|
Veterans Benefits Report
BY DAVID L. HOUPPERT, ESQ., DIRECTOR, VETERANS BENEFITS
Restrictions on the representation of veterans for benefits
by attorneys extends back to the American Civil War. During
this era Congress strictly limited and controlled the fees
that an attorney or a claims agent could charge a claimant
seeking benefits from the Pension Bureau. By enacting these
restrictions, Congress sought to protect veterans from
unscrupulous attorneys and agents.
In the latter half of
the 19th century there were little, if any, licensing requirements
or ethical review boards overseeing attorneys and agents.
As a result, attorneys and agents were legally prevented
from charging more than five, and then, ten dollars to
represent a veteran. It must also be remembered that during
the early days of veterans benefits, representation primarily
consisted of the completion of the appropriate forms. Whereas
today, a claim for Department of Veterans Affairs benefits
can be akin to filing a suit for medical malpractice requiring
expert medical evidence and historical research and all
of the other trappings of complex litigation.
The prohibition
on attorneys and agents remained relatively constant until
1988 and the passage of the Veterans Judicial Review Act
(VJRA). The VJRA provided additional judicial review of VA
denials through the creation of the Court of Veterans Appeals,
which later became the Court of Appeals for Veterans Claims.
The VJRA provided for some attorney representation with fees
in excess of the ten-dollar limit imposed over one hundred
years prior.
With the passage of the VJRA, a veteran who received
a final decision from the Board of Veterans’ Appeals
was able hire an attorney for representation before the CAVC
and beyond if necessary. In these instances claimants were
also able to hire attorneys for additional representation
before the Board of Veterans’ Appeals and the VA Regional
Offices in the event of a remand. The result was that some
veterans were able to utilize attorneys, and the attorneys
received fees in excess of ten dollars, while other veterans
were not.
Since its inception in 1978, VVA has always favored
the right for any veteran or claimant to hire an attorney
to represent him or her in prosecuting claims before the
VA. VVA has long held the belief that it is outrageous that
a disabled American veteran, who was hurt after pledging
life and limb in defense of the Constitution of the United
States, should be denied the right to hire an attorney, at
a reasonable fee, if he or she chooses to do so, in pursuit
of claims for injury or illness resulting from military service
to our country. After all, an illegal immigrant has the right
to be represented by an attorney, and even an enemy combatant
has the right to be represented by an attorney, but veterans
have been denied that basic right which they were injured
defending. VVA has long held this is outrageous, and a grievous
wrong that must be redressed immediately.
The issue of attorney
representation of veterans is greatly intertwined with the
issue of judicial review. VVA hopes that the passage of the
Attorney Representation Act will lead to full and proper
judicial review in the very near future. VVA has held since
1978 that veterans should have the right to pursue their
claims to secure real judicial review, in free and open federal
court, of decisions that may often be arbitrary and capricious
in regard to a veteran’s
claims of service-connected injury or illness before the
VA.
VVA basically stood alone among the veterans service organizations
in fighting for judicial review in the 1980’s in what
became an extremely bitter generational battle in Congress,
which finally resulted in the creation of the Court of Appeals
for Veterans Claims, and the limited judicial review we have
today.
VVA continues to favor full access to the federal courts
for veterans and claimants for VA benefits. VVA also stood
alone among the veterans service organizations in seeking
restoration of the right of disabled American veterans, or
their family members, to be able to hire an attorney in an
effort to secure VA benefits. This has resulted in the limited
right to hire an attorney that has now been secured, and
for which VA is currently in the process of preparing implementing
regulations.
Ironically, the same arguments used against judicial
review almost twenty years ago were also used against the
legislation that would restore the basic right to be represented
by an attorney in 2006 and 2007. It is worth noting that
one of the other veterans service organizations that was
one of the principal opponents of judicial review now favors
full and unfettered access to the federal judiciary for veterans
who are ensnared in the VA system.
We believe that eventually,
as the rather silly arguments against attorney representation
prove not to be true as even the limited right is implemented,
all of the veterans service organizations will come to agree
with the rightness of our position.
Fortunately for veterans,
this all started to change in December of 2006. What follows
is a “Fast Letter” issued
by Bradley Mayes, the VA’s Director of Compensation
and Pension. This letter provides information regarding attorney
representation and will likely be used until the final regulations
have been promulgated. At the time of this writing it is
unclear when the final regulations will be instituted. This
letter provides guidance to claimants regarding their right
to hire an attorney and may be useful to many veterans in
need of an attorney representation to secure their VA benefits.
Department
of Veterans Affairs, Veterans Benefits Administration
June 6, 2007
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.
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.
Signed, 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 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.
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.
|
©2006-
2008, Vietnam Veterans of America. All Rights Reserved. 8605 Cameron
Street, Silver Spring, MD 20910