Veterans’ Administration Law Practice: What New ... · 11/17/2017 · •Once claims are filed, they are processed at the VARO. •New claims typically take 2 to 4 months to process,

Veterans’ Administration Law Practice: What New Practitioners

Need to Know

November 17, 2017

Kutak Rock, Omaha, NE

Overview of VA Benefits John S. Berry, Jr.

Berry Law Firm

Michael Koberlein

Berry Law Firm

November 17, 2017


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Overview of VA BenefitsJohn S. Berry, Esq.

Michael Koberlein, Esq.

Jerusha Hancock Esq.

Berry Law Firm

Who is a veteran

• A veteran is:

• “A person who served in the active military, naval, or air services, and who was discharged or released under conditions other than dishonorable” 38 U.S.C. § 101(2). • This also includes person serving in the Coast Guard.

• The VA may determine that a person is not a “veteran” and deny a claim for benefits

Types of VA Benefits

• Disability Compensation Benefits

• Pension

• Dependency Indemnity Compensation (DIC)

• Burial Benefits

• Vocational and Educational

• Section 1151

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Disability Compensation Benefits

• To receive VA disability compensation the veteran must meet 3 criteria:

• Documented event in service

• Current professionally diagnosed disability

• Medical nexus or link connecting the two

• Burden of proof is “as likely as not” that the veteran’s disability is due to military service

• Slightly lesser than preponderance of the evidence

• If the evidence is in equipoise (50/50) the veteran is supposed to win

Disability Compensation Benefits

• Initial claims:• Direct Service Connection• Secondary Service Connection• Presumptive Service Connection• TDIU

• When a decision has already been issued:• Increased Rating • Reopening Claims• Clear and Unmistakable Error

Pension Benefits

• VA pension is a needs-based program designed to supplement the income of a veteran who is unable to support his/her self financially after becoming disabled. See 38 U.S.C. § 1513.

• To be eligible for VA pension benefits, a veteran must have:• wartime service• low income• a total and permanent disability

• Note, however, that the veteran’s total and permanent disability need not be related or connected to his or her military service.

• Veterans aged 65 years or older may also qualify for VA pension benefits.

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Pension Benefits

Five Requirements:

1. Veteran must be discharged under other than dishonorable conditions.

2. The veteran must have limited income and a net worth that does not provide adequate maintenance. 38 U.S.C. § 1522.

3. The veteran must be totally and permanently disabled at the time of application. 38 U.S.C. § 1502; 38 C.F.R. § 4.17 (2010).

4. The permanent disability cannot be due to willful misconduct

5. Military Service

Pension Benefits

• Military service requirements:

• Twenty-four months of continuous active duty• The “full period for which [the veteran] was called or ordered to active duty.” 38 U.S.C. §

5303A(b). • Ninety days during one or more periods of war• Ninety or more consecutive days, one day of which is during a period of war• One day of wartime service that results in a discharge for a service-connected disability.

See 38 U.S.C. §§ 1101(2)(A), 1521(j)..

Pension v. Disability Benefits

• A veteran cannot receive VA compensation and pension benefits simultaneously.

• In situations where a veteran is entitled to both, the VA will pay the veteran the higher of the two amounts, unless the veteran expressly requests otherwise.

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DIC Benefits

• The VA will pay monthly compensation – known as Dependency and Indemnity Compensation, or “DIC” – to the surviving spouse, or dependent children, of a veteran entitled to service-connected compensation under the following circumstances:

• The veteran’s primary or contributing cause of death was a condition that was service-connected, or at a minimum, met all three criteria for entitlement to service-connected disability compensation; or,

• The veteran had a 100-percent service-connected disability for ten years prior to his/her death.

DIC Benefits

• Accrued Benefits:

• If a veteran has a claim pending at the time of death, a family member may request to be substituted for the deceased veteran to complete a pending claim using a VA Form 534.

• A surviving spouse or dependent child may receive accrued benefits that were not finally adjudicated at the time of the veteran’s death.

Burial Benefits

• Requirements:• You paid for a Veteran's burial or funeral, AND• You have not been reimbursed by another government agency or some

other source, such as the deceased Veteran's employer, AND• The Veteran was discharged under conditions other than

dishonorable, AND• The Veteran:

• died because of a service-related disability, OR• was receiving VA pension or compensation at the time of death, OR• was entitled to receive VA pension or compensation, but decided not to reduce

his/her military retirement or disability pay, OR• died while hospitalized by VA, or while receiving care under VA contract at a non-

VA facility, OR• died while traveling under proper authorization and at VA expense to or from a

specified place for the purpose of examination, treatment, or care, OR• had an original or reopened claim pending at the time of death and has been found

entitled to compensation or pension from a date prior to the date or death, OR• died while a patient at a VA-approved state nursing home.

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Burial Benefits

• Evidence:• Acceptable proof of death as specified in 38 CFR 3.211., AND• Proof of payment of the burial or funeral:

• Receipted bills that show that you made payment in whole or part, OR• A statement of account, preferably on the printed billhead of the funeral director or

cemetery owner. The statement of account must show:• The name of the deceased Veteran for whom the services and merchandise were

furnished, AND• The nature and cost of the services and merchandise, AND• All credits, AND• The amount of the unpaid balance, if any

Vocational and Educational Benefits

• Vocational Rehabilitation and Employment Benefits:

• Eligibility:• Veteran received a discharge that is other than dishonorable• Have a service-connected disability rating of at least 10% from VA

• Eligibility ends 12 years from the date of notification of one of the following:• Date of separation from active military service, or• Date the veteran was first notified by VA of a service-connected disability rating• Unless VA determination of a serious employment handicap

• Educational Benefits:

• GI Bill• Dependents’ Educational Assistance

• Dependents of Veterans who are permanently and totally disabled due to a service-related condition

• Dependents of Veterans who died while on active duty or as a result of a service-related condition

Section 1151 Benefits

• Eligibility:• Veteran• Disabling condition that is the result of or has been aggravated due to VA sponsored

medical treatment or training

• Evidence:• As a result of VA hospitalization, medical or surgical treatment, examination, or

training, the evidence must show you have:• An additional disability or disabilities, OR• An aggravation of an existing injury or disease, AND

• The disability was:• The direct result of VA fault such as carelessness, negligence, lack of proper skill, or error in

judgment, OR• Not a reasonably expected result or complication of the VA care or treatment OR• The direct result of participation in a VA Vocational Rehabilitation and Employment or

compensated work therapy program

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Questions

Contact Information

[email protected]@jsberrylaw.com

Berry Law Firm2650 N 48th St

Lincoln, NE 68504402-466-8444

ptsdlawyers.com

The VA Disability Claims Process Jerusha Hancock

Berry Law Firm

Stephani Bennett

Berry Law Firm

November 17, 2017


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The VA Claims ProcessNovember 17, 2017

Overview

• Beginning representation

• The claims process

• Procedures and forms at the VA Regional Office (VARO)

• Claims before the Board of Veterans’ Appeals (BVA)

• Appeals to the Court of Appeals for Veterans Claims (CAVC) and US Court of Appeals for the Federal Circuit

• Upcoming changes to the law

• Final thoughts

Beginning Representation

• Before claims can be filed, the veteran will need to sign a contract and a VA form 21‐22A, the power of attorney form.• Fee agreements typically are one of two types:

• Standard contingency fee agreement of 20‐30 percent, which the attorney collects from the client.

• VA withholding fee agreement of 20 percent, where the VA withholds attorneys’ fees from backpay award.

• If you have not previously filed a 22A for a new client, send this form with any new claims to the Evidence Intake Center.• Virtually all mail to the VAROs gets sent to the EIC in Janesville, WI.

• You will also need to send a records request for the veteran’s copy of file from St. Louis, which usually includes all service medical records, past decisions, and any treatment records from the VA medical centers (VAMCs).

• The VA has essentially gone to a system where it will not accept anything that is not on a form, so it is important to know which ones are necessary.

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Important Forms

• Form 21‐526: for new claims. If a veteran has already filed a 526EZ, they can file a 526b for additional or supplemental claims.

• Form 21‐4142: release of medical records to the VA

• Form 21‐4138: statement in support of claim, for statements from veterans and others in support, or for requests from counsel.

• Form 21‐0781 and 0781a: For statements regarding stressors when claiming PTSD. 0781a is for personal assaults.

• Form 21‐686c: dependents

• Form 21‐0958: Notice of Disagreement

• VA Form 9: formal appeals to the Board of Veterans’ Appeals.

Filing Claims

• If a veteran has never filed a claim with the VA, they will need to complete form 21‐526EZ. • This form requires service information, as well as information about their disabilities.

• Also includes information about dependents (spouse/children) and finances.• Can be used to file for both compensation (for disabilities) and pension.

• If a veteran has filed a claim or claims with the VA before, use form 21‐526b.• Any evidence in support of claims can be submitted at this point, or it can be submitted separately later on.

• Best practices suggest sending claims by certified mail or fax, since the EIC will send confirmation. The date of receipt is often the effective date of the award, so proof of receipt is important.

• If a veteran has received medical care outside the VA, he/she will need to fill out a form 21‐4142 for each provider in order for those records to be released to the VA. If there are dependents, veterans should fill out a 686c, and a 5345 for mental health records.

Claims Processing

• Once claims are filed, they are processed at the VARO.

• New claims typically take 2 to 4 months to process, but it can take longer.• There are 58 VAROs across the US and its territories.

• The VAROs in states with a large number of veterans typically take longer to process claims and appeals.

• Generally speaking, the VA will schedule the veteran for a Compensation and Pension (C&P) exam for his/her various disabilities, then issue a decision.• Occasionally, the VA will issue a decision without a C&P exam, or will issue a decision before the veteran has an exam.

• The VA may also schedule an exam and then not provide adequate notice of the exam date.

• In these cases, you can use that fact to appeal a denial.

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Key Facts About the VA Appeals Process

• The VA has a duty to assist the veteran by providing a medical examination where there is evidence of a current disability and some indication that it is connected to service.

• The veteran has a lighter burden of proof: “at least as likely as not” (50/50 chance), and all reasonable doubt is decided in the veteran’s favor.

• The VA also has a duty to request service records, personnel records, medical records, social security records, etc. in order to reach a fair decision on the veteran’s claims.

• The process is considered non‐adversarial at the VARO and BVA.• In spite of the requirements, do not assume that the VA has executed its duty to assist, or is applying the appropriate standard of proof.

Rating Decisions and Notices of Disagreement

• Once a decision has been made, the VA will issue a rating decision.• Look at whether the disability has been service connected, what the effective date of the award is, and what evaluation has been granted.

• The effective date is generally the date that the VA received the claim or request for an increase, or if within a year of discharge, the day after discharge. There are special rules for certain claims, so be sure to review the rules around effective dates.

• Review the diagnostic codes to determine if a higher evaluation is warranted.

• To appeal the decision, file VA form 21‐0958. You may attach additional pages, so you can submit legal arguments and/or evidence with the NOD.

• A NOD must be filed within one year of the date of notification or the decision becomes final.

Reopening Claims

• A client may request that you reopen denied claims from an old rating decision.

• Check to determine whether the claim is still pending, or whether the VA had the correct facts and/or applied the correct rules and regulations in existence at the time of the decision. If the decision wasn’t final, or if an error has been made, it might be possible to get the claim backdated by filing a motion for clear and unmistakable error (CUE).

• More than likely, you will need new and material evidence to reopen the claim.

• Must be something that the VA has not seen.• Must go to one of the facts not proven.• The threshold for something to be considered new and material is relatively low.

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Continuing the Appeal

• Once you have filed a NOD, the next step is a Statement of the Case (SOC).

• Depending on the regional office, it can take anywhere from 6 months to 2 years to get an SOC.• If a SOC is not issued in more than two years, it is possible to seek a writ of mandamus from the CAVC.

• It is important to make regular requests for an SOC to demonstrate that the claims are being pursued.

• There are two choices when pursuing an appeal:• Decision Review Officer (DRO): they have more training, and are required to undertake a de novo review. Electing a DRO can result in a positive decision at the VARO, and you can elect to have a personal hearing if helpful or necessary.

• Traditional appeal process: unless you have new evidence to submit regarding the claims, there is unlikely to be any change in the decision. A SOC will be issued that typically restates the rating decision if there is no new evidence.

Statement of the Case

• To appeal a decision after receiving the SOC, you will need to file a VA Form 9 within 60 days of the date on the SOC.

• The VAF9 is the formal appeal to the Board of Veterans’ Appeals.• At this point, you can elect to have a Board hearing before a Veterans Law Judge.

• Electing a hearing can slow down the process and delay a decision.• However, if a veteran’s testimony is critical, and he or she is credible, it may be worth having a hearing.

• You can also elect not to have a hearing and submit written statements instead, which can be notarized for additional weight.

• The VA still needs to certify the claims to the Board. Some veterans who have filed the VAF 9 can wait for years to have their claims certified, so be sure to check periodically to ensure the case is moving forward.

• If you submit additional evidence after receiving the SOC, the VARO is required to issue a Supplemental Statement of the Case (SSOC) addressing that evidence.

Board of Veterans’ Appeals

• Once the claims have been certified to the Board, the case will be assigned to a Veterans Law Judge (VLJ). You have 90 days from the date the Board dockets the case to submit additional evidence and arguments.

• The VLJ is required to conduct a de novo review of the record, and then issue a decision.

• It can take up to two years for a decision to be issued, but motions to advance on the docket can be made when the veteran is over 75, experiencing severe financial hardship, or is terminally ill.

• Claims can be granted, denied, or remanded for additional development.• Granted claims go back down to the VARO for a new rating decision to be issued. In cases where service connection is granted, the VARO will usually determine the appropriate evaluation.

• Denied claims may be appealed to the CAVC.• Remanded claims will either be granted by the VARO with a new rating decision, or denied with a SSOC, which will then go back up to the Board for review.

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Court of Appeals for Veterans Claims

• If the Board denies a claim, you can appeal to the CAVC.

• You have 120 days from the date of the decision to file the notice of appeal at the CAVC.• The CAVC is a federal court and is outside the VA system.

• You must be admitted to practice before the CAVC.

• The CAVC may only consider the Record Before the Agency (RBA); no new evidence may be submitted.

• Arguments and objections must be made below for the Court to consider.

• Success at the CAVC (either a grant or a remand) results in EAJA fees.

US Court of Appeals for the Federal Circuit

• The US Court of Appeals for the Federal Circuit hears administrative law cases, including veterans claims.

• Operates under the Federal Rules of Appellate Procedure.

• Most cases are decided without oral argument and by a single judge, although panels and en banc decisions can be requested.

• The Court schedules a settlement conference for every appeal prior to formal briefing.

• Losing parties may appeal the decision to the US Supreme Court.

Common Errors of the Board of Veterans Appeals

• Inadequate Reasons and Bases

• Relying Upon an Inadequate Medical Examination

• Substituting its Own Medical Opinion

• Failure to Meet Duty to Assist

• Failure to Remand Reasonably Raised Claims

• Failure to Ensure Substantial Compliance with Prior Remand Orders

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Basic Timeline of CAVC Appeal

• Notice of Appeal• 120 days after Board decision (Rule 4(a))

• Notice of Docketing

• Record Before the Agency• 60 days after Notice of Docketing (Rule 10(a))• 14 days to dispute after service

• Summary of the Issues• 14 days prior to Rule 33 conference

• Rule 33 Staff Conference


• Appellant’s Brief• Due the later of:

• 60 days after the expiration of RBA dispute period; or• 30 days after the Rule 33 Conference

• Secretary’s Brief• 60 days after Appellant’s brief is filed

• 14 days for Appellant to make optional reply brief

• Record of Proceedings• 14 days after reply brief is due or filed

• 14 days to dispute ROP

• Oral Argument• Must request within 14 days after reply brief is due or filed


• CAVC Decision• Motion for Reconsideration, Panel, or Full Court Review

• 21 days after decision

• Judgment• Effective the later of:

• Expiration of time to submit a motion for reconsideration; or• The date the Court makes a decision on any such motion

• Mandate• Generally 60 days after judgment is entered

• EAJA Application • 30 days after judgment

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Tips for Practicing Before the CAVC

• Review the evidence to determine whether any material is weak or missing before your appeal to the Board.• The CAVC is too late to introduce new evidence.• You can strengthen weak claims with statements or private medical opinions

• Read the Rules of Practice and Procedure before appealing to the CAVC.

• Get help when needed

Important Considerations

• Claims can take years to be decided, and hiring an attorney does not speed up the process for veterans.

• Veterans often have multiple claims in various stages of the process, and a veteran’s case may be complicated by intertwining issues.

• Secondary claims are dependent on service connection for the primary claim, and that can be on appeal.

• It is key not to take anything for granted when reviewing a veteran’s file and the rating decisions. Do not assume that the VA has reviewed all of the evidence, or that it has looked at the evidence in the same light.

• The VA often fails to send decisions to the counsel of record, and also fails to notify counsel that a decision has been made. Clients should be encouraged to contact counsel every time they receive a decision, and periodic checks of the electronic claims file should be done if possible.

Upcoming Changes to Appeals

• Changes to the VA appeals process – some examples of what’s new:• Standard for reopening claims goes from “new and material” to “relevant”

evidence• Favorable findings are binding• Specific requirements for rating decision and notice of disagreement• Three appeal tracks• At least two BVA dockets + possible legacy docket• Deadlines for submitting evidence• Higher level reviews instead of decision review officers

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Questions?

Contact Information:

[email protected]

[email protected]

402-466-8444

Claims Development and Preserving Issues for Appeal

Jerusha Hancock

Berry Law Firm

Stephani Bennett

Berry Law Firm

Michael Koberlein

Berry Law Firm

Suzanne Kaufman-McNamara

Berry Law Firm

Lorraine Chrastil

Berry Law Firm

November 17, 2017


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Mental Health DevelopmentJerusha Hancock

November 17, 2017

Mental Health Claims

• For mental health claims, a distinction is often drawn between PTSD and all other diagnoses.• For PTSD, there is no requirement that it be treated or diagnosed in service,

only that a stressor have occurred in service sufficient to support a PTSD diagnosis.

• Other mental health claims can be service-connected by showing treatment in service, or by tying it to an in-service event.

• Under 38 USCA 1702(a), a veteran may receive service connection for an active psychosis if it develops within 2 years of discharge or release from active service.

Establishing a PTSD Stressor

• For combat veterans, you need a confirmed PTSD diagnosis• Keep in mind that the VA is supposed to be using the DSM-V, which changed

the requirements for diagnosis.• Be sure to review the GAF scores, which are not used as part of the DSM-V.

• For non-combat stressors, there needs to be some corroboration.• Concurrent reports to friends or family members, records from law

enforcement, rape crisis centers, mental health counseling centers, or evidence of behavior changes.

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Tracking ClaimsNovember 17, 2017

VA Claims

• Rating Decision • Reopen, continue, increase, propose to decrease, grant, deny

• Statement of the Case/Supplemental Statement of the Case• Reopen, continue, increase, grant, deny

• BVA Decision• Grant, deny, remand, dismiss

• CAVC• Reverse, remand, dismiss

Track by Claim

• Post-Traumatic Stress Disorder• RD 2.8.08 (cover letter 2.11.08)

• Denied

• RD 8.7.15• Reopen & Denied

• NOD 10.3.15

• SOC 5.12.16• Continued Denial

• VAF9 7.1.16

• BVA 8.8.17• Granted

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Information for Case Map

• Usually include basic identifier information • Dates and branch of service• Claim number

• Combined percentage rating

• Attorney assigned

• Notes as needed

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VETERAN'S CASE INFORMATION SHEET NAME: John Smith DIRECT PAY FEE CONTRACT ATTY/PARA: SMB Claim Number: 000 00 0000 Branch of Service: [Branch of Service] Dates of Service: 8.17.66 to 7.19.68 Combined 40% from 4.27.10 50% from 10.14.11 100% from 11.8.16 100% from 1.1.17 60% from 1.1.18 Individual Claims 5010 Osteoarthritis of Acromiclavicular Joint, Right (dominant)

• RD 5.24.11 o Granted o 0% o Effective 10.14.11

• SOC 4.22.14 o Increase Denied

• BVA 8.26.14 o Increased o 10%

• BVA 5.12.17 o Ordered immediate implementation

5010-5260 Chondrocalcinosis Right Knee



• BVA 8.26.14 o Increase o 10%

• BVA 5.12.17

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o Ordered immediate implementation 5243 Degenerative Disc Disease of Cervical Spine



• BVA 8.26.14 o Increase Denied

• BVA 10.6.15 o Remanded

• RD 1.15.16 o Increased o 10% o Effective 10.14.11


5243 Degenerative Disc Disease of Lumber Spine



• BVA 8.26.14 o Increase o 10%



5257 Meniscus Tear of Left Knee

• RD 8.9.12 o Denied

• SOC 4.22.14 o Denied


• BVA 10.6.15 o Denied

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CAVC • CAVC 6.16.16

o Remanded • BVA 5.12.17

o Remanded 5305 Residuals, Partial Bicep Rupture (dominant)


• RD 8.29.11 o Increased o 30% o Effective 4.27.10



• SSOC 1.6.14 o Increase Denied


5055 Left Knee Total Replacement (previously rated as Chondrocalcinosis of the Left

Knee) • RD 8.9.12

o Granted o 10% o Effective 10.14.11



• RD 2.18.17 o Temporary 100% o Effective 11.8.16 o 30% o Effective 1.1.18

6260 Tinnitus


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6100 Bilateral Hearing Loss


5201 Left Shoulder Strain

• RD 5.24.12 o Denied

• SOC 4.22.14 o Denied

• BVA 8.26.14 o Denied


• RD 1.15.16 o Granted o 0 % o Effective 10.14.11

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Building the Record Suzanne Kaufman-McNamara

November 17, 2107

Comprehensive Claims File Review.

• In addition to case mapping all decisions and appeals, locate and bookmark the following: • Service Records

• DD-214• Treatment Records• Personnel Records

• All Compensation and Pension Examinations• All supporting medical records VAMC and Private• All supporting lay statements or buddy statements

• These could be the original claims documents or attached to original claim documents

• When the claims file doesn’t support your client’s claims• Insufficient evidence of in-service injury or incident

• Lay statements or buddy statements• Request Personnel Records (VA does not always request personnel records)

• National Archives site • Ask the VA to obtain these

• No diagnosis of claimed condition• Send your client to his private doctor for diagnosis

• Condition claimed isn’t considered “chronic” pursuant to 38 C.F.R § 3.309• Send your client to his private doctor for an opinion relating current condition to an in-

service injury or illness – Try to provide a copy of Service Treatment Records.

Fill in the blanks

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Informal sources of supporting evidence

1. https://www.navysite.de/1. This site can provide photos, deployment histories and even cruise books in some

cases2. Helpful for your client to find / recall names of buddies3. Remember time frame accurately to ask VA to search for specific Government records

2. FaceBook1. Reunion groups

3. Google Scholar1. Better quality of medical research than popular journals discussing medical research.

4. VA and other Government resources1. https://www.benefits.va.gov/warms/topic-compensation-pension.asp2. https://www.ptsd.va.gov/professional/materials/manuals/iraq-war-clinician-guide.asp3. https://www.nrd.gov/resource/search?subject=Benefits%20%26%20Compensation&f

older=60324. https://www.ncbi.nlm.nih.gov/pubmed/

Look Ahead.

• The Rating Decision may have denied the claim on the basis of a missing diagnosis, but your review of the file tells you that there is also an absence of evidence supporting a nexus to service. • Provide a letter and supporting records to your client’s private doctor

explaining his requirements for a diagnosis and an opinion of whether or not the current condition is related to an in-service injury or illness. Explain to the doctor that he must provide adequate rationale and ask him to refer to the specific supporting records in his opinion.

• If there are medical treatises addressing your client’s particular condition, include these in any supporting documents you provide to your client’s physician.

What if There Is No Claims File Yet?

• Balance the need to move claim along with effective advocacy• Preserve error for records.

• Tell the VA you don’t have the records.• Raise common errors (see attachment)

• Talk to your client. Notice of Disagreement can contain: • Client’s perception of the examination process and the examiner’s competence.• Client’s lay statement of symptoms and frequency of his condition.• Client’s lay statement referring to incident in service.• Client’s private records or private provider opinions supporting a nexus.

• Consider delaying Notice of Disagreement until receipt of File.• One year from date of Notification letter / Rating Decision.

• For now, it is still possible to add evidence and argument up until the BVA decision

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Example Preservation of Error Statement.

• Undersigned counsel hereby takes exception to and preserves for appeal all errors the VA Regional office may have made or the Board may hereafter make in deciding appeal. This includes errors in failing to adjudicate issues or claims reasonably raised by the record, even though not specifically mentioned. This also includes all legal errors, errors in fact-finding, failure to follow VA Adjudication Manual M21-1, failure to discharge the duty to assist, failure to apply the doctrine of reasonable doubt, and other due process errors.

Common errors found in VA Decisions TDIU. No formal claim for benefits need be filed by a veteran when reasonably raised issues like TDIU arise from in connection with a claim pending before the VA. The VA will continue to “infer or identify and award certain benefits that a claimant has not expressly requested but that are related to a claimed condition and there is evidence of record indicating entitlement.” 78 Fed. Reg. 57672 See also, Deshotel v. Nicholson 457 F.3d 1258 (Fed. Cir. 2006). Examination inadequate. If the VA Secretary provides an examination, it must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA regulation instructs adjudicators to return as inadequate an examination report that is not supported by sufficient findings or does not contain sufficient detail. 38 C.F.R. § 4.2; see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97 (2010) (citing Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), for the proposition that “when a medical examination report was susceptible to multiple fair but inconsistent meanings, the Board erred in failing to seek clarification”). “Most of the probative value of a medical opinion comes from its reasoning,” and a medical opinion “is not entitled to any weight . . . if it contains only data and conclusions.” Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008). An inadequate medical examination frustrates judicial review because it does not adequately reveal the current state of the disability. Hicks v. Brown, 8 Vet. App. 417, 422 (1995). The necessity of a thorough examination and a thorough explanation of the examined conditions is simple. The primary purpose for the examination is to require the Board to decide the claim based on sympathetic development and the resulting accurate view of the veteran’s current medical status. See 38 U.S.C. § 5103A(d); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Board “must provide for the conduct of an adequate examination during the active stage of appellant’s (disorder), and must, on the basis of that examination and all evidence of record, ascertain the existence, extent, and significance under the rating schedule of any (symptom) due to (the disorder).” Ardison v. Brown, 6 Vet. App. 405, 408 (1994). If the VA decides a case without an adequate and competent medical examination, it is, in effect, supplying its own medical opinion, which is remandable error. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1990). An independent medical opinion must contain sufficient information so that VA is not exercising independent medical judgment. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (The Secretary, “when he undertakes to provide a medical examination to obtain a medical opinion, must ensure that the examiner providing the report or opinion is fully cognizant of the claimant’s past medical history”); Stegall v. West, 11 Vet. App. 268, 270 - 71 (1998) (VA examination remanded for inadequacies of exam on remand). Examinations. VA has a duty to assist the veteran by providing a medical examination if the evidence of record provides: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or

recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) lacks sufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The McLendon Court defined the third prong as a “low threshold.” Id. at 83. To refuse the veteran a medical examination, VA must adequately and explicitly delineate its reasons therefor, providing sound statutory and regulatory reasons for this denial. Woods v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). VA’s ultimate conclusion that a medical examination or opinion is not necessary pursuant to section 5103A(d)(2) “is reviewed under the ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ standard of review.” McLendon, 20 Vet. App. at 81. DeLuca Failure. While pain alone is not a disability, loss of range of motion disabilities, functional loss due to fatigue, pain, and weakness caused by repetitive use and movement should be compensated. VA did not consider or properly apply these factors during the medical examination. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). See also 38 C.F.R. § 4.2 (2014). The stated purposes of 38 C.F.R. §§ 4.40 and 4.45 necessitate such consideration. See Spurgeon v. Brown, 10 Vet. App. 194 (1997); see also Voyles v. Brown, 5 Vet. App. 451, 453 (1993) (Board decision “specifically noted the limitation of motion” but “failed to make any findings as to the extent of the appellant’s pain on motion” pursuant to §§ 4.40 and 4.45 (emphasis added)). The VA does not have the discretion to ignore the substantive obligations owed to veteran, as provided by law. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991) (The VA must strictly perform duties imposed by statute or regulation. It has no discretion to act or not to act). Accordingly, the RO is required to return the medical examination report to the medical examiner for consideration of the DeLuca factors. See 38 C.F.R. § 4.2 (2010); Colayong v. West, 12 Vet. App. 524 (2006). See generally Ferguson v. Derwinski, 1 Vet. App. 428 (1991). Additionally, the medical examination is not reflective of his ordinary, everyday life. It did not consider fatigue, pain, and weakness caused by repetitive use and movement throughout an ordinary day. It instead used an isolated snapshot of his physical condition in a pristine environment when he was under no ordinary, everyday physical stress. Therefore, the medical examination is additionally flawed because it is not an accurate reflection of his normal physical condition. Schafrath, 1 Vet. App. at 594; 38 C.F.R. § 4.10. Veteran’s lay statements. The VA must adequately review veteran’s favorable lay statements concerning his medical status. His statements are competent proof. These statements of his current medical condition need not be supported by contemporaneous, corroborative medical records. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); see Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (where Court explained VA was in error when the sole premise for the examiner’s conclusion was the lack of notation or treatment of the claimed disability in service); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992) (noting that the purpose of section 1154(b) was “to overcome the adverse effect of a lack of official record of incurrence or aggravation of a disease or injury and treatment thereof” (citing H.R. Rep. No. 1157, 77th Cong., 1st Sess. (1941), reprinted in 1941 U.S.C.C.A.N. 1035)).

VA must address the credibility and probative value of veteran’s lay statements in its analysis of veteran’s case. VA must have a valid basis for finding veteran’s lay testimony incredible where VA concludes that veteran’s claimed injury is one of such severity, it would have been recorded in service had it actually happened during that time. Kahana v. Shinseki, 24 Vet. App. 428, 433-34 (2011). The VA must consider lay statements where (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Credible lay evidence alone is competent to establish the existence of the claimed condition(s). Further, in some instances lay evidence by itself is sufficient to establish a medical nexus between veteran’s service and current disability, insomuch that no “medical evidence” is needed to substantiate the claim. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). To decide the claim without an accurate record and review of veteran’s lay statements as to his actual physical condition is in contravention to law and effectively operates to allow the VA to substitute its own opinions for that of record. This is always harmful error. See Doran v. Brown, 6 Vet. App. 283, 287 (1994) (citing Colvin v. Derwinski, 1 Vet. App. 171, 175 (1990)). Discounted favorable evidence. VA has the obligation to weigh and consider all of the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Hogan v. Peake, 544 F. 3d 1295, 1298 (Fed Cir. 2008) (A determination regarding service connection requires consideration of “all pertinent medical and lay evidence”) (quoting 38 C.F.R. § 3.303(a)). The VA must do this whether it finds the evidence persuasive or not. See Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990). If the VA is going to discount favorable evidence, it must explain why it did so, make its explanation understandable to laypersons and provide sufficient detail to facilitate court review. See Norris v. West, 11 Vet. App. 219, 224-25 (1998); Allday v. Brown, 7 Vet. App. 517, 527 (1995). This is required as a matter of law. See 38 U.S.C. § 7104 (d); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991); Daves v. Nicholson, 21 Vet. App. 46, 51 (2007) (citing Meyer v. Brown, 9 Vet. App. 425, 233 (1996)). VA errs when considering the effects of medication on the appropriate rating for appellant’s service-connected condition when those effects are not explicitly contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). VA errs in taking those effects into account when evaluating veteran’s disability rather than limiting itself to the symptoms expressly contemplated by the appropriate rating code. Conditions caused by the adverse side effects of medications used to treat a service-connected condition should be service-connected on a secondary basis. Wanner v. Principi, 17 Vet. App. 4 (2003), rev’d on other grounds, 370 F.3d 1124 (Fed. Cir. 2004). Where a medical record is incomplete, the VA should refer the examination report back

to the examiner for clarification. 38 C.F.R. § 4.2. This is also the case for private medical examination reports. Savage v. Shinseki, 24 Vet. App. 259 (2011) (In Savage, the Court explicitly limited VA’s duty to seek clarification of private medical reports to situations where “the missing information is relevant, factual, and objective–that is, not a matter of opinion.” 24 Vet. App. at 270. Specifically, the Court held that when a private medical report is the only evidence on a material issue, and material medical evidence can no longer be obtained as to that issue, yet clarification of a relevant, objective fact would render the private medical report competent for the assignment of weight, the Secretary must attempt to obtain such clarification. Id. at 267. Sympathetic development. 38 C.F.R. § 3.103(a) mandates the “VA to assist a claimant in developing the facts pertinent to the claim,” and obligates the VA “to render a decision which grants every benefit that can be supported in law.” See Cook v. Principi, 318 F.3d 1334, 1337 (Fed. Cir. 2002) (en banc) (noting 38 C.F.R. § 3.103(a) is the regulation setting forth the duty to assist codified in 38 U.S.C. § 5103A)); see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (declaring Congress has mandated that the VA is to “fully and sympathetically develop the veteran’s claim to its optimum before deciding on the merits”). (Quotation omitted). Included in this obligation is the obligation to weigh and consider all of the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Hogan v. Peake, 544 F. 3d 1295, 1298 (Fed Cir. 2008) (A determination regarding service connection requires consideration of “all pertinent medical and lay evidence”) (quoting 38 C.F.R. § 3.303(a)). This pertains to all claims. Ingram v. Nicholson, 21 Vet. App. 232, 238 (2007); see also Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004). The VA must consider all evidence whether it finds it persuasive or not. See Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990). This obviously includes conscientious, independent consideration of veteran’s lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Court in Ingram v. Nicholson stated that although there is no legal definition of sympathetic reading, it is clear from “the purpose of the doctrine that it includes a duty to apply some level of expertise in reading documents to recognize the existence of possible claims that a claimant would not be expected to be able to articulate clearly.” Ingram, 21 Vet. App at 255; see also Robinson v. Peake, 21 Vet. App. 545, 553 (2008) (Board must consider all theories of entitlement that were reasonably raised by either the veteran or by the evidence in the record). Despite such obligation, the VA has failed to develop and adjudicate its decisions with an eye to allowing the veteran the maximum benefit to which he is entitled, which is a failure in its duty to assist and outcome determinative error. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001); Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); see also Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Benefit of the doubt and burden of proof. Veteran argues he is being held to a burden of proof beyond that set by law. The VA holds veteran to an unfair burden. Federal statute clearly states, “When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant.” 38 U.S.C. § 5107(b). “The preponderance of the evidence

must be against the claim for benefits to be denied.” Gilbert v. Derwinski, 1 Vet. App. 49, 53-55 (1990). VA applied the improper standard of proof in this case. Reasons and bases. VA is required to consider and discuss in its decision all “potentially applicable” provisions of law and regulation. Majeed v. Nicholson, 19 Vet. App. 525, 529 (2006) (citing Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991)); 38 U.S.C. § 7104(a). The VA must account for all of the evidence whether it finds it persuasive or unpersuasive, and provide reasons and bases for rejecting evidence. See Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990). It must weigh the credibility and probative value of all evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). If VA is going to discount evidence and refuse to provide veteran a medical examination, VA must explain why it did so. These reasons must be sufficient to allow veteran the opportunity to understand why it did so. See Norris v. West, 11 Vet. App. 219, 224-25 (1998); Allday v. Brown, 7 Vet. App. 517, 527 (1995). This is required as a matter of law. See 38 U.S.C. § 7104(d); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). This is not only for the benefit of the veteran, but also the federal appellate court which will ultimately review the claim and its adjudication. See Allday v. Brown, 7 Vet. App. 517, 527 (1995). Missing medical records. Since the VA has been unable to obtain the veteran’s service medical records, it has a heightened duty to explain its findings and conclusions. See Lee v. Nicholson, 21 Vet. App. 514 (2006). More specifically, in Washington v. Nicholson, the Court held, “When a veteran’s records are presumed lost or destroyed, the Board is under a heightened duty to consider and discuss the evidence of record and supply well-reasoned bases for its decision as a consequence of the appellant’s missing SMRs.” 19 Vet. App. 362, 371 (2005). The Court held the Secretary breached the duty to assist in failing to “explore alternatives” to missing service records and “VA should make reasonable efforts to obtain such reports, statements, or other records that might provide corroboration for the appellant’s assertion of an in-service injury, disease, or event.” Id. The Secretary’s duty to assist includes a duty to obtain any “relevant records held by any Federal department or agency” that the claimant “adequately identifies” and authorizes the Secretary to obtain. §38 U.S.C. § 5103A(c)(1); §38 C.F.R. § 3.159(c)(2); Loving v. Nicholson, 19 Vet. App. 96, 102 (2005). Efforts to obtain records in the custody of a Federal department or agency must continue unless “VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile.” 38 C.F.R. § 3.159(c)(2). “If VA . . . after continued efforts to obtain Federal records concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA will provide the claimant with oral or written notice of that fact.” 38 C.F.R. § 3.159(e)(1). The notice must (1) identify the records VA was unable to obtain; (2) provide an explanation of the efforts VA made to obtain the records; (3) describe any further action VA will take regarding the claim; and (4) notify the claimant that he is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e)(1)(i)-(iv).

Negative evidence and mischaracterization of claims. The Board may not consider the absence of a medical notation to be negative evidence when there is no reason a medical examiner would have commented on a particular matter. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). See Douglas v. Shinseki, 23 Vet. App. 19, 25–26 (2009) (The duty to “gather evidence sufficient to render a decision is not a license to continue gathering evidence in the hopes of finding evidence against the claim”). The Board may not mischaracterize veteran’s claims. Mischaracterization of claims may lead to considering issues outside of the scope of the appeal, applying the wrong law and engaging in the wrong analysis. See Murphy v. Shinseki, 26 Vet. App. 510, 513 (2014) (the Murphy Court recognized mischaracterization of claims as the catalyst to improper reduction of claims, which the Court indicated has a “chilling effect” on the administrative appeals process). Medical treatises. A medical article or treatise “can provide important support when combined with an opinion of a medical professional” if the medical article or treatise evidences generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998). “A veteran with a competent medical diagnosis of a current disorder may invoke an accepted medical treatise in order to establish the required nexus; in an appropriate case it should not be necessary to obtain the services of medical personnel to show how the treatise applies to his case.” Hensley v. West, 212 F.3d 1255, 1265 (2000). An evaluation of treatise evidence should be made in the first instance by the BVA. Timberlake v. Gober, 14 Vet. App. 122, 130 (2000). If the Board fails to consider medical-treatise evidence by the veteran, the Court will remand the case to the Board to evaluate that evidence to see if it supports a nexus. Id. Implied denial of claims. Veteran disagrees with the Rating Decision identified above. Veteran disagrees with each and every denial, whether expressly or impliedly made by the Secretary, of any and all claims, whether formally or informally made by veteran, then pending at the time of the challenged Rating Decision. Veteran seeks appellate review thereof. Veteran requests the Secretary prepare a Statement of the Case for each and every claim, whether expressly or impliedly denied by the challenged Rating Decision, as provided for by law. Veteran expressly requests the Secretary identify each and every claim, whether formally or informally made by veteran, which was denied, whether expressly or impliedly, by the Rating Decision. Veteran will reasonably rely on the Secretary’s identification of each and every claim so denied, and any claim not expressly identified as denied in the Statement of the Case shall be presumed to be still pending. Due process. Veteran also contends the Regional Office’s (RO) failures as expressly asserted in this Notice of Disagreement rise to the level of the Secretary’s denial of Veteran’s procedural due process protections, guaranteed to U.S. military veterans by the Fifth Amendment, U.S. Constitution. See Cushman v Shinseki, 576 F.3d 1290 (Fed. Cir. 2009).

