• If yes, go to Step 3.
• If no, the attorney or agent is not eligible for fees to be paid by
VA.
3. Is the fee agreement wholly contingent on whether or not the matter
is resolved in a manner favorable to the claimant?
• If yes, go to Step 4.
• If no, the attorney or agent is not eligible for fees to be paid by
VA.
4. Is the fee agreement limited to 20 percent, excluding expenses, of
the total amount of any past-due benefit awarded on the basis of the
claim?
• If yes, the attorney or agent is eligible for fees to be paid by VA.
Follow the normal procedures in the manual. See M21-1MR, Part 1, 3.C
• If no, the attorney or agent is not eligible for fees to be paid by
VA. Follow the normal procedures in the manual. See M21-1MR, Part 1, 3.C
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Larry Scott --