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Muscle InjuriesNovember 17, 2017

Muscle Injuries

38 C.F.R 4.55 PRINCIPLES OF COMBINED RATINGS FOR MUSCLE INJURIES

(a) A muscle injury will not be combined with a peripheral nerve paralysis rating of the same body part unless the injuries affect different functions.

Muscle Injuries: 38 C.F.R 4.55

(b) The skeletal muscles are divided into 23 muscle groups in 5 anatomical regions:

• 6 muscle groups for the shoulder girdle & arm (DC 5301-5306)

• 3 muscle groups for the forearm and hand (DC 5307-5309)

• 3 muscle groups for the foot and leg (DC 5310-5312)

• 6 muscle groups for the pelvic girdle and thigh (DC 5313-5318)

• 5 muscle groups for the torso and neck (DC 5319-5323)

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(c) There will be no rating assigned for muscle groups which act upon an ankylosed joint except:

(1) In the case of an ankylosed knee, if muscle group XIII is disabled, it will be rated, but at the next lower level that which would otherwise be assigned

Example: Shrapnel wound to knee: Knee ankylosed at 15 degrees warrants a 40% evaluation. Muscle group XIII is also injured at the level of a moderately severe evaluation (30%). Since this muscle acts upon the ankylosed knee, it can be only rated at the next lower level for a moderate muscle injury, or 10%.


(c)(2) In the case of an ankylosed shoulder, if muscle groups I and II are severely disabled, the evaluation of the shoulder joint under diagnostic code 5200 will be elevated to the level for unfavorable ankylosis, if not already assigned, but the muscle groups themselves will not be rated.

(d) The combined evaluation of muscle groups acting upon a single unankylosed joint must be lower than the evaluation for unfavorable ankylosis of that joint, except in the case of muscle groups I and II acting upon the shoulder.


(e) For compensable muscle group injuries which are in the same anatomical region but do not act on the same joint, the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups.

(f) For muscle group injuries in different anatomical regions which do not act upon ankylosed joints, each muscle group injury shall be separately rated and the ratings combined under the provisions of 38 C.F.R, the combined ratings table.

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Muscle injuries

38 C.F.R. 4.56 EVALUATION OF MUSCLE DISABILITIES(a) An open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal.(b) A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged.(c) For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement.


• (d) Under diagnostic codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe as follows:

(1)Slight disability of muscles -• (i)Type of injury. Simple wound of muscle without debridement or infection.• (ii)History and complaint. Service department record of superficial wound with brief

treatment and return to duty. Healing with good functional results. No cardinal signs or symptoms of muscle disability as defined in paragraph (c) of this section.

• (iii)Objective findings. Minimal scar. No evidence of fascial defect, atrophy, or impaired tonus. No impairment of function or metallic fragments retained in muscle tissue.

(2)Moderate disability of muscles -• (i)Type of injury. Through and through or deep penetrating wound of short track from a

single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection.


• (3)Moderately severe disability of muscles -• (i)Type of injury. Through and through or deep penetrating wound by small high

velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring.

• (ii)History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section and, if present, evidence of inability to keep up with work requirements.

• (iii)Objective findings. Entrance and (if present) exit scars indicating track of missile through one or more muscle groups. Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment.

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• (4)Severe disability of muscles -

• (i)Type of injury. Through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or withshattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring.

• (ii)History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements.

• (iii)Objective findings. Ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, the following are also signs of severe muscle disability:

• (A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile.

• (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle.

• (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests.

• (D) Visible or measurable atrophy.

• (E) Adaptive contraction of an opposing group of muscles.

• (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle.

• (G) Induration or atrophy of an entire muscle following simple piercing by a projectile.

MUSCLE INJURIES

Other considerations for ratings and ancillary benefits

1. Separate rating for painful scar under DC 78042. Separate rating for traumatic arthritis for a joint and a muscle injury to a muscle

in the same anatomical region that does not act on that joint3. Gunshot wound of the head: In addition to muscle injuries the following

residuals should be considered: skull loss, cranial nerve injury, visual and hearing impairment, seizure disorder, traumatic brain injury, psychological injury, and other associated neurological deficits

4. 38 C.F.R. 4.68 Amputation Rule: The combined rating for disabilities of an extremity may not exceed the rating for amputation at the elective level, were amputation to be performed.

MUSCLE INJURIES

Special monthly compensation (SMC) under 38 C.F.R. 3.350: in addition to disability ratings of 10 percent through 100 percent, a special monthly compensation may be paid to a Veteran who incurred service connected anatomical loss or loss of use of extremities or organs. Examples are:• Loss, or loss of use, of a hand, foot, or of both buttocks

• Immobility of a joint or paralysis of an extremity

• Blindness, in one or both eyes

• Deafness in both ears

• Inability to communicate by speech (complete organic aphonia)

• Loss of percentage of tissue from a single breast, or both breasts, from mastectomy or radiation treatment, in female Veterans

• Loss, or loss of use, of a reproductive organ

NOTE: Higher rates of SMC for combinations of these disabilities, and for other factors involving complications from service connected disabilities such as stroke or multiple sclerosis. Rates apply for a housebound rate and various levels of aid and attendance for those with a disability rated at least100 percent.

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MUSCLE INJURIES

Other ancillary benefits:

1. Clothing allowance: when prosthetic or orthopedic appliances, such as an artificial limb, rigid extremity brace, wheelchair, or crutches, worn or used by a Veteran for service connected disabilities, tend to wear or tear clothing; or uses a physician-prescribed medication for a skin condition, that causes irreparable damage to the outer garments, Veteran is entitled to a clothing allowance of $779.62 annually. 38 C.F.R. provides for two allowances per year for two or more appliances or medications, or an appliance and a skin medication. (VA Form 10-8678)

2. Automobile allowance: granted when there is service connected loss, or loss of use of one or both feet or hands, severe visual impairment, severe burn injury of one or more extremities or trunk resulting in scar formation that causes contractures and limits motion of one or more extremities or the trunk and precludes effective operation of an automobile, or ALS (amyotrophic lateral sclerosis). Amount of grant effective 10-1-2017: $20,577.18

(VA Form 21-4502)

MUSCLE INJURIES

3. Specially adapted housing (SAH) and Special housing adaptation (SHA)SAH:Eligibility requirements for service-connected disability:• Loss of or loss of use of both legs, OR• Loss of or loss of use of both arms, OR• Blindness in both eyes having only light perception, plus loss of or loss of use of one leg, OR• The loss of or loss of use of one lower leg together with residuals of organic disease or injury, OR• The loss of or loss of use of one leg together with the loss of or loss of use of one arm, OR• Certain severe burns, OR• The loss, or loss of use of one or more lower extremities due to service on or after September 11,

2001, which so affects the functions of balance or propulsion as to preclude ambulating without the aid of braces, crutches, canes, or a wheelchair *

*This eligibility criteria is limited to 30 recipients per fiscal year (FY)

MUSCLE INJURIES

SHA:

Eligibility requirements for service-connected disability:

• Blindness in both eyes with 20/200 visual acuity or less, OR

• Loss of or loss of use of both hands, OR

• Certain severe burn injuries, OR

• Certain severe respiratory injuries

• Benefit

• The SAH and SHA benefit amount is set by law, but may be adjusted upward annually based on a cost-of-construction index. The maximum dollar amount allowable for SAH grants in fiscal year 2018 is $81,080. The maximum dollar amount allowable for SHA grant in fiscal year 2018 is $16,217. No individual may use the grant benefit more than three times up to the maximum dollar amount allowable.

• A temporary grant may be available to SAH/SHA eligible Veterans and Servicemembers who are or will be temporarily residing in a home owned by a family member. The maximum amount available to adapt a family member's home for the SAH grant is $35,593 and for the SHA grant is $6,355.

(VA Form 26-4555)

Ethical Issues in the Representation of Veterans

Andrew Strotman

Berry Law Firm

John S. Berry, Jr.

Berry Law Firm

November 17, 2017


11/15/2017

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EthicsJohn S. Berry, Esq.

Berry Law Firm

November 17, 2017

Overview

• Accreditation and Ethical Advocacy 38 CFR Part 14

• Technology Competence 38 CFR Part 1; ABA Model Rule 1.1

• When can you Fire a Client? 38 CFR Part 20

Accreditation and Ethical Advocacy

• Governing law and regulation

• 38 C.F.R. §§ 14.626-14.637;• 38 U.S.C. §§ 5901-5905;• 38 U.S.C. §§ 1.600–1.603; and• Your state rules of professional conduct.

11/15/2017

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Accreditation

• Why do you need it?

• 38 C.F.R. §14.629(b)(1) No individual may assist claimants in the preparation, presentation, and prosecution of claims for VA benefits as an agent or attorney unless he or she has first been accredited by VA for such purpose.

Accreditation

• Who needs it?

• § 14.629(c)(1) (2) Attorneys and Law Firms

• Claimant’s attorney and attorneys associated with claimant’s attorney of record, or employed by same legal services office may assist in representation of the claimant.*

• With claimant consent.• Office of General Counsel interpretation of this provision requires all such attorney members

of a firm to be accredited if their work involves assisting claimants in the preparation, presentation, and prosecution of claims for veterans benefit. https://www.va.gov/ogc/accred_faqs.asp

Accreditation

• Who doesn’t need it?

• § 14.629(c)(3) Legal interns, law students, paralegals employed by law firms.

• May assist in the preparation, presentation, and prosecution of claims for veterans benefit under the direct supervision of an attorney of record designated under 38 C.F.R. § 14.631(a).

• May not be independently accredited. *• 38 C.F.R. § 14.631(e)(1) Only one organization, representative, agent, or attorney will be recognized

at one time for the prosecution of a particular claim https://www.va.gov/ogc/accred_faqs.asp .

• With claimant consent.• 38 C.F.R. § 14.629(c)(4) Unless revoked, consent provided under 38 C.F.R. § 14.629(c)(2) or (c)(3)

shall remain effective in the event the claimant’s original attorney is replaced by another member of the same law firm or legal services office.

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Accreditation

• Obtaining Accreditation:

• 38 C.F.R. §14.629(b)• www.va.gov/ogc/accreditation.asp ;• VA Form 21a;• Determination of character and fitness; and• Letters of Good Standing for every bar, court, Federal or State agency to which you are

admitted help with character and fitness determination. • 38 C.F.R. §14.629(b)(5) If suspended by any court, bar, Federal or State agency, VA

will not offer accreditation.• VA may evaluate facts and reconsider if suspension is solely derivative of suspension or

disbarment in another jurisdiction to which they have subsequently been reinstated.• For agents, a written examination 38 C.F.R. §14.629(b)(1)(i).

Accreditation

• Maintaining accreditation

• 38 C.F.R. § 14.629(b)(1)(iii) requires completion of three hours of approved CLE within the one-year period starting on the day the VA accords the attorney initial accreditation status.• Specific topics required,• Must be a minimum of 3 hours.

• 14.629(b)(1)(iv) requires completion of additional three hours of qualifying CLE on veterans benefits law and procedure not later than 3 years from date of initial accreditation.• Must be a minimum of three hours.

• 14. 629(b)(4) requires annual certification with information about any court, bar, or Federal of State agency admitted.• Must notify VA within 30 days of any change in status,• Include CLE attendance as required with this annual certification.

Accreditation

• Losing accreditation

• 38 C.F.R. § 14.633 describes actions that may cause termination of accreditation:• Violation of or refusal to comply with the laws administered by VA or with the regulations

governing practice before VA including the standards of conduct in§ 14.632;• Knowingly presenting or prosecuting a fraudulent claim against the United States, or

knowingly providing false information to the United States;• Demanding or accepting unlawful compensation for preparing, presenting, prosecuting, or

advising or consulting, concerning a claim; • Knowingly presenting to VA a frivolous claim, issue, or argument;

• A claim, issue, or argument is frivolous if the individual providing representation under §14.630, representative, agent, or attorney is unable to make a good faith argument on the merits of the position taken or to support the position taken by a good faith argument for an extension, modification, or reversal of existing law.

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Accreditation

• Losing Accreditation (continued)

• Suspension or disbarment by any court, bar, or Federal or State agency to which such individual providing representation under § 14.630, representative, agent, or attorney was previously admitted to practice, or disqualification from participating in or appearing before any court, bar, or Federal or State agency and lack of subsequent reinstatement;

• Charging excessive or unreasonable fees for representation as determined by VA, the Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit; or

• Any other unlawful or unethical practice adversely affecting an individual's fitness for practice before VA.• Suspension is an appealable decision.

• In Bates v. Nicholson, the U.S. Court of Appeals for the Federal Circuit held that notwithstanding 38 C.F.R. § 14.633(g), which provided that VA General Counsel accreditation-cancellation decisions are final, the BVA and the U.S. Court of Appeals for Veterans Claims (CAVC) have jurisdiction to review a VA accreditation-cancellation decision. 398 F.3d 1355, 1365–66 (Fed. Cir. 2005); 24 Vet. App. 457 (2009).

• But, attorneys who behave in an unprofessional manner and who are suspended from the practice of law by a particular state may also be suspended by the CAVC. In Re: R. Edward Bates, Member of the Bar, 24 Vet. App. 457 (2009).

Ethical Advocacy

• VA’s organic ethical rules

• 38 C.F.R. § 14.632 An attorney, agent, or representative providing representation under 38 C.F.R. § 14.630 shall• Faithfully execute duties;• Be truthful with claimants and VA;• Provide competent representation;

• Knowledge, skill, thoroughness, and preparation;• Understanding issues of fact and law applicable to the claim to include title 38, U.S.C. and title

38 C.F.R.; and

• Act with reasonable diligence and promptness.

Ethical Advocacy

• 38 C.F.R. § 14.632 An attorney, agent, or representative providing representation under 38 C.F.R. §14.630 shall not

• Violate standard of conduct as described in this section (§14.632);• Circumvent a rule of conduct through the actions of another;• Engage in conduct involving fraud, deceit, misrepresentation, or dishonesty;• Violate any of the provisions of title 38, U.S. Code, or title 38, Code of Federal Regulations;• Enter into an agreement for, charge, solicit, or receive a fee that is clearly unreasonable or otherwise prohibited

by law or regulation;• Solicit, receive, or enter into agreements for gifts related to representation provided before an agency of original

jurisdiction has issued a decision on a claim or claims and a Notice of Disagreement has been filed with respect to that decision;

• Delay without good cause, the processing of a claim at any stage of the administrative process;• Mislead, threaten, coerce, or deceive a claimant regarding benefits or other rights under programs administered

by VA;• Engage in, or counsel or advise a claimant to engage in acts or behavior prejudicial to the fair and orderly

conduct of administrative proceedings before VA;• Disclose, without the claimant’s authorization, any information provided by VA for purposes of representation;

or,• Engage in any other unlawful or unethical conduct.

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Ethical Advocacy

• 38 C.F.R. § 14.632 An attorney, agent, or representative providing representation under 38 C.F.R. § 14.630, in addition to complying with the standards of conduct of this section, also shall not

• Engage in behavior or activities prohibited by the rules of professional conduct of any jurisdiction in which the attorney is licensed to practice law.

Ethical Advocacy - Fees

• Background• Before passage of the Veterans Judicial Review Act (VJRA) (1988) – limit of

$10.00 fee to assist veterans with disability benefits or appeals;• After VJRA, Veterans and Attorneys could enter into an agreement for fees in

excess of $10.00 only after a final BVA decision had been promulgated; • 2006 - Veteran’s Benefits Health Care and Information Technology Act -

Veterans and Attorneys can now enter into an agreement for fees for appeals of claims where a Notice of Disagreement (NOD) to a Rating Decision has been submitted after June 20, 2007.

• 38 C.F.R. §14.636, 38 U.S.C. §§ 5902, 5904, 5905


• 38 CFR § 14.636 (b) “Only accredited agents and attorneys may receive fees from claimants or appellants for their services.”

• 38 CFR § 14.636 (c) defines the two separate events which “trigger” eligibility for a fee to an attorney or agent:• NOD filed before June 20, 2007 – First final decision of the BVA, or an

appeal to the CAVC; or• NOD filed after June 20, 2007 – Filing of a NOD.

• With the upcoming changes due to the recent passage of HR 2288, the Veterans Appeals Improvement and Modernization Act, the trigger event will become the claimant’s “notice of the AOJ initial decision under section 5104 of this title.” (38 U.S.C. §5104).

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• 38 C.F.R. §14.636(e) dictates how fees may be assessed:

• Fixed fee;• Hourly rate;• Percentage of benefits; or,• Combination of the above.


• In determining whether fees are reasonable, the Secretary will weigh the following:• Extent and type of services rendered;• The complexity of the case;• The level of skill and competence required of the representative in giving the

services;• Amount of time spent on the case;• Results of representation achieved – including amount of benefits recovered;• Level of review to which the claim was taken and the level of review at which the

representative was retained;• Rates charged by other representatives for similar services; and,• Whether and to what extent the payment of fees is contingent upon the results

achieved.


• How much is reasonable? 38 C.F.R. 14.636(f)

• 20% contingent fee agreements presumed reasonable. • Fees in excess of 33 1/3% are presumed unreasonable.

• Fees can be charged to a “disinterested third party.” 38 C.F.R. §14.636(d)(2)• These fees cannot be contingent in whole or in part, on whether the matter is

resolved in a manner favorable to the claimant or appellant.

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• 38 CFR § 14.636 (g) defines a valid fee agreement:• “Must be in writing and signed by both the claimant or appellant and the agent or

attorney.”• Must include:

• 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 should also include a section laying out how any additional costs and expenses will be reimbursed to you in the event that you are successful in obtaining an award of benefits. 38 CFR § 14.637.


• 38 CFR § 14.636 (g) (2) “Fee agreements must also clearly specify if VA is to pay the agent or attorney directly out of past due benefits.”• Regardless of the type of agreement, VA will not reimburse you for costs and expenses. You must bill the client

directly.

• Bill to client:• Not limited to acceptance of 20% fee;• Fee agreement does not need to be filed with the AOJ within 30 days;• Attorney must make decision regarding whether to bill for a fee;• If client does not pay, Attorney may have to refer to collection;• Fee agreement must be filed with the OGC within 30 days of execution 38 C.F.R. § 14. 636(g)(3).

• Direct Pay (VA withholds fee):• VA makes decision as to eligibility for fee;• Attorney does not have to bill the client;• If AOJ does not pay, Attorney can appeal;• Fee limited to 20% of back pay award 38 C.F.R. § 14.636(h)(1)(i);• Fee agreement must be sent to AOJ within 30 days of execution 38 C.F.R. § 14. 636(g)(3),(h)(4).

Competence in Technology

• Governing law and regulation

• 38 C.F.R. §§ 14.632;• 38 U.S.C. §§ 5902,5904;• 38 U.S.C. §§ 1.600–1.603; and• Your state rules of professional conduct

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• Not just about electronic filing.

• Client-Lawyer Relationship Model Rule 1.1 – Competence• Technological competence speaks to the skill, thoroughness and preparation necessary for

representation Comment 8 to Rule 1.1(adopted in 2012) A lawyer should keep abreast in changes in law and its practice, including the benefits and risks associated with relevant technology.

• As of September 2017, Nebraska is the 28th state to adopt this ethical duty.



• VBMS (Veterans Benefits Management System)

• Access to certain electronic records relevant to representation.

• To gain access and keep it, must comply with VA standards for security and confidentiality of Veterans information See 38 C.F.R. §§ 1.600 to 1.603 for rules governing expanded remote access to Veterans claims records.• Attached materials also contain in-house VA correspondence and contact information to

assist attorneys in establishing their own accounts with their local VA Regional Offices (VARO)

• Link for points of contact at each VARO• https://www.benefits.va.gov/COMPENSATION/cma-poc.asp

• At this time, only the accredited attorney of record is permitted an account.

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Competence in Technology - VBMS

• Compliance with 38 C.F.R. § 1.602(a) precludes sharing of passwords with staff, but the VA has “clarified” the rules governing representation to acknowledge support-staff roles in assisting an agent or attorney identify pertinent decisions or other communications the VA may promulgate in regards to a claim:

• The note found at the end of 38 C.F.R. 14.629 acknowledges that “A legal intern, law student, paralegal, or veterans service organization support-staff person, working under the supervision of an individual designated under §14.631(a) as the claimant’s representative, attorney, or agent may qualify for read-only access to pertinent Veterans Benefits automated claim records as described in §§ 1.600 through 1.603 in part 1 of this chapter.”

Competence in Technology - VBMS

• Can you be an effective advocate without obtaining VBMS access?

• Maybe not. In our experience, VA has refrained from mailing hard copy decisions, claiming attorneys are nonetheless responsible for meeting appeal dates because VBMS contained the decision.

• Some Veterans Law attorneys associated with the National Organization of Veterans Advocates have discussed whether or not a petition to the Court of Appeals for Veterans Claims is appropriate.

• For now, paper decisions are still necessary: As recently as June this year, the Director for Compensation Services assured a NOVA forum participant that VA is insisting on strict adherence to 38 C.F.R. § 3.103 which requires notification in writing of decisions affecting payments or granting relief.

How to Terminate Representation

• Governing law and regulations: • 38 C.F.R. § 14.631• 38 C.F.R. § 20.608• 38 U.S.C. §7105(a)

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• 38 C.F.R. §14.631(c) applies anytime until claims are certified to the Board of Veterans’ Appeals (BVA):• If such withdrawal will not adversely impact the claimant’s interests;• In writing, notify claimant, the VA organization in possession of the claims

file, and the agency of original jurisdiction (AOJ);• Advance notice to client;• Time for client to seek out alternate representation;• Returning documents provided by the VA in the course of representation.

• All property of claimant must be returned to the claimant:• If unavailable, claims file documents to be returned to the VA organization in possession

of the claims file.• All other property maintained according to applicable law.


• 38 C.F.R. § 20.608 governs withdrawal when claims have been certified to the BVA: • Motion to BVA.• Good cause (examples):

• Extended illness or incapacitation of the representative; • The appellant’s failure to cooperate in the preparation of the appeal; or • Any other circumstance that would make continued representation impossible, impractical, or unethical.

• Good cause rule applies only if the representative has previously agreed to represent the appellant. • Appellants often designate a recognized service organization as their representative at the BVA on the VA

Form 9, without the knowledge or consent of the organization. When this occurs, the organization may withdraw from the case without showing good cause.

• What you can say to the BVA may fly in the face of the Model Rules – Remember client confidentiality.

Ethics

• Questions?

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Contact Information

Berry Law FirmJohn S. Berry, Esq.

2650 N 48th StLincoln, NE 68504

402-466-8444ptsdlawyers.com

38 CFR 14.629

This document is current through the November 6, 2017 issue of the Federal Register. Pursuant to 82 FR 8346

("Regulatory Freeze Pending Review"), certain regulations will be delayed pending further review. See Publisher's

Note under affected rules. Title 3 is current through November 3, 2017.

Code of Federal Regulations > TITLE 38 -- PENSIONS, BONUSES, AND VETERANS' RELIEF >

CHAPTER I -- DEPARTMENT OF VETERANS AFFAIRS > PART 14 -- LEGAL SERVICES,

GENERAL COUNSEL, AND MISCELLANEOUS CLAIMS > REPRESENTATION OF DEPARTMENT

OF VETERANS AFFAIRS CLAIMANTS; RECOGNITION OF ORGANIZATIONS; ACCREDITED

REPRESENTATIVES, ATTORNEYS, AGENTS; RULES OF PRACTICE AND INFORMATION

CONCERNING FEES, 38 U.S.C. 5901-5905

§ 14.629 Requirements for accreditation of service organization

representatives; agents; and attorneys.

The Chief Counsel with subject-matter jurisdiction will conduct an inquiry and make an initial determination

regarding any question relating to the qualifications of a prospective service organization representative,

agent, or attorney. If the Chief Counsel determines that the prospective service organization representative,

agent, or attorney meets the requirements for accreditation in paragraphs (a) or (b) of this section,

notification of accreditation will be issued by the Chief Counsel and will constitute authority to prepare,

present, and prosecute claims before an agency of original jurisdiction or the Board of Veterans' Appeals. If

the Chief Counsel determines that the prospective representative, agent, or attorney does not meet the

requirements for accreditation, notification will be issued by the Chief Counsel concerning the reasons for

disapproval, an opportunity to submit additional information, and any restrictions on further application for

accreditation. If an applicant submits additional evidence, the Chief Counsel will consider such evidence

and provide further notice concerning his or her final decision. The determination of the Chief Counsel

regarding the qualifications of a prospective service organization representative, agent, or attorney may be

appealed by the applicant to the General Counsel. Appeals must be in writing and filed with the Office of

the General Counsel (022D), 810 Vermont Avenue NW., Washington, DC 20420, not later than 30 days

from the date on which the Chief Counsel's decision was mailed. In deciding the appeal, the General

Counsel's decision shall be limited to the evidence of record before the Chief Counsel. A decision of the

General Counsel is a final agency action for purposes of review under the Administrative Procedure Act, 5

U.S.C. 701-706.

(a)Service Organization Representatives. A recognized organization shall file with the Office of the

General Counsel VA Form 21 (Application for Accreditation as Service Organization Representative) for

each person it desires accredited as a representative of that organization. The form must be signed by

the prospective representative and the organization's certifying off

icial. For each of its accredited

representatives, a recognized organization's certifying official shall complete, sign and file with the

Office of the General Counsel, not later than five years after initial accreditation through that

organization or the most recent recertification by that organization, VA Form 21 to certify that the

representative continues to meet the criteria for accreditation specified in paragraph (a)(1 ), (2) and (3)

of this section. In recommending a person, the organization shall certify that the designee:

(1 )Is of good character and reputation and has demonstrated an ability to represent claimants

before VA;

(2)1s either a member in good standing or a paid employee of such organization working for it not

less than 1,000 hours annually; is accredited and functioning as a representative of another

Page 2 of 7

38 CFR 14.629

recognized organization; or, in the case of a county veterans' service officer or tribal veterans'

service officer recommended by a recognized State organization, meets the following criteria:

(i)ls a paid employee of the county or tribal government working for it not less than 1,000 hours

annually;

(ii)Has successfully completed a course of training and an examination which have been

approved by a the appropriate District Chief Counsel; and

(iii)Will receive either regular supervision and monitoring or annual training to assure continued

qualification as a representative in the claim process; and

(3)1s not employed in any civil or military department or agency of the United States.

(Authority: 38 U.S.C. 501(a), 5902)

(b)Accreditation of Agents and Attorneys. (1) No individual may assist claimants in the preparation,

presentation, and prosecution of claims for VA benefits as an agent or attorney unless he or she has

first been accredited by VA for such purpose.

(i)For agents, the initial accreditation process consists of application to the Office of the General

Counsel, self-certification of admission information concerning practice before any other court, bar,

or State or Federal agency, an affirmative determination of character and fitness by VA, and a

written examination.

(ii)For attorneys, the initial accreditation process consists of application to the Office of the General

Counsel, self-certification of admission information concerning practice before any other court, bar,

or State or Federal agency, and a determination of character and fitness. The Office of the General

Counsel will presume an attorney's character and fitness to practice before VA based on State bar

membership in good standing unless the Office of the General Counsel receives credible

information to the contrary.

(iii)As a further condition of initial accreditation, both agents and attorneys are required to complete

3 hours of qualifying continuing legal education (CLE) during the first 12-month period following the

date of initial accreditation by VA. To qualify under this subsection, a CLE course must be

approved for a minimum of 3 hours of CLE credit by any State bar association and, at a minimum,

must cover the following topics: representation before VA, claims procedures, basic eligibility for VA

benefits, right to appeal, disability compensation (38 U.S.C. Chapter 11 ), dependency and

indemnity compensation (38 U.S. C. Chapter 13), and pension (38 U.S.C. Chapter 15). Upon

completion of the initial CLE requirement, agents and attorneys shall certify to the Office of the

General Counsel in writing that they have completed qualifying CLE. Such certification shall include

the title of the CLE, date and time of the CLE, and identification of the CLE provider, and shall be

submitted to VA as part of the annual certification prescribed by§ 14.629(b)(4 ).

(iv)To maintain accreditation, agents and attorneys are required to complete an additional 3 hours

of qualifying CLE on veterans benefits law and procedure not later than 3 years from the date of

initial accreditation and every 2 years thereafter. To qualify under this subsection, a CLE course

must be approved for a minimum of 3 hours of CLE credit by any State bar association. Agents and

attorneys shall certify completion of the post-accreditation CLE requirement in the same manner as

described in§ 14.629(b)(1 )(iii).

(2)An individual desiring accreditation as an agent or attorney must establish that he or she is

of good character and reputation, is qualified to render valuable assistance to claimants, and is

otherwise competent to advise and assist claimants in the preparation, presentation, and

prosecution of their claim(s) before the Department. An individual desiring accreditation as an

agent or attorney must file a completed application (VA Form 21 a) with the Office of the

General Counsel (022D), 810 Vermont Avenue, NW., Washington, DC 20420, on which the

applicant submits the following:

(i)His or her full name and home and business addresses;

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38 CFR 14.629

(ii)lnformation concerning the applicant's military and civilian employment history (including

character of military discharge, if applicable);

(iii)lnformation concerning representation provided by the applicant before any department,

agency, or bureau of the Federal government;

(iv)lnformation concerning any criminal background of the applicant;

(v)lnformation concerning whether the applicant has ever been determined mentally

incompetent or hospitalized as a result of a mental disease or disability, or is currently

under treatment for a mental disease or disability;

(vi)lnformation concerning whether the applicant was previously accredited as a

representative of a veterans service organization and, if so, whether that accreditation was

terminated or suspended by or at the request of that organization;

(vii)lnformation concerning the applicant's level of education and academic history;

(viii)The names, addresses, and phone numbers of three character references; and

(ix)lnformation relevant to whether the applicant for accreditation as an agent has any

physical limitations that would interfere with the completion of a comprehensive written

examination administered under the supervision of the appropriate District Chief Counsel

(agents only); and

(x)Certification that the applicant has satisfied the qualifications and standards required for

accreditation as prescribed by VA in this section, and that the applicant will abide by the

standards of conduct prescribed by VA in§ 14.632 of this part.

(3)Evidence showing lack of good character and reputation includes, but is not limited to, one

or more of the following: Conviction of a felony, conviction of a misdemeanor involving fraud,

bribery, deceit, theft, or misappropriation; suspension or disbarment from a court, bar, or

Federal or State agency on ethical grounds; or resignation from admission to a court, bar, or

Federal or State agency while under investigation to avoid sanction.

(4)As a further condition of initial accreditation and annually thereafter, each person seeking

accreditation as an agent or attorney shall submit to VA information about any court, bar, or

Federal or State agency to which the agent or attorney is admitted to practice or otherwise

authorized to appear. Applicants shall provide identification numbers and membership

information for each jurisdiction in which the applicant is admitted and a certification that the

agent or attorney is in good standing in every jurisdiction in which admitted. After accreditation,

agents and attorneys must notify VA within 30 days of any change in their status in any

jurisdiction in which they are admitted to appear.

(5)VA will not accredit an individual as an agent or attorney if the individual has been

suspended by any court, bar, or Federal or State agency in which the individual was previously

admitted and not subsequently reinstated. However, if an individual remains suspended in a

jurisdiction on grounds solely derivative of suspension or disbarment in another jurisdiction to

which he or she has been subsequently reinstated, the General Counsel or his or her designee

may evaluate the facts and grant or reinstate accreditation as appropriate.

(6)After an affirmative determination of character and fitness for practice before the

Department, applicants for accreditation as a claims agent must achieve a score of 75 percent

or more on a written examination administered by VA as a prerequisite to accreditation. No

applicant shall be allowed to sit for the examination more than twice in any 6-month period.

(c) Representation by Attorneys, Law Firms, Law Students and Paralegals.

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38 CFR 14.629

(1 )After accreditation by the Office of the General Counsel, an attorney may represent a claimant

upon submission of a VA Form 21-22a, "Appointment of Attorney or Agent as Claimant's

Representative."

(2)If the claimant consents in writing, an attorney associated or affiliated with the claimant's

attorney of record or employed by the same legal services office as the attorney of record may

assist in the representation of the claimant.

(3)A legal intern, law student, or paralegal may not be independently accredited to represent

claimants under this paragraph. A legal intern, law student, or certified paralegal may assist in the

preparation, presentation, or prosecution of a claim, under the direct supervision of an attorney of

record designated under§ 14.631(a), if the claimant's written consent is furnished to VA. Such

consent must specifically state that participation in all aspects of the claim by a legal intern, law

student, or paralegal furnishing written authorization from the attorney of record is authorized. In

addition, suitable authorization for access to the claimant's records must be provided in order for

such an individual to participate. The supervising attorney must be present at any hearing in which

a legal intern, law student, or paralegal participates. The written consent must include the name of

the veteran, or the name of the appellant if other than the veteran (e.g., a veteran's survivor, a

guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf); the applicable

VA file number; the name of the attorney-at-law; the consent of the appellant for the use of the

services of legal interns, law students, or paralegals and for such individuals to have access to

applicable VA records; and the names of the legal interns, law students, or paralegals who will be

assisting in the case. The signed consent must be submitted to the agency of original jurisdiction

and maintained in the claimant's file. In the case of appeals before the Board in Washington, DC,

the signed consent must be submitted to: Director, Office of Management, Planning and Analysis

(014), Board of Veterans' Appeals, P.O. Box 27063, Washington, DC 20038. In the case of

hearings before a Member or Members of the Board at VA field facilities, the consent must be

presented to the presiding Member of the hearing.

(4)Unless revoked by the claimant, consent provided under paragraph (c)(2) or paragraph (c)(3) of

this section shall remain effective in the event the claimant's original attorney is replaced as

attorney of record by another member of the same law firm or an attorney employed by the same

legal services office.

Note to § 14.629: A legal intern, law student, paralegal, or veterans service organization support-staff

person, working under the supervision of an individual designated under § 14.631 (a) as the claimant's

representative, attorney, or agent, may qualify for read-only access to pertinent Veterans Benefits

Administration automated claims records as described in §§ 1.600 through 1.603 in part 1 of this chapter.

(Authority: 38 U.S.C. 501(a), 5904)

(The Office of Management and Budget has approved the information collection requirements in this

section under control numbers 2900-0018 and 2900-0605.)

Statutory Authority

AUTHORITY NOTE APPLICABLE TO ENTIRE PART:

5 U.S.C. 301; 28 U.S.C. 2671-2680; 38 U.S.C. 501(a), 512, 515, 5502, 5901-5905; 28 CFR part 14, appendix to

part 14.

History

Page 5 of 7

38 CFR 14.629

[53 FR 52421, Dec. 28, 1988, as amended at 55 FR 38057, Sept. 17, 1990; 61 FR 7215, 7216, Feb. 27, 1996; 68

FR 8541, 8545, Feb. 24, 2003; 71 FR 28585, 28586, May 17, 2006; 72 FR 58009, 58012, Oct. 12, 2007; 73 FR

29852, 29871, May 22, 2008; 81 FR 32648. 32649, May 24, 2016; 82 FR 6265, 6272, Jan. 19, 2017; 82 FR 11151,

Feb. 21, 2017; 82 FR 26751, 26753, June 9, 2017]

Annotations

Notes

[EFFECTIVE DATE NOTE:

72 FR 58009, 58012, Oct. 12, 2007, revised the introductory text of paragraph (a), effective Jan. 10, 2008; 73 FR

29852, 29871, May 22, 2008, amended this section, effective June 23, 2008. For compliance date information, see

73 FR 29852, May 22, 2008; 81 FR 32648, 32649, May 24, 2016, revised the eighth sentence of paragraph (c)(3),

effective May 24, 2016; 82 FR 6265, 6272, Jan. 19, 2017, amended this section, effective Feb. 21, 2017; 82 FR

11151, Feb. 21, 2017, provides: "The effective date of the rule that published on January 19, 2017, at 82 FR 6265,

is delayed until March 21, 2017"; 82 FR 26751, 26753, June 9, 2017, amended this section, effective June 9, 2017.]

Case Notes

LexisNexis® Notes

Legal Ethics : Legal Services Marketing : Firm Letterhead & Names

Military & Veterans Law : Veterans : Benefits : Claim Procedures

Military & Veterans Law : Veterans : U.S. Board of Veterans Appeals

Military & Veterans Law : Veterans : U.S. Court of Appeals for Veterans Claims

Military & Veterans Law : Veterans : Veterans Affairs

Legal Ethics : Legal Services Marketing : Firm Letterhead & Names

Anderson v. West, 12 Vet. App. 491. 1999 U.S. App. Vet. Claims LEXIS 742 (July 27, 1999).

Overview: Appellant veteran was not awarded secondary service connection when he could not show that his

disability was proximately due to or the result of a service-connected disease or injury.

• 38 C.F.R. § 14. 629(c)(1 )requires that an attorney engaged by a claimant shall state in writing on his or her

letterhead that the attorney is authorized to represent the claimant in order to have access to information in

the claimant's file pertinent to the particular claim presented. Go To Headnote

• When the duly authorized representative is an attorney who seeks information pertinent only to the claim as to

which he is representing the claimant, that attorney must state in writing on his or her letterhead that the

attorney is authorized to represent the claimant. 38 C.F. R. § 14. 629(c)(1 ). Go To Headnote


Malik v. Peake, 22 Vet. App. 183. 2008 U.S. App. Vet. Claims LEXIS 765 (June 27, 2008).

Page 6 of 7

38 CFR 14.629

Overview: Appellant's request to stay a decision of the Secretary of Veterans Affairs revoking appellant's

accreditation to represent claimants in VA proceedings, pursuant to U.S. Ct. Vet. App. R. 8, was denied because

appellant had not shown a likelihood of success on the merits or irreparable harm if the stay was not granted.

• The right to represent claimants is permissible only with accreditation from VA, and such accreditation is

subject to good standing with VA. 38 U.S.C.S. §§ 5901, 5904; 38 C.F.R. § 14.629 (2007). Go To Headnote


El Malik v. Principi, 2002 U.S. App. Vet. Claims LEXIS 153 (Mar. 12, 2002) (Unpublished).

Overview: Board of Veterans Appeals was not included in VA regulations' accreditation scheme of representatives,

agents, and attorneys to represent veterans and had no authority to decide such issues, so instant court also lacked

jurisdiction.

• United States Department of Veterans Affairs (VA) regulations direct that issues concerning the qualifications

and accreditations of representatives, agents, and attorneys to represent veterans before the Board of

Veterans Appeals (BVA), as well as challenges to those qualifications and terminations or suspensions of

accreditation, be addressed exclusively before VA's regional and general counsels. 38 C.F.R. §§ 14.629

(2001), 14.632 (2001), and 14.633 (2001). Nowhere is the BVA included in the accreditation scheme, and

thus, it is without authority to decide such issues. Go To Headnote





jurisdiction.





(2001). 14.632 (2001). and 14.633 (2001). Nowhere is the BVA included in the accreditation scheme, and



Malik v. Peake, 22 Vet. App. 183, 2008 U.S. App. Vet. Claims LEXIS 765 (June 27, 2008).

Overview: Appellant's request to stay a decision of the Secretary of Veterans Affairs revoking appellant's

accreditation to represent claimants in VA proceedings, pursuant to U.S. Ct. Vet. App. R. 8, was denied because

appellant had not shown a likelihood of success on the merits or irreparable harm if the stay was not granted.

• The right to represent claimants is permissible only with accreditation from VA, and such accreditation is

subject to good standing with VA. 38 U.S.C.S. §§ 5901, 5904; 38 C.F.R. § 14.629 (2007). Go To Headnote

Bates v. Principi, 17 Vet. App. 443, 2004 U.S. App. Vet. Claims LEXIS 50 (Feb. 19, 2004).

Page 7 of 7

38 CFR 14.629

Overview: Secretary of Veterans Affairs' decision concerning petitioner's accreditation to practice before VA could

not have resulted in decision by BVA; therefore court had no jurisdiction to order Secretary to issue statement of the

case in the matter.

• The Secretary of Veterans Affairs is responsible for the recognition of representatives of organizations,

individual agents, and attorneys in the preparation, presentation, and prosecution of claims under laws

administered by the Secretary. 38 U.S. C.S. §§ 5902(a), 5903, 5904; 38 C.F.R. § 14.629 (2003) (providing

requirements for accreditation of representatives, agents, and attorneys). Furthermore, it is within the

Secretary's authority to suspend or exclude from further practice before the Department of Veterans Affairs

(VA) any agent or attorney who, inter alia, ( 1) has engaged in any unlawful, unprofessional, or dishonest

practice; or (5) has in any manner deceived, misled, or threatened any actual or prospective claimant. 38

U.S.C.S. § 5904(b)(1), (5). Go To Headnote




jurisdiction.




accreditation, be addressed exclusively before VA's regional and general counsels. 38 C.F. R. §§ 14.629

(200 1). 1 4.632 (2001). and 14. 633 (2001). Nowhere is the BVA included in the accreditation scheme, and


Anderson v. West. 12 Vet. App. 491. 1999 U.S. App. Vet. Claims LEXIS 742 (July 27, 1999).

Overview: Appellant veteran was not awarded secondary service connection when he could not show that his

disability was proximately due to or the result of a service-connected disease or injury.

• 38 C.F. R. § 14. 629(c)(1 )requires that an attorney engaged by a claimant shall state in writing on his or her

letterhead that the attorney is authorized to represent the claimant in order to have access to information in

the claimant's file pertinent to the particular claim presented. Go To Headnote

• When the duly authorized representative is an attorney who seeks information pertinent only to the claim as to

which he is representing the claimant, that attorney must state in writing on his or her letterhead that the

attorney is authorized to represent the claimant. 38 C.F. R. § 1 4. 629(c)(1 ). Go To Headnote

Research References & Practice Aids

NOTES APPLICABLE TO ENTIRE CHAPTER:

[PUBLISHER'S NOTE: Nomenclature changes to chapter I appear at 54 FR 34978, Aug. 23, 1989; 57 FR 31 006,

July 13, 1992; 57 FR 38606, Aug. 26, 1992; 57 FR 43616, Sept. 22, 1992; 64 FR 30244, June 7, 1999; 65 FR

1 544, 1545, Jan. 11, 2000; 66 FR 44052, 44053, Aug. 22, 2001; 66 FR 66763, 66767, Dec. 27, 2001; 67 FR 16023,

Apr. 4, 2002; 73 FR 79645, 79647, Dec. 30, 2008.]

LEXISN EXIS' CODE OF FEDERAL REG U LATIONS

Copyright © 20 1 7 , by Matthew Bender & Company, a member of the Lex isNex is Grou p . Al l r ights reserved .

End of Document

38 CFR 14.631










§ 14.631 Powers of attorney; disclosure of claimant information.

(a)A power of attorney, executed on either VA Form 21-22, "Appointment of Veterans Service Organization 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 veterans service

organization 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)ln 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 veterans service organization representative, agent, or attorney; and

(2)Shall be presented to the appropriate VA office for filing in the veteran's claims folder.

(b)VA may, for any purpose, treat a power of attorney naming as a claimant's representative an organization

recognized under § 14.628, a particular office of such an organization, or an individual representative of such

an organization as an appointment of the entire organization as the claimant's representative, unless the

claimant specifically indicates in the power of attorney a desire to appoint only the individual representative.

Such specific indication must be made in the space on the power-of-attorney form for designation of the

representative and must use the word "only" with reference to the individual representative.

(c)An organization, individual providing representation on a particular claim under § 14.630, representative,

agent, or attorney named in a power of attorney executed pursuant to paragraph (a) of this section may

withdraw from representation provided before a VA agency of original jurisdiction if such withdrawal would not

adversely impact the claimant's interests. This section is applicable until an agency of original jurisdiction

certifies an appeal to the Board of Veterans' Appeals after which time 38 CFR 20.608 governs withdrawal from

representation before the Board. Withdrawal is also permissible if a claimant persists in a course of action that

the organization or individual providing representation reasonably believes is fraudulent or criminal and is

furthered through the representation of the organization or individual; the claimant fails to uphold an obligation

Page 2 of 4

38 CFR 14.631

to the organization or individual providing representation regarding the services of the organization or individual;

or other good cause for withdrawal exists. An organization or individual providing representation withdraws from

representation by notifying the claimant, the VA organization in possession of the claims file, and the agency of

original jurisdiction in writing prior to taking any action to withdraw and takes steps necessary to protect the

claimant's interests including, but not limited to, giving advance notice to the claimant, allowing time for

appointment of alternative representation, and returning any documents provided by VA in the course of the

representation to the agency of original jurisdiction or pursuant to the claimant's instructions, to the organization

or individual substituted as the representative, agent, or attorney of record. Upon withdrawing from

representation, all property of the claimant must be returned to the claimant. If the claimant is unavailable, all

documents provided by VA for purposes of representation must be returned to the VA organization in

possession of the claims file. Any other property of the claimant must be maintained by the organization or

individual according to applicable law.

(d)Questions concerning the validity or effect of powers of attorney shall be referred to the appropriate District

Chief Counsel for initial determination. This determination may be appealed to the General Counsel.

(e)

(f)

(1 )Only one organization, representative, agent, or attorney will be recognized at one time in the

prosecution of a particular claim. Except as provided in § 14. 629(c) and paragraph (f)(2) of this section,

all transactions concerning the claim will be conducted exclusively with the recognized organization,

representative, agent, or attorney of record until notice of a change, if any, is received by the

appropriate office of VA.

(2)An organization named in a power of attorney executed in accordance with paragraph (a) of this

section may employ an attorney to represent a claimant in a particular claim. Unless the attorney is an

accredited representative of the organization, the written consent of the claimant shall be required.

(1 )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.

(2)If an agent or attorney limits the scope of his or her representation regarding a particular claim by so

indicating on VA Form 21-22a, or a claimant authorizes a person to provide representation in a

particular claim under § 14.630, such specific authority shall constitute a revocation of an existing

general power of attorney filed under paragraph (a) of this section only as it pertains to, and during the

pendency of, that particular claim. Following the final determination of such claim, the general power of

attorney shall remain in effect as to any new or reopened claim.

(g)lf a request to substitute is granted pursuant to 38 CFR 3.1010, then a new VA Form 21-22, "Appointment of

Veterans Service Organization as Claimant's Representative," or VA Form 21-22a, "Appointment of Individual

as Claimant's Representative, " under paragraph (a) of this section is required in order to represent the

substitute before VA. If the substitute desires representation on a one-time basis pursuant to § 14.630(a), a

statement signed by the person providing representation and the substitute that no compensation will be

charged or paid for the services is also required.


section under control number 2900-0321.)

Statutory Authority

(38 U.S.C. 501(a), 5121A, 5902, 5903, 5904)

History

Page 3 of 4

38 CFR 14.631

[43 FR 46535 -- 46537, Oct. 10, 1978, as amended at 53 FR 52421. Dec. 28, 1988; 61 FR 7215. 7216. Feb. 27,

1996; 68 FR 8541, 8546. Feb. 24, 2003; 73 FR 29852. 29873. May 22, 2008; 79 FR 52977. 52983. Sept. 5, 2014;

82 FR 26751. 26754. June 9, 2017]

Annotations

Notes


79 FR 52977, 52983, Sept. 5, 2014, added paragraph (g) and revised the authority citation, effective Oct. 6, 2014;

82 FR 26751, 26754. June 9, 2017, amended paragraph (d), effective June 9, 2017. ]

Case Notes

LexisNexis® Notes

Civil Procedure : Counsel : General Overview

Military & Veterans Law : Veterans : General Overview


Civil Procedure : Counsel : General Overview

Decarlo v. Nicholson, 21 Vet. App. 417, 2006 U.S. App. Vet. Claims LEXIS 977 (Sept. 29, 2006) (Unpublished).

Overview: Writ of mandamus would not issue under 28 U.S.C.S. § 1651(a), requiring VA to assign individual rather

than organization power of attorney codes when claimant indicated desire to be represented by individual within

organization under 38 U.S.C.S. § 5902(c)(1). Claimant did not show that he exhausted remedies by asking VA

regarding power of attorney.

• An entire service organization may be recognized as a claimant's representative unless the claimant has

specifically indicated a desire to appoint only a representative of that organization. 38 U.S.C.S. §

5902(c)(1); 38 C.F. R. § 14.631(c) (2006). Go To Headnote


Decarlo v. Nicholson, 21 Vet. App. 417, 2006 U.S. App. Vet. Claims LEXIS 977 (Sept. 29, 2006) (Unpublished).

Overview: Writ of mandamus would not issue under 28 U.S.C.S. § 1651(a), requiring VA to assign individual rather

than organization power of attorney codes when claimant indicated desire to be represented by individual within

organization under 38 U.S.C.S. § 5902(c)(1). Claimant did not show that he exhausted remedies by asking VA

regarding power of attorney.

Page 4 of 4

38 CFR 14.631

• An entire service organization may be recognized as a claimant's representative unless the claimant has

specifically indicated a desire to appoint only a representative of that organization. 38 U.S.C.S. §

5902(c)(1); 38 C.F.R. § 14.631(c) (2006). Go To Headnote


Evans v. Nicholson, 21 Vet. App. 426, 2006 U.S. App. Vet. Claims LEXIS 1134 (Oct. 20, 2006) (Unpublished).

Overview: Extraordinary relief in the nature of a writ of mandamus was not warranted to require VA to recognize an

individual of a service organization as a veteran's representative, since VA in fact recognized the individual even

though a VA database showed the organization itself as having the power of attorney for the veteran's claim.

• An entire service organization may be recognized as a veteran's representative unless the veteran specifically

indicates a desire to appoint only a representative of that organization. 38 U.S.C.S. § 5902(c)(1 ); 38 C.F.R.

§ 14.631(c) (2006). Go To Headnote

Townsend v. West, 1998 U.S. App. LEXIS 168 (Fed Cir Jan. 8, 1998).

Overview: The court of appeals could have only relied on matters that were relied on by the court of veterans

appeals, and where a claimant failed to raise any question as to the meaning of the pertinent statute the matter was

not relied on by the court.

• A notice of appeal rights must be served by the Board of Military Appeals on the named claimant in the case

and on any authorized representative designated by the claimant in the manner set forth in the applicable

regulations. 38 U.S.C.S. §§ 5902, 5903; 38 C.F.R. §§ 14.630, 14.631. Go To Headnote



[PUBLISHER'S NOTE: Nomenclature changes to chapter I appear at 54 FR 34978, Aug. 23, 1989; 57 FR 31006,


1544, 1545, Jan. 11, 2000; 66 FR 44052, 44053, Aug. 22, 2001; 66 FR 66763, 66767, Dec. 27, 2001; 67 FR 16023,

Apr. 4, 2002; 73 FR 79645. 79647. Dec. 30, 2008.)

LEXISNEXIS' CODE OF FEDERAL REGULATIONS

Copyright© 2017, by Matthew Bender & Company, a member of the LexisNexis Group. All rights reserved.

End of Document

38 CFR 14.632

This document is current through the November 6, 201 7 issue of the Federal Register. Pursuant to 82 FR 8346









§ 14.632 Standards of conduct for persons providing representation before

the Department

(a)

(1 )All persons acting on behalf of a claimant shall faithfully execute their duties as individuals providing

representation on a particular claim under§ 1 4.630, representatives, agents, or attorneys.

(2)AII individuals providing representation are required to be truthful in their dealings with claimants and

VA.

(b)An individual providing representation on a particular claim under § 1 4.630, representative, agent, or

attorney shall:

(1 )Provide claimants with competent representation before VA. Competent representation requires the

knowledge, skill, thoroughness, and preparation necessary for the representation. This includes

understanding the issues of fact and law relevant to the claim as well as the applicable provisions of

title 38, United States Code, and title 38, Code of Federal Regulations;

(2)Act with reasonable diligence and promptness in representing claimants. This includes responding

promptly to VA requests for information or assisting a claimant in responding promptly to VA requests

for information.

(c)An individual providing representation on a particular claim under § 14.630, representative, agent, or

attorney shall not:

(1 )Violate the standards of conduct as described in this section;

(2)Circumvent a rule of conduct through the actions of another;

(3)Engage in conduct involving fraud, deceit, misrepresentation, or dishonesty;

(4)Violate any of the provisions of title 38, United States Code, or title 38, Code of Federal Regulations;

(5)Enter into an agreement for, charge, solicit, or receive a fee that is clearly unreasonable or otherwise

prohibited by law or regulation;

(G)Solicit, receive, or enter into agreements for gifts related to representation provided before an

agency of original jurisdiction has issued a decision on a claim or claims and a Notice of Disagreement

has been filed with respect to that decision;

(7)Delay, without good cause, the processing of a claim at any stage of the administrative process;

Page 2 of 4

38 CFR 14.632

(8)Mislead, threaten, coerce, or deceive a claimant regarding benefits or other rights under programs

administered by VA;

(9)Engage in, or counsel or advise a claimant to engage in acts or behavior prejudicial to the fair and

orderly conduct of administrative proceedings before VA;

(10)Disclose, without the claimant's authorization, any information provided by VA for purposes of

representation; or

(11 )Engage in any other unlawful or unethical conduct.

(d)ln addition to complying with standards of conduct for practice before VA in paragraphs (a) through (c) of this

section, an attorney shall not, in providing representation to a claimant before VA, engage in behavior or

activities prohibited by the rules of professional conduct of any jurisdiction in which the attorney is licensed to

practice law.

Statutory Authority

(38 U.S.C. 501(a), 5902, 5904)

History

[53 FR 52422, Dec. 28, 1988; 61 FR 7215, 7216, Feb. 27, 1 996; 68 FR 8541, 8547, Feb. 24, 2003; 73 FR 29852,

29873, May 22, 2008]

Annotations

Notes


73 FR 29852, 29873, May 22, 2008, revised this section, effective June 23, 2008. For compliance date information,

see 73 FR 29852, May 22, 2008. ]

Case Notes

LexisNexis® Notes

Military & Veterans Law: Veterans : U.S. Board of Veterans Appeals

Military & Veterans Law: Veterans : U.S. Court of Appeals for Veterans Claims




Page 3 of 4

38 CFR 14.632



jurisdiction.











jurisdiction.




accreditation, be addressed exclusively before VA's regional and general counsels. 38 C. F.R. §§ 14.629

(2001), 14.632 (2001), and 14. 633 (2001). Nowhere is the BVA included in the accreditation scheme, and






jurisdiction.





(2001), 14.632 (2001), and 14. 633 (2001). Nowhere is the BVA included in the accreditation scheme, and







Apr. 4, 2002; 73 FR 79645, 79647, Dec. 30, 2008.]

Page 4 of 4

38 CFR 14.632



End of Document

38 CFR 14.633










§ 14.633 Termination of accreditation or authority to provide representation

under§ 14.630.

(a)Accreditation or authority to provide representation on a particular claim under § 14.630 may be suspended

or canceled at the request of an organization, individual providing representation under § 14.630,

representative, agent, or attorney. When an organization requests suspension or cancellation of the

accreditation of a representative due to misconduct or lack of competence on the part of the representative or

because the representative resigned to avoid suspension or cancellation of accreditation for misconduct or lack

of competence, the organization shall inform VA of the reason for the request for suspension or cancellation

and the facts and circumstances surrounding any incident that led to the request.

(b)Accreditation shall be canceled at such time as a determination is made by the General Counsel that any

requirement of§ 14.629 is no longer met by a representative, agent, or attorney.

(c)Accreditation or authority to provide representation on a particular claim shall be canceled when the General

Counsel finds, by clear and convincing evidence, one or more of the following:

(1 )Violation of or refusal to comply with the laws administered by VA or with the regulations governing

practice before VA including the standards of conduct in§ 14.632;

(2)Knowingly presenting or prosecuting a fraudulent claim against the United States, or knowingly

providing false information to the United States;

(3)Demanding or accepting unlawful compensation for preparing, presenting, prosecuting, or advising

or consulting, concerning a claim;

(4)Knowingly presenting to VA a frivolous claim, issue, or argument. A claim, issue, or argument is

frivolous if the individual providing representation under § 14.630, representative, agent, or attorney is

unable to make a good faith argument on the merits of the position taken or to support the position

taken by a good faith argument for an extension, modification, or reversal of existing law;

(5)Suspension or disbarment by any court, bar, or Federal or State agency to which such individual

providing representation under§ 14.630, representative, agent, or attorney was previously admitted to

practice, or disqualification from participating in or appearing before any court, bar, or Federal or State

agency and lack of subsequent reinstatement;

(6)Charging excessive or unreasonable fees for representation as determined by VA, the Court of

Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit; or

Page 2 of 9

38 CFR 14.633

(7)Any other unlawful or unethical practice adversely affecting an individual's fitness for practice before

VA.

(d)Accreditation or authority to provide representation on a particular claim shall be canceled when the General

Counsel finds that the performance of an individual providing representation under § 14.630, representative,

agent, or attorney before VA demonstrates a lack of the degree of competence necessary to adequately

prepare, present, and prosecute claims for veteran's benefits. A determination that the performance of an

individual providing representation under§ 14.630, representative, agent, or attorney before VA demonstrates a

lack of the degree of competence required to represent claimants before VA wil l be based upon consideration

of the following factors:

(1 )The relative complexity and specialized nature of the matter;

(2)The individual's general experience;

(3)The individual's training and experience; and

(4)The preparation and study the individual is able to give veterans benefits matters and whether it is

feasible to refer such matters to, or associate or consult with, an individual of established competence

in the field of practice.

(e)As to cancellation of accreditation under paragraphs (c) or (d) of this section, upon receipt of credible written

information from any source indicating improper conduct, or incompetence, the Chief Counsel with subject

matter jurisdiction shall inform the subject of the allegations about the specific law, regulation, or policy alleged

to have been violated or the nature of the alleged incompetence and the source of the complaint, and shall

provide the subject with the opportunity to respond. If the matter involves an accredited representative of a

recognized organization, the notice shall include contact with the representative's organization. When

appropriate, including situations where no harm results to the claimant or VA, the Chief Counsel will provide the

subject with an opportunity to correct the offending behavior before deciding whether to proceed with a formal

inquiry. If the subject refuses to comply and the matter remains unresolved, or the behavior subsequently

results in harm to a claimant or VA, the Chief Counsel shal l immediately initiate a formal inquiry into the matter.

(1 )1f the result of the inquiry does not justify further action, the Chief Counsel will close the inquiry and

maintain the record for 3 years.

(2)1f the result of the inquiry justifies further action, the Chief Counsel shall:

(i)lnform the General Counsel of the result of the inquiry and notify the individual providing

representation under§ 14.630, representative, agent or attorney of an intent to cancel accreditation

or authority to provide representation on a particular claim. The notice will be sent to individuals

providing representation on a particular claim by certified or registered mail to the individual's last

known address of record as indicated on the VA Form 21-22a on file with the agency of original

jurisdiction. The notice will be sent to accredited individuals by certified or registered mail to the

individual's last known address of record as indicated in VA's accreditation records. The notice will

state the reason(s) for the cancellation proceeding and advise the individual to file an answer, in

oath or affidavit form or the form specified for unsworn declarations under penalty of perjury in 28

U.S.C. 1746. within 30 days from the date the notice was mailed, responding to the stated reasons

for cancellation and explaining why he or she should not be suspended or excluded from practice

before VA. The notice will also advise the individual of the right to submit additional evidence and

the right to request a hearing on the matter. Requests for hearings must be made in the answer. If

the individual does not file an answer with the Office of the General Counsel within 30 days of the

date that the Chief Counsel mailed the notice, the Chief Counsel shall close the record and forward

it with a recommendation to the General Counsel for a final decision.

(ii)ln the event that a hearing is not requested, the Chief Counsel shall close the record and

forward it with a recommendation to the General Counsel for a final decision.

(iii)The Chief Counsel may extend the time to file an answer or request a hearing for a reasonable

period upon a showing of sufficient cause.

Page 3 of 9

38 CFR 14.633

(iv)For purposes of computing time for responses to notices of intent to cancel accreditation, days

means calendar days. In computing the time for filing this response, the date on which the notice

was mailed by the Chief Counsel shall be excluded. A response postmarked prior to the expiration

of the 30th day shall be accepted as timely filed. If the 30th day falls on a weekend or legal holiday,

the first business day thereafter shall be included in the computation. As used in this section, legal

holiday means New Year's Day, Birthday of Martin Luther King, Jr., Washington's Birthday,

Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day,

Christmas Day, and any other day appointed as a holiday by the President or the Congress of the

United States, or by the State in which the individual resides.

(f)lf a hearing is requested, it will be held at the VA Regional Office nearest the individual's principal place of

business. If the individual's principal place of business is Washington, DC, the hearing wil l be held at the VA

Central Office or other VA facility in Washington, DC. For hearings conducted at either location, the Chief

Counsel with subject-matter jurisdiction shall present the evidence. The hearing officer shall not report, directly

or indirectly to, or be employed by the General Counsel or the head of the VA agency of original jurisdiction

before which the individual provided representation. The hearing officer shall provide notice of the hearing to

the individual providing representation under § 14.630, representative, agent, or attorney by certified or

registered mail at least 21 days before the date of the hearing. Hearings shall not be scheduled before the

completion of the 30-day period for filing an answer to the notice of intent to cancel accreditation. The hearing

officer will have authority to administer oaths. The party requesting the hearing will have a right to counsel, to

present evidence, and to cross-examine witnesses. Upon request of the individual requesting the hearing, an

appropriate VA official designated in § 2.1 of this chapter may issue subpoenas to compel the attendance of

witnesses and the production of documents necessary for a fair hearing. The hearing shall be conducted in an

informal manner and court rules of evidence shall not apply. Testimony shall be recorded verbatim. The

evidentiary record shall be closed 10 days after the completion of the hearing. The hearing officer shall submit

the entire hearing transcript, any pertinent records or information, and a recommended finding to the Chief

Counsel within 30 days of closing the record. The Chief Counsel shall immediately forward the record and the

hearing officer's recommendation to the General Counsel for a final decision.

(g)The General Counsel may suspend the accreditation of a representative, agent, or attorney, under

paragraphs (b), (c), or (d) of this section, for a definite period or until the conditions for reinstatement specified

by the General Counsel are satisfied. The General Counsel shall reinstate an individual's accreditation at the

end of the suspension period or upon verification that the individual has satisfied the conditions for

reinstatement.

(h)The decision of the General Counsel is a final adjudicative determination of an agency of original jurisdiction

and may be appealed to the Board of Veterans' Appeals. The effective date for cancellation of accreditation or

authority to provide representation on a particular claim shall be the date upon which the General Counsel's

final decision is rendered. Notwithstanding provisions in this section for closing the record at the end of the 30-

day period for filing an answer or 10 days after a hearing, appeals shall be initiated and processed using the

procedures in 38 CFR parts 19 and 20. Nothing in this section shall be construed to limit the Board's authority

to remand a matter to the General Counsel under 38 CFR 19.9 for any action that is essential for a proper

appellate decision or the General Counsel's ability to issue a Supplemental Statement of the Case under 38

CFR 19.31.

(i)ln cases where the accreditation of an agent or attorney is cancelled, the Office of the General Counsel may

notify all agencies, courts, and bars to which the agent or attorney is admitted to practice.

(The Office of Management and Budget has approved the information collections requirements in this

section control number 2900-0018.)

Statutory Authority

(38 U.S.C. 501, 5902, 5904)

Page 4 of 9

38 CFR 14.633

History

[53 FR 52422. Dec. 28, 1988; 61 FR 7215, 7216, Feb. 27, 1996; 72 FR 58009, 58012. Oct. 12, 2007; 73 FR 29852.

29874. May 22, 2008; 82 FR 26751, 26754, June 9, 2017]

Annotations

Notes


72 FR 58009, 58012. Oct. 12, 2007, amended this section, effective Jan. 10, 2008; 73 FR 29852, 29874, May 22,

2008, amended this section, effective June 23, 2008. For compliance date information, see 73 FR 29852, May 22,

2008; 82 FR 26751, 26754, June 9, 2017, amended this section, effective June 9, 2017.]

Case Notes

LexisNexis® Notes

Administrative Law : Agency Adjudication : Hearings : General Overview

Administrative Law : Agency Adjudication : Presiding Officers : Administrative Law Judges

Business & Corporate Law: Agency Relationships : Terminations : General Overview

Legal Ethics : Client Relations : Attorney Fees : Fee Agreements





Administrative Law : Agency Adjudication : Hearings : General Overview

Malik v. Shinseki, 2009 U.S. App. Vet. Claims LEXIS 787 (May 4, 2009), affirmed by 374 Fed. Appx. 980, 2010 U.S.

App. LEXIS 9375 (Fed. Cir. 2010).

Overview: BVA properly affirmed termination of agent's accreditation under 38 U.S.C.S. § 5904 to represent

claimants because agent failed to show that he was denied due process. He was given hearing, hearing officer was

not from Regional Counsel's office, and VA General Counsel investigated and issued decision in accordance with

regulations.

• The plain language of 38 C.F.R. § 14.633(() imposes the restrictions that the Secretary of Veterans Affairs

must not appoint a hearing officer from the Office of the Regional Counsel, that the hearing officer must

have the authority to administer oaths, and that it imposes no other limitation on who the Secretary may

appoint to serve as a hearing officer. 38 C.F.R. § 14.633(f) (2007). The restriction imposed by the

regulation is in place to avoid the possible appearance of impropriety and bias in a Federal Agency's

policing of the behavior of professionals practicing before it. Go To Headnote

Page 5 of 9

38 CFR 14.633

Administrative Law : Agency Adjudication : Presiding Officers : Administrative Law Judges






regulations.

• The plain language of 38 C.F.R. § 14.633(() imposes the restrictions that the Secretary of Veterans Affairs






El Malik v. Shinseki. 2009 U. S. App. Vet. Claims LEXIS 307 (Mar. 10, 2009).

Overview: BVA decision that affirmed the VA General Counsel's termination of appellant's accreditation as an

agent to represent claimants before the VA Secretary was affirmed because, inter alia, the record did not support

the agent's contention that the Board clearly erred in its finding that he knowingly presented false information to the

Secretary.

• The plain language of 38 C.F.R. § 14.633(f) (2007) imposes the restrictions that the Secretary of Veterans

Affairs must not appoint a hearing officer from the Office of the Regional Counsel, that the hearing officer

must have the authority to administer oaths, and that it imposes no other limitation on who the Secretary

may appoint to serve as a hearing officer. 38 C.F.R. § 14.633(() (2007). The comments to 38 C.F.R. §

14.633 (2007) indicate that the restriction imposed by the regulation is in place to avoid the possible

appearance of impropriety and bias in a Federal Agency's pol icing of the behavior of professionals

practicing before it. Go To Headnote

Business & Corporate Law : Agency Relationships : Terminations : General Overview

Bates v. Principi, 17 Vet. App. 443. 2004 U.S. App. Vet. Claims LEXIS 50 (Feb. 19, 2004).


not have resulted in decision by B VA; therefore court had no jurisdiction to order Secretary to issue statement of the

case in the matter.

• The Secretary of Veterans Affairs has broad authority under 38 U.S.C.S. § 5904(a) and (b) to regulate

representational activities by attorneys in connection with recognizing them for claims representation

before the Department of Veterans Affairs (VA) and suspending them from such practice for engaging in

certain specified conduct (including violation of any laws administered by the VA). This authority clearly

permits the VA to require an agent or attorney to satisfy certain basic statutory qualifications (e.g. , good

moral character, training, and competence) and further permits the Secretary to require an agent or

attorney to agree to follow the law governing representation, including suspension and termination of

accreditation. § 5904(a), (b). The Secretary has promulgated regulations governing the termination of

accreditation of agents and attorneys; these regulations include the right to notice and a hearing. 38 C.F.R.

§ 14.633 (2003). The record in such matters is forwarded to the Department of Veterans Affairs General

Counsel for a decision, and those decisions are final. 38 C.F.R. § 14.633((), (g). Go To Headnote

38 CFR 14.633

Legal Ethics : Client Relations : Attorney Fees : Fee Agreements


Page 6 of 9


not have resulted in decision by BVA; therefore court had no jurisdiction to order Secretary to issue statement of the

case in the matter.

• Pursuant to 38 U.S.C.S. § 5904, the Board of Veterans' Appeals (BVA) has limited jurisdiction to review the

reasonableness of a fee and to reduce the fee. § 5904(c)(2). The United States Court of Appeals for

Veterans Claims' jurisdiction un der the provisions of § 5904 is strictly limited to review of BVA decisions

regarding fee agreements. There is no concomitant statutory or regulatory basis for the BVA or the court to

review an attorney's accreditation or termination of accreditation. Rather, by regulation, the Secretary of

Veterans Affairs has delegated to the Department of Veterans Affairs General Counsel the authority to

terminate an accreditation. 38 C.F.R. § 14.633(g). Nowhere is the BVA included in this scheme. Go To

Headnote


El Malik v. Shinseki, 2009 U.S. App. Vet. Claims LEXIS 307 (Mar. 10, 2009).

Overview: BVA decision that affirmed the VA General Counsel's termination of appellant's accreditation as an

agent to represent claimants before the VA Secretary was affirmed because, inter alia, the record did not support

the agent's contention that the Board clearly erred in its finding that he knowingly presented false information to the

Secretary.

• The plain language of 38 C.F. R. § 14.633(() (2007) imposes the restrictions that the Secretary of Veterans

Affairs must not appoint a hearing officer from the Office of the Regional Counsel, that the hearing officer

must have the authority to administer oaths, and that it imposes no other limitation on who the Secretary

may appoint to serve as a hearing officer. 38 C. F. R. § 14. 633(f) (2007) . The comments to 38 C. F. R. §

14. 633 (2007) indicate that the restriction imposed by the regulation is in place to avoid the possible

appearance of impropriety and bias in a Federal Agency's pol icing of the behavior of professionals

practicing before it. Go To Headnote

Military & Veterans Law : Veterans : U .S . Board of Veterans Appeals

El Malik v. Principi, 2002 U.S. App. Vet. Claims LEXIS 1 53 (Mar. 12, 2002) (Unpublished).



jurisdiction.

• Un ited States Department of Veterans Affairs (VA) regulations direct that issues concerning the qualifications



accreditation, be addressed exclusively before VA's regional and general counsels. 38 C. F. R. §§ 14. 629

(2001). 14.632 (2001). and 14.633 (2001). Nowhere is the BVA included in the accreditation scheme, and


Military & Veterans Law : Veterans : U .S . Court of Appeals for Veterans Claims


Page 7 of 9

38 CFR 14.633

Overview: Secretary of Veterans Affairs' decision concerning petitioner 's accreditation to practice before VA could


case in the matter.





permits the VA to require an agent or attorney to satisfy certain basic statutory qualifications (e.g., good




accreditation of agents and attorneys; these regulations include the right to notice and a hearing. 38 C. F. R.

§ 14. 633 (2003). The record in such matters is forwarded to the Department of Veterans Affairs General

Counsel for a decision, and those decisions are final. 38 C. F. R. § 14. 633(f), (g) . Go To Headnote

• Pursuant to 38 U.S.C.S. § 5904. the Board of Veterans' Appeals (BVA) has limited jurisdiction to review the


Veterans Claims' jurisdiction under the provisions of§ 5904 is strictly l imited to review of BVA decisions





Headnote

El Malik v. Principi. 2002 U.S. App. Vet. Claims LEXIS 153 (Mar. 12, 2002) (Unpublished).



jurisdiction.





(200 1), 14.632 (2001), and 14.633 (2001). Nowhere is the BVA included in the accreditation scheme, and








regulations.

• The plain language of 38 C.F.R. § 14.633(f) imposes the restrictions that the Secretary of Veterans Affairs




Page 8 of 9

38 CFR 14.633




Overview: Secretary of Veterans Affairs' decision concerning petitioner 's accreditation to practice before VA could


case in the matter.





permits the VA to require an agent or attorney to satisfy certain basic statutory qualifications (e.g., good




accreditation of agents and attorneys; these regulations include the right to notice and a hearing. 38 C.F.R.

§ 14.633 (2003). The record in such matters is forwarded to the Department of Veterans Affairs General

Counsel for a decision, and those decisions are final. 38 C.F.R. § 14.633(f), (g). Go To Headnote

• Pursuant to 38 U.S.C.S. § 5904. the Board of Veterans' Appeals (BVA) has limited jurisdiction to review the


Veterans Claims' jurisdiction under the provisions of§ 5904 is strictly limited to review of BVA decisions





Headnote

El Malik v. Principi. 2002 U.S. App. Vet. Claims LEXIS 153 (Mar. 12, 2002) (Unpublished).



jurisdiction.




accreditation, be addressed exclusively before VA's regional and general counsels. 38 C.F.R. §§ 14. 629


thus, it is wi thout authority to decide such issues. Go To Headnote



[PUBL ISHER'S NOTE : Nomenclature changes to chapter I appear at 54 FR 34978, Aug. 23, 1989; 57 FR 31006,



Apr. 4, 2002; 73 FR 79645, 79647, Dec. 30, 2008.)

Page 9 of 9

38 CFR 14.633

LEXISN EXIS' CODE OF FEDERAL REG U LATIONS

Copyright © 20 1 7 , by Matthew Bender & Company, a member of the Lex isNex is Group . Al l rights reserved .

End of Document

38 CFR 14.636










§ 14.636. Payment of fees for representation by agents and attorneys in

proceedings before Agencies of Original Jurisdiction and before the Board

of Veterans' Appeals.

(a)Applicability of rule. The provisions of this section apply to the services of accredited agents and attorneys

with respect to benefits under laws administered by VA in all proceedings before the agency of original

jurisdiction or before the Board of Veterans' Appeals regardless of whether an appeal has been initiated.

(b)Who may charge fees for representation. Only accredited agents and attorneys may receive fees from

claimants or appellants for their services provided in connection with representation. Recognized organizations

(including their accredited representatives when acting as such) and individuals recognized under§ 14.630 of

this part are not permitted to receive fees. An agent or attorney who may also be an accredited representative

of a recognized organization may not receive such fees unless he or she has been properly designated as an

agent or attorney in accordance with § 14.631 of this part in his or her individual capacity as an accredited

agent or attorney.

(c)Circumstances under which fees may be charged. Except as noted in paragraph (c)(2) and in paragraph (d)

of this section, agents and attorneys may charge claimants or appellants for representation provided: after an

agency of original jurisdiction has issued a decision on a claim or claims, including any claim to reopen under

38 CFR 3. 156 or for an increase in rate of a benefit; a Notice of Disagreement has been filed with respect to

that decision on or after June 20, 2007; and the agent or attorney has complied with the power of attorney

requirements in § 14.631 and the fee agreement requirements in paragraph (g) of this section.

(1 )Agents and attorneys may charge fees for representation provided with respect to a request for

revision of a decision of an agency of original jurisdiction under 38 U.S.C. 5109A or the Board of

Veterans' Appeals under 38 U.S. C. 7111 based on clear and unmistakable error if a Notice of

Disagreement was filed with respect to the challenged decision on or after June 20, 2007, and the

agent or attorney has complied with the power of attorney requirements in § 14.631 and the fee

agreement requirements in paragraph (g) of this section.

(2)In cases in which a Notice of Disagreement was filed on or before June 19, 2007, agents and

attorneys may charge fees only for services provided after both of the following conditions have been

met:

(i)A final decision was promulgated by the Board with respect to the issue, or issues, involved in

the appeal; and

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38 CFR 14.636

(ii)The agent or attorney was retained not later than 1 year following the date that the decision by

the Board was promulgated. (This condition will be considered to have been met with respect to all

successor agents or attorneys acting in the continuous prosecution of the same matter if a

predecessor was retained within the required time period.)

(3)Except as noted in paragraph (i) of this section and § 14.637(d), the agency of original jurisdiction

that issued the decision identified in a Notice of Disagreement shall determine whether an agent or

attorney is eligible for fees under this section. The agency of original jurisdiction's eligibility

determination is a final adjudicative action and may be appealed to the Board.

(d)Exceptions --(1) Chapter 37 loans. With respect to services of agents and attorneys provided after October

9, 1992, a reasonable fee may be charged or paid in connection with any proceeding in a case arising out of a

loan made, guaranteed, or insured under chapter 37, United States Code, even though the conditions set forth

in paragraph (c) of this section are not met.

(2) Payment of fee by disinterested third party.

(i)An agent or attorney may receive a fee or salary from an organization, governmental entity, or

other disinterested third party for representation of a claimant or appellant even though the

conditions set forth in paragraph (c) of this section have not been met. An organization,

governmental entity, or other third party is considered disinterested only if the entity or individual

does not stand to benefit financially from the successful outcome of the claim. In no such case may

the attorney or agent charge a fee which is contingent, in whole or in part, on whether the matter is

resolved in a manner favorable to the claimant or appellant.

(ii)For purposes of this part, a person shall be presumed not to be disinterested if that person is the

spouse, child, or parent of the claimant or appellant, or if that person resides with the claimant or

appellant. This presumption may be rebutted by clear and convincing evidence that the person in

question has no financial interest in the success of the claim.

(iii)The provisions of paragraph (g) of this section (relating to fee agreements) shall apply to all

payments or agreements to pay involving disinterested third parties. In addition, the agreement

shall include or be accompanied by the following statement, signed by the attorney or agent: "I

certify that no agreement, oral or otherwise, exists under which the claimant or appellant will

provide anything of value to the third-party payer in this case in return for payment of my fee or

salary, including, but not limited to, reimbursement of any fees paid."

(e)Fees permitted. Fees permitted for services of an agent or attorney admitted to practice before VA must be

reasonable. They may be based on a fixed fee, hourly rate, a percentage of benefits recovered, or a

combination of such bases. Factors considered in determining whether fees are reasonable include:

(1 )The extent and type of services the representative performed;

(2)The complexity of the case;

(3)The level of skill and competence required of the representative in giving the services;

(4)The amount of time the representative spent on the case;

(5)The results the representative achieved, including the amount of any benefits recovered;

(6)The level of review to which the claim was taken and the level of the review at which the

representative was retained;

(7)Rates charged by other representatives for similar services; and

(8)Whether, and to what extent, the payment of fees is contingent upon the results achieved.

(f)Presumptions. Fees which do not exceed 20 percent of any past-due benefits awarded as defined in

paragraph (h)(3) of this section shall be presumed to be reasonable. Fees which exceed 33 1 /3 percent of any

past-due benefits awarded shall be presumed to be unreasonable. These presumptions may be rebutted

through an examination of the factors in paragraph (e) of this section establishing that there is clear and

Page 3 of 11

38 CFR 14.636

convincing evidence that a fee which does not exceed 20 percent of any past-due benefits awarded is not

reasonable or that a fee which exceeds 33 1 /3 percent is reasonable in a specific circumstance.

(g)Fee agreements. All agreements for the payment of fees for services of agents and attorneys (including

agreements involving fees or salary paid by an organization, governmental entity or other disinterested third

party) must be in writing and signed by both the claimant or appellant and the agent or attorney.

(1 )To be valid, a fee agreement must include the following:

(i)The name of the veteran,

(ii)The name of the claimant or appellant if other than the veteran,

(iii)The name of any disinterested third-party payer (see paragraph (d)(2) of this section) and the

relationship between the third-party payer and the veteran, claimant, or appellant,

(iv)The applicable VA file number, and

(v)The specific terms under which the amount to be paid for the services of the attorney or agent

will be determined.

(2)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.

(3)A copy of a direct-pay fee agreement, as defined in paragraph (g)(2) of this section, must be filed

with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that

is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of

its execution by mailing the copy to the following address: Office of the General Counsel (022D),

Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420. Only fee

agreements that do not provide for the direct payment of fees, documents related to review of fees

under paragraph (i) of this section, and documents related to review of expenses under§ 14.637, may

be filed with the Office of the General Counsel. All documents relating to the adjudication of a claim for

VA benefits, including any correspondence, evidence, or argument, must be filed with the agency of

original jurisdiction, Board of Veterans' Appeals, or other VA office as appropriate.

(h)Payment of fees by Department of Veterans Affairs directly to an agent or attorney from past-due benefits.

(1) Subject to the requirements of the other paragraphs of this section, including paragraphs (c) and (e), the

claimant or appellant and an agent or attorney may enter into a fee agreement providing that payment for the

services of the agent or attorney will be made directly to the agent or attorney by VA out of any past-due

benefits awarded in any proceeding before VA or the United States Court of Appeals for Veterans Claims. VA

will charge and collect an assessment out of the fees paid directly to agents or attorneys from past-due benefits

awarded. The amount of such assessment shall be equal to five percent of the amount of the fee required to be

paid to the agent or attorney, but in no event shall the assessment exceed $ 100. Such an agreement will be

honored by VA only if the following conditions are met:

(i)The total fee payable (excluding expenses) does not exceed 20 percent of the total amount of the

past-due benefits awarded,

(ii)The amount of the fee is contingent on whether or not the claim is resolved in a manner favorable to

the claimant or appellant, and

(iii)The award of past-due benefits results in a cash payment to a claimant or an appellant from which

the fee may be deducted. (An award of past-due benefits will not always result in a cash payment to a

claimant or an appellant. For example, no cash payment will be made to military retirees unless there is

a corresponding waiver of retirement pay. (See 38 U.S.C. 5304(a) and 38 CFR 3. 750)

Page 4 of 11

38 CFR 14.636

(2)For purposes of this paragraph (h), a claim will 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.

(3)For purposes of this paragraph (h), "past-due benefits" means a nonrecurring payment resulting

from a benefit, or benefits, granted on appeal or awarded on the basis of a claim reopened after a

denial by a VA agency of original jurisdiction or the Board of Veterans' Appeals or the lump sum

payment that represents the total amount of recurring cash payments that accrued between the

effective date of the award, as determined by applicable laws and regulations, and the date of the

grant of the benefit by the agency of original jurisdiction, the Board of Veterans' Appeals, or an

appellate court.

(i)When the benefit granted on appeal, or as the result of the reopened claim, is service

connection for a disability, the "past-due benefits" will be based on the initial disability rating

assigned by the agency of original jurisdiction 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 evaluation is subsequently granted as the result

of an appeal of the disability evaluation initially assigned by the agency of original jurisdiction,

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.

(ii)Unless otherwise provided in the fee agreement between the claimant or appellant and the

agent or attorney, the agent's or attorney's fees will be determined on the basis of the total

amount of the past-due benefits even though a portion of those benefits may have been

apportioned to the claimant's or appellant's dependents.

(iii)lf an award is made as the result of favorable action with respect to several issues, the past

due benefits will be calculated only on the basis of that portion of the award which results from

action taken on issues concerning which the criteria in paragraph (c) of this section have been

met.

(4)As required by paragraph (g)(3) of this section, the agent or attorney must file with the agency of

original jurisdiction within 30 days of the date of execution a copy of the agreement providing for

the direct payment of fees out of any benefits subsequently determined to be past due.

(i)Motion for review of fee agreement. Before the expiration of 120 days from the date of the final VA action, the

Office of the General Counsel may review a fee agreement between a claimant or appellant and an agent or

attorney upon its own motion or upon the motion of the claimant or appellant. The Office of the General

Counsel may order a reduction in the fee called for in the agreement if it finds by a preponderance of the

evidence, or by clear and convincing evidence in the case of a fee presumed reasonable under paragraph (f) of

this section, that the fee is unreasonable. The Office of the General Counsel may approve a fee presumed

unreasonable under paragraph (f) of this section if it finds by clear and convincing evidence that the fee is

reasonable. The Office of the General Counsel's review of the agreement under this paragraph will address the

issues of eligibility under paragraph (c) of this section and reasonableness under paragraph (e) of this section.

The Office of the General Counsel will limit its review and decision under this paragraph to the issue of

reasonableness if another agency of original jurisdiction has reviewed the agreement and made an eligibility

determination under paragraph (c) of this section. Motions for review of fee agreements must be in writing and

must include the name of the veteran, the name of the claimant or appellant if other than the veteran, and the

applicable VA file number. Such motions must set forth the reason, or reasons, why the fee called for in the

agreement is unreasonable and must be accompanied by all evidence the moving party desires to submit.

(1 )A claimant's or appellant's motion for review of a fee agreement must be served on the agent or

attorney and must be filed at the following address: Office of the General Counsel (022D), 810 Vermont

Avenue, NW., Washington, DC 20420. The agent or attorney may file a response to the motion, with

any relevant evidence, with the Office of the General Counsel not later than 30 days from the date on

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which the claimant or appellant served the motion on the agent or attorney. Such responses must be

served on the claimant or appellant. The claimant or appellant then has 15 days from the date on which

the agent or attorney served a response to file a reply with the Office of the General Counsel. Such

replies must be served on the agent or attorney.

(2)The Deputy Chief Counsel with subject-matter jurisdiction shall initiate the Office of the General

Counsel's review of a fee agreement on its own motion by serving the motion on the agent or attorney

and the claimant or appellant. The agent or attorney may file a response to the motion, with any

relevant evidence, with the Office of the General Counsel (022D), 810 Vermont Avenue, NW.,

Washington, DC 20420, not later than 30 days from the date on which the Office of the General

Counsel served the motion on the agent or attorney. Such responses must be served on the claimant

or appellant.

(3)The Office of the General Counsel shall close the record in proceedings to review fee agreements

15 days after the date on which the agent or attorney served a response on the claimant or appellant,

or 30 days after the claimant, appellant, or the Office of the General Counsel served the motion on the

agent or attorney if there is no response. The Deputy Chief Counsel with subject-matter jurisdiction

may, for a reasonable period upon a showing of sufficient cause, extend the time for an agent or

attorney to serve an answer or for a claimant or appellant to serve a reply. The Deputy Chief Counsel

shall forward the record and a recommendation to the General Counsel or his or her designee for a

final decision. Unless either party files a Notice of Disagreement with the Office of the General Counsel,

the attorney or agent must refund any excess payment to the claimant or appellant not later than the

expiration of the time within which the Office of the General Counsel's decision may be appealed to the

Board of Veterans' Appeals.

(j)ln addition to whatever other penalties may be prescribed by law or regulation, failure to comply with the

requirements of this section may result in proceedings under§ 14.633 of this chapter to terminate the agent's or

attorney's accreditation to practice before VA.

(k)Notwithstanding provisions in this section for closing the record at the end of the 30-day period for serving a

response or 15 days after the date on which the agent or attorney served a response, appeals shall be initiated

and processed using the procedures in 38 CFR Parts 19 and 20. Nothing in this section shall be construed to

limit the Board's authority to remand a matter to the General Counsel under 38 CFR 19.9 for any action that is

essential for a proper appellate decision or the General Counsel's ability to issue a Supplemental Statement of

the Case under 38 CFR 19.31.

(Authority: 38 U.S.C. 5902. 5904, 5905)



Statutory Authority



part 14.

History

[73 FR 29852, 29875, May 22, 2008; 80 FR 81191. 81193. Dec. 29, 2015; 82 FR 26751, 26754, June 9, 2017]

Page 6 of 11

38 CFR 14.636

Annotations

Notes


73 FR 29852, 29875, May 22, 2008, added this section, effective June 23, 2008. For compliance date information,

see 73 FR 29852, May 22, 2008; 80 FR 81191, 81193, Dec. 29, 2015, amended this section, effective December

29, 2015; 82 FR 26751, 26754, June 9, 2017, amended paragraph (i), effective June 9, 2017.]

Case Notes

LexisNexis® Notes

Civil Procedure : Remedies : Costs & Attorney Fees : Attorney Expenses & Fees : Reasonable Fees

Civil Procedure : Remedies : Costs & Attorney Fees : Attorney Expenses & Fees : Statutory Awards

Legal Ethics : Client Relations : Attorney Fees : Excessive Fees

Military & Veterans Law : Veterans : Benefits : General Overview


Military & Veterans Law : Veterans : Benefits : Disability Benefits

Military & Veterans Law : Veterans : Benefits : Eligibility & Payment



Civil Procedure : Remedies : Costs & Attorney Fees : Attorney Expenses & Fees : Reasonable Fees

Harvey v. Shinseki, 2009 U. S. App. Vet. Claims LEXIS 2285 (Dec. 30, 2009).

Overview: Award of 20 percent of past due benefits to a veteran's discharged attorney was improper where the BVA made no mention of the Scates factors or of 38 C.F. R. § 14. 636(e). The BVA's failure to follow a quantum meruit analysis rendered its statement of reasons and bases inadequate.

• In reviewing the fee of a discharged attorney for reasonableness, the Board of Veteran's Appeals must

consider both the Scates factors and the factors set forth in 38 C.F.R. § 14. 636(e) (2009) pertaining to

general fee reasonableness. Go To Headnote

Civil Procedure : Remedies : Costs & Attorney Fees : Attorney Expenses & Fees : Statutory Awards

Snyder v. Mansfield, 2007 U.S. App. Vet. Claims LEXIS 1573 (Oct. 12, 2007) (Unpublished).

Overview: Court set aside BVA decision that denied attorney fees from a past-due benefits payment for total

disability based on individual unemployment (TD/U) under 38 U.S.C.S. § 5904 because the record was inadequate for review on the issue of whether eligibility for a TD/U rating had been reasonably raised by the record before the Board.

Former 38 CFR 20.609 was redesignated. See now 38 CFR 14.636.

Page 7 of 11

38 CFR 14.636

• Because the issue of eligibility for total disability based on individual unemployment (TDIU) does not become

relevant until after service connection is granted, the issue, if previously raised, is inchoate and would

remain as an underlying issue until a final decision on the question of service connection is issued.

Eligibility for direct payment of attorneys fees would depend on whether the claim underlying the appeal to

the U.S. Court of Appeals for Veterans Claims included the TDIU issue. If eligibility for a TDIU rating was

reasonably raised by the evidence of record as part of the underlying claim for disability compensation

before VA, then the TDIU rating is part of the "initial rating" and, pursuant to 38 C.F. R. § 20.609(h)(3)(1), the

attorney would be entitled to payment by the Secretary of 20 percent of such award. Go To Headnote

Lippman v. Nicholson. 2007 U.S. App. Vet. Claims LEXIS 974 (June 4, 2007) (Unpublished).

Overview: Matter was remanded to the Board of Veterans' Appeals for readjudication because the Board needed to consider whether or not the attorney could recover a fee under the then applicable provisions of 38 U.S.C.S. §

5904 based upon the attorney's assertion that a claim for unemployability had been raised at that time.

Former 38 CFR 20. 609 was redesignated. See now 38 CFR 14. 636.

• Pursuant to the version of 38 U.S.C.S. § 5904(c)(1 ), in effect prior to June 20, 2007, a fee could not be

charged, allowed, or paid for services of agents or attorneys with respect to services provided before the

date on which the Board of Veterans' Appeals first makes a final decision in the case. Under 38 C. F. R. §

20. 609(c) , the implementing regulation for 38 U.S.C.S. § 5904(c)(1 ), then in effect, an attorney could

charge fees only if the following conditions have been met: (1) A final decision has been promulgated by

the Board with respect to the issue, or issues, involved; and (2) the attorney was retained not later than

one year following the date that the decision by the Board with respect to the issue, or issues involved was

promulgated. A finding of the Board with respect to a fee agreement is reviewable by the United States

Court of Appeals for Veterans Claims. 38 U.S.C.S. § 7263(d). Go To Headnote

Legal Ethics : Client Relations : Attorney Fees : Excessive Fees

Lippman v. Shinseki. 23 Vet. App. 243, 2009 U.S. App. Vet. Claims LEXIS 1670 (Sept. 22, 2009).

Overview: Veteran's former attorney, who was discharged after the veteran was awarded a disability rating, was improperly denied a fee based on a percentage of the veteran's past-due benefits awarded after the veteran obtained an increased rating since 38 C. F. R. § 14. 636(h) invalidly required continued representation by the attorney.

• 38 C. F. R. § 14. 636(h) (2008)permits a claimant to enter into a fee agreement with an attorney that provides

that payment for the attorney's services will be made to the attorney directly by VA out of any past-due

benefits awarded in any proceeding before VA or the U.S. Court of Appeals for Veterans Claims. §

14.636(h)(1). The fee agreement will be honored by VA only if (1) the total fee payable, excluding

expenses, does not exceed 20 percent of the past-due benefits awarded, (2) the amount of the fee is

contingent on whether or not the claim is resolved in a manner favorable to the claimant, and (3) the award

of past-due benefits results in a cash payment to the claimant from which the fee may be deducted. §

14.636(h)(1 )(i), (ii), (iii). Past-due benefits means a nonrecurring payment resulting from a benefit, or

benefits, granted on appeal. § 14.636(h)(3). When the benefit granted on appeal is service connection for a

disability, the past-due benefits will be based on the initial disability rating assigned by the agency of

original jurisdiction following the award of service connection. § 14.636(h)(3)(i). Where the initial disability

rating assigned is appealed and a higher initial disability rating is assigned, an attorney is entitled to a

supplemental payment based upon the increase granted on appeal, if the attorney represents the claimant

in that phase of the claim. Go To Headnote

Military & Veterans Law : Veterans : Benefits : General Overview

38 CFR 14.636

Lippman v. Shinseki. 23 Vet. App. 243. 2009 U.S. App. Vet. Claims LEXIS 1670 (Sept. 22, 2009).

Page 8 of 11


• VA regulations provide that VA will honor a fee agreement--that is, an attorney is entitled to direct payment of

attorney fees from past-due benefits awarded on the basis of the claim--when three conditions are met : (1)

the fee agreement provides that the total fee payable to the attorney is 20 percent or less of the total past

due benefits awarded; (2) the fee agreement provides that the amount of the fee to be paid is contingent

upon the claim being resolved in a manner favorable to the claimant; and (3) the award of past-due

benefits results in a cash payment to the claimant from which the fee may be deducted. 38 C.F. R. §

14.636(h)(1). Go To Headnote


Harvey v. Shinseki. 2009 U.S. App. Vet. Claims LEXIS 2285 (Dec. 30, 2009).

Overview: Award of 20 percent of past due benefits to a veteran's discharged attorney was improper where the BVA made no mention of the Scates factors or of 38 C.F. R. § 14. 636(e). The BVA's failure to follow a quantum meruit analysis rendered its statement of reasons and bases inadequate.

• In reviewing the fee of a discharged attorney for reasonableness, the Board of Veteran"s Appeals must

consider both the Scates factors and the factors set forth in 38 C.F.R. § 14. 636(e) (2009) pertaining to

general fee reasonableness. Go To Headnote

Lippman v. Shinseki. 23 Vet. App. 243, 2009 U.S. App. Vet. Claims LEXIS 1670 (Sept. 22, 2009).


• 38 C. F. R. § 14. 636(h) (2008)permits a claimant to enter into a fee agreement with an attorney that provides

that payment for the attorney's services will be made to the attorney directly by VA out of any past-due

benefits awarded in any proceeding before VA or the U.S. Court of Appeals for Veterans Claims. §

14.636(h)(1 ). The fee agreement will be honored by VA only if (1) the total fee payable, excluding

expenses, does not exceed 20 percent of the past-due benefits awarded, (2) the amount of the fee is

contingent on whether or not the claim is resolved in a manner favorable to the claimant, and (3) the award

of past-due benefits results in a cash payment to the claimant from which the fee may be deducted. §

14.636(h)(1 )(i), (ii), (iii). Past-due benefits means a nonrecurring payment resulting from a benefit, or

benefits, granted on appeal. § 14.636(h)(3). When the benefit granted on appeal is service connection for a

disability, the past-due benefits will be based on the initial disability rating assigned by the agency of

original jurisdiction following the award of service connection. § 14.636(h)(3)(i). Where the initial disability

rating assigned is appealed and a higher initial disability rating is assigned, an attorney is entitled to a

supplemental payment based upon the increase granted on appeal, if the attorney represents the claimant

in that phase of the claim. Go To Headnote

Snyder v. Mansfield. 2007 U.S. App. Vet. Claims LEXIS 1573 (Oct. 12, 2007) (Unpublished).

Overview: Court set aside BVA decision that denied attorney fees from a past-due benefits payment for total disability based on individual unemployment (TD/U) under 38 U.S.C.S. § 5904 because the record was inadequate

Page 9 of 11

38 CFR 14.636

for review on the issue of whether eligibility for a TD/U rating had been reasonably raised by the record before the Board.






the U. S. Court of Appeals for Veterans Claims included the TDIU issue. If eligibility for a TDIU rating was


before VA, then the TDIU rating is part of the "initial rating" and, pursuant to 38 C. F. R. § 20.609(h)(3)(!), the


Military & Veterans Law : Veterans : Benefits : Disability Benefits

Snyder v. Mansfield, 2007 U. S. App. Vet. Claims LEXIS 1573 (Oct. 12, 2007) (Unpublished).

Overview: Court set aside BVA decision that denied attorney fees from a past-due benefits payment for total disability based on individual unemployment (TD/U) under 38 U. S. C. S. § 5904 because the record was inadequate for review on the issue of whether eligibility for a TD/U rating had been reasonably raised by the record before the Board.

Former 38 CFR 20. 609 was redesignated. See now 38 CFR 14.636.







before VA, then the TDIU rating is part of the "initial rating" and, pursuant to 38 C. F. R. § 20.609(h)(3)(!), the


Military & Veterans Law : Veterans : Benefits : Eligibility & Payment

Lippman v . Nicholson. 2007 U. S. App. Vet. Claims LEXIS 974 (June 4, 2007) (Unpublished).

Overview: Matter was remanded to the Board of Veterans' Appeals for readjudication because the Board needed to consider whether or not the attorney could recover a fee under the then applicable provisions of 38 U. S. C. S. § 5904 based upon the attorney's assertion that a claim for unemployability had been raised at that time.


• Pursuant to the version of 38 U. S. C. S. § 5904(c)(1 ), in effect prior to June 20, 2007, a fee could not be


date on which the Board of Veterans' Appeals first makes a final decision in the case. Under 38 C. F. R. §

20.609(c), the implementing regulation for 38 U. S. C. S. § 5904(c)(1 ), then in effect, an attorney could




Page 10 of 11

38 CFR 14.636


Court of Appeals for Veterans Claims. 38 U. S. C. S. § 7263(d). Go To Headnote

Military & Veterans Law : Veterans : U .S. Board of Veterans Appeals

Lippman v. Nicholson. 2007 U. S. App. Vet. Claims LEXIS 974 (June 4, 2007) (Unpublished).

Overview: Matter was remanded to the Board of Veterans' Appeals for readjudication because the Board needed to consider whether or not the attorney could recover a fee under the then applicable provisions of 38 U. S.C. S. § 5904 based upon the attorney's assertion that a claim for unemployability had been raised at that time.


• Pursuant to the version of 38 U. S. C. S. § 5904(c)(1 ), in effect prior to June 20, 2007, a fee could not be


date on which the Board of Veterans' Appeals first makes a final decision in the case. Under 38 C. F. R. § 20.609(c), the implementing regulation for 38 U. S. C. S. § 5904(c)(1 ), then in effect, an attorney could





Court of Appeals for Veterans Claims. 38 U. S. C. S. § 7263(d). Go To Headnote

Military & Veterans Law : Veterans : U .S. Court of Appeals for Veterans Claims

Snyder v. Mansfield. 2007 U. S. App. Vet. Claims LEXIS 1573 (Oct. 12, 2007) (Unpublished).

Overview: Court set aside BVA decision that denied attorney fees from a past-due benefits payment for total disability based on individual unemployment (TD/U) under 38 U. S. C. S. § 5904 because the record was inadequate for review on the issue of whether eligibility for a TD/U rating had been reasonably raised by the record before the Board.








before VA, then the TDIU rating is part of the "initial rating" and, pursuant to 38 C. F. R. § 20.609(h)(3)(1), the


Lippman v. Nicholson. 2007 U. S. App. Vet. Claims LEXIS 974 (June 4, 2007) (Unpublished).

Overview: Matter was remanded to the Board of Veterans' Appeals for readjudication because the Board needed to consider whether or not the attorney could recover a fee under the then applicable provisions of 38 U. S. C. S. § 5904 based upon the attorney's assertion that a claim for unemployability had been raised at that time.


Page 11 of 11

38 CFR 14.636

• Pursuant to the version of 38 U.S.C.S. § 5904(c)(1 ), in effect prior to June 20, 2007, a fee could not be


date on which the Board of Veterans' Appeals first makes a final decision in the case. Under 38 C.F.R. §

20.609(c), the implementing regulation for 38 U.S.C.S. § 5904(c)(1 ), then in effect, an attorney could





Court of Appeals for Veterans Claims. 38 U.S.C.S. § 7263(d). Go To Headnote

Research References & Pract ice Aids


[PUBL ISH ER'S NOTE: Nomenclature changes to chapter I appear at 54 FR 34978, Aug. 23, 1989; 57 FR 31006. July 13, 1992; 57 FR 38606. Aug. 26, 1992; 57 FR 43616. Sept. 22, 1992; 64 FR 30244, June 7, 1999; 65 FR 1544. 1545. Jan. 11, 2000; 66 FR 44052. 44053. Aug. 22, 2001; 66 FR 66763. 66767. Dec. 27, 2001; 67 FR 16023, Apr. 4, 2002; 73 FR 79645. 79647. Dec. 30, 2008.)

LEXISN EXIS' CODE OF FEDERAL REGU LATIONS

Copyright © 20 1 7 , by Matthew Bender & Company, a mem ber of the Lex isNex is Grou p . Al l rights reserved .

End of Document

38 CFR 14.637










§ 14.637. Payment of the expenses of agents and attorneys in proceedings

before Agencies of Original Jurisdiction and before the Board of Veterans'

Appeals.

(a)Applicability of rule. The provisions of this section apply to the services of accredited agents and attorneys

with respect to benefits under laws administered by VA in all proceedings before the agency of original

jurisdiction or before the Board of Veterans' Appeals regardless of whether an appeal has been initiated.

(b)General. Any agent or attorney may be reimbursed for expenses incurred on behalf of a veteran or a

veteran's dependents or survivors in the prosecution of a claim for benefits pending before VA. Whether such

an agent or attorney will be reimbursed for expenses and the method of such reimbursement is a matter to be

determined by the agent or attorney and the claimant or appellant in the fee agreement filed with the Office of

the General Counsel or the agency of original jurisdiction under§ 14.636 of this part. Expenses are not payable

directly to the agent or attorney by VA out of benefits determined to be due to a claimant or appellant.

(c)Nature of expenses subject to reimbursement. "Expenses" include nonrecurring expenses incurred directly in

the prosecution of a claim for benefits on behalf of a claimant or appellant. Examples of such expenses include

expenses for travel specifically to attend a hearing with respect to a particular claim, the cost of copies of

medical records or other documents obtained from an outside source, and the cost of obtaining the services of

an expert witness or an expert opinion. "Expenses" do not include normal overhead costs of the agent or

attorney such as office rent, utilities, the cost of obtaining or operating office equipment or a legal library,

salaries of the representative and his or her support staff, and the cost of office supplies.

(d)Expense charges permitted; motion for review of expenses. Reimbursement for the expenses of an agent or

attorney may be obtained only if the expenses are reasonable. The Office of the General Counsel may review

the expenses charged by an agent or attorney upon its own motion or the motion of the claimant or appellant

and may order a reduction in the expenses charged if it finds that they are excessive or unreasonable. The

Office of the General Counsel's review of expenses under this paragraph will address the issues of eligibility

under § 14.636(c) and reasonableness. The Office of the General Counsel will limit its review and decision

under this paragraph to the issue of reasonableness if another agency of original jurisdiction has reviewed the

fee agreement between the claimant and the agent or attorney and determined that the agent or attorney is

eligible for reimbursement of expenses. Motions for review of expenses must be in writing and must include the

name of the veteran, the name of the claimant or appellant if other than the veteran, and the applicable VA file

number. Such motions must specifically identify which expenses charged are unreasonable; must set forth the

reason, or reasons, why such expenses are excessive or unreasonable and must be accompanied by all

evidence the claimant or appellant desires to submit. Factors considered in determining whether expenses are

Page 2 of 3

38 CFR 14.637

excessive or unreasonable include the complexity of the case, the potential extent of benefits recoverable, and

whether travel expenses are in keeping with expenses normally incurred by other representatives.

(1 )A claimant's or appellant's motion for review of expenses must be served on the agent or attorney

and must be filed at the following address: Office of the General Counsel (0220), 810 Vermont Avenue,

NW., Washington, DC 20420. The agent or attorney may file a response to the motion, with any

accompanying evidence, with the Office of the General Counsel not later than 30 days from the date on

which the claimant or appellant served the motion on the agent or attorney. Such responses must be

served on the claimant or appellant. The claimant or appellant then has 15 days from the date on which

the agent or attorney served a response to file a reply with the Office of the General Counsel. Such

replies must be served on the agent or attorney.

(2)The Deputy Chief Counsel with subject-matter jurisdiction shall initiate the Office of the General

Counsel's review of expenses on its own motion by serving the motion on the agent or attorney and the

claimant or appellant. The agent or attorney may file a response to the motion, with any accompanying

evidence, with the Office of the General Counsel (0220), 810 Vermont Avenue, NW., Washington, DC

20420, not later than 30 days from the date on which the Office of the General Counsel served the

motion on the agent or attorney. Such responses must be served on the claimant or appellant.

(3)The Office of the General Counsel shall close the record in proceedings to review expenses 15 days

after the date on which the agent or attorney served a response on the claimant or appellant, or 30

days after the claimant, appellant, or the Office of the General Counsel served the motion on the agent

or attorney if there is no response. The Deputy Chief Counsel with subject-matter jurisdiction may, for a

reasonable period upon a showing of sufficient cause, extend the time for an agent or attorney to serve

an answer or for a claimant or appellant to serve a reply. The Deputy Chief Counsel shall forward the

record and a recommendation to the General Counsel or his or her designee for a final decision.

Unless either party files a Notice of Disagreement with the Office of the General Counsel, the attorney

or agent must refund any excess payment to the claimant or appellant not later than the expiration of

the time within which the Office of the General Counsel's decision may be appealed to the Board of

Veterans' Appeals.

(e)ln addition to whatever other penalties may be prescribed by law or regulation, failure to comply with the

requirements of this section may result in proceedings under § 14.633 of this part to terminate the agent's or

attorney's accreditation to practice before VA.

(f)Notwithstanding provisions in this section for closing the record at the end of the 30-day period for serving a

response or 15 days after the date on which the agent or attorney served a response, appeals shall be initiated

and processed using the procedures in 38 CFR parts 19 and 20. Nothing in this section shall be construed to

limit the Board's authority to remand a matter to the General Counsel under 38 CFR 19.9 for any action that is

essential for a proper appellate decision or the General Counsel's ability to issue a Supplemental Statement of

the Case under 38 CFR 19.31.

(Authority: 38 U.S.C. 5904)



Statutory Authority



part 14.

Page 3 of 3

38 CFR 14.637

History

[73 FR 29852. 29878. May 22, 2008; 80 FR 81191. 81195. Dec. 29, 2015; 82 FR 26751. 26754. June 9, 2017]

Annotations

Notes


73 FR 29852, 29878, May 22, 2008, added this section, effective June 23, 2008. For compliance date information,

see 73 FR 29852, May 22, 2008; 80 FR 81191, 81195, Dec. 29, 2015, amended paragraph (b), effective December

29, 2015; 82 FR 26751, 26754, June 9, 2017, amended paragraph (d), effective June 9, 2017.]

Case Notes

LexisNexis® Notes

Hyatte v. Shinseki, 2010 U.S. App. Vet. Claims LEXIS 2412 (Dec. 20, 2010).

Overview: Where the evidence showed that although VA might have been negligent in not diagnosing a veteran's

peripheral vascular disease at an earlier date but that an earlier diagnosis would not have changed the treatment or

ultimate outcome, the BVA did not clearly err when it concluded that he was not entitled to compensation under 38

U.S.C.S. § 1151.

• The Secretary of Veterans Affairs' duty to assist does not include automatically providing an appellant with an

independent medical expert at government expense. 38 U.S.C.S. § 5103A. 38 C.F.R. § 14.637(c) refers to

the reimbursement of expenses incurred by a representative on behalf of a veteran in proceedings before

the Board of Veterans' Appeals. It does not suggest that the government will pay for an expert opinion from

a physician of the claimant's choice. Go To Headnote






Apr. 4, 2002; 73 FR 79645, 79647, Dec. 30, 2008.]



End of Document

38 uses prec § 5901

Current through PL 115-82, approved 11 /2/17

United States Code Service - Titles 1 through 54 > TITLE 38. VETERANS' BENEFITS > PART IV.

GENERAL ADMINISTRATIVE PROVISIONS > CHAPTER 59. AGENTS AND ATTORNEYS

Preceding § 5901

Annotations

Notes

Section

5901. Prohibition against acting as claims

agent or attorney.

5902. Recognition of representatives of organizations.

5903. Recognition with respect to particular claims.

5904. Recognition of agents and attorneys generally.

5905. Penalty for certain acts.

Amendments:

1991. Act May 7, 1991, P.L. 102-40, Title IV,§ 402(c)(1), 105 Stat. 239, revised the analysis of this Chapter by

amending the section numbers in accordance with the redesignations made by§ 402(b) of the above Act (see

Table II preceding 38 uses§ 101).


Related Statutes & Rules:

This chapter is referred to in 10 uses§ 1553.

UNITED STATES CODE SERVICE

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End of Document

38 uses § 5901




§ 5901. Prohibition against acting as claims agent or attorney

Except as provided by section 500 of title 5 [5 USCS § 500], no individual may act as an agent or attorney in the

preparation, presentation, or prosecution of any claim under laws administered by the Secretary unless such

individual has been recognized for such purposes by the Secretary.

History

(Sept. 2, 1958,P.L. 85-857, § 1, 72 Stat. 1238; June 11, 1969, P.L. 91-24, § 12(a), 83 Stat. 34; Oct. 28, 1986, P.L.

99-576, Title VII,§ 701(79), 100 Stat. 3298; May 7, 1991, P.L. 102-40, Title IV,§ 402(b)(1), 105 Stat. 238; Aug. 6,

1991, P.L. 102-83, § 4(a)(1), (b)(1), 105 Stat. 403, 404.)

Annotations

Notes

Amendments:

1969 . Act June 11, 1969, substituted "Except as provided by section 500 of title 5, no" for "No".

1986. Act Oct. 28, 1986, substituted "such individual" for "he".

1991 . Act May 7, 1991 redesignated this section, formerly 38 uses§ 3401, as 38 uses§ 5901.

Act Aug. 6, 1991, substituted "administered by the Secretary" for "administered by the Veterans' Administration"

wherever appearing, and substituted "Secretary" for "Administrator" wherever appearing.

Case Notes

Administrative Procedure Act (5 USCS §§ 501 et seq.) did not repeal provisions relating to presentation of claims

before Veterans' Administration [now Department of Veterans Affairs]. Gostovich v Va/ore (1957, DC Pa) 153 F

Supp 826. app dismd (1958) 355 US 608, 2 L Ed 2d 525, 78 S Ct 546.

Appellant's request to stay decision of Secretary of Veterans Affairs revoking appellant's accreditation to represent claimants in VA proceedings, pursuant to U.S. Ct. Vet. App. R. 8, was denied because appellant had not shown likelihood of success on merits, irreparable harm if stay was not granted, or issue of public interest that would be harmed if stay was not granted; granting stay and allowing appellant to continue to represent claimants pending disposition of appeal would undermine authority of Secretary of Veterans Affairs to enforce accreditation

requirements under 38 uses §§ 5901,5904. Malik v Peake (2008) 22 Vet App 183. 2008 US App Vet Claims

LEXIS 765.

38 uses § 5901


Am Jur:

77 Am Jur 2d, Veterans and Veterans' Laws§ 151.


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End of Document

Page 2 of 2

38 uses § 5902

Current through PL 1 1 5-82, approved 1 1 /2/1 7



§ 5902. Recognition of representatives of organizations

(a)

(1) The Secretary may recognize representatives of the American National Red Cross, the American

Legion, the Disabled American Veterans, the United Spanish War Veterans, the Veterans of Foreign

Wars, and such other organizations as the Secretary may approve, in the preparation, presentation,

and prosecution of claims under laws administered by the Secretary.

(2) The Secretary may, in the discretion of the Secretary, furnish, if available, space and office facilities for

the use of paid fulltime representatives of national organizations so recognized.

(b) No individual shall be recognized under this section--

(c)

(1) (A) unless the individual has certified to the Secretary that no fee or compensation of any nature will be

charged any individual for services rendered in connection with any claim; and

(B) unless, with respect to each claim, such individual has filed with the Secretary a power of attorney,

executed in such manner and form as the Secretary may prescribe.

(2) An individual recognized under this section shall be subject to the provisions of section 5904(b) of this

title [38 uses § 5904(b)l on the same basis as an individual recognized under section 5904(a) of this

title [38 uses§ 5904(a)].

(1) Unless a claimant specifically indicates in a power of attorney filed with the Department a desire to

appoint only a recognized representative of an organization listed in or approved under subsection (a),

the Secretary may, for any purpose, treat the power of attorney naming such an organization, a

specific office of such an organization, or a recognized representative of such an organization as the

claimant's representative as an appointment of the entire organization as the claimant's representative.

(2) Whenever the Secretary is required or permitted to notify a claimant's representative, and the claimant

has named in a power of attorney an organization listed in or approved under subsection (a), a specific

office of such an organization, or a recognized representative of such an organization without

specifically indicating a desire to appoint only a recognized representative of the organization, the

Secretary shall notify the organization at the address designated by the organization for the purpose of

receiving the notification concerned.

(d) Service rendered in connection with any such claim, while not on active duty, by any retired officer, warrant

officer, or enlisted member of the Armed Forces recognized under this section shall not be a violation of

sections 203, 205, 206, or 207 of title 1 8 [18 uses§ 203,205,206, or 207].

History

Page 2 of 3

38 uses § 5902

(Sept. 2, 1958,P.L. 85-857, § 1, 72 Stat. 1238; June 11, 1969, P.L. 91-24, § 12(b), 83 Stat. 34; Nov. 21, 1983,

P. L. 98-160, Title VII§ 703(5), 97 Stat. 1010; May 7, 1991, P.L. 102-40, Title IV,§ 402(b)(1), 105 Stat. 238; Aug. 6,

1991, P.L. 102-83, § 4(a)(1), (b)(1), 105 Stat. 403,404; Oct. 9, 1996, P.L. 104-275, Title V, § 508(a), 110 Stat.

3343; Dec. 22, 2006, P. L. 109-461, Title I,§ 101(a)(2), 120 Stat. 3406. )

Annotations

Notes

Amendments:

1969. Act June 11, 1969, in subsec. (c), substituted "sections 203, 205, 206, or 207 of title 18" for "section 281 or

283 of title 18, or a violation of section 99 of title 5".

1983. Act Nov. 21, 1983, in subsec. (a), in para. (1 ), substituted "the Administrator" for "he", and, in para. (2),

substituted "the discretion of the Administrator" for "his discretion"; in subsec. (b)(1 ), substituted "the individual" for

"he"; and, in subsec. (c), substituted "member" for "man".




1996. Act Oct. 9, 1996 (applicable as provided by§ 508(b) of such Act, which appears as a note to this section)

redesignated subsec. (c) as subsec. (d); and added new subsec. (c).

2006. Act Dec. 22, 2006, in subsec. (b), redesignated paras. (1) and (2) as subparas. (A) and (B), respectively,

inserted the new paragraph designator "(1 )", and added a new para. (2).

Other provisions:

Applicability of Oct. 9, 1996 amendments. Act Oct. 9, 1996, P.L. 104-275, Title V, § 508(b), 110 Stat. 3344,

provides: "The amendments made by this section [amending this section] apply to any power of attorney filed with

the Department of Veterans Affairs, regardless of the date of its execution.".

Case Notes

Authorization of Administrator of Veterans' Administration [now Secretary of Veterans Affairs] to recognize

representatives of Veterans of Foreign Wars in prosecution of claims and to furnish them office space tends to

indicate government involvement in VFW to such extent that constitutional due process guarantees become

operative. Stearns v Veterans of Foreign Wars (1974, App DC) 163 US App DC 120, 500 F2d 788.

Amendment of 38 USCS § 5902 by Veterans' Benefit Improvement Act of 1996, § 508, to include new subsection

(c), does not have retroactive application to past notifications by Secretary. Ryan v West (1999) 13 Vet App 151.

1999 US App Vet Claims LEXIS 1274.

Unpublished Opinions

Unpublished: Writ of mandamus would not issue under 28 USCS § 1651(a), requiring Secretary of Veterans Affairs

(VA) to assign individual rather than organization power of attorney codes when claimant wished to be represented

by individual within organization on ground that assignment of organization codes violated 38 USCS § 5902(c)(1 ),

because claimant failed to establish that issuance of writ was needed to avoid kind of harm for which extraordinary

relief was designed; specifically, he failed to show that he had exhausted his administrative remedies or that he

possessed clear and indisputable right to writ because he did not produce any evidence that he had presented

Page 3 of 3

38 uses § 5902

inquiry to VA regarding his power of attorney or that organization code had caused any harm to his claim. Decarlo v

Nicholson (2006) 21 Vet App 417, 2006 US App Vet Claims LEXIS 977.

Unpublished: Writ of mandamus, which would have ordered Secretary of Veterans Affairs to assign individual power

of attorney code rather than organization power of attorney code in claimant's case under 38 USCS § 5902(c)(1)

based on claimant's desire to be represented by specific individual within organization on his claim, was not

warranted under All Writs Act, 28 USCS § 1651(a), because claimant did not show that he had exhausted his

administrative remedies or that he had clear and indisputable right to writ; specifically, he produced no evidence

that he had presented inquiry to Department of Veterans' Affairs regarding his power of attorney or shown that

organization classification had caused any harm to his claim; thus, claimant had not demonstrated that writ was

needed to avoid kind of harm for which extraordinary relief was designed. Elliott v Nicholson (2006) 21 Vet App 414,



Code of Federal Regulations:

Department of Veterans Affairs--Legal services, General Counsel, and miscellaneous claims, 38 CFR 14.500 et

seq.

Department of Veterans Affairs--Nondiscrimination in federally-assisted programs of the Department of Veterans

Affairs-effectuation of Title VI of the Civil Rights Act of 1964, 38 CFR 18. 1 et seq.

Department of Veterans Affairs--Delegation of responsibility in connection with Title VI, Civil Rights Act of 1964, 38

CFR 18a. 1 et seq.

Department of Veterans Affairs--Practice and procedure under Title VI of the Civil Rights Act of 1964 and Part 18 of

this chapter, 38 CFR 18b.1 et seq.

Department of Veterans Affairs--Vocational rehabilitation and education, 38 CFR 21. 1 et seq.


This section is referred to in 10 uses§ 2670; 38 uses§§ 521, 1711, 2041, 6302.

Am Jur:



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End of Document

38 uses § 5903




§ 5903. Recognition with respect to particular claims

(a) In general. The Secretary may recognize any individual for the preparation, presentation, and prosecution

of any particular claim for benefits under any of the laws administered by the Secretary if--

(1) such individual has certified to the Secretary that no fee or compensation of any nature will be charged

any individual for services rendered in connection with such claim; and

(2) such individual has filed with the Secretary a power of attorney, executed in such manner and in such

form as the Secretary may prescribe.

(b) Suspension. An individual recognized under this section shall be subject to the provisions of section

5904(b) of this title {38 USCS § 5904(b)l on the same basis as an individual recognized under section

5904(a) of this title [38 uses§ 5904(a)).

History

(Sept. 2, 1958,P.L. 85-857, § 1, 72 Stat. 1238; May 7, 1991, P. L. 102-40, Title IV, § 402(b )(1 ), 105 Stat. 238; Aug.

6, 1991, P. L. 102-83, § 4(a)(1), (b)(1), 105 Stat. 403,404; Dec. 22, 2006, P.L. 109-461, Title I,§ 101(a)(3), 120

Stat. 3407. )

Annotations

Notes

Amendments:




2006. Act Dec. 22, 2006, inserted "(a) In general."; and added subsec. (b).

Case Notes

38 uses § 3403 [now 38 uses 59031 refers only to recognition by Administrator of Veterans Administration [now

Secretary of Veterans Affairs) with respect to proceedings before it, not to proceedings in courts of United States. Fermin v Army Board for Correction of Military Records (1963. CA9 Cal) 312 F2d 552.


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38 uses § 5903



seq.

Am Jur:



Copyright© 2017 Matthew Bender & Company, Inc. a member of the LexisNexis Group TM All rights reserved.

End of Document

38 uses § 5904




§ 5904. Recognition of agents and attorneys generally [Caution: See

prospective amendment note below.]

(a) Recognition.

(1) Except as provided in paragraph (4 ), the Secretary may recognize any individual as an agent or attorney

for the preparation, presentation, and prosecution of claims under laws administered by the Secretary.

(2) The Secretary shall prescribe in regulations (consistent with the Model Rules of Professional Conduct of

the American Bar Association) qualifications and standards of conduct for individuals recognized under

this section, including a requirement that, as a condition of being so recognized, an individual must--

(A) show that such individual is of good moral character and in good repute, is qualified to render

claimants valuable service, and is otherwise competent to assist claimants in presenting claims;

(B) have such level of experience or specialized training as the Secretary shall specify; and

(C) certify to the Secretary that the individual has satisfied any qualifications and standards prescribed

by the Secretary under this section.

(3) The Secretary shall prescribe in regulations requirements that each agent or attorney recognized under

this section provide annually to the Secretary information about any court, bar, or Federal or State

agency to which such agent or attorney is admitted to practice or otherwise authorized to appear, any

relevant identification number or numbers, and a certification by such agent or attorney that such agent

or attorney is in good standing in every jurisdiction where the agent or attorney is admitted to practice

or otherwise authorized to appear.

(4) The Secretary may not recognize an individual as an agent or attorney under paragraph (1) if such

individual has been suspended or disbarred by any court, bar, or Federal or State agency to which the

individual was previously admitted to practice and has not been subsequently reinstated.

(5) The Secretary may prescribe in regulations reasonable restrictions on the amount of fees that an agent

or attorney may charge a claimant for services rendered in the preparation, presentation, and

prosecution of a claim before the Department. A fee that does not exceed 20 percent of the past due

amount of benefits awarded on a claim shall be presumed to be reasonable.

(6) (A) The Secretary may charge and collect an assessment from an individual recognized as an agent or

attorney under this section in any case in which the Secretary pays to the agent or attorney, from past

due benefits owed to a claimant represented by the agent or attorney, an amount as a fee in

accordance with a fee arrangement between the claimant and the agent or attorney.

(B) The amount of an assessment under subparagraph (A) shall be equal to five percent of the amount

of the fee required to be paid to the agent or attorney, except that the amount of such an

assessment may not exceed $ 100.

(C) The Secretary may collect an assessment under subparagraph (A) by offsetting the amount of the

fee otherwise required to be paid to the agent or attorney from the past-due benefits owed to the

claimant represented by the agent or attorney.

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38 uses § 5904

(D) An agent or attorney who is charged an assessment under subparagraph (A) may not, directly or

indirectly, request, receive, or obtain reimbursement for such assessment from the claimant

represented by the agent or attorney.

(E) Amounts collected under this paragraph shall be deposited in the account available for

administrative expenses for veterans' benefits programs. Amounts so deposited shal l be merged

with amounts in such account and shall be available for the same purpose, and subject to the

same conditions and limitations, as amounts otherwise in such account.

(b) Suspension of agents and attorneys. The Secretary, after notice and opportunity for a hearing, may

suspend or exclude from further practice before the Department any agent or attorney recognized under

this section if the Secretary finds that such agent or attorney--

(c)

(1) has engaged in any unlawful, unprofessional, or dishonest practice;

(2) has been guilty of disreputable conduct;

(3) is incompetent;

(4) has violated or refused to comply with any of the laws administered by the Secretary, or with any of the

regulations or instructions governing practice before the Department;

(5) has in any manner deceived, misled, or threatened any actual or prospective claimant;

(6) has presented to the Secretary a frivolous claim, issue, or argument, involving conduct inconsistent with

ethical standards for the practice of law;

(7) has been suspended or disbarred by any court or bar to which such agent or attorney was previously

admitted to practice, or has been disqualified from participating in or appearing before any Federal

agency, and has not been subsequently reinstated;

(8) has charged excessive or unreasonable fees, as determined by the Secretary in accordance with

subsection (c)(3)(A); or

(9) has failed to comply with any other condition specified in regulations prescribed by the Secretary for

purposes of this subsection.

(1) Except as provided in paragraph (4 ), in connection with a proceeding before the Department with

respect to benefits under laws administered by the Secretary, a fee may not be charged, allowed, or

paid for services of agents and attorneys with respect to services provided before the date on which a

notice of disagreement is filed with respect to the case. The limitation in the preceding sentence does

not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a

court.

(2) A person who, acting as agent or attorney in a case referred to in paragraph (1) of this subsection,

represents a person before the Department or the Board of Veterans' Appeals after a notice of

disagreement is filed with respect to the case shall file a copy of any fee agreement between them with

the Secretary pursuant to regulations prescribed by the Secretary.

(3) (A) The Secretary may, upon the Secretary's own motion or at the request of the claimant, review a fee

agreement filed pursuant to paragraph (2) and may order a reduction in the fee called for in the

agreement if the Secretary finds that the fee is excessive or unreasonable.

(B) A finding or order of the Secretary under subparagraph (A) may be reviewed by the Board of

Veterans' Appeals under section 7104 of this title [38 uses§ 7104].

(C) If the Secretary under subsection (b) suspends or excludes from further practice before the

Department any agent or attorney who collects or receives a fee in excess of the amount

authorized under this section, the suspension shall continue until the agent or attorney makes full

restitution to each claimant from whom the agent or attorney collected or received an excessive

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fee. If the agent or attorney makes such restitution, the Secretary may reinstate such agent or

attorney under such rules as the Secretary may prescribe.

(4) A reasonable fee may be charged or paid in connection with any proceeding before the Department in a

case arising out of a loan made, guaranteed, or insured under chapter 37 of this title [38 USCS §§ 3701 et seq.]. A person who charges a fee under this paragraph shal l enter into a written agreement

with the person represented and shall file a copy of the fee agreement with the Secretary at such time,

and in such manner, as may be specified by the Secretary.

(d) Payment of fees out of past-due benefits.

(1) When a claimant and an agent or attorney have entered into a fee agreement described in paragraph

(2), the total fee payable to the agent or attorney may not exceed 20 percent of the total amount of any

past-due benefits awarded on the basis of the claim.

(2) (A) A fee agreement referred to in paragraph (1) is one under which the total amount of the fee payable

to the agent or attorney--

(i) is to be paid to the agent or attorney by the Secretary directly from any past-due benefits awarded

on the basis of the claim; and

(ii) is contingent on whether or not the matter is resolved in a manner favorable to the claimant.

(B) For purposes of subparagraph (A), a claim shall be considered to have been resolved in a

manner favorable to the claimant if al l or any part of the relief sought is granted.

(3) To the extent that past-due benefits are awarded in any proceeding before the Secretary, the Board of

Veterans' Appeals, or the United States Court of Appeals for Veterans Claims, the Secretary may

direct that payment of any fee to an agent or attorney under a fee arrangement described in paragraph

(1) be made out of such past-due benefits. In no event may the Secretary withhold for the purpose of

such payment any portion of benefits payable for a period after the date of the final decision of the

Secretary, the Board of Veterans' Appeals, or Court of Appeals for Veterans Claims making (or

ordering the making of) the award.

History

(Sept. 2, 1958,P.L. 85-857, § 1, 72 Stat. 1238; Oct. 28, 1986, P.L. 99-576, Title VI I, § 701 (80), 100 Stat. 3298; Nov. 18, 1988, P.L. 100-687, Div A, Title I, § 104(a), 102 Stat. 4108; May 7, 1991, P.L. 102-40, Title IV, § 402(b)(1),

(d)(1), 105 Stat. 238, 239; Aug. 6, 1991, P.L. 102-83, § 4(a)(1), (3), (b)(1), 105 Stat. 403,404; Oct. 9, 1992, P.L. 102-405, Title Ill, § 303(a), 106 Stat. 1985; Nov. 2, 1994, P.L. 103-446, Title V, § 504(a), 108 Stat. 4663; Nov. 11,

1998, P.L. 105-368, Title V, Subtitle B, § 512(a)(1), 112 Stat. 3341; Dec. 22, 2006, P.L. 109-461, Title I, § 101(a)(1),

(b), (c)(1 ), (d)-(f), 120 Stat. 3405-3408.)

(As amended Aug. 23, 2017,P.L. 115-55, § 2(n), 131 Stat. 1110.)

Annotations

Notes

Prospective amendment:

Amendment of subsec. (c)(1) and (2) , effective as provided by § 2(x) of Act Aug. 23, 2017, P.L. 115-55,

which appears as 38 uses§ 101 note. Act Aug. 23, 2017, P.L. 115-55, § 2(n), 131 Stat. 1110 (effective as

provided by § 2(x) of such Act, which appears as 38 USCS § 101 note), provides that subsecs. (c)(1) and (2) are

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38 uses § 5904

amended by striking "notice of disagreement is filed" both places it appears and inserting "claimant is provided

notice of the agency of original jurisdiction's initial decision under section 5104 of this title [38 uses§ 5104]".

Amendments:

1986. Act Oct. 28, 1986, in subsec. (b), substituted "the Administrator" for "he".

1988 . Act Nov. 18, 1988 (effective 9/1 /89 and applicable as provided by §§ 401 (a) and 403 of such Act, which

appear as 38 uses§ 7251 note and a note to this section, respectively) substituted subsecs. (c) and (d) for former

subsec. (c), which read:

"(c) The Administrator shall determine and pay fees to agents or attorneys recognized under this section in

allowed claims for monetary benefits under laws administered by the Veterans' Administration. Such fees--

"(1) shall be determined and paid as prescribed by the Administrator;

"(2) shall not exceed $ 10 with respect to any one claim; and

"(3) shall be deducted from monetary benefits claimed and allowed.".

1991 . Act May 7, 1991 redesignated this section, formerly 38 uses§ 3404, as 38 uses§ 5904, and amended

the references in this section to reflect the redesignations made by §§ 401(a)(4) and 402(b) of such Act (see Table

II preceding 38 uses§ 101). Act Aug. 6, 1991, substituted "administered by the Secretary" for "administered by the Veterans' Administration"

wherever appearing, substituted "Department" for "Veterans' Administration" wherever appearing, and substituted

"Secretary" for "Administrator" wherever appearing.

1992. Act Oct. 9, 1992 (applicable as provided by § 303(b) of such Act, which appears as a note to this section), in

subsec. (c), in para. (1 ), substituted "Except as provided in paragraph (3), in" for "In", and added para. (3).

1994 . Act Nov. 2, 1994 (applicable with respect to fee agreements entered into on or after the date of enactment,

as provided by § 504(b ), which appears as a note to this section), in subsec. (d)(2), substituted subpara. (A) for one

which read: "A fee agreement referred to in paragraph (1) of this subsection is one under which (i) the amount of

the fee payable to the attorney is to be paid to the attorney by the Secretary directly from any past-due benefits

awarded on the basis of the claim, and (ii) the amount of the fee is contingent on whether or not the matter is

resolved in a manner favorable to the claimant. ".

1998. Act Nov. 11, 1998 (effective on the first day of the first month beginning more than 90 days after enactment,

as provided by § 513 of such Act, which appears as 38 uses§ 7251 note), in subsecs. (c)(1) and (d)(3),

substituted "United States Court of Appeals for Veterans Claims" for "United States Court of Veterans Appeals".

2006 . Act Dec. 22, 2006 ( effective 180 days after enactment and applicable as provided by § 101 (h) of such Act,

which appears as a note to this section), in subsec. (c), in para. (1 ), substituted "a notice of disagreement is filed

with respect to" for "the Board of Veterans' Appeals first makes a final decision in", deleted the sentence "Such a

fee may be charged, allowed, or paid in the case of services provided after such date only if an agent or attorney is

retained with respect to such case before the end of the one-year period beginning on that date. " preceding "The

limitation", and inserted "fees charged, allowed, or paid for", and, in para. (2), substituted "after a notice of

disagreement is filed with respect to the case" for "after the Board first makes a final decision in the case",

substituted "with the Secretary pursuant to regulations prescribed by the Secretary" for "with the Board at such time

as may be specified by the Board", and deleted the sentences "The Board, upon its own motion or the request of

either party, may review such a fee agreement and may order a reduction in the fee called for in the agreement if

the Board finds that the fee is excessive or unreasonable. A finding or order of the Board under the preceding

sentence may be reviewed by the United States Court of Appeals for Veterans Claims under section 7263(d) of this

title. " following "Secretary.".

Such Act further, in subsec. (a), inserted "Recognition. (1 )", substituted "Except as provided in paragraph (4 ), the

Secretary may recognize" for "The Secretary may recognize", deleted the sentence "The Secretary may require that

individuals, before being recognized under this section, show that they are of good moral character and in good

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repute, are qualified to render claimants valuable service, and otherwise are competent to assist claimants in

presenting claims. " following "the Secretary. ", and added paras. (2)-(6); in subsec. (b), inserted the heading

"Suspension of agents and attorneys. ", in para. (4), deleted "or" following the concluding semicolon, in para. (5),

substituted the concluding semicolon for a concluding period, and added paras. (6)-(9); in subsec. (c), in para. (1 ),

substituted "paragraph (4)" for "paragraph (3)", redesignated para. (3) as para. (4), and inserted a new para. (3);

and, in subsec. (d), inserted the heading "Payment of fees out of past-due benefits. ", in para. (1 ), inserted "agent

or" in two places, and deleted "of this subsection" following "paragraph (2)", in para. (2), in subpara. (A), inserted

"agent or" in two places and in subpara. (B), deleted "of this paragraph" following "subparagraph (A)", in para. (3),

substituted "fee to an agent or attorney" for "attorneys' fee", and deleted "of this subsection" following "paragraph

( 1 )".

Other provisions:

Repeal of provision relating to application of Nov. 18, 1988 amendment of subsec. (c) . Act Nov. 18, 1988,

P.L. 100-68 7, Div A, Title IV, § 403, 102 Stat. 4122, which formerly appeared as a note to this section, was

repealed by Act Dec. 27, 2001, P.L. 107-103, Title VI, § 603(b), 115 Stat. 999. Such note provided that the Nov. 18,

1988 amendment of subsec. (c) of this section applied only with respect to services of agents and attorneys in

cases in which a notice of disagreement was filed on or after Nov. 18, 1988. For applicability of such repeal, see §

603(d) of Act Dec. 27, 2001, P.L. 107-103, which appears as 38 uses§ 7251 note.

Applicability of subsec. (c)(3) . Act Oct. 9, 1992, P.L. 102-405, Title Ill, § 303(b), 106 Stat. 1985, provides:

"Paragraph (3) of section 5904(c) of title 38. United States Code, as added by subsection (a), shall apply with

respect to services of agents and attorneys provided after the date of the enactment of this Act. ".

Fee agreements. For provisions relating to fees awarded under this section and 28 USCS § 2412(d), see §

506(c) of Act Oct. 29, 1992, P.L. 102-572, which appears as 28 USCS § 2412 note.

Application of Nov. 2, 1994 amendment. Act Nov. 2, 1994, P.L. 103-446, Title V, § 504(b), 108 Stat. 4664, provides: "The amendment made by subsection (a) [amending subsec. (d)(2)(A) of this section] shall apply with

respect to fee agreements entered into on or after the date of the enactment of this Act.".

Effective date and application of amendments made by § 101(c)(1) and (d) of Act Dec. 22, 2006. Act Dec.

22, 2006, P.L. 109-461, Title I, § 101(h), 120 Stat. 3408, provides: "The amendments made by subsections (c)(1)

and (d) [amending subsec. (c) of this section] shall take effect on the date that is 180 days after the date of the

enactment of this Act and shall apply with respect to services of agents and attorneys that are provided with respect

to cases in which notices of disagreement are filed on or after that date. ".

Limitation on collection of fee assessment. Act Dec. 22, 2006, P.L. 109-461, Title I, § 101(i), 120 Stat. 3408, provides: "No assessments on fees may be collected under paragraph (6) of section 5904(a) of title 38, United

States Code [38 USCS § 5904(a)] (as added by subsection (a)(1 )(D) of this section), until the date on which the

Secretary of Veterans Affairs prescribes the regulations required by the amendments made by this section

[amending 38 uses§§ 5902-5905].".

Case Notes

I. IN GENERAL1. Generally2. Constitutional considerations3. Congressional power4. Purpose5. Equal Access to Justice Act6. Recovery of excess or excessive fees7. Appeal and review, generally

38 uses § 5904

8. MiscellaneousII. FEE LIMITATIONS9. Generally10. Characterization of fees11. Final decision12. Pay ment by third persons13. Debt collection proceedings14. Insurance-related claims15. MiscellaneousIll. FEE AGREEMENTS16. Generally17. Review of agreements by Secretary or Board of Veterans' Appeals18. Direct pay ment of fees out of past due benefits19. --Jurisdiction of Board of Veterans' Appeals20. --Erroneous pay ment to claimant21. --Other particular cases22. Enforcement of agreements23. Appeal and review24. Miscellaneous

I. IN GENERAL

1. Generally

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38 USCS § 3404 [now 38 USCS § 59041 refers only to recognition by Administrator of Veterans Administration [now

Department of Veterans Affairs] with respect to proceedings before it, not to proceedings in courts of United States. Fermin v Army Board for Correction of Military Records (1963. CA9 Cal) 312 F2d 552.

Statutes governing fees for obtaining pensions were not limited to persons who are recognized or known to

Commissioner of Pensions [now Secretary of Veterans Affairs] as attorneys or agents for applicants; all persons

rendering services in procuring such pension were governed thereby. Caverly v Robbins (1889) 149 Mass 16. 20 NE 450.


Unpublished: 38 USCS § 5904(d)(3) is clear on its face that "the date of final decision of Secretary, " means date of

decision granting benefit sought. Cameron v Shinseki (2010, US) 2010 US App Vet Claims LEXIS 2451.

Unpublished: Attorney lacked standing to argue that 38 USCS § 5904(c) "unconstitutionally deprived veterans of

their procedural due process rights to effective and adequate representation at evidentiary stage of their claims, thereby depriving them of benefits they otherwise could be entitled to." Stanley v Shinseki (2012. US) 2012 US App

Vet Claims LEXIS 354.

2. Constitutional considerations

Predecessor to 38 USCS § 5904, setting maximum fee for assistance in preparation and execution of claim for war

risk insurance, did not constitute unconstitutional deprivation of property. Margolin v United States (1925) 269 US 93. 70 L Ed 176. 46 S Ct 64.

Provision of 38 uses § 3404 [now 38 uses § 5904) limiting that could be paid attorney or agent who represented veteran seeking benefits for service connected death or disability did not violate due process; nor did provision

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38 uses § 5904

violate First Amendment since claims process allowed claimant to make meaningful presentation and significant

government interests favored limitation on speech. Walters v Nat'/ Ass 'n of Radiation Survivors (1985) 473 US 305. 87 L Ed 2d 220. 105 S Ct 3180 (superseded by statute on other grounds as stated in Cintron v West (1999) 13 Vet App 251, 1999 US App Vet Claims LEXIS 1334).

Limit on attorney's fees under 38 uses § 3404 [now 38 uses § 5904] did not violate due process. Demarest v United States (1983. CA9 Wash) 718 F2d 964, cert den (1984) 466 US 950, 80 L Ed 2d 536, 104 S Ct 2150.

Predecessor statute limiting to $ 1 0 amount claimant can pay attorney was not unconstitutional as applied to

individuals with claims based on exposure to ionizing radiation since attorneys were not necessary to ensure

procedural fairness in adjudication of such claims. National Ass 'n of Radiation Survivors v Derwinski (1993. CA9 Cal) 994 F2d 583, reported at, in part (1993, CA9 Cal) 93 COOS 4526, 93 Daily Journal DAR 7729 and cert den

(1993) 510 US 1023, 126 L Ed 2d 592, 114 S Ct 634.

Non-adversarial procedures for adjudicating benefits claims at VA Regional Office level are sufficient to satisfy

dictates of due process; instead of allowing for paid attorneys to represent claimants and for formal discovery,

Congress has imposed on VA duty to assist claimants in substantiating their claims for benefits. Veterans for Common Sense v Shinseki (2011, CA9 Cal) 644 F3d 845.

Statutory l imitation of fee payable by veteran to attorney is reasonable exercise of congressional power over

veterans' affairs and does not violate veterans' constitutional rights to procedural due process or to equal protection

of laws. Gendron v Saxbe (1975, CD Cal) 389 F Supp 1303, affd (1975) 423 US 802, 46 L Ed 2d 23, 96 S Ct 9.

Fee limitation provisions of 38 USCS § 3404 [now 38 USCS § 5904] did not violate due process or first amendment

rights when judged by generality of cases to which Veterans laws applied, and disability claimant could show

neither sufficient risk of deprivation of private interest nor evidence that her case was so complex as to justify

disturbing congressional intent, and further, claimant failed to show that § 3404 [now § 59041 denied her access to

meaningful representation. Over v Walters (1986, ED Mo) 646 F Supp 791.

3. Congressional power

Predecessor to 38 USCS § 5904 was valid exercise of Congressional power. Hines v Lowrey (1938) 305 US 85, 83 L Ed 56, 59 S Ct 31.




Congress had power to l imit fees of agents to assist in obtaining pensions and to punish violation of law. United States v Marks (1869, CCD Ky) 2 Abb 531, 26 F Gas 1162, No 1 5721.

4. Purpose

Congress intended to protect all veterans, competent and incompetent, in all courts, whether state or federal,

against imposition or payment of fees in excess of amount fixed. Hines v Lowrey (1938) 305 US 85, 83 L Ed 56, 59 S Ct 31; Sanchez v United States (1943, CA1 Puerto Rico) 134 F2d 2 79, cert den (1943) 319 US 768, 87 L Ed 171 7, 63 S Ct 1325.

Intention is not only to protect pensioner but government as well. Christie v Steger's Adm'r (1900) 21 Kv LR 1799. 56 SW 521.

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38 uses § 5904

Statutes limiting fees for procuring pensions were founded upon policy of federal government to protect class of

persons who might be incompetent to fully protect themselves; they must necessarily be very absolute and rigorous

in order to be effective. Hall v Kimmer (1886) 61 Mich 269, 28 NW 96.

Not only was 38 uses § 5904 comprehensive federal statute, stated purpose behind 38 uses § 5904 was to

provide for payment of reasonable fees to attorneys in VA claims matters, and by providing for direct payment of

attorneys, statutory scheme advanced that goal. Lippman v Nicholson (2007) 21 Vet App 184, 2007 US App Vet Claims LEXIS 597.

5. Equal Access to Justice Act

Fee which includes both Equal Access to Justice Act (EAJA) award plus contingency fee for work performed before

Court of Appeals for Veterans Claims, Board, and VA on same claim such that fee is enhanced by EAJA award is

unreasonable pursuant to 38 USCS §§ 5904(c) and 7263. Carpenter v Principi (2001) 15 Vet App 64, 2001 US App Vet Claims LEXIS 815, app dismd (2003, CA FC) 327 F3d 1371, reh den, reh, en bane, den (2003, CA FC) 2003 US App LEXIS 14589.

Under Federal Courts Administration Act, Pub. L. No. 102-5 72, § 506(c), 106 Stat. 4506, 4513, attorney

representing veteran was only entitled to lesser of fee award under Equal Access to Justice Act or contingent fee

award under 38 USCS § 5904(d) : also, attorney's agreement with veteran which provided for payment of both

amounts was facially unreasonable. Mason v Nicholson (2006) 20 Vet App 2 79, 2006 US App Vet Claims LEXIS 749.

Court lacked jurisdiction to resolve dispute regarding amount of fees payable by her to attorney pursuant to statute,

fee agreement, and payment under Equal Access to Justice Act, since no case was currently pending before court

to which those matters related. In re Fee Agreement of Bates (199 7) 10 Vet App 547.

Veterans Claims holds that fee agreement allowing attorney to collect and retain fee under Equal Access to Justice

Act (EAJA), 28 uses§ 2412(d), as well as fee from client for same work was "unreasonable" pursuant to 38 uses

§§ 5904 and 7263; Veterans Claims further concluded that work performed before Federal Circuit on appeal from

Veterans Claims in pursuit of securing past-due benefits was "same work" for purposes of EAJA, and accordingly,

EAJA fees awarded for work done before Federal Circuit had to be offset against 30 percent contingency fee paid

by claimant to counsel. Jackson v Shinseki (2009) 23 Vet App 27, 2009 US App Vet Claims LEXIS 755.


Unpublished: Pursuant to 38 USCS § 5904, contingency fee agreement that circumvents letter and spirit of Equal

Access to Justice Act (EAJA), 28 USCS § 2412(d), is patently unreasonable on its face. Hence, fee which includes

both EAJA award plus contingency fee for work performed before U.S. Court of Appeals for Veterans Claims, Board

of Veterans' Appeals, and VA on same claim such that fee is enhanced by EAJA award is unreasonable. Thomas v Peake (2008, US) 2008 US App Vet Claims LEXIS 1307.

6. Recovery of ex cess or ex cessive fees

Under predecessor to 38 USCS § 5904 excess fees for legal services could be recovered in action for money had

and received. Morgan v Hutcheson (1940) 61 Ga App 763, 7 SE2d 691.

Predecessor to 38 USCS § 5904, while making collection of excess fee misdemeanor, did not penalize its payment

and did not expressly give right of recovery to person making payment. Denny's Adm'r v Denny's Heirs (1936) 264 Ky 46 7. 94 SW2d 978.

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38 uses § 5904

Pensioner could recover excessive fees. Smart v White (1882) 73 Me 332; Hall v Kimmer (1886) 61 Mich 269. 28 NW 96.

Excessive fee could be recovered in action of assumpsit, even though it was paid voluntarily. Ladd v Barton (1886) 64 NH 613, 6 A 483.


Unpublished: Court of Appeals for Veterans Claims was without jurisdiction over veteran's allegation that his former

counsel charged fees that were unauthorized and unreasonable because he had no case pending before court and

there was no Board of Veterans' Appeals decision regarding fee agreements. Bennish v Nicholson (2006) 21 Vet App 102, 2006 US App Vet Claims LEXIS 758.

7 . Ap peal and review, generally

Neither history of amendments to law, nor its changing position in U.S. Code through passage of series of

consolidation statutes, alters fact that, as originally enacted, 38 USCS § 5904 was part of Public Law that affects

provision of benefits, and therefore, is subject to review by Board of Veterans' Appeals and Court of Appeals for

Veterans Claims under terms of 38 uses§ 511. Bates v Nicholson (2005. CA FC) 398 F3d 1355.

Court of Appeals for Veterans Claims erred in concluding that it lacked jurisdiction to consider attorney's request for

mandamus requiring Secretary of Veterans Affairs to issue statement of case so that he could appeal decision to

terminate his accreditation to represent claimants before Department of Veterans Affairs to Board of Veterans'

Appeals (BVA) as 38 USCS § 5904 was part of single statutory enactment that affected provision of benefits and as

result, it was subject to review by BVA and Court of Appeals for Veterans Claims under terms of 38 USCS § 511. Bates v Nicholson (2005, CA FC) 398 F3d 1355.

Where Board of Veterans' Appeals and then Court of Appeals for Veterans Claims denied attorney fees based on

inaccurate interpretation of 38 USCS § 5904(c), that decision was based on error of law and Court of Appeals for

Federal Circuit had jurisdiction to review decision pursuant to 38 USCS § 7292(e)(1). Carpenter v Nicholson (2006, CA FC) 452 F3d 13 79. on remand, remanded on other grounds (2007, US) 200 7 US App Vet Claims LEXIS 520.




Appellant's request to stay decision of Secretary of Veterans Affairs revoking appellant's accreditation to represent

claimants in VA proceedings, pursuant to U.S. Ct. Vet. App. R. 8, was denied because appellant had not shown

likelihood of success on merits, irreparable harm if stay was not granted, or issue of public interest that would be

harmed if stay was not granted; granting stay and allowing appellant to continue to represent claimants pending

disposition of appeal would undermine authority of Secretary of Veterans Affairs to enforce accreditation

requirements under 38 USCS §§ 5901,5904. Malik v Peake (2008) 22 Vet App 183. 2008 US App Vet Claims LEXIS 765.

8. Miscellaneous

There was nothing which definitely undertook to put limitation upon state court's right to make allowance to

guardian of incompetent veteran for attorney fees for attorney employed by guardian to obtain reinstatement of

ward's disability pension. Hines v Stein (1936) 298 US 94. 80 L Ed 1063, 56 S Ct 699. reh den (1936) 298 US 692, 80 L Ed 1409, 56 S Ct 945.

Because no evidence of veteran's unemployability was submitted before Board of Veterans' Appeals' July 2000

decision, "case" before Board at that time did not include claim for TDIU benefits and thus was not

compensable

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38 uses § 5904

fee under 38 USCS § 5904(c): Board was entirely correct to refuse to disburse attorney's fees to attorney, but

instead to send full amount to veteran. Jackson v Shinseki (2009. CA FC) 587 F3d 1106.

Services performed by guardian, preparatory to prosecution of claim for pension, were not services of attorney,

agent, or other person in procuring pension, within meaning of pension laws. Southwick v Evans (1890) 1 7 RI 198. 2 1 A 104.

Agent, attorney, or other person aiding pensioner could be reimbursed money which he advanced to or for him, and

could also be repaid actual expenses incurred in prosecuting pension claim. United States v Moore (1883. CCD Ky) 18 F 686.

Predecessor to 38 USCS § 5904, while making collection of excess fee misdemeanor, did not penalize its payment.

Denny's Adm'r v Denny's Heirs (1936) 264 Ky 467, 94 SW2d 9 78.

Term "case" as used in 38 USCS § 5904(c)(1) refers to claim submitted by claimant and adjudicated by VA,

including adjudication of all elements and theories in support of such claim, but does not include additional claim for

benefits that was presented after final adjudication of earlier claim, with new, different, or additional evidence even if

additional claim was related to disability underlying earlier claim; thus, veteran's claim for increased disability rating

was stand-alone claim, adjudicated separately and independently from her initial claim for benefits, and Board of

Veterans' Appeals properly determined that her attorney was not entitled under § 5904(c)(1) to portion of past-due

benefits awarded to her in decision granting her increased-rating claim. Cameron v Shinseki (20 12) 26 Vet App 109. 20 12 US App Vet Claims LEXIS 23 7 1.


Unpublished: Attorney for veteran was not entitled to attorney fees and expenses pursuant to Equal Access to

Justice Act, 28 USCS § 24 12(d), because Secretary of Veterans Affairs' position in seeking to deny attorney's

eligibility under 38 USCS § 5904(c) to collect fee was substantially justified at both administrative and litigation

stages. Carpenter v Peake (2008, US) 2008 US App Vet Claims LEXIS 924.

Unpublished: Board of Veterans' Appeals properly affirmed termination of agent's accreditation under 38 USCS §

5904 to represent claimants before Secretary of Veterans Affairs because agent failed to show that he was denied

due process; he not only failed to demonstrate any prejudice from Secretary's delay in taking action on case, he

failed to take note of fact that, assuming arguendo there was some administrative error, it nevertheless was

Secretary, not Board, who had authority to provide equitable relief under 38 USCS § 503. Malik v Shinseki (2009, US) 2009 US App Vet Claims LEXIS 787.

II. FEE LIMITATIONS

9. Generally

38 USCS § 3404 [now 38 USCS § 5904] limitation on fees of attorneys was valid. Purvis v United States (1932. CAB Ark) 61 F2d 992.




Not only was 38 uses § 5904 comprehensive federal statute, stated purpose behind 38 uses § 5904 was to


attorneys, statutory scheme advanced that goal; furthermore, legitimate concern of states in ensuring their citizens

were not taken advantage of in contracting situations was significantly lessened, if not eliminated, in veterans-claim

SUZAN N E MCNAMARA

Page 11 of 18

38 uses § 5904

context where direct payment of attorney fees was limited by law to 20 percent of past-due benefits, and was further

limited to reasonable fee under circumstances of case. Lippman v Nicholson (200 7) 2 1 Vet App 184. 2007 US App Vet Claims LEXIS 597.


Unpublished: Under 38 USCS § 5904(d). total fee awarded to attorney who has represented claimant for past-due

VA benefits may not exceed 20% of total amount of past-due benefits awarded on basis of claim. Thomas v Peake

(2008. US) 2008 US App Vet Claims LEXIS 1307.

1 0. Characterization of fees

If money was given to person who procured pension as mere gift, without any demand on his part, it was not

violation of pension laws. Schwab v Ginkinger ( 1897) 181 Pa 8, 37 A 125.

By no sort of contrivance or device, either under disguise of loan or purchase of property or gift, or any other

scheme, could attorney prosecuting pension claim demand or receive or retain any more than fee allowed by law.

United States v Moyers ( 1882. CCD Tenn) 15 F 4 1 1; Hall v Kimmer ( 1886) 6 1 Mich 269. 28 NW 96.

1 1 . Final decision

RO's decision on remand from Board did not constitute final decision of Board for purposes of statute's limitation on

when attorney's fee may be charged, allowed, or paid; RO was acting on behalf of Board only in sense that decision

facilitated Board's appellate review, and it seems inconceivable that RO decision could ever be decision of Board

for that purpose even if RO completed Board's appellate review function by awarding all benefits sought on appeal

or claimant withdrew NOD or otherwise acquiesced in RO's decision. In re Fee Agreement of Stanley (1996) 9 Vet App 203.

No payment of attorneys' fees was warranted or permitted for services rendered before VA and Board in connection

with veteran's claim for posttraumatic stress syndrome since veteran was awarded benefits for it by RO under

nonadversarial system of VA claims processing and PTSD claim was never subject of final BVA decision. In re Fee Agreement of Stanley ( 199 7) 10 Vet App 104, app dismd (1997, CA FC) 199 7 US App LEXIS 364 1 1.

Attorney was entitled to attorney's fees from past-due benefits awarded to veteran since BVA's failure to adjudicate

claim reasonably before it amounted to denial of benefits sought and therefore final adverse decision. In re Fee Agreement of Smith (1997) 10 Vet App 3 1 1 .

Attorney was entitled to fee from past-due benefits awarded to veteran whom he represented since there was final

BVA decision as to issues of total disability due to individual unemployability and depression. In re Fee Agreement Cox ( 1998) 1 1 Vet App 158.

Attorney was not entitled to charge attorney fees under 38 USCS § 5904(c)( 1) for services rendered before Board

of Veterans' Appeals (BVA) or Department of Veterans Affairs (VA) with respect to secondary service connection

for veteran's back disability or for total disability based on individual unemployability where attorney was not

retained within one year after 1990 BVA decision; 1994 BVA decision, though final on issue of secondary service

connection, was not first final decision; and services provided before Board and VA after remand from Court of

Appeals for Veterans Claims were not continuation of proceedings before Court of Appeals for Veterans Claims so

as to be exempt from § 5904(c)(1) limitations on charging attorney fees. In re Fee Agreement of Mason ( 1999) 13 Vet App 79. 1999 US App Vet Claims LEXIS 1 1 12.

Where veteran's son's "helpless child" claim was awarded as part of nonadversarial system of Department of

Veterans Affairs claims processing and was never subject of final Board of Veterans Appeals decision, attorney

Page 12 of 18

38 uses § 5904

fees under 38 USCS § 5904 could not be awarded. Hanlin v Nicholson (2005) 19 Vet App 350, 2005 US App Vet Claims LEXIS 6 16, affd (2007, CA FC) 474 F3d 1355.


Unpublished: Attorney was not entitled to fee award under former 38 USCS § 5904(c)(1) because regional office,

not Board of Veterans' Appeals, made final decision denying his request for fees under fee agreement with veteran;

Board did not err in concluding that request for waiver fell under 38 CFR § 3. 1 (p) and that veteran was claimant

under 38 CFR § 20.609(c). Uretsky v Shinseki (2009, US) 2009 US App Vet Claims LEXIS 1359.

1 2. P ay ment by third persons

Since test of illegality was whether compensation was paid directly or indirectly from insurance fund, attorney could

receive any amount of compensation from third person for services in securing benefits of war risk insurance for

another. Welty v United States (1924, CA6 Ohio) 2 F2d 562, 3 Ohio L Abs 544.

Law firm's broad arguments that Department of Veterans Affairs (OVA) lacked authority to regulate disinterested fee

payers and that DVA's effort to regulate third-party fee payers was contrary to 38 USCS § 5904(c). were rejected,

and 2002 amendments to disinterested third-party payer regulation were upheld as they were not arbitrary and

capricious. Carpenter v Sec'y of Veterans Affairs (2003, CA FC) 343 F3d 1347.

1 3. Debt collection proceedings

Both old and new versions of § 3404 apply to limit participation of attorneys in Veterans Affairs Department debt

collection proceedings, in home loan guarantee context, when veteran seeks waiver of indebtedness. Bahnmiller v Derwinski (1991, CA4 Va) 923 F2d 1085.

Attorney's fee limitation provisions in both old and new versions of 38 uses § 3404 [now 38 uses § 59041 apply to

debt collection proceedings brought against veteran until final administrative decision is reached within agency,

because defense of debt collection action, which is usually to recover overpaid benefits and may seek setoff against

benefits, is within both definitions given clear congressional intention to prevent veterans' benefits from being

diverted to attorneys. Bahnmiller v Derwinski ( 1989, ED Va) 724 F Supp 1208, affd in part and vacated in part on

other grounds (1991, CA4 Va) 923 F2d 1085.

1 4. Insurance-related claims

Maximum fee limitation in predecessor to 38 USCS § 5904, relating to war risk insurance, applied only to payments

to be made by or out of funds of applicant, and to dealings by attorney with or on behalf of applicant. Welty v United States (1924, CA6 Ohio) 2 F2d 562, 3 Ohio L Abs 544.

Limitation on attorneys' fees in predecessor to 38 USCS § 5904 was applicable to services rendered for term

insurance. United States v Rhodes (193 7, DC Pa) 18 F Supp 110.

Where fiancee of deceased veteran retained services of attorneys to seek probate of alleged nuncupative will and

agreed to pay attorneys thirty-three and one-third percent of any and al l recovery which might be obtained, and by

reason of having procured probate of will , fiancee, long after such probate, became entitled to and was paid, large

part of veteran's war risk insurance, predecessor to 38 USCS § 5904, limiting compensation of attorneys for

preparation of papers with respect to application to collect insurance, was not applicable. In re Mason 's Estate (1940) 174 Misc 2 18, 20 NYS2d 501.

1 5. Miscellaneous

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38 uses § 5904

Former statute's $ 10 cap on attorneys' fees did not deny veteran right to assistance of counsel; veteran did not

show that he had right to counsel in veterans' benefits proceedings or that statute prohibits him from obtaining legal

advice. Marozsan v United States (1996. CA 7 Ind) 90 F3d 1284. reh, en bane , den (1996, CA? Ind) 1996 US App LEXIS 23455 and cert den ( 199 7) 520 US 1 109, 13 7 L Ed 2d 3 1 7, 1 1 7 S Ct 1 1 1 7.

Attorney was not entitled to more than $ 10 in fees since NOD was filed prior to Act's effective date; subsequent

BVA decisions and NODs pertained to pre-Act claim. In re Fee Agreement of Smith (1993) 6 Vet App 25.

Attorney was not entitled to fees from past-due benefits awarded to veteran for entitlements to total rating based on

individual unemployability (TDIU) and special monthly compensation, since issue of TDIU was not before BVA in

either of its underlying decisions; claim for TDIU is separate from those of underlying disabilities which cause

unemployability. In re Fee Agreement of Leventhal (1996) 9 Vet App 387.


Unpublished: Veteran's assertion that he was exempt from fee limitations of former 38 USCS § 5904 was meritless

because 38 USCS § 5304(a)(1) specifically barred payment of retirement benefits simultaneously with VA benefits.

Uretsky v Shinseki (2009, US) 2009 US App Vet Claims LEXIS 1359.

Unpublished: Because Board of Veterans' Appeals' conclusions were supported by clear and convincing evidence,

and because attorney had not demonstrated error in Board decision, Board decision finding that there was clear

and convincing evidence that attorney accepted unlawful compensation for preparing, presenting, and prosecuting

claims for VA benefits and solicited and contracted for illegal fees was affirmed. Stanley v Shinseki (20 12. US) 20 12 US App Vet Claims LEXIS 354.

Ill. FEE AGREEMENTS

16. Gener ally

Contracts for collection of fees in excess of valid statutory limitations and for services validly prohibited by statute

cannot stand whether made with competent veteran or with guardian of incompetent veteran. Hines v Lowrey (1938) 305 US 85, 83 L Ed 56. 59 S Ct 31.

38 USCS § 5904(c)(2) or 38 USCS § 7263(d) to address threshold question of whether there is fee agreement, in

view of termination of attorney-client relationship. Scates v West (1999) 13 Vet App 98. 1999 US App Vet Claims LEXIS 1 1 1 6. motion gr, op withdrawn on other grounds (2000) 13 Vet App 304, 2000 US App Vet Claims LEXIS 5 1.

Veterans Claims holds that portion of 38 CFR § 14. 636(h)(3)(i) (2008) which reads " .. . and if agent or attorney

represents claimant or appellant in that phase of claim" is incompatible with 38 USCS § 5904 and is stricken.

Lippman v Shinseki (2009) 23 Vet App 99. 2009 US App Vet Claims LEXIS 1289.

17. Review of agr eement s by Secr et ar y or Boar d of Vet er ans' Appeals

38 USCS § 5904( c)(2) requires that determinations of eligibility, which must be done by regional office in first

instance, are prerequisite for Board review of reasonableness of non-direct payment fee agreement. Snyder v

Principi (2001) 15 Vet App 285. 2001 US App Vet Claims LEXIS 1247.

Since parties to review of fee agreement are claimant on one hand and attorney on other, and Board serves in

quasi-judicial role, when review of fee agreement is statutorily authorized it is appropriate, indeed necessary, for

Board to communicate directly with represented client in connection with such review of fee agreement. Nagler v Derwinski ( 199 1) 1 Vet App 297.

Page 14 of 18

38 uses § 5904

BVA Chairman has no power to review attorney-fee agreements for representation at admin istrative level; review of

fee agreements for VA/BVA is matter reposed by statute in Board itself and not in Secretary; hence Secretary

cannot promulgate regulation providing that Chairman's ruling on motion for review of agreement will constitute final

decision of Board; neither does Chairman's administrative control and supervision authority authorize him to review

attorney-fee agreements. In re Smith (1991) 1 Vet App 492.

Board had authority to review fee agreement pursuant to 38 USCS § 5904(c) even though fee agreement was

entered into after Board made final decision in veteran's case where agreement addressed representation before

Court of Appeals for Veterans Claims and Board, agreement was filed with Board on same date it was filed with

Court of Appeals for Veterans Claims, and agreement satisfied requirements of § 5904(c). Carpenter v Principi (2001) 15 Vet App 64, 2001 US App Vet Claims LEXIS 815. app dismd (2003, CA FC) 327 F3d 13 71. reh den, reh,

en bane, den (2003, CA FC) 2003 US App LEXIS 14589.

All issues involving eligibility for attorney fees under non-direct-payment fee agreements, as contrasted with issues

of reasonableness and excessiveness, must first be addressed by Veterans Administration Regional Office in

accordance with normal adjudication procedures and cannot be subject of original Board of Veterans' Appeals

review. Stanley v Principi (2002) 16 Vet App 356. 2002 US App Vet Claims LEXIS 702.

18 . Dir ect pay ment of fees out of past due benefits

Regardless of whether withhold-and-pay provision of 38 USCS § 5904(d) is mandatory or discretionary, Secretary

is obligated to pay attorney pursuant to regulation adopted by VA and sanctioned by statute; even though all past

due benefits were disbursed to veteran , attorney is entitled to be paid directly by Secretary agreed-upon attorney

fees in amount of 20 percent of past-due benefits. Cox v Gober (2000) 14 Vet App 148. 2000 US App Vet Claims LEXIS 892, reconsideration gr, affd in part, and mod in part on other grounds (2001) 15 Vet App 280. 2001 US App Vet Claims LEXIS 1246.

Secretary is obliged by his own regulation to pay attorney under withhold-and-pay contingency-fee agreement if

regulatory requirements and statutory requirements of 38 USCS § 5904(d) are met. Snyder v Gober (2000) 14 Vet App 154. 2000 US App Vet Claims LEXIS 893. reconsideration gr, affd in part, and mod in part on other grounds

(2001) 15 Vet App 285. 2001 US App Vet Claims LEXIS 1247.

Not only was 38 USCS § 5904 comprehensive federal statute, stated purpose behind 38 USCS § 5904 was to


attorneys, statutory scheme advanced that goal; furthermore, legitimate concern of states in ensuring their citizens

were not taken advantage of in contracting situations was significantly lessened, if not eliminated, in veterans-claim

context where direct payment of attorney fees was limited by law to 20 percent of past-due benefits, and was further

limited to reasonable fee under circumstances of case. Lippman v Nicholson (200 7) 21 Vet App 184. 2007 US App Vet Claims LEXIS 597.

19. --Jur isdiction of Boar d of Veter ans' Appeals

Board's determination that appellant was eligible for attorney fees under 38 USCS § 5904(c)(2) is vacated for want

of original jurisdiction to decide eligibility for direct payment of withheld contingency fee. Booth v Gober (2000) 14

Vet App 121. 2000 US App Vet Claims LEXIS 878.

Board does not have original jurisdiction to consider any issues regarding entitlement to attorney fees in direct

payment cases under 38 USCS § 5904(c)(2) and all issues involving entitlement or eligibility for attorney fees under

direct-payment contingency fee agreements must first be addressed by regional office in accordance with normal

adjudication procedures. Scates v Gober (2000) 14 Vet App 62. 2000 US App Vet Claims LEXIS 79 7. affd, mod on

other grounds (2002, CA FC) 282 F3d 1362. reh den, reh, en bane, den (2002, CA FC) 2002 US App LEXIS 13278 and cert den (2002) 53 7 US 884, 154 L Ed 2d 142, 123 S Ct 116.

Page 15 of 18

38 uses § 5904

Determination of entitlement or eligibility for attorney fees under direct-payment contingency-fee agreements must

first be addressed by regional office and Board decision is vacated for want of original jurisdiction under 38 USCS §

5904(d) since regional office never made decision concerning award of withheld attorney fees to veteran's attorney.

Snyder v Gober (2000) 14 Vet App 154, 2000 US App Vet Claims LEXIS 893, reconsideration gr, affd in part, and

mod in part on other grounds (2001) 15 Vet App 285, 2001 US App Vet Claims LEXIS 1247.

20. --Erroneou s pay ment to claimant

Statute requiring Secretary to make decision under law that affects provision of benefits by Secretary to veteran

applied to attorney's claim for fee under § 5904(d) erroneously paid to veteran; decision interpreted law affecting

veteran's benefits. Cox v West (1998, CA FC) 149 F3d 1360.

Secretary is obliged by his own regulation to pay attorney under withhold-and-pay contingency-fee agreement if

regulatory requirements and statutory requirements of 38 USCS § 5904(d) are met; existence of erroneous

payment of all past-due benefits is immaterial to Secretary's responsibility to make payment to which there is lawful

entitlement. Snyder v Gober (2000) 14 Vet App 154, 2000 US App Vet Claims LEXIS 893, reconsideration gr, affd

in part, and mod in part on other grounds (2001) 15 Vet App 285, 2001 US App Vet Claims LEXIS 1247.

As is inherent in 38 uses § 5904(d)(2)(A)(i), Secretary is obl igated to withhold and pay agreed-upon fee directly to

attorney despite fact of erroneous payment to veteran. Cox v Principi (2001) 15 Vet App 280, 2001 US App Vet Claims LEXIS 1246.

21. --Other particu lar cases

38 USCS § 5904(d)(2)(A) and (3) and 38 C.F. R. § 20.609(h) do not create implied-in-fact contract to pay attorney

who represented veterans from past-due veteran benefits, where statute was directive from Congress rather than

promise from Department of Veterans Affairs and attorney failed to offer any evidence of mutuality of intent, offer, or

acceptance. Hanlin v United States (2003, CA FC) 316 F3d 1325.

VA erred when it decided that attorney who agreed to represent incarcerated veteran if veteran paid him 20 percent

of past-due benefits he obtained for veteran was entitled to payment of only $ 1,820 because VA withheld all but 10

percent of amount veteran was awarded, pursuant to 38 USCS § 5313, because veteran was incarcerated; contract

which attorney negotiated with veteran allowed him to recover 20 percent of any past-due amounts veteran was

awarded, it tracked language of 38 USCS § 5904, and fee should have been based on total amount veteran was

awarded, not on amount veteran was paid. Snyder v Nicholson (200 7, CA FC) 489 F3d 1213, on remand,

remanded on other grounds (2007, US) 200 7 US App Vet Claims LEXIS 1437.

Attorney was not entitled to charge attorney fees under 38 USCS § 5904(c)(1) for services rendered before Board

of Veterans' Appeals (BVA) or Department of Veterans Affairs (VA) with respect to secondary service connection

for veteran's back disability or for total disability based on individual unemployability where attorney was not

retained within one year after 1990 BVA decision; 1994 BVA decision, though final on issue of secondary service

connection, was not first final decision; and services provided before Board and VA after remand from Court of

Appeals for Veterans Claims were not continuation of proceedings before Court of Appeals for Veterans Claims so

as to be exempt from § 5904(c)(1) limitations on charging attorney fees; however, under § 5904(d)(1 ), attorney's

successful representation of veteran before Court of Appeals for Veterans Claims created entitlement to direct

payment by Secretary of 20 percent of past-due benefits awarded on basis of claim underlying Court's decision. In re Fee Agreement of Mason (1999) 13 Vet App 79, 1999 US App Vet Claims LEXIS 1112.

Contingency fee arrangement for attorneys' fee of 20 percent of past-due benefits received was presumed to be

and was reasonable since it was in compliance with relevant statutory requirements and appellant's lay assertions

regarding value and extent of legal services rendered by counsel were insufficient as matter of law to rebut

presumption. In re Fee Agreement of Vernon (1996) 8 Vet App 45 7.

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38 uses § 5904

38 USCS § 5904(c)(2) or 38 USCS § 7263(d) to address threshold question of whether there is fee agreement, in

view of termination of attorney-client relationship, which would warrant withholding of portion of award; although

jurisdiction exists under 38 USCS § 7252, § 5904 cannot justify Board's decision to award attorney fees since

contingent fee agreement ceased to exist under state law when attorney-client relationship terminated. Scates v West (1999) 13 Vet App 98. 1999 US App Vet Claims LEXIS 1 116. motion gr, op withdrawn on other grounds

(2000) 13 Vet App 304, 2000 US App Vet Claims LEXIS 51.

Board of Veterans Appeals did not err in its determination that appellant attorney was not entitled to direct payment

by Department of Veterans Affairs of 20 percent of veteran's son's past-due dependency and indemnity

compensation (DIC) benefits pursuant to his fee agreement with veteran's widow because, although attorney's

successful representation of veteran's widow had result of qualifying intervenor for DIC benefits, those benefits for

her helpless-adult son under 38 USCS § 13 14 were separate and distinct from veteran's widow's DIC benefits

under 38 USCS § 13 1 1, and there was no evidence of record that attorney ever entered into any fee agreement

with intervenor. Hanlin v Nicholson (2005) 19 Vet App 350, 2005 US App Vet Claims LEXIS 6 16, affd (2007, CA

FC) 474 F3d 1355.

Where Board of Veterans' Appeals confirmed regional office (RO) finding that veteran's contingent fee agreement

with attorney was eligible for direct payment, but found that fee provided in agreement was excessive and

unreasonable because it included both contingent fee and award under Equal Access to Justice Act, Board's

improper consideration of reasonableness of fee as part of eligibility determin ation, without complying with motion

and notice requirements of 38 CFR § 20.6 10(i), was harmless error; RO decision put attorney on notice that

entitlement to both fees was questioned, and de nova review of Board's decision allowed attorney to raise any

issues that might have been raised before Board. Mason v Nicholson (2006) 20 Vet App 2 79, 2006 US App Vet Claims LEXIS 7 49.

Language "on basis of claim, " within meaning of 38 USCS § 5904(d)(1). means complete claim, from initial disability

rating assigned to resolution of any appeal taken regarding matters that affect amount of benefits awarded (i.e . ,

disability rating and effective date). Lippman v Shinseki (2009) 23 Vet App 243, 2009 US App Vet Claims LEXIS 1670.

Veteran's former attorney, who was discharged after veteran was awarded disability ratin g, was improperly denied

fee based on percentage of veteran's past-due benefits awarded after veteran obtained increased rating since 38

CFR § 14. 636(h) invalidly required continued representation by attorney. Lippman v Shinseki (2009) 23 Vet App

243, 2009 US App Vet Claims LEXIS 1670.

22. Enforcement of agreements

Court of Veterans Appeals lacked subject jurisdiction matter over attorn ey's motion to compel Secretary to pay

attorney's fee specified in fee agreement since fee agreemen ts are properly before court only when it reviews

decision of Board concerning agreement or any other matter decided by Board and court did not have decision of

Board before it for review when attorney's motion was filed, and attorney's motion was not one for review of fee

agreement pursuant to § 7263, rather to compel action to give agreement effect. Wick v Brown (In re Wick) (1994, CA FC) 40 F3d 367.

Lien provision in fee agreement between veteran and counsel granting attorney l ien on veteran's claim for benefits

and any sum recovered is unreason able and unenforceable under 38 USCS § 7263(d) because it conflicts with 38 USCS § 530 1(a) and 38 USCS § 5904(d)(3). Busch v West (1999) 12 Vet App 552, 1999 US App Vet Claims LEXIS 950.

Where attorn ey successfully represen ted veteran seeking to recover past due benefits from Department of

Veterans Affairs, fee agreement executed between attorney and veteran in compliance with 38 USCS § 5904(d),

which was thereafter accepted by Secretary, did not give rise to implied-in-fact contract that is enforceable in Court

of Federal Claims. Hanlin v United States (200 1) 50 Fed Cl 69 7, affd (2003, CA FC) 3 16 F3d 1325.

Page 17 of 18

38 uses § 5904




23. Appeal and review

Circuit court lacked jurisdiction to review decision of United States Court of Appeals for Veterans Claims regarding reasonableness of attorney's fee agreement with veteran; more specific provisions of 38 USCS § 7263(d) overrode general grant of jurisdiction in 38 USCS § 7292(a) and, thus, precluded review of decision of Veterans' Court's

under 38 uses§ 5904(c)(2). Carpenter v Principi (2003. CA FC) 327 F3d 1371. reh den, reh, en bane, den (2003,

CA FC) 2003 US App LEXIS 14589.

Where Board of Veterans' Appeals confirmed regional office (RO) finding that veteran's contingent fee agreement

with attorney was eligible for direct payment, but found that fee provided in agreement was excessive and

unreasonable because it included both contingent fee and award under Equal Access to Justice Act, Board's

improper consideration of reasonableness of fee as part of eligibility determination, without complying with motion

and notice requirements of 38 CFR § 20.610(i), was harmless error; RO decision put attorney on notice that

entitlement to both fees was questioned, and de nova review of Board's decision allowed attorney to raise any

issues that might have been raised before Board. Mason v Nicholson (2006) 20 Vet App 2 79, 2006 US App Vet Claims LEXIS 7 49.

Board of Veterans' Appeals erred when it determined that state law governed attorney's eligibility for payment of

attorney fees from past-due benefits, and because federal rather than state law controlled attorney-client contracts

such as one at issue in instant case, Board's decision was set aside and matter was remanded for further

adjudication. Lippman v Nicholson (2007) 21 Vet App 184. 200 7 US App Vet Claims LEXIS 597.

24. Miscellaneou s

Attorney's fee agreement, which stated that it applied to any effort to reopen veteran's case or any issue previously denied by Board of Veterans' Appeals, applied to veteran's claim of clear and unmistakable error, through which veteran sought earlier effective date for disability rating; it is incorrect reading of 38 USCS § 5904(c) to hold that

claim for total disability and claim challenging effective date are not same "case"; under 38 uses § 5904(c), "case"

included effective date of disability rating; Carpenter v Nicholson (2006. CA FC) 452 F3d 13 79. on remand, remanded on other grounds (2007, US) 200 7 US App Vet Claims LEXIS 520.

Where attorney for surviving spouse of deceased veteran received fees from award of death benefits to spouse,

fees from subsequent award to spouse's disabled adult child were properly denied since attorney had no fee

agreement with child as required by 38 USCS § 5904(c)(1 ) : spouse had no authority to contract with attorney on

behalf of adult child who was not shown to be incompetent. Hanlin v Nicholson (200 7. CA FC) 474 F3d 1355.

Portions of Form 2-22a concerning fee agreement filing requirements contained misleading and erroneous

information about fee agreements because it indicated that where payment of fees was permitted, copy of

agreement must be filed, since governing statute does not require that representative enter into fee agreement with

veteran. Jones v Derwinski (1991) 1 Vet App 596.

The language of 38 CFR § 14.636(h)(3)(i) which required attorney to have represented claimant to completion of

segment of case to be eligible for contingency award of attorney's fees was held invalid as inconsistent with 38 USCS § 5904, which required fee award based on quantum meruit analysis. Lippman v Shinseki (2009) 23 Vet App 99, 2009 US App Vet Claims LEXIS 1289.


Page 18 of 18

38 uses § 5904

Code o f Federal Regulations:


seq.


This section is referred to in 38 uses §§ 5902, 5903, 7263.

Am Jur:

60A Am Jur 2d, Pensions and Retirement Funds § 1 1 73.

77 Am Jur 2d, Veterans and Veterans' Laws § 151.

Annotations:

Governmental regulation of attorneys' fees as violating due process under Federal Constitution's Fifth or Fourteenth

Amendment--Supreme Court cases, 108 L Ed 2d 1034.

L aw Review Articles:

Tunny; Frank. Federal Roles in Lawyer Reform. 27 Stan L Rev 333, 197 4-75.

Veterans' Right to Counsel: A Constitutional Challenge to 38 USC § 3404. 4 Univ of San Fernando Valley L Rev

121, Spring 1975.

U N ITED STATES CODE SERVICE

Copyright © 20 1 7 Matthew Bender & Company, I nc. a member of the LexisNexis Group r M All r ights reserved .

End of Document

38 uses § 5905




§ 5905. Penalty for certain acts

Whoever wrongfully withholds from any claimant or beneficiary any part of a benefit or claim allowed and due to the

claimant or beneficiary, shall be fined as provided in title 18, or imprisoned for not more than one year, or both.

History

(Sept. 2, 1958,P.L. 84-857, § 1, 72 Stat. 1239; Oct. 28, 1986, P.L. 99-576, Title VII, § 701 (81 ), 100 Stat. 3298;

Nov. 18, 1988, P.L. 100-687, Div A, Title I,§ 104(b), 102 Stat. 4109; May 7, 1991, P.L. 102-40, Title IV,§ 402(b)(1 ),

(d)(1), 105 Stat. 238, 239; Aug. 6, 1991, P.L. 102-83, § 5(c)(1), 105 Stat. 406; Dec. 22, 2006, P.L. 109-461, Title I,§

101(g), 120 Stat. 3408.)

Annotations

Notes

Amendments:

1986 . Act Oct. 28, 1986 substituted "to the claimant or beneficiary" for "him".

1988. Act Nov. 18, 1988 (effective 9/1/89 as provided by§ 401(a) of such Act, which appears as 38 uses§ 7251

note) substituted "shall be fined as provided in title 18, or imprisoned not more than one year, or both" for "shall be

fined not more than$ 500 or imprisoned at hard labor for not more than two years, or both".

1991 . Act May 7, 1991 redesignated this section, formerly 38 uses§ 3405, as 38 uses§ 5905, and amended

the references in this section to reflect the redesignations made by§§ 401(a)(4) and 402(b) of such Act (see Table

II preceding 38 uses§ 101).

Act Aug. 6, 1991, amended the references in this section to reflect the redesignations made by§ 5(a) of such Act

(see Table Ill preceding 38 uses§ 101).

2006 . Act Dec. 22, 2006, deleted "(1) directly or indirectly solicits, contracts for, charges, or receives, or attempts to

solicit, contract for, charge, or receive, any fee or compensation except as provided in sections 5904 or 1984 of this

title, or (2)" following "Whoever".

Case Notes

1. Purpose

2. Application

3. Fee-related offenses under prior statute

Page 2 of 5

38 uses § 5905

4. Withholding-related offenses

5. Indictments and sufficiency thereof

6. Evidence

7. --Admissibility of evidence

8. Miscellaneous

1. Purpose

Purpose of predecessor to 38 USCS § 5905 was to protect World War veterans from being charged excessive fees

for aid in prosecuting applications to Veterans' Administration [now Department of Veterans Affairs] for benefits

under various statutes passed for their relief and assistance. Sanchez v United States (1943, CA 1 Puerto Rico)

134 F2d 279. cert den (1943) 319 US 768, 87 L Ed 1717, 63 S Ct 1325.

Purpose of 38 uses § 3405 [now 38 uses § 590:2) was to prevent unscrupulous persons from receiving

compensation or fees for obtaining benefits for veterans from Veterans' Administration [now Department of

Veterans Affairs]. Rodulfa v United States (1969. DC Dist Col) 295 F Supp 28. app dismd (1972, App DC) 149 US

App DC 154. 461 F2d 1240. 18 ALR Fed 890. cert den (1972) 409 US 949, 34 L Ed 2d 220, 93 S Ct 270.

2. Application

38 uses§ 3405 [now 38 uses§ 590:2) did not apply to counsel fees in litigation; after administrative denial of

veteran's claim, attorney who subsequently successfully prosecuted claim in lawsuit was entitled to fees up to 25

percent of recovery in court's discretion. Rodu/fa v United States (1969, DC Dist Col) 295 F Supp 28, app dismd

(1972, App DC) 149 US App DC 154. 461 F2d 1240. 18 ALR Fed 890, cert den (1972) 409 US 949, 34 L Ed 2d

220, 93 S Ct 270.

Predecessor to 38 USCS § 5905 was not limited to persons who are recognized or known to Commissioner of

Pensions [now Secretary of Veterans Affairs] as attorneys or agents of applicants for pensions. Caverly v Robbins

(1889) 149 Mass 16, 20 NE 450.

38 USCS § 5905 was not money mandating statute and did not provide grounds for Court of Federal Claims to

review veteran's assertion that he had not received appropriate relief for his pending claim for veteran's benefits.

Smalls v United States (2009) 87 Fed Cl 300.


Unpublished: Provisions of 38 USCS § 5905 did not apply to veteran's assertions that his appointed fiduciaries

were embezzling funds from him because § 5905 applied only to agents or attorneys who represented claimants in

proceedings before VA; veteran could pursue his claims by submitting matter to VA Office of Inspector General.

Browder v Nicholson (2007, US) 2007 US App Vet Claims LEXIS 518, motion gr, dismd (2007, CA FC) 226 Fed

Appx 999.

3. Fee-related offenses under prior statute

If excessive fee was paid by applicant's father, and in no manner affected property interests of applicant himself,

there was no offense. Welty v United States (1924, CA6 Ohio) 2 F2d 562, 3 Ohio L Abs 544.

To constitute crime it was not essential that excessive charge be received pursuant to promise by, or understanding

with, beneficiary, or as result of demand by defendant. Lopez v United States (1926, CA1 Puerto Rico) 17 F2d 462.

Page 3 of 5

38 uses § 5905

Demand for fee greater than statute allowed could be made by suit as well as by word of mouth or other form of

demand. Purvis v United States (1932. CAB Ark) 61 F2d 992.

State court judgment directing payment of fee to attorney who handled claim of veteran was not judicial

determination of legality of fee precluding prosecution. Smith v United States (1936. CAB Ark) 83 F2d 631.

In prosecution for receiving excessive fee, it was good defense that fee also included services in clearing charge of

desertion. United States v Snow (1877. CCED Tenn) 2 Flip 1. 27 F Gas 1255, No 16350.

Attorney acted unprofessionally by attempting to secure fee from client through improper contract and by engaging

in inappropriate efforts to collect attorneys' fees, warranting public reprimand. In re McCarty (1997) 10 Vet App 192.

4. Withholding-related offenses

It is immaterial whether pension was obtained, or whether excessive sum was taken from particular pension money

received. Frisbie v United States (1895) 157 US 160, 39 L Ed 657. 15 S Ct 586.

Word "withholding" contemplated not fraudulent obtaining of money from pensioner, but withholding of money

before it reached pensioner's hands. Ballew v United States (1895) 160 US 187. 40 L Ed 388. 16 S Ct 263.

Attorney was not liable for withholding funds sufficient to pay for other professional services rendered for pensioner.

United States v Hewitt (1882, DC NJ) 11 F 243.

Attorney who received pensioner's check and cashed it by endorsing her name upon it and appropriated money to

his own use was guilty of "withholding" when he subsequently refused to pay check. United States v Ryckman

(1882, DC Tenn) 12 F 46.

Since any agent or attorney, or any other person, was liable under predecessor to 38 USCS § 5905 for withholding

from pensioner any part of his pension, it was not necessary to show that defendant was regular attorney for

pensioner. United States v Schindler (1880, CCD NY) 18 8/atchf 227. 10 F 547.

5. Indictments and sufficiency thereof

Indictment charging defendant with withholding "pay" and "bounty" was not offense. United States v Benecke

(1879) 98 US 447, 8 Otto 447. 25 L Ed 192.

It was sufficient to allege that defendant was engaged in prosecuting claim for pension; his regular profession was

immaterial. Frisbie v United States (1895) 157 US 160, 39 L Ed 657, 15 S Ct 586.

Indictment was not defective because it did not state what kind of war risk insurance was involved. Lucas v United

States (1935, CA5 Tex) 80 F2d 372, cert den (1936) 297 US 709, 80 L Ed 996, 56 S Ct 502.

Descriptive allegations of indictment charging defendant with having received larger compensation for prosecuting

pension claim than allowed by law was sufficient where defendant knew what he was charged with. Perry v United

States (1936, CA5 Fla) 84 F2d 567.

Indictment following words of predecessor to 38 USCS § 5905 was sufficient. United States v Wilson (1886. DC

Mass) 29 F 286.

6. Evidence

Page 4 of 5

38 uses § 5905

It was enough to support conviction for government to show that excessive fee was solicited, contracted, charged,

or received for assistance, whether or not such assistance was ever in fact rendered in preparation and execution

of necessary papers in any application to Veterans' Administration [now Department of Veterans Affairs]. Sanchez

v United States (1943. CA1 Puerto Rico) 134 F2d 279. cert den (1943) 319 US 768, 87 L Ed 1717, 63 S Ct 1325.

Since any agent or attorney, or any other person, was liable under predecessor to 38 USCS § 5905 for withholding

from pensioner any part of his pension, it was not necessary to show that defendant was regular attorney for

pensioner. United States v Schindler (1880, CCD NY) 18 8/atchf 227. 10 F 547.

Government showing that defendant sold piece of property to pensioner at value largely in excess of its real value,

as mere trick, by which he obtained more than legal fee, was competent evidence. United States v Koch (1884.

CCD Mo) 21 F 873.

7. --Admissibility of evidence

Letters of attorney for veteran showing acknowledgment of guilt by attorney in violation of predecessor to 38 USCS

§ 5905 and attempt on attorney's behalf to evade consequences were admissible. Negron v United States (1929.

CA 1 Puerto Rico) 30 F2d 584.

Complaint filed in state court was admissible as evidence of demand for excessive fee under predecessor to 38

uses§ 5905. Purvis v United States (1932, CAB Ark) 61 F2d 992.

8. Miscellaneous

Instruction that it was necessary to establish that defendant was agent or instrumental in prosecution of claim, and

that he withheld from pensioner some part of pension that was allowed was proper. Humes v United States (1898)

170 US 210, 42 L Ed 1011, 18 S Ct 602.

In prosecution in United States District Court for Puerto Rico, it was immaterial that defendant might also have been

tried in insular court for defrauding beneficiary personally. Lopez v United States (1926, CA1 Puerto Rico) 17 F2d

462.




seq.

Am Jur:

60A Am Jur 2d. Pensions and Retirement Funds § 1173.

Annotations:

Misconduct involving intoxication as ground for disciplinary action against attorney. 1 ALR5th 874.


Copyright© 2017 Matthew Bender & Company, Inc. a member of the LexisNexis Group TM All rights reserved.

Page 5 of 5

38 uses § 5905

End of Document

Caution As of: November 13, 2017 7:20 PM Z

Bates v. Nicholson

United States Court of Appeals for Veterans Claims

June 17, 2005, Decided

NO. 03-1903

Reporter

19 Vet. App. 197 *; 2005 U.S. App. Vet. Claims LEXIS 409 **

R. EDWARD BATES, PETITIONER, v. R. JAMES

NICHOLSON, SECRETARY OF VETERANS AFFAIRS,

RESPONDENT.

Subsequent History: Costs and fees proceeding at,

Application denied by Bates v. Nicholson, 2006 U.S.

App. Vet. Claims LEXIS 571 (U.S. App. Vet. Cl., July 18,

2006)

Prior History: Bates v. Nicholson, 398 F. 3d 1355, 2005

U.S. App. LEXIS 3385 (Fed. Cir., 2005)

Core Terms

mandamus, dismissing a petition, lack of jurisdiction, per

curiam, accreditation-cancellation, accreditation,

delegate, days

Judges: [**1] Before IVERS, Chief Judge, and

STEINBERG and HAGEL, Judges.

Opinion

[*198) ORDER

On July 28, 2003, the petitioner was informed by a letter

from the Department of Veterans Affairs (VA) General

Counsel (GC), acting on behalf of the Secretary, that the

Secretary had cancelled the petitioner's accreditation to

represent claimants before VA. On August 6, 2003, the

petitioner, through counsel, filed with a VA regional

office (RO) a Notice of Disagreement (NOD) as to the

Secretary's decision. The VARO thereafter referred the

NOD to the Office of the GC. On October 20, 2003, the

petitioner, through counsel, filed in this Court a petition

for extraordinary relief in the nature of a writ of

mandamus. The petitioner requested that this Court

order the Secretary or his delegates to provide a

Statement of the Case (SOC) in connection with the

petitioner's NOD. On October 28, 2003, the petitioner

filed a supplemental verified petition confirming that the

Secretary had refused to issue an SOC in this matter.

On October 31, 2003, the Court ordered the Secretary

to file an answer to the petition. On December 1, 2003,

the Secretary filed his answer arguing that the Court's

authority under the All Writs [**2] Act, 28 U.S.C. §

1651(a), did not extend to the matter raised in this

petition because such matter could never result in a

decision by the Board of Veterans' Appeals (Board).

Accordingly, the Secretary urged the Court to dismiss

the petition for lack of jurisdiction.

In a February 19, 2004, order, the Court concluded that

the issue of the petitioner's challenge to the termination

of his accreditation was not justiciable by the Board and

dismissed the petition for lack of jurisdiction. Bates v.

Principi, 17 Vet. App. 443, 445-47 (2004) (per curiam

order). The petitioner appealed to the United States

Court of Appeals for the Federal Circuit (Federal

Circuit). On February 28, 2005, the Federal Circuit

issued an opinion in which it held, notwithstanding 38

C.F.R. § 14.633(g) (2004) (providing that GC

accreditation-cancellation decision is final), that the

Board and this Court have jurisdiction to review a VA

accreditation-cancellation decision; the Federal Circuit

reversed this Court's decision and remanded the matter

with instructions to issue the requested writ of

mandamus. See Bates v. Nicholson, 398 F. 3d 1355,

1365-66 (Fed. Cir. 2005). [**3] On June 1, 2005, the

Federal Circuit issued its mandate.

Upon consideration of the foregoing, it is

ORDERED that, in accordance with the mandate of the

Federal Circuit, the relief requested in the petitioner's

October 20, 2003, petition for a writ of mandamus is

GRANTED, to wit, that, not later than 21 days after the

date of this order, the Secretary or his delegate is

19 Vet. App. 197, *198; 2005 U.S. App. Vet. Claims LEXIS 409, **3

directed to provide the petitioner with an SOC in

connection with his NOD. See 38 U.S.C. § 7105(d). It is

further

ORDERED that, not later than 30 days after the date of

this order, the Secretary advise the Court of the date on

which the SOC was issued and provide the Court with a

copy of the SOC.

DATED: June 17, 2005

PER CURIAM.

End of Document

Page 2 of 2

Caution As of: November 13, 2017 7:27 PM Z

Bates v. Nicholson

United States Court of Appeals for the Federal Circuit

February 28, 2005, Decided

04-7085

Reporter 398 F.3d 1355 *; 2005 U.S. App. LEXIS 3385 **

R. EDWARD BATES, Claimant-Appellant, v. R. JAMESNICHOLSON, Secretary of Veterans Affairs,Respondent-Appel lee.

Subsequent History: Writ of mandamus granted, On remand at Bates v. Nicholson, 19 Vet. App. 197, 2005 U.S. App. Vet. Claims LEXIS 409 (U.S. App. Vet. Cl., June 17, 2005)

Prior History: [**1] Appealed from: United States Court of Appeals for Veterans Claims. Opinion Per Curiam.

Bates v. Principi, 17 Vet. App. 443, 2004 U.S. App. Vet.

Claims LEXIS 50 (U.S. App. Vet. Cl., 2004)

Core Terms

Veterans, benefits, Appeals, public law, decisions, judicial review, provisions, claimant, matters, disputes, attorneys, administered, past-due, statutes, accreditation, subsections, survivors, regulations, specialized, construing, tribunals, mandamus, district court, fee agreement, certification, pertaining, statutory provisions, original enactment, writ of mandamus, question of law

Case Summary

Procedural Posture Appellee United States Secretary of Veterans Affairs refused to issue a statement of the case after terminating appellant attorney's accreditation to represent claimants before the United States Department of Veterans Affairs (VA). The attorney then sought mandamus before the United States Court of Appeals for Veterans Claims, which found that it had no jurisdiction. The attorney appealed.

Overview

The lower court found that the Board of Veterans' Appeals (BVA) had no jurisdiction over the attorney's challenge and as a result, it had no jurisdiction over an appeal from the BVA. The attorney argued that for purposes of 38 U.S.C.S. § 5 1 1, 38 U.S.C.S. § 5904(b) was a law that affected the provision of benefits. The appellate court found that the relationship between the canceling of the attorney's accreditation and the securing of benefits by his clients was far too attenuated. Moreover, the attorney had made no showing that the accreditation cancellation affected the del ivery of benefits to any VA claimant. However, a further issue was whether 38 U.S.C.S. § 5904(b) was a law separate and apart from the remainder of 38 U.S.C.S. § 5904, or whether§ 5904 was part of a single law. The appellate court concluded that 38 U.S.C.S. § 5 1 1's reference to law was to a single statutory enactment that bore a Public Law number in the Statutes at Large. In this case, 38 U.S.C.S. § 5904 was a single law as it was originally enacted as part of a Public Law that affected the provision of benefits. Thus, it was subject to review by the BVA and the lower court under the terms of 38 U.S.C.S. § 5 1 1.

Outcome The lower court's decision was reversed and the case was remanded.

LexisNexis® Headnotes

Military & Veterans Law > Veterans > Department of Veterans Affairs

HN1[�] Veterans, Department of Veterans Affairs

Page 2 of 13 398 F. 3d 1355, *1355; 2005 U.S. App. LEXIS 3385, **1

Representation of claimants before the United States Department of Veterans Affairs (VA) is permissible only if an attorney is accredited by the VA pursuant to 38 U.S.C.S. §§ 590 1 & 5904(a).

Civil Procedure > Appeals > Standards of Review > De Novo Review

Military & Veterans Law > Veterans > Appeals & Review > US Court of Appeals for Veterans Claims

HN2[A] Standards of Review, De Novo Review

38 U.S.C.S. § 7292(d)(1) provides that the United States Court of Appeals for the Federal Circuit, in reviewing decisions of the United States Court of Appeals for Veterans Claims, shall decide all relevant questions of law, including interpreting constitutional and statutory provisions. Such legal interpretations are reviewed without deference.

Civil Procedure > .. . > Writs > Common Law Writs > Mandamus


HN3[A] Common Law Writs, Mandamus

The United States Court of Appeals for Veterans Claims has the power to issue writs of mandamus in aid of its jurisdiction under the All Writs Act.

Administrative Law > Separation of Powers > Jurisdiction


HN4[A] Separation of Powers, Jurisdiction

By virtue of 38 U.S.C.S. § 7252, the United States Court of Appeals for Veterans Claims has jurisdiction to review decisions of the Board of Veterans' Appeals, but it does not have jurisdiction to review other decisions of the United States Secretary of Veterans Affairs.

Military & Veterans Law > Veterans > Appeals & Review > US Board of Veterans Appeals

HN5[A] Appeals & Review, US Board of Veterans Appeals

38 U.S.C.S. § 7 104(a) limits the Board of Veterans' Appeals' jurisdiction to all questions in a matter which under 38 U.S.C.S. § 511(a) is subject to decision by the United States Secretary of Veterans Affairs.


HN6[A] Veterans, Department of Veterans Affairs

See 38 U.S.C.S. § 5 11(a).


HN7[A] Veterans, Department of Veterans Affairs

38 U.S.C.S. § 5904(b) authorizes the United States Secretary of Veterans Affairs to suspend or exclude agents and attorneys from practice before the United States Department of Veterans Affairs.


HNB[A] Veterans, Department of Veterans Affairs

38 U.S.C.S. § 5904(a) authorizes the United States Secretary of Veterans Affairs to certify individuals for practice before the United States Department of Veterans Affairs (VA). 38 U.S.C.S. § 5904(c) regulates when, and what types, of fees may be charged by agents and attorneys, and 38 U.S.C.S. § 5904(d) authorizes contingency fees limited to 20 percent of the total amount of past-due benefits awarded, and provides for direct payment of such fees by the VA when appropriate. 38 U.S.C.S. § 5904.



HN9[A.] Veterans, Department of Veterans Affairs

See 38 U.S.C.S. § 5904.


Military & Veterans Law > .. . > General Benefits > Compensation for Service Connected Death & Disability > Eligibility

HN10[A.] Veterans, Department of Veterans Affairs

The United States Court of Appeals for the Federal Circuit holds that 38 U.S.C.S. § 5904(d), which governs the amount that may be awarded to attorneys on a contingency basis from past-due benefits, affects the provision of benefits to veterans.

Governments > Federal Government > Elections


Governments > Legislation > Interpretation

HN11[Ai] Federal Government, Elections

The United States Court of Appeals for the Federal Circuit thinks that 38 U.S.C.S. § 5 1 1's reference to a "law" is to a single statutory enactment that bears a Public Law number in the Statutes at Large. Congress has not specifically defined the term "law, " but both the United States Constitution and 1 U.S.C.S. § 106a make clear that a law is a bill that has been duly approved by both Houses of Congress and signed by the President (or enacted over his veto). U.S. Const. art. /, § 7, cl. 2; 1 U. S.C. S. § 106a. Congress also makes clear that such laws, once duly enacted, are to be published in the Statutes at Large. 1 U.S.C.S. § 1 12. Thus, a "law" is a Public Law appearing in the Statutes at Large. There is no basis in the statutory language, legislative history, or case authority for construing the term "law" to be limited to a particular statutory subsection. Nor is there a basis for construing the term "law" to be a particular statutory section.

Military & Veterans Law > Veterans > General Benefits > General Overview



HN12[Ai] Veterans, General Benefits

According to the United States Court of Appeals for the Federal Circuit, neither the history of the amendments to the law, nor its changing position in the United States Code through the passage of a series of consolidation statutes, alters the fact that, as originally enacted, 38 U.S.C.S. § 5904 was part of a Public Law that affects the provision of benefits and therefore is subject to review by the Board of Veterans' Appeals and the United States Court of Appeals for Veterans Claims under the terms of 38 U.S.C.S. § 5 1 1.

Military & Veterans Law > Veterans > Claim Procedures

Military & Veterans Law > Veterans > General Benefits > General Overview




HN13[A.] Veterans, Claim Procedures

In view of the history of 38 U.S.C.S. § 5 1 1(a), the United States Court of Appeals for the Federal Circuit sees nothing to suggest that interpretation of the section in accordance with its plain language would disserve congressional intent behind the passage of the 1988 legislation. To the contrary, an interpretation of§ 5 1 1 (a) that generally places review of Secretarial decisions under a single piece of legislation relating in whole or in part to benefits first in the Board of Veterans' Appeals, and then in the United States Court of Appeals for Veterans Claims, clearly serves the congressional purpose.

Military & Veterans Law > Veterans > Department of


Veterans Affairs


38 U.S.C.S. § 511(a) does not apply to every challenge to an action by the United States Department of Veterans Affairs. As the United States Court of Appeals for the Federal Circuit holds, it only applies where there has been a decision by the United States Secretary of Veterans Affairs.

Labor & Employment Law > . . . > Conditions & Terms > Arbitration Provisions > General Overview

Public Contracts Law > Dispute Resolution > Contract Disputes Act

Administrative Law > Sovereign Immunity

Governments > Legislation > Interpretation

Labor & Employment Law > . . . > Employment Contracts > Conditions & Terms > General Overview

Public Contracts Law > Dispute Resolution > Jurisdiction

HN15[�] Provisions

Conditions & Terms, Arbitration

When two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.





38 U.S. C. S. § 511 ( a) cannot be read to preclude jurisdiction in other tribunals when that jurisdiction is specifically conferred by Congress.

Counsel: Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.

David D'Alessandris, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondentappellee. With him on the brief were Peter D. Kiesler, Assistant Attorney General, David M. Cohen, Director, and Brian M. Simkin, Assistant Director. Of counsel on the brief were Richard J. Hipolit, Deputy Assistant General Counsel and Martin J. Sendek, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Judges: Before NEWMAN, BRYSON, and DYK, Circuit Judges. Opinion for the court filed by Circuit Judge DYK. Concurring opinion filed by Circuit Judge BRYSON.

Opinion by: DYK

Opinion

[*1357] DYK, Circuit Judge.

The Secretary, acting through the General Counsel, terminated appellant R. Edwards Bates' ("Bates") accreditation to represent claimants before the Department of Veteran Affairs ("VA"). Bates sought review before the Board of Veterans Affairs ("the Board"). The Secretary declined to issue the Statement of the Case ("SOC") that Bates [**2] required to pursue his appeal. He then sought mandamus from the United States Court of Appeals for Veterans Claims to order the Secretary to issue the SOC so that he could appeal to the Board. The court found that the Board had no jurisdiction over the appeal, and accordingly, the court would have no jurisdiction over an appeal from the Board, thus rendering mandamus unavailable. We reverse the decision of the Court of Appeals for Veterans Claims and remand with instructions to issue the requested writ of mandamus.

BACKGROUND

Appellant Bates is an attorney who represents claimants for benefits before the VA. HN1[�] Such representation is permissible only if an attorney is accredited by the VA pursuant to 38 U.S.C. §§ 590 1 and 5904(a). Bates was accredited. On July 28, 2003, following a hearing, the General Counsel of the VA ("GC"), acting on behalf of the Secretary, terminated Bates' accreditation, acting


under the authority of 38 U.S.C. § 5904(b) and 38 C.F.R. § 14.633. The GC concluded that Bates had"engaged in unlawful practice and violated lawsadministered by the Secretary. " (J.A. at 49. ) Inparticular, the GC [**3] found that Bates had "acceptedunlawful compensation for preparing, [*1358]presenting, and prosecuting claims for VA benefits inviolation of 38 U.S. C. § 5904(c)( 1 ), . . . solicited andcontracted for illegal fees in violation of 38 U.S. C. §5905(1) . . . [and] deceived and misled a claimant." (Id.)Bates was also accused of violating 38 U.S.C. §5904(c)(2) by seeking unreasonable fees from hisclients, although the GC did not directly address thatviolation in making his decision, finding it subsumed inthe other charges. (Id. at 48.)

Bates urged that the Secretary's action was reviewable by the Board, because the Board's jurisdictional statute provides for review of "decisions by the Secretary under a law that affects the provision of benefits, " 38 U.S.C. § 7 104(a) (2000) (incorporating by reference, 38 U.S.C. § 5 1 1 (a)), and because the Secretary's decision to cancel his accreditation under 38 U.S.C. § 5904(b) was such a decision. Accordingly, in August 2003, Bates filed a Notice of Disagreement ("NOD") as to the Secretary's decision with [**4] the VA's regional office and requested that the Secretary issue an SOC so that he could appeal to the Board. An SOC is a mandatory prerequisite to a Board appeal . 38 U.S.C. §§ 7105(a) and (d) (2000). The Secretary refused to issue the SOC, and thereby prevented a Board appeal. In October 2003, Bates filed a petition for extraordinary relief in the nature of a writ of mandamus in the Court of Appeals for Veterans Claims, requesting the court to order the Secretary to provide the SOC. The parties appeared to agree that Bates' entitlement to the writ under the All Writs Act ("AWA"), 28 U.S.C. § 165 1(a), turned on whether the Board had jurisdiction to review the Secretary's action and whether the Court of Appeals for Veterans Claims ultimately had jurisdiction to review the Board's action.

The court held that it would possess jurisdiction to issue the writ only if the granting of Bates' petition could lead to a Board decision over which the court would have jurisdiction. The Court of Appeals for Veterans Claims held that the Board lacked jurisdiction in the first instance, and as a consequence, the court lacked jurisdiction, and therefore [**5] there was no authority to issue a writ of mandamus. 38 U.S.C. § 7252 (2000).

The court concluded that the provision which the Secretary noted, section 5904(b). was not "a law that

affects the provision of benefits, " and was therefore outside the Board's jurisdiction under 38 U. S. C. §§ 5 1 1(a) and 7 104(a), and that the court therefore lacked jurisdiction under 38 U.S.C. § 7252. In holding section 5 1 1 (a) to be inapplicable, the Court of Appeals for Veterans Claims distinguished our decision in Cox v. West. 149 F.3d 1360 (Fed. Cir. 1998). Bates v. Principi, 17 Vet. App. 443, No. 03- 1903 (Vet. App. 2004). Cox held that 38 U.S.C. § 5904(d). which authorizes the Secretary to withhold a portion of past-due benefits owed to a VA claimant and to pay those withheld benefits to an attorney, pursuant to an otherwise valid fee agreement, was a provision that "affects the provision of benefits" and therefore that the Secretary's decisions under the statute were subject to review pursuant to 38 U.S.C. § 5 1 1(a). 149 F.3d at 1365.

The Court of Appeals for [**6] Veterans Claims distinguished 38 U.S.C. § 5904(d), at issue in Cox, from 38 U.S.C. § 5904(b), at issue in Bates' case. The court found the latter provision to "pertain0 to a decision to terminate the accreditation of an attorney [and to] . . . say0 nothing about VA benefits. " Bates, at 446. Thus, the court dismissed Bates' petition for lack of jurisdiction. Id. at 447.

[*1359] Bates timely appealed to this court. We have jurisdiction pursuant to 38 U.S.C. § 7292. Cox. 149 F.3d at 1362.

DISCUSSION

Our review of this question is governed by HN2[�] 38 U.S.C. § 7292(d){1), which provides that this court, in reviewing decisions of the Court of Appeals of Veterans Claims, "shall decide all relevant questions of law, including interpreting constitutional and statutory provisions. " Such legal interpretations are reviewed without deference. Jones v. Brown, 4 1 F.3d 634, 637 (Fed. Cir. 1994); Mayer v. Brown, 37 F.3d 6 18, 6 19 (Fed. Cir. 1994).

As we confirmed in Cox, HN3[�] the Court of Appeals for Veterans Claims "has the power to issue writs [**7] of mandamus in aid of its jurisdiction under the AWA." 149 F.3d at 1363; see a/so FTC v. Dean Foods Co., 384 U.S. 597, 603, 16 L. Ed. 2d 802, 86 S. Ct. 1738 (1966) ("The exercise of this [AWA] power ... extends to the potential jurisdiction of the appellate court where an appeal is not then pending but may be later perfected. "). The propriety of a writ of mandamus in this case turns on the question of whether the Court of Appeals for Veterans Claims would have jurisdiction to review the


GC's decision. HN4[�] By virtue of 38 U.S.C. § 7252, the Court of Appeals for Veterans Claims has jurisdiction to review decisions of the Board, but it does not have ju risdiction to review other decisions of the Secretary. Thus, the question is whether the Board had jurisdiction over the appeal.

HN5[,i] Section 7 104(a) of 38 U.S.C. limits the Board's ju risdiction to "all questions in a matter which under section 5 1 1 (a) of this title is subject to decision by the Secretary. " Section 5 1 1(a) states:

HN6[T] The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the pro vis ion of benefits by the Secretary [**8] to veterans or the dependents or survivors of veterans. Subject to su bsection (b), the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.

38 U.S.C. § 5 1 1(a) (2000) (emphasis added). 1 Theultimate question before us is whether this case arises "under a law that affects the provision of benefits. " Id.

[**9] I

The Secretary here, in deciding to terminate Bates' certification, acted pursuant to 38 U.S. C. § 5904(b) .

HN7[T] Section 5904(b) authorizes the Secretary to "suspend or exclude" agents and attorneys from practice before the VA. Bates argues that section 5904(b) is itself a "law that affects the provision of benefits" because if he is unable to practice, his clients will not be able to secure the benefits to which they are entitled. We cannot agree. The relationship between the canceling of the appellant's accreditation and the securing of benefits by his clients is far too attenuated.

1 The exceptions set forth in 38 U.S. C. § 51 1 (b) are : ( 1 ) matters subject to 38 U.S. C. § 502 ( Federa l Ci rcuit ju risd iction over Administrative Procedure Act review of VA rulemaking) ; (2 ) matters covered by 38 U. S. C. §§ 1975 and 1984 Uurisd iction of federa l d i str ict cou rts over suits on Veterans' G roup Life Insurance, Nationa l Service Life Insurance and U.S. Government l ife insurance) ; (3) matters arising under chapter 37 of title 38 (involving VA housing and sma l l bus iness loans) ; and (4) matters a rising under chapter 72 of tit le 38, (covering the appea ls process to the Board, the Court of Appea l s for Veterans Cla ims , and, ult imate ly, this cou rt and the Supreme Court).

Bates has made no showing that the cancellation of his accreditation has affected [*1360] the delivery of benefits to any VA claimant. Not only could the appellant's clients find another attorney, the VA system provides claimants with a wide choice of possible representatives, including representatives of recognized veterans service organizations and claims agents in good standing with the VA. 38 C.F .R. § 14.629 (2004). The argument that 38 U. S.C. § 5904(b) is itself a "law that affects the provision of benefits" is unpersuasive.

This is [**1 0] not the end of the matter. A further question is whether subsection 5904(b) should be considered as a "law" separate and apart from the remainder of section 5904, or whether the entirety of section 5904 should be considered part of a single "law. " Other subsections of section 5904 deal with matters closely related to the decertification provisions in subsection 5904(b). HNB[T] Subsection 5904(a) authorizes the Secretary to certify individuals for practice before the VA. Subsection 5904(c) regulates when, and what types, of fees may be charged by agents and attorneys, and subsection 5904(d), involved in ou r decision in Cox, authorizes contingency fees limited to 20% of the total amount of past-due benefits awarded, and provides for direct payment of such fees by the VA when appropriate. 38 U.S.C. § 5904 (2000). 2

2 Section 5904, titled "Recogn it ion of agents and attorneys genera l ly , " reads in its entirety :

HN9[T] (a ) The Secretary may recogn ize any ind ividua l as an agent or attorney for the preparation, presentation, and prosecution of claims under laws admin istered by the Secreta ry. The Secreta ry may requ i re that ind ividua ls , before being recognized under th i s section , show that they are of good mora l character and in good repute , a re qual ified to render c la imants valuab le service, and otherwise are competent to assist c la imants in presenting cla ims.

(b) The Secreta ry, after notice and opportun i ty for ahearing , may suspend or exclude from further practicebefore the Department any agent or attorney recogn izedunder th i s sect ion if the Secreta ry finds that such agent orattorney--

( 1 ) has engaged in any un lawful , unprofessiona l , or dishonest pract ice;

(2) has been gui lty of d isreputab le conduct ;

(3) is incompetent;

(4) has violated or refused to comply with any of thelaws admin istered by the Secreta ry, or with any of

Page 7 of 1 3 398 F .3d 1 355 , * 1 360 ; 2005 U .S. App . LEX IS 3385, * * 1 0

the reg u lations or i nstructions govern i ng practice before the Department; or

(5) has in a ny manner deceived , m is led , or threatened any actua l or prospective c la imant.

(c)( 1 ) Except as provided i n paragraph (3) , in connection with a proceeding before the Department w i th respect to benefits under laws adm in istered by the Secretary , a fee may not be charged, a l lowed , or paid for services of agents and attorneys with respect to services provided before the date on wh i ch the Board of Veterans' Appeals first makes a fi na l decis ion i n the case. Such a fee may be charged , a l lowed , or paid i n the case of services provided after such date only i f an agent or attorney is reta i ned with respect to such case before the end of the one-year per iod beg i nn i ng on that date. The l im itat ion in the preced ing sentence does not app ly to services provided with respect to proceed ings before a cou rt.

(2) A person who, acti ng as agent or attorney in a case referred to i n paragraph ( 1 ) of th is subsection , represents a person before the Department or the Board of Veterans' Appea ls after the Board first makes a fi na l decis ion i n the case sha l l fi le a copy of any fee agreement between them with the Board at such time as may be specified by the Board. The Board , u pon its own motion or the request of e i ther party, may review such a fee agreement and may order a reduction i n the fee ca l l ed for i n the agreement if the Board fi nds that the fee is excessive or un reasonable . A fi nd i ng or order of the Board under the preced ing sentence may be reviewed by the Un ited States Court of Appea ls for Veterans Cla ims under section 7263(d ) of [T it le 38].

(3) A reasonable fee may be charged or paid i n con nection with any proceed ing before t he Department i n a case ar is ing ou t o f a loan made, guaranteed , or i nsu red under chapter 37 of [T itle 38]. A person who charges a fee under th is paragraph sha l l enter i nto a written agreement with the person represented and sha l l fi le a copy of the fee agreement with the Secreta ry at such time , and i n such manner, as may be specified by the Secreta ry.

(d )( 1 ) When a c la imant and an attorney have entered i nto a fee agreement descri bed i n paragraph (2) of this subsection , the total fee payab le to the attorney may not exceed 20 percent of the tota l amount of any past-due benefits awarded on the bas is of the c la im.

(2)(A) A fee agreement referred to i n paragraph ( 1 ) is one under which the tota l amount of the fee payab le to the attorney--

( i ) is to be paid to the attorney by the Secretary d i rectly from any past-due benefits awarded on the basis of the cla im ; and

( i i ) is contingent on whether or not the matter is

[**11] [*1361] I f section 5904 i s itself a s i ng le law, HN10['t] we have a l ready he ld that subsection 5904(d), which governs the amount that may be awarded to attorneys on a conti ngency bas is from past-d ue benefits , "affects the prov is ion of benefits . " Cox. 149 F.3d at 1365. I n that case, Cox, an attorney, represented a veteran before the VA in a c la im for benefits , subject to a twenty percent cont i ngent fee a rrangement u nder which the Secretary was to pay the fee to the lawyer out of any past-d ue benefits as p rovided i n subsection 5904(d). We reasoned that Cox's c la im to ent i t lement to h i s fee was j ust ic iab le by the Board, as the c la im req u i red the Secreta ry , in reach ing h i s dec is io n , to necessari ly i nterpret subsection 5904(d), a provis ion "that affects the prov is ion of benefits . " Id. Thus , i f section 5904 i s to be cons idered as a whole , subsection 5904(b) is part of a " law that affects the p rovis ion of benefits , " and the Board has j u risd iction .

I I

HN1 1[li] We th i nk that section 5 1 1's reference to a " l aw" is to a s ing le statutory enactment that bears a Pu b l ic Law n u m ber i n the Statutes at La rge. Congress has not specifica l ly defi ned the term " law, " but both the Constitut ion and Section 106a 1**121 of Title 1 of the United States Code make c lea r that a law is a b i l l that has been d u ly approved by both Houses of Congress and s igned by the Pres ident (or enacted over h i s veto ). U. S. Const .• art. I. § 7, cl. 2 ; 1 U. S. C. § 106a (2000). 3

resolved in a manner favorab le to the c la imant.

(B) For pu rposes of subparagraph (A) of this paragraph, a cla im sha l l be cons idered to have been resolved in a manner favorab le to the c la imant if a l l or any part of the re l i ef sought is g ranted .

(3) To the extent that past-due benefits are awarded i n any proceed ing before t he Secretary, t he Boa rd of Veterans' Appea ls , or the Un ited States Court of Appea ls for Veterans Cla ims , the Secretary may d i rect that payment of any attorneys' fees under a fee a rrangement descr ibed i n paragraph ( 1 ) of th is su bsect ion be made out of such past-due benefi ts. In no event may the Secreta ry withho ld for the pu rpose of such payment any portion of benefits payable for a per iod after the date of the fina l decis ion of the Secreta ry , the Board of Veterans' Appeals, or Cou rt of Appea ls for Veterans C la ims mak ing (or order ing the making of) the award.

38 1/. S. C. § 5904.

3 Tit led "Promu lgation of laws , " 1 U. S. C. § 106a sets forth the procedu res by which a b i l l , order, resol ut ion or vote of the Congress , "having been approved by the Pres ident, or not

S UZAN N E MCNAMARA

Page 8 of 13 398 F.3d 1355, *1361; 2005 U.S. App. LEXIS 3385, **12

Congress has also made clear that such laws, once duly enacted, are to be published in the Statutes at Large. 1 U.S.C. § 112 (2000). Thus, a "law" is a Public Law appearing in the Statutes at Large. There is no basis in the statutory language, legislative history, or case authority for construing the term "law" to be limited to a particular statutory subsection, as the government urges. Nor is there a basis for construing the term "law," as the concurrence apparently seems to do, to be a particular statutory section. The cases cited by the concurrence, where the term "law" is used to describe a specific section of a statute, can hardly be read to hold as a matter of [*1362] statutory construction that the term "law" should be limited to a particular numbered section of the law. Concurring Op., post at 4 n.2.

[**13] Here, the relevant "law" is the public law that originally enacted section 5904, the Veterans Act of 1 936, ch. 867, 49 Stat. 2031. 4 Title II of the VeteransAct of 1 936, entitled "Agents and Attorneys, " was the predecessor of 38 U.S.C. § 5904. Title II differed from the current section 5904 only in limited respects, including the imposition of a $ 1 0-per-claim limitation on attorney fees (and consequently the absence of a separate provision regarding contingency fees), and the inclusion of the criminal penalty provisions for improper practice (now separately codified as 38 U.S.C. § 5905). Compare Veterans Act of 1 936, § 201, 49 Stat. at 2032, with 38 U.S.C. § 5904 (2000).

[**14] Title II of the Veterans Act of 1 936 has never been repealed and, as noted, has remained largely unchanged since originally enacted in 1 936. The current codification of section 5904 reflects a series of amendments to the original law, as well as the placement of that law, together with other laws related to veterans that do not necessarily involve the provision of benefits, into Title 38. These changes have transpired through the promulgation of consolidation statutes passed, inter alia in 1 958 and 1 988. Act of Sept. 2, 1 958, Pub. L. No. 85-857. § 3404. 72 Stat. 1105. 1238-39 ; Veterans Judicial Review Act, Pub. L. No. 100-687,

having been returned by him with his object ions , becomes a

law or takes effect . "

4 The other provisions of the 1 936 Act dealt with related

issues : Tit le I re laxed restrictions on compensation for World

War Widows and Children; Tit le I l l provided the VA with the

authority to issue subpoenas, make investigations , and

administer oaths when processing benefits c laims; Tit le IV

covered misce llaneous areas, a l l re lating to benefits claims ;

and Tit le V provided hurricane re l ief for World War veterans

and their dependents. 49 Stat. at 2031-35.

§ 104(a), 102 Stat. 4105, 4108 (1988) ; renumbered §5904 and amended by, Department of Veterans AffairsHealth-Care Personnel Act of 1991 , Pub. L. No. 102-40,§ 402, 105 Stat. 187, 238-39; amended by Pub. L. 102-40, Title I V, § 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; amended by, Veterans ProgramsEnhancement Act of 1 998, Pub. L. No . 105-368, § 512,112 Stat. 3315, 3341. HN12[�] Neither the h istory ofthe amendments to the law, nor its changing position inthe United States Code through the passage of a seriesof consolidation statutes, alters [**15] the fact that, asoriginally enacted, 38 U.S.C. § 5904 was part of aPublic Law "that affects the provision of benefits" andtherefore is subject to review by the Board and theCourt of Appeals for Veterans Claims under the terms of38 U.S.C. § 511.

Ill

The h istory and purpose of section 511(a) confirm the correctness of our interpretation. In this connection, some understanding of the history of section 511 (a) is necessary.

With minor exceptions, from the origin of federal provIsIon of veterans' benefits until 1988, the Congressional ph ilosophy was that benefits decisions by the executive should not be subject to judicial review. This philosophy was reflected in the predecessors to section 511, which generally precluded judicial review of benefits decisions.

The predecessor to section 511 (a) , namely section 211 (a), was originally enacted as two separate provisions that were consolidated in 1958, resulting in 38 U .S.C. § 211 (a). 5 This provision barred judicial[*1363] review of the Administrator's decisions "on any

question of law or fact concerning a claim for benefits or payments under any law administered by the [**16] Veterans' Administration. " 38 U.S.C. § 21 1(a) (1 958). In 1 970, Congress amended the statute expressly to tighten up "an apparent gaping hole" in the bar to judicial review that had been opened by a line of District

5 The first provision was enacted in 1 933, under the Economy

Act, ch . 3, 48 Stat. 9 ( 1 933) and the latter in 1 940 as an

amendment to the World War Veterans' Act of 1 924 , see Act

of Oct. 1 7 , 1 940 , ch. 893, § 1 1, 54 Stat. 1 193, 1 197. Frederick

Davis , Veterans' Benefits, Judicial Review, and the

Constitutional Problems of "Positive " Government, 39 Ind . L . J .

1 83 , 1 86 n . 1 2 ( 1 964) (tracing the 1 958 version o f section

51 1 (a)--38 U .S .C . § 21 1 (a) ( 1 958)--back through the

conversion tables to these two origina l enactments) .


of Columbia Circuit cases narrowly construing the language of the statute to bar review only of initial filings of claims. H.R. Rep. No. 100-963, at 18 (1988), reprinted in 1988 U. S.C.C.A.N. 5782, 5800 (citing Wellman v. Whittier, 104 U.S. App. D. C. 6, 259 F. 2d 163 (D.C. Cir. 1958), Tracy v. Gleason. 126 U.S. App. D.C. 4 15, 379 F.2d 469 (D.C. Cir. 1967), and the Act of August 12, 1970, Pub. L. No. 9 1-376, § 8(a). 84 Stat. 787. 790) (other citations omitted)). This amendmentwas intended to preclude review of "any decision of theAdministrator 'on any question of law or fact under anylaw administered by the Veterans' Administration."' Id. at18- 19, reprinted in 1988 U. S.C.C.A.N. at 5800.

[**17] Thus, prior to 1988, section 211(a) provided that, with the exception of review of decisions regarding life insurance and small business and housing loans,

The decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise.

38 U.S.C. § 211 (a) (1982) (codifying Act of Aug. 12, 1970, § 8(a), 84 Stat. at 790). No independent judicial review of benefits decisions was available. As noted by the Supreme Court in Johnson v. Robison, 4 15 U.S. 36 1, 39 L. Ed. 2d 389, 94 S. Ct. 1 160 (1974), the two primary purposes of this pre- 1988 version of the provision were "to insure that veterans' benefits claims will not burden the courts and the Veterans' Administration with expensive and time-consuming litigation, and . . . to insure that the technical and complex determinations and applications of VA policy connected with veterans' benefits [**1 8] decisions will be adequately and uniformly made. " Id. at 370 (footnotes omitted). 6

If this objective of precluding judicial review had continued, it would have been appropriate to give a narrow construction to section 5 1 1 (a), as is done with all provisions precluding judicial review. See Abbott Labs. v. Gardner. 387 U. S. 136, 140, 18 L. Ed. 2d 681, 87 S.Ct. 1507 (1967) (recognizing a basic presumption in favor of judicial review) ; see also de Magno v. United

6 A narrow exception to the foreclosure ru le was carved out by

the Supreme Cou rt in Johnson, id. at 367, for certain

constitutional challenges to the VA's actions .

States. 205 U.S. App. D.C. 6, 636 F.2d 7 14, 72 1 (D.C. Cir . 1980) ("Jurisdictional limitations are interpreted narrowly, with an eye both to avoiding potential constitutional difficulties, and to preserving the Courts' traditional role of deciding legal disputes. "). But in 1988, the purpose, but not the language, of this section changed [**1 9] dramatically.

The passage of the Veterans ' Judicial Review Act ("VJRA") provided veterans with their day in court. See Forshey v. [*13641 Principi, 284 F.3d 1335, 1344-45 (Fed. Cir. 2002) (en bane) (summarizing the major changes to judicial review with the enactment of the VJRA): Beamon v. Brown. 125 F.3d 965, 967 (6th Cir. 1997) (same). As noted by one of the original House sponsors, the legislation was "intended to produce timely, consistent, and fair decisions for veterans in a truly independent court which wil l not be burdened by other cases having nothing to do with veterans. " 134 Cong. Rec. H9258 (daily ed. Oct. 3, 1988) (statement of Rep. Solomon).

One might have expected this reversal of congressional pol icy concerning judicial review to have brought about the repeal of section 211 (a). It did not. Rather, section 211 (a) continued to broadly bar judicial review of benefits decisions, but an exception was created for judicial review of such decisions by the newly created Article I court. 38 U.S.C. § 5 1 1(b)(4). 7 At the sametime, Congress added new sections to Title 38, reflected in today's versions of Chapters 71 and 72, reforming [**20] the existing internal mechanisms for the review of benefits decisions by the VA regional offices and by the Board; specifically providing for independent judicial review of the Board's final decisions by a new Article I Court of Veterans Appeals (today known as the Court of Veterans Appeals for Veterans Claims) ; and providing the Federal Circuit with exclusive appellate jurisdiction over the decisions of the Court of Appeals for Veterans Claims. Veterans' Judicial Review Act, § 301 (codified as amended at 38 U.S.C. § 725 1 et seq. ). Section 5 1 1(a) (then section 211(a))--originally designed to bar judicial review entirely--became the provision that defined the scope of the Board's jurisdiction, and therefore, that of the new Article I court. 8

7 Section 2 1 1 (a) was renumbered as section 511(a) in 1 99 1 .

Department of Veterans Affairs Codification Act, Pub. L. No.

102-83, § 2, 105 Stat. 378, 388-89 (1991) .

8 In keeping with the new ro le for the provision, Congress

noted that "the effect of [rep lacing "under any law

Page 10 of 13 398 F.3d 1355, *1364 ; 2005 U.S. App. LEXIS 3385, **20

[**21] Thus, the effect of the 1988 legislation was to generally place judicial review of Secretarial decisions "under a law that affects the provision of benefits" within the specialized review process. 9 Congress plainlypreferred this approach as a matter of policy, both because it avoided overburdening the district court system and because the district courts lacked the necessary expertise. As the House Report noted, the "courts already have far too many cases to handle," H .R. Rep. No. 100-963, at 22, reprinted in 1988 U. S.C.C.A.N. at 5804, and the legislation aimed to prevent reviewing courts from being "put in a position where [they have] no idea of an agency's views on a particular legal question. " Id. at 27, reprinted in 1988 U. S.C.C.A.N. at 5809.

[**22] HN13[�] In view of the history of section 511 (a), we see nothing to suggest that interpretation of the section in accordance with its [*1365] plain language would disserve congressional intent behind the passage of the 1988 legislation. To the contrary, an interpretation of sect ion 5 11 ( a) that generally places review of Secretarial decisions under a single piece of legislation relating in whole or in part to benefits first in the Board, and then in the Court of Appeals for Veterans Claims, clearly serves the congressional purpose.

This is particularly clear from the fact that Secretarial decisions under subsection 5904(b) are, as in this case, also likely to involve interpretations of other subsections that themselves are subject to the specialized review process. We held in Cox that subsection 5904(d) is subject to the specialized review process. 149 F. 3d at 1365. We have also held that the Board has jurisdiction

admin istered by the Veterans' Administration providing benefits" with "under a law that affects the provision of benefits"] is to broaden the scope of section 2 1 1 , " and provided the examp le of a decision regard ing the potentia l confl ict in VA regulations with another law proh ib iting discrimination against d isabled persons as being reviewable through the VA appea ls process as a decis ion under a law that affects the provis ion of benefits. H .R. Rep. No. 1 00-963, at 27, reprinted in 1 988 U.S .C.C.A.N. at 5809.

9 The only l i sted exceptions to th is overa l l scheme were ru les and regulations promulgated by the Secretary which are reviewed d i rectly in th is court under 38 U.S. C. §§ 5 1 1 (b)(1)

and 502; insurance d isputes, which are reviewable in the district courts under 38 U.S. C. §§ 51 1 (b)(2) and 1975; and matters ari sing under Chapter 37, perta in ing to housing and smal l bus iness loans, which, under 38 U.S. C. §§ 511(b)(3)

and 3720, al low for suits against the Secretary in state o r federal cou rt.

over actions taken under subsection 5904(c). See, e.g., Scates v. Principi, 282 F.3d 1362, 1366 (Fed. Cir. 2002) (discussing Board's power to assess reasonableness of attorney fees and order their reduction if necessary under § 5904(c)(2)) ; Cox , 149 F.3d at 1364 [**23] (same) ; In re Wick, 40 F. 3d 367, 369 (Fed. Cir. 1994) (same). One of the grounds for terminating Bates' certification was an alleged violation of 38 U.S.C. §

5904(c)(1 ), for charging attorney fees to various claimants prior to their receipt of a final Board decision on their claims. Bates was also initially accused of violating of 38 U.S.C. § 5904(c)(2), for charging unreasonable fees. The facts of Bates' case thus illustrate the interrelatedness between the various subsections of 5904, and the likelihood that any Secretarial action to certify or decertify an attorney under 38 U.S.C. §§ 5904(a) or @ will necessarily implicate interpretations of 38 U.S. C. §§ 5904(c) and fs!l. To hold that the latter subsections (c) and !s!J. are j usticiable by the Board, but subsections (a) and @ are not, would invite piecemeal adjudication of closely related issues, and undermine the congressional purpose.

IV

The concurrence proposes to depart from the plain meaning interpretation of sect ion 5 1 1 on the theory that the majority's interpretation of the provision could, in the case of omnibus [**24] statutory enactments, confer j urisdiction over d isputes that Congress could not have intended to refer to the Board, such as disputes over contracts or employment appeals. Concurring Op. , post at 2-3. We need not address this interpretative issue here, since the law in question is not such an omnibus statutory enactment. In any event, our holding does not go so far as the concurrence suggests, and does not confer j urisdiction in the Board over the myriad disputes that may arise under every "law" that "affects the provision of benefits." HN14[�] Sect ion 511(a) does not apply to every challenge to an action by the VA. As we have held , it only applies where there has been a "decision by the Secretary. " Hanlin v. United States, 214 F. 3d 1319, 1321 (Fed. Cir. 2000). In the context of thehistory of this provision, the statute plainly contemplatesa formal "decision" by the Secretary or his delegate.

Even where there has been a formal decision by the Secretary, other provisions of federal law specifically confer jurisdiction on other tribunals to resolve particular disputes, such as contract or employment disputes. See, e.g., Contract Disputes Act, 4 1 U.S.C. §§

606 [**25] and 609(a) (2000); 5 U.S.C. § 770 1 (2000).


As we noted_,ln Hanlin, with respect to section 5 1 1 (a)itself, HN15['f] "when two statutes are capable of coexistence, it is the du ty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Hanlin. 2 14 F.3d at 132 1 (quoting Morton v. Mancari. 4 17 U.S. 535. 55 1. 4 1 L. Ed. 2d 290. £*13661 94 S. Ct. 2474 (1974)). Just as we held that section 5 1 1 (a) cannot be read to precl ude Tucker Act jurisdiction, HN16[".i] section 5 1 1 (a) cannot be read to preclude jurisdiction in other tribunals when that jurisdiction is specifically conferred by Congress. Id.

at 1322.

In the case of contract and employment disputes, these other review mechanisms have been held to be exclusive. Contractor appeals may be pursued exclusively in the Court of Federal Claims or the appropriate agency board of contract appeals. England v. Sherman R. Smoot Corp .• 388 F.3d 844. 852 (Fed.Cir. 2004) (citing the Contract Disputes Act, 4 1 U.S.C. §§ 606 and 609(a)). Employment disputes under theCivil Service Reform Act are exclusively appealable, if atall, to the [**26] Merit Systems Protection Board, under5 U.S.C. § 770 1 , as part of the "integrated statutoryscheme set up by Congress to protect civil servants."United States v. Fausto. 484 U.S. 439. 444-5 1. 453. 98L. Ed. 2d 830. 108 S. Ct. 668 (1988) (holding that CivilService Reform Act precluded review in the Court ofFederal Claims of the underlying personnel decisiongiving rise to the claim for back pay). Nothing we saytoday suggests that the Board has jurisdiction to reviewcontroversies that are committed by statute to othertribunals.

CONCLUSION

For these reasons we conclude that the Board had jurisdiction; that the Court of Appeals for Veterans Claims had jurisdiction; and that a writ of mandamus should issue to direct the Board to decide the matter. Accordingly, the decision of the Court of Appeals for Veterans Claims is

REVERSED AND REMANDED.

COSTS

No costs.

Concur by : BRYSON

Concu r

BRYSON, Circuit Judge, concurring in the result.

I agree with the result reached by the court in this case, but not with the path the court follows to reach that result. In particular, I cannot agree with the court's construction of the phrase "law that affects the provision [**27] of benefits by the Secretary to veterans or the dependents or survivors of veterans. " 38 U.S.C. §5 1 1 (a). I would construe that phrase to refer only to specific legal provisions that affect the provision of veterans' benefits. The court, however, construes that phrase more broadly, to refer to any public law that contains some veterans' benefit provisions.

The problem is that public laws, particularly in recent years, have often not been confined to a single subject. Some public laws run to hundreds of pages and deal with a myriad of different subjects. Sometimes the multitude of subjects touched upon in a single public law incl ude veterans' benefits. For example, the Transportation Equity Act for the 21st Century, Pub. L . No. 105- 178, 1 12 Stat. 107 (1998), runs to more than 400 pages. Among the various topics in that public law are three pages of provisions dealing with veterans' benefits. Under the court's definition, the entire Transportation Equity Act is a "law that affects the provision of benefits" for veterans.

The court's construction of the phrase "law that affects the provision of benefits" as referring to an entire public law would appear to extend [**2 8] the jurisdiction of the BVA to a wide range of actions by the Secretary for which BVA appeals have never been considered appropriate. Consider, for example, the Veterans Health Care, Capital Asset, and Business Improvement Act of 2003, Pub. L. No. 108- 170, 1 17 Stat. 2042. [*1367] That publ ic law contains provisions extending and increasing benefits to veterans in various classes, and thus it clearly qualifies as a pu bl ic law that "affects the provision of benefits" to veterans as the court construes that language in 38 U.S.C. § 5 1 1. But that public law also contains provisions relating to non-benefit-related matters such as the construction of VA facilities and the promotion and appointment of certain VA employees. Congress plainly did not intend for disputes arising under the portions of that public law dealing with employment and construction to be subject to the jurisdiction of the BVA. Yet that wou ld seem to be the result of the court's construction of the phrase "law that affects the provision of benefits." 1

1 The 2003 statute is not un ique i n th is regard . For example ,

the Veterans Benefits and Hea lth Care I mprovement Act of


[**29] The court's broad construction of section 5 1 1 ( a) is problematical because of section 5 1 1 (b). Section 5 1 1(a) provides that the decision of the Secretary as to any question within its scope "shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise. " Section 5 1 1 (b) contains only four exceptions to section 5 1 1 (a)'s bar to review, one of which is the exception that permits review by the Veterans Court. The other exceptions deal with narrow subject matters: the review of Departmental ru les and regu lations in this court; su its in district court on claims related to federally provided insurance; and suits under chapter 37 of Title 38 relating to housing and small business loans. Those four exceptions do not include review by specialized tribunals such as the Merit Systems Protection Board, the agency's Board of Contract Appeals, or the Court of Federal Claims. Thus, the court's construction of section 5 1 1 would appear to lead to the conclusion that certain employment and contract matters would be reviewable by the BVA and the Veterans Court.

The court resolves the problem of the statutory conflict [**30] created by its construction of section 5 1 1 in favor of the statutes that assign j u risdiction over employment and contract matters to specialized tribunals. But the preferable construction of section 5 1 1 is one that does not create such a conflict in the first place. It is clear that Congress did not intend to create, or believe it was creating, such a conflict in 1970, when it adopted what is essentially the current language of section 5 1 1, see Pub. L. No. 9 1-376. 84 Stat. 787. 790 (1970), or in 1988 when it amended section 5 1 1 to provide for review of veterans' benefits matters by the Veterans Court, see Pub. L. No. 100-687, 102 Stat. 4 105 ( 1988). See H.R. Rep. No. 91-1166 (1970), reprinted in 1970 U.S.C.C. A.N. 3723, 3731 ("The restated section [now section 5 1 1] will make it perfectly clear that the Congress intends to preclude from j udicial review all determinations with respect to noncontractual

2000, Pub. L. No. 106-419, 1 14 Stat. 1822, contains a number of provisions perta in ing to veterans ' benefits, but also contains other matters plain ly outside the contemplation of laws "that affect[] the provis ion of benefits, " such as provis ions governing the pay of VA nurses and transactions involving the acqu isition, d i sposition, and management of real property. See

also, e .g. , Veterans Mi l lennium Health Care and Benefits Act, Pub. L. No. 106- 1 1 7, 1 13 Stat. 1545 (1999) (statute contains provisions regard ing veterans' benefits and provis ions pertain ing to a voluntary separation incentive program to reduce the level of emp loyment in the Department of Veterans Affairs ) .

benefits provided for veterans and their dependents and survivors."). Moreover, the court's resolution of the "specialized tribunal" problem leaves another problem unaddressed. The court's construction of [*1368] section 5 1 1 does not solve the broader problem of nonbenefit-related [**31] matters that would not be committed under any circumstances to a specialized tribunal, bu t would be expected to be reviewed by a district court under the Administrative Procedure Act. As to such decisions arising under a public law that contains some veterans' benefit provisions, the court's approach would appear to render such non-benefitrelated matters reviewable, if at all, only in the BVA and the Veterans Court, a resu lt that Congress surely did not intend. Yet to ensure that such non-benefit-related matters fall outside the jurisdiction of the BVA and the Veterans Court, one has to circle back to the position that section 5 1 1 (a) applies only to disputes arising under particular legal provisions pertaining to benefits.

The best approach, in my view, is simply to construe "law" in section 5 1 1 to refer to particular provisions of law, not to the disparate collection of legal provisions that may appear in a particu lar public law. 2 Under thisconstruction, the question whether the Board has

2 The court refers to its "pub l ic law" construction as the "p lain meaning" of section 5 1 1 . I do not agree. It is certa in ly true the term " law" includes pub l ic laws, but that is not to say that only

pub l ic laws are proper ly referred to as laws. For example, the statute that g rants federal question jurisd iction to federal cou rts, 28 U. S. C. § 133 1 , prescribes the courts' jur isdiction as being based on the "Constitution, laws, or treaties of the Un ited States , " yet the term "laws" in that statute has not been l im ited to pub l ic laws. See Illinois v. City of Milwaukee, 406

U. S. 9 1. 99- 100. 31 L. Ed. 2d 712. 92 S. Ct. 1385 (1972)

(hold ing that the "natural mean ing" of the term "laws" inc ludes federal common law as wel l as statutes). The court's citations to the Constitution and Title 1 of the Un ited States Code do not establ ish that a s ingle statutory provision is not a "law. " Indeed, it is commonp lace to refer to single statutory sections and subsections as " laws, " and not to reserve that designation exclusive ly for whole public laws. See, e .g. , Gonzales v.

United States. 275 F. 3d 1340. 1343 (Fed. Cir. 2001) ("section

654 [of Public Law 105-85] . . . is a ' law conferring rights , pr ivi leges, or benefits' upon certain World War I I veterans") ; United States v. Dela Cruz .358 F. 3d 623. 625 (9th Cir. 2004)

(" Section 844(e) {of Title 181 is a law of general app l ication" ) ; Rayner v. Smirl. 873 F. 2d 60. 65 (4th Cir. 1989) ("Section 44 1

[of Title 45] c learly is a law 're lating to rai l road safety' under §434") . This is not to say that a statutory section or subsection is the only meaning of the term " law," but s imp ly that it cannot reasonably be claimed that the "p lain mean ing" of the term " law" is restricted to pub l ic laws.

Page 13 of 13 398 F.3d 1355, *1368 ; 2005 U.S. App. LEXIS 3385, **31

ju risdiction over an appeal would turn on whether the statutory provision in question "affects the provision of benefits by the Secretary to veterans or the dependents or su rvivors of veterans, [**32] " i. e. , whether the particular statutory provision relates to the substance or procedures of the veterans' benefits system. In most cases that question will be easy to decide: Most of the statutes that pertain to the veterans' benefits system address subjects such as the conditions for eligibility, the procedures to be followed in determining eligibility, and the amount of the benefits to be paid.

[**33] In this case, the connection between the certification of lawyers and the conferral of benefits on veterans is not so obvious. Nonetheless, in light of the agency's longstanding practice of regulating the representation of veterans so as to ensure that the beneficiaries obtain and retain the benefits to which they are entitled, statutory provisions authorizing the certification and regulation of representatives of applicants for veterans' benefits are properly regarded as laws "that affect[] the provision of benefits." On that ground, I wou ld hold that 38 U. S. C. § 5904(b) is such a law and that the Board of Veterans' Appeals therefore has jurisdiction to hear appeals from the Secretary's decisions under that statute.

[*1369] In Walters v. National Association of Radiation Survivors, 473 U. S. 305, 87 L. Ed. 2d 220, 105 S. Ct. 3180 (1985) . the Supreme Court reviewed the history of the veterans' benefits system, with particular attention to the role of attorneys within that system. The Court explained that the system for administering benefits was designed to be managed "in a sufficiently informal way that there should be no need for the employment of an attorney [**34] to obtain the benefits to which a claimant was entitled, so that the claimant would receive the entirety of the award without having to divide it with a lawyer. " Id. at 32 1. Section 5904(b) . which governs the suspension or exclusion of agents and attorneys who have been certified to prepare, present, and prosecute claims for veterans' benefits, has been a part of the veterans' benefits system for many years. Along with the other subsections of section 5904, which govern certification (subsection (a)) and restrictions on fees charged by agents and attorneys (subsections (c) and fsil), subsection (b) has served as one of the means by which the agency has sought to ensure that veterans not be deprived of the benefits to which they are entitled. It is therefore properly considered a "law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans."

Both the construction of section 5 1 1 and the analysis of section 5904(b) that I have proposed are consistent with ou r prior decision in Cox v. West. 149 F.3d 1360 (Fed. Cir. 1998). In that case, we upheld the ru ling of the Veterans Court that 38 U.S. C. § 5904(d) [**35] is a law that affects the provision of veterans' benefits and thus falls within 38 U.S.C. § 5 1 1(a). Id. at 1365. The specific provision at issue in Cox authorized the Secretary to withhold a portion of the past-due benefits owed to a claimant and to pay those withheld benefits to an attorney. Because section 5904(d) authorized the Secretary to make decisions that directly affected the amount of the benefits that the claimant received, the relationship between the statute and the claimant's benefits was more direct in Cox than it is here. Nonetheless, the purpose of certification of attorneys is to ensure that claimants in the veterans' benefits system are competently and honestly represented, to the end that they will receive the full measure of benefits to which they are entitled, without loss or reduction due to attorney incompetence or overreaching. Because the pu rpose underlying section 5904(b) is the same as the pu rpose underlying section 5904(d). it is fair to say that section 5904(b) is "a law that affects the provision of benefits" to veterans and their su rvivors and dependents. Thus, although I would not decide this case on [**36] the "public law" rationale employed by the majority, I agree that the writ of mandamus should issue.

End of Document

0 NeutralAs of: November 13, 2017 7:17 PM Z

In re Bates

United States Court of Appeals for Veterans Claims

August 17, 2009, Decided

No. 03-8004

Reporter

24 Vet. App. 457 *; 2009 U.S. App. Vet. Claims LEXIS 1472 **

IN RE: R. EDWARD BATES, MEMBER OF THE BAR.

Subsequent History: Later proceeding at In re Bates,

23 Vet. App. 284, 2009 U.S. App. Vet. Claims LEXIS

2000 (U.S. App. Vet. Cl., Oct. 7, 2009)

Core Terms

practice of law, discipline, completing, suspension,

suspended, administration of justice, impose discipline,

requesting, Accepting, reimburse, Veterans

Judges: [**1] Before GREENE, Chief Judge, and

KASOLD and HAGEL, Judges.

Opinion

[*457) ORDER

On November 18, 2008, attorney R. Edward Bates

(respondent) was suspended from the practice of law by

the Supreme Court of the State of Illinois, effective

December 9, 2008. Because of that action, which is a

public discipline for professional misconduct, the

respondent, under Rule 7(d)(2)(B) of the Court's Rules

of Admission and Practice (A&P Rules), was ordered to

show cause why this Court should not impose identical

or similar discipline as that already imposed by the

Supreme Court of Illinois. See U. S. VET. APP.R.ADM.

& PRAC. 7(d)(2)(B). A response was received from the

respondent requesting that the Court impose the same

discipline as that imposed by the Illinois Supreme Court

suspension from the practice of law from December 9,

2008, to May 9, 2009. On July 10, 2009, the Court

advised the respondent of its proposed discipline and on

July 17, 2009, he filed a response, through counsel,

accepting the discipline and requesting that the Court

"issue forthwith a public order imposing the discipline."

See U. S. VET. APP. R. ADM. & PRAC. 5(d).

Mr. Bates's actions that led to his suspension from the

practice of law by the State [**2] of Illinois included the

following conduct against veterans:

(1) Breaching of fiduciary duty,

(2) Accepting an unreasonable fee,

(3) Committing a criminal act that reflects adversely

on the lawyer's honesty, trustworthiness, or fitness

as a lawyer in other respects,

(4) Engaging in conduct involving dishonesty, fraud,

deceit or misrepresentation,

(5) Engaging in conduct that is prejudicial to the

administration of justice, and

(6) Engaging in conduct which tends to defeat the

administration of justice or to bring the courts or the

legal profession into disrepute.

For these unprofessional actions, the State of Illinois

suspended the respondent from practicing law for five

months and required him, before the suspension would

be lifted, to reimburse the Client Protection Trust Fund

for any Client Protection payments arising from his

conduct prior to the termination of the period of

suspension.

Accordingly, pursuant to A&P Rules 7(d)(3)(B) and

11 (a)(1 )-(4 ), it is

ORDERED that the respondent is suspended from the

practice of law before the U.S. Court of Appeals for

Veterans Claims to run concurrently with the discipline

imposed by the Illinois Supreme Court. It is further

ORDERED that as a similar [**3] or equivalent

disciplinary action to the reimbursement requirement

imposed by the State of Illinois, the respondent may

only resume practice before this Court after (1)

completing 24 hours of professional responsibility/ethics

continuing legal education (CLE) that has been

approved for CLE credit by the State of Illinois, (2) filing

an affidavit with the Clerk of the Court that he has been

24 Vet. App. 457, *457; 2009 U.S. App. Vet. Claims LEXIS 1472, **3

reinstated to practice law by the Illinois Supreme Court

and that he has completed the 24 hours of CLE ordered

by [*458] the Court with proof of completion attached

thereto, and (3) completing the procedures in A&P Rule

11 (a)(3) and Rule 46(a)(2) of the Court's Rules of

Practice and Procedure.

DATED: August 17, 2009

PER CURIAM.

End of Document

Page 2 of 2

Question: In a law office with attorneys and paralegals working under the supervision of a single VA-

accredited attorney, who needs to apply for VA accreditation using a VA Form 21a (Application for

Accreditation as a Claims Agent or Attorney)? Response: Accreditation means the authority granted by VA to representatives, agents, and attorneys to

assist claimants in the preparation, presentation, and prosecution of claims for VA benefits. 38 C.F.R. §

14.627(a). Without accreditation, an individual may not independently assist claimants in the preparation,

presentation, and prosecution of claims for VA benefits. VA regulations allow legal interns, paralegals, and law students to assist in the preparation, presentation,

and prosecution of claims for VA benefits of claimants for benefits, but only under the direct supervision of

the attorney of record, and with the specific written consent of the claimant. 38 C.F.R. § 14.629(c)(3). VA

does not accredit these individuals. With the written consent of the claimant, attorneys affiliated or

associated with the attorney of record may assist in the representation of the claimant, and may do so

without the requirement for direct supervision by the attorney of record. 38 C.F.R. § 14.629(c)(2). Thus, in a law firm where several attorneys and paralegals work on VA claims for a single accredited

attorney properly appointed on a VA Form 21-22a as the attorney of record, each attorney must be

accredited if their work involves assisting claimants in the preparation, presentation, and prosecution of

claims for veterans benefits. Paralegals may assist the attorney of record subject to the written consent

of the claimant but may not independently provide representation to claimants.

https://www.va.gov/ogc/accred_faqs.asp

https://www.va.gov/ogc/accred_faqs.asp

VA ACCREDITATION PROGRAM

STANDARDS OF CONDUCT FOR VA-ACCREDITED ATTORNEYS, CLAIMS AGENTS, AND VSO REPRESENTATIVES The standards of conduct in 38 C.F.R. § 14.632 establish the appropriate behavior for VA-accredited attorneys, agents, and representatives.

VA-accredited individuals providing VA claims assistance shall: • Faithfully execute their duties on behalf of a VA claimant; • Be truthful in their dealings with claimants and VA; • Provide claimants with competent representation before VA; and • Act with reasonable diligence and promptness in representing claimants.

See 38 C.F.R. §§ 14.632 (a) & (b). VA-accredited individuals shall not:

(1) Violate the standards of conduct as described in 38 C.F.R. § 14.632. (2) Circumvent the rules of conduct through the actions of another. (3) Engage in conduct involving fraud, deceit, misrepresentation, or dishonesty. (4) Violate one or more of the provisions of title 38, United States Code, or title 38, Code of Federal

Regulations. (5) Enter into an agreement for, charge, solicit, or receive a fee that is clearly unreasonable or

otherwise prohibited by law or regulation. (6) Solicit, receive, or enter into agreements for gifts related to representation provided before an

agency of original jurisdiction has issued a decision on a claim or claims and a Notice of Disagreement has been filed with respect to that decision.

(7) Delay, without good cause, the processing of a claim at any stage of the administrative process. (8) Mislead, threaten, coerce, or deceive a claimant regarding benefits or other rights under

programs administered by VA. (9) Engage in, or counsel or advise a claimant to engage in, acts or behavior prejudicial to the fair

and orderly conduct of administrative proceedings before VA. (10) Disclose, without the claimant’s authorization, any information provided by VA for purposes of

representation. (11) Engage in any other unlawful or unethical conduct.

*In addition, in providing representation to a claimant before VA, VA-accredited attorneys shall not engage in behavior or activities prohibited by the rules of professional conduct of any jurisdiction in which they are licensed to practice law.

See 38 C.F.R. § 14.632(c) & (d). If I violate a standard of conduct or engage in any other unlawful or unethical conduct, what will happen? If VA determines that you have violated the standards of conduct, VA may suspend or cancel your accreditation. VA is authorized to report the suspension or cancellation to any bar association, court, or agency to which you are admitted. In addition, VA may collaborate with State and Federal enforcement authorities if it is suspected that your actions may have implications under State or other Federal laws. For More Information: Visit the VA Office of the General Counsel website at: http://www.va.gov/ogc/accreditation.asp

VA ACCREDITATION PROGRAM HOW TO APPLY FOR VA ACCREDITATION AS AN ATTORNEY OR CLAIMS AGENT WHAT AN APPLICANT SHOULD KNOW ABOUT APPLYING FOR DEPARTMENT OF VETERANS AFFAIRS (VA) ACCREDITATION

AS AN ATTORNEY OR CLAIMS AGENT

1

Form Approved, OMB No. 2900-0605 Respondent Burden: 45 minutes

APPLICATION FOR ACCREDITATION AS A CLAIMS AGENT OR ATTORNEYINSTRUCTIONS: Please provide the applicable personal and employment data, then read each question and provide complete answers to all questions that apply to you. If additional space is needed, please attach a supplementary page(s). After providing all of the requested information, sign and date your application. Unsigned or incomplete applications will not be processed. Send completed applications to: Department of Veterans Affairs, Office of the General Counsel (022D), 810 Vermont Avenue, NW, Washington, D.C. 20420. After an affirmative determination of character and fitness for practice before the VA, claims agent applicants must achieve a score of 75 percent or more on a written examination administered VA as a prerequisite to acreditation. Claims agent applicants will be given written instructions for arranging to take the examination if initial eligibility is established. Attorney applicants must be in good standing with a State bar and are not required to take an examination administered by VA as a prerequisite to accreditation. Denials of initial eligibility for accreditation as a claims agent or attorney are final and are not subject to appeal, but applicants may reapply.

1. LAST NAME - FIRST NAME - MIDDLE NAME 2A. HOME ADDRESS (street, city, state, ZIP Code) 2B. PHONE NUMBER (Including area code)

2C. E-MAIL ADDRESS (If available)

3A. EMPLOYMENT STATUS

EMPLOYED (Complete Item 3B)

UNEMPLOYED (Skip Item 3B)

SELF-EMPLOYED (Skip Item 3B)

STUDENT (Skip Item 3B)

3B. WORK ADDRESS (street, city, state, ZIP Code)

4. DATE OF BIRTH (Month, day, year)

5. PLACE OF BIRTH (City, State, Country)

6. BRANCH OF SERVICE 7. CHARACTER OF DISCHARGE

8. LIST DATES OF ALL ACTIVE MILITARY SERVICE

9. EMPLOYMENT (Provide information for past five years - use additional sheets if necessary)A. EMPLOYER NAME AND ADDRESS

(street, city, state, ZIP Code)B. EMPLOYER PHONE NO.

(Include area code)

EXTENSION:

C. POSITION TITLED. EMPLOYMENT

DATES (Month/Day/Year)

E. NAME OF SUPERVISOR

EXTENSION:

EXTENSION:

10. EDUCATION (Provide information for high school graduation and list all colleges or universities attended and degrees received)A. NAME AND ADDRESS OF INSTITUTION

(street, city, state, ZIP Code)B. DATES ATTENDED

(Month/Year) C. DEGREE RECEIVED/MAJOR

VA FORM MAY 2007 21a

11A. ARE YOU CURRENTLY A MEMBER IN GOOD STANDING OF THE BAR OF THE HIGHEST COURT OF A STATE OR TERRITORY OF THE UNITED STATES?

YES NO

11B. IF "YES," LIST EACH JURISDICTION IN WHICH ADMITTED, THE DATE OF ADMISSION, AND MEMBERSHIP OR REGISTRATION NUMBER.

JURISDICTION IN WHICH ADMITTED DATE OF ADMISSION MEMBERSHIP OR REGISTRATION NO.

12A. ARE YOU CURRENTLY ADMITTED TO PRACTICE BEFORE ANY STATE OR FEDERAL AGENCY OR ANY FEDERAL COURT?

YES NO

12B. IF "YES," LIST EACH AGENCY OR FEDERAL COURT TO WHICH ADMITTED, THE DATE OF ADMISSION, AND MEMBERSHIP OR REGISTRATION NUMBER.

AGENCY IN WHICH ADMITTED DATE OF ADMISSION MEMBERSHIP OR REGISTRATION NO.

BACKGROUND INFORMATION: Truthfulness and candor are essential elements of good moral character and reputation relevant to practice before the Department of Veterans Affairs. It is in your best interest; therefore, to provide the Office of the General Counsel with all available information in responding to the questions asked below. For each question answered "YES," provide a detailed statement setting forth all relevant facts and dates along with copies of relevant documents. Your responses must be updated as necessary prior to your accreditation. Failure to disclose the requested information may result in denial of accreditation under 38 C.F.R. § 14.629 or in disciplinary proceedings under 38 C.F.R. § 14.633 if you are already accredited. For questions 13 through 15 your answers should include convictions resulting from a plea of nolo contendere (no contest), but omit (1) traffic fines of $300 or less, (2) any violation of law committed before your 16th birthday, and (3) any conviction for which the record was expunged under Federal or state law.

13A. HAVE YOU EVER BEEN CONVICTED, IMPRISONED, SENTENCED TO PROBATION OR PAROLE? (Include felonies, firearms or explosives violations, misdemeanors, and all other offenses.)

YES NO

13B. IF "YES," PROVIDE THE DATE, EXPLANATION OF THE VIOLATION, PLACE OF OCCURRENCE, AND THE NAME AND ADDRESS OF THE MILITARY AUTHORITY OR COURT INVOLVED.

14A. HAVE YOU EVER BEEN CONVICTED, BY A MILITARY COURT-MARTIAL? (If no military service, answer "NO,")

YES NO

14B. IF "YES," PROVIDE THE DATE, EXPLANATION OF THE VIOLATION, PLACE OF OCCURRENCE, AND THE NAME AND ADDRESS OF THE MILITARY AUTHORITY OR COURT INVOLVED.

15A. ARE YOU NOW UNDER CHARGES FOR ANY VIOLATION OF LAW?

YES NO

15B. IF "YES," PROVIDE THE DATE, EXPLANATION OF THE VIOLATION, PLACE OF OCCURENCE, AND THE NAME AND ADDRESS OF THE MILITARY AUTHORITY OR COURT INVOLVED.

16. HAVE YOU EVER BEEN SUSPENDED, EXPELLED OR ASKED TO RESIGN OR WITHDRAW FROM ANY EDUCATIONAL INSTITUTION, OR HAVE YOU RESIGNED OR WITHDRAWN FROM ANY SUCH INSTITUTION IN TIME TO AVOID DISCIPLINE, SUSPENSION, OR EXPULSION FOR CONDUCT INVOLVING DISHONESTY, FRAUD, MISREPRESENTATION, OR DECEIT?

YES NO

17. HAVE YOU EVER BEEN DISCIPLINED, REPRIMANDED, SUSPENDED OR TERMINATED IN ANY JOB FOR CONDUCT INVOLVING DISHONESTY, FRAUD, MISREPRESENTATION, DECEIT, OR ANY VIOLATION OF FEDERAL OR STATE LAWS OR REGULATIONS?

YES NO

18. HAVE YOU EVER RESIGNED, RETIRED FROM, OR QUIT A JOB WHEN YOU WERE UNDER INVESTIGATION OR INQUIRY FOR CONDUCT WHICH COULD HAVE BEEN CONSIDERED AS INVOLVING DISHONESTY, FRAUD, MISREPRESENTATION, DECEIT, OR VIOLATION OF FEDERAL OR STATE LAWS OR REGULATIONS, OR AFTER RECEIVING NOTICE OR BEING ADVISED OF POSSIBLE INVESTIGATION, INQUIRY, OR DISCIPLINARY ACTION FOR SUCH CONDUCT?

YES NO

19. HAVE YOU EVER FUNCTIONED AS A REPRESENTATIVE, AGENT, OR ATTORNEY BEFORE A STATE OR FEDERAL DEPARTMENT OR AGENCY?

YES NO

VA FORM 21a, MAY 2007, PAGE 2

20. HAVE YOU EVER BEEN REPRIMANDED, SUSPENDED, OR BARRED FROM PRACTICE BEFORE ANY COURT, BAR, OR FEDERAL OR STATE AGENCY, OR HAVE YOU RESIGNED MEMBERSHIP IN THE BAR OF ANY COURT, OR FEDERAL OR STATE AGENCY TO AVOID REPRIMAND, SUSPENSION, OR DISBARMENT FOR CONDUCT INVOLVING DISHONESTY, FRAUD, MISREPRESENTATION, OR DECEIT?

YES NO

21. HAVE YOU EVER APPLIED FOR ACCREDITATION BY THE DEPARTMENT OF VETERANS AFFAIRS AS A REPRESENTATIVE OF A VETERANS SERVICE ORGANIZATION, AGENT, OR ATTORNEY?

YES NO

22. IF YOU WERE PREVIOUSLY ACCREDITED AS A REPRESENTATIVE OF A VETERANS SERVICE ORGANIZATION, WAS THAT ACCREDITATION TERMINATED OR SUSPENDED AT THE REQUEST OF THE ORGANIZATION?

YES NO

23A. DO YOU HAVE ANY CONDITION OR IMPAIRMENT (SUCH AS SUBSTANCE ABUSE, ALCOHOL ABUSE, OR A MENTAL, EMOTIONAL, NERVOUS, OR BEHAVIORAL DISORDER OR CONDITION) THAT IN ANY WAY CURRENTLY AFFECTS, OR, IF UNTREATED OR NOT OTHERWISE ACTIVELY MANAGED, COULD AFFECT YOUR ABILITY TO REPRESENT CLAIMANTS IN A COMPETENT AND PROFESSIONAL MANNER?

YES NO

23B. IF YOU ANSWERED "YES," TO ITEM 23A, PLEASE DESCRIBE THE CONDITION OR IMPAIRMENT, AND ANY TREATMENT YOU RECEIVED IN THE PAST YEAR OR RECEIVE NOW. IF YOU HAVE BEEN UNDER THE CARE OR SUPERVISION OF A HEALTH-CARE PROFESSIONAL, SUBMIT A STATEMENT BY THE HEALTH-CARE PROFESSIONAL SPECIFYING YOUR CURRENT DIAGNOSIS, TREATMENT REGIMEN, AND PROGNOSIS, AND ITS BEARING ON YOUR FITNESS TO REPRESENT CLAIMANTS BEFORE THE DEPARTMENT OF VETERANS AFFAIRS.

24A. DO YOU HAVE ANY PHYSICAL LIMITATIONS WHICH WOULD INTERFERE WITH YOUR COMPLETION OF A WRITTEN EXAMINATION ADMINISTERED UNDER THE SUPERVISION OF A VA REGIONAL COUNSEL (Claims agent applicants only) ?

YES NO

24B. IF "YES," PLEASE STATE THE NATURE OF SUCH LIMITATIONS AND PROVIDE DETAILS OF ANY SPECIAL ACCOMMODATIONS DEEMED NECESSARY.

25. CHARACTER REFERENCES(Please provide the full names, addresses, and current phone numbers of three individuals who are not immediate family members and who have personal knowledge of your character and qualifications to serve as a claims agent or attorney.)

NAME ADDRESS PHONE NUMBER (Include area code)

EXTENSION:

RELATIONSHIP TO APPLICANT

EXTENSION:

EXTENSION:

CERTIFICATION: I CERTIFY THAT the statements and entries on this form are true and correct. (A willfully false statement or certification is a criminal offense and is punishable by law [18 U.S.C. 1001]).SIGNATURE OF APPLICANT (Ink Signature) DATE SIGNED


PRIVACY ACT INFORMATION: The information requested on this form is solicited under Section 5904, Title 38, United States Code and Section

14.629(b) of Title 38, Code of Federal Regulations. It will enable VA to determine initial eligibility for accreditation as a claims agent or attorney to

represent claimants before VA. Any information on this form may be disclosed outside VA only if authorized under the Privacy Act, including the

routine uses identified in the VA system of records, 01VA022, Current and Former Accredited Representative, Claims Agent, Attorney, and

Representative, Claims Agent, and Attorney Applicant and Rejected Applicant Records--VA, published in the Federal Register. Routine disclosures

may be made for the following purposes: civil or criminal law enforcement or investigation; congressional communications; communications relevant

to the delivery of VA benefits; verification of identity and status; litigation conducted by the Department of Justice; and communication with

employing entities and governmental licensing organizations concerning information relevant to employment or licensing of a prospective, present, or

former representative, claims agent or attorney. Providing the requested information is voluntary; however, failure to furnish information may delay or

prevent action on the application.

RESPONDENT BURDEN: VA may not conduct or sponsor, and respondent is not required to respond to this collection of information unless it

displays a valid OMB Control Number. Public reporting burden for this collection of information is estimated to average 45 minutes per response,

including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and

reviewing the collection of information. If you have comments regarding this burden estimate or any other aspect of this collection of information

send your comments to VA Clearance Officer (005R1B), 810 Vermont Avenue, NW, Washington, D.C. 20420. Please do not send applications for

accreditation to this address.


ANNUAL CERTIFICATION OF GOOD STANDING

In compliance with 38 C.F.R. & 14.629(b)(4) the undersigned hereby certifies that (s)he is in good standing in every jurisdiction in which (s)he is admitted. Further, (s)he is admitted to practice in the following jurisdictions.

Name of Court, Bar, Federal Agency, or Court

Date admitted or first appeared

Identification number, if any

Dated Signed:

Email to: [email protected] Fax to: (202) 495-5457 Mail to: Office of General Counsel (022D) Department of Veterans Affairs 810 Vermont Avenue, N.W. Washington, DC 20420

mailto:[email protected]


BIENNIAL CLE REPORT

In compliance with 38 C.F.R. & 14.629(b)(iv) the undersigned hereby certifies the following:

I was initially accredited by the VA on

I completed 3 hours of qualifying post accreditation CLE within the past two years in that on the following dates I completed the following course(s) which have been approved for CLE credits by various State Bar Associations and State Courts:

Date completed

Course location Course Credits approved

Dated Signed:

Email to: [email protected] Fax to: (202) 495-5457 Mail to: Office of General Counsel (022D) Department of Veterans Affairs 810 Vermont Avenue, N.W. Washington, DC 20420



38 CFR 1.600





CHAPTER I -- DEPARTMENT OF VETERANS AFFAIRS > PART 1 -- GENERAL PROVISIONS >

EXPANDED REMOTE ACCESS TO COMPUTERIZED VETERANS CLAIMS RECORDS BY

ACCREDITED REPRESENTATIVES

§ 1.600 Purpose.

(a)Sections 1.600 through 1.603 establish policy, assign responsibilities and prescribe procedures with respect

to:

(1)When, and under what circumstances, VA will grant authorized claimants' representatives read-only

access to the automated Veterans Benefits Administration (VBA) claims records of those claimants

whom they represent;

(2)The exercise of authorized access by claimants' representatives; and

(3)The bases and procedures for disqualification of a representative for violating any of the

requirements for access.

(b)VBA will grant access to its automated claimants' claims records from locations outside Regional Offices

under the following conditions. Access will be provided:

(c)

(1 )Only to individuals and organizations granted access to automated claimants' records under §§

1.600 through 1.603;

(2)0nly to the claims records of VA claimants whom the organization or individual represents as

reflected in the claims file;

(3)Solely for the purpose of the representative assisting the individual claimant whose records are

accessed in a claim for benefits administered by VA; and

(4)0n a read-only basis. Individuals authorized access to VBA automated claims records under §§

1.600 through 1.603 will not be permitted to modify the data.

(1 )Access will be authorized only to the inquiry commands of the Benefits Delivery Network which

provide access to the following categories of data:

(i)Beneficiary identification data such as name, social security number, sex, date of birth, service

number and related service data; and

(ii)Claims history and processing data such as folder location, claim status, claim establishment

date, claim processing history, award data, rating data, including service-connected medical

conditions, income data, dependency data, deduction data, payment data, educational facility and

program data (except chapter 32 benefits), and education program contribution and delimiting data

(except chapter 32 benefits).

(2)Access to this information will currently be through the inquiry commands of BINO (SIRLS

(Beneficiaries Identification and Records Location Subsystem) Inquiry), SINO (Status Inquiry), MINO

Page 2 of 4

38 CFR 1.600

(Master Record Inquiry), PINO (Pending Issue Inquiry) and TINO (Payment History Inquiry). The

identifying information received from BIRLS to representative inquiries will be limited to file number,

veteran's name, date of death, folder location and transfer date of folder, insurance number, insurance

type, insurance lapse date and insurance folder jurisdiction.

(d)Sections 1.600 through 1.603 are not intended to, and do not:

(1 )Waive the sovereign immunity of the United States; or

(2)Create, and may not be relied upon to create, any right or benefit, substantive or procedural,

enforceable at law against the United States or the Department of Veterans Affairs.

Statutory Authority


38 U.S.C. 501(a), and as noted in specific sections.

History

[59 FR 47084, Sept. 14, 1994; redesignated and amended at 73 FR 29852. 29870. 29879. May 22, 2008]

Annotations

Notes


73 FR 29852, 29870. 29879. May 22, 2008, redesignated and amended this section, effective June 23, 2008. For

compliance date information, see 73 FR 29852. May 22, 2008.]

Case Notes

LexisNexis® Notes

Civil Procedure : Pleading & Practice : Defenses, Demurrers & Objections : Denials



Civil Procedure : Pleading & Practice : Defenses, Demurrers & Objections : Denials

Clearwater v. Principi. 2004 U.S. App. Vet. Claims LEXIS 34 (Jan. 14, 2004) (Unpublished).

Overview: Where a veteran's counsel could not access the veteran's VA claims file through the preferred electronic

method, the veteran was not entitled to a writ of mandamus, since the veteran was not denied all access to the file.

38 CFR 1.600

Former 38 CFR 14.640 redesignated as 38 CFR 1.600

Page 3 of 4

• Regulations governing access to automated Veterans Benefits Administration claims records do not create,

and may not be relied upon to create, any right or benefit, substantive or procedural. 38 C.F.R. §

14.640(d)(2) (2003). Go To Headnote








14.640(d)(2) (2003). Go To Headnote








14.640(d)(2) (2003). Go To Headnote


[CROSS REFERENCE:

This section was formerly§ 14.640.]


[PUBLISHER'S NOTE: Nomenclature changes to chapter I appear at 54 FR 34978, Aug. 23, 1989; 57 FR 31006.

July 13, 1992; 57 FR 38606. Aug. 26, 1992; 57 FR 43616. Sept. 22, 1992; 64 FR 30244, June 7, 1999; 65 FR


Apr. 4, 2002; 73 FR 79645, 79647, Dec. 30, 2008.]

NOTES APPLICABLE TO ENTIRE PART:

EDITORIAL NOTE: Nomenclature changes to Part 1 appear at 61 FR 7216, Feb. 27, 1996.



Page 4 of 4

38 CFR 1.600

End of Document

38 CFR 1.601








§ 1.601 Qualifications for access.

(a)An applicant for read-only access to VBA automated claims records from a location other than a VA

Regional Office must be:

(1)An organization, representative, attorney or agent approved or accredited by VA under§§ 14.626

through 14.635; or

(2)An attorney of record for a claimant in proceedings before the Court of Veterans Appeals or

subsequent proceedings who requests access to the claimant's automated claims records as part of

the representation of the claimant.

(b)The hardware, modem and software utilized to obtain access, as well as their location, must be approved in

advance by VBA.

(c)Each individual and organization approved for access must sign and return a notice provided by the

Regional Office Director (or the Regional Office Director's designee) of the Regional Office of jurisdiction for the

claim. The notice will specify the applicable operational and security requirements for access and an

acknowledgment that the breach of any of these requirements is grounds for disqualification from access.

Statutory Authority



History

[59 FR 47084, Sept. 14, 1994; redesignated at 73 FR 29852, 29870, May 22, 2008]

Annotations

Notes

Page 2 of 2

38 CFR 1.601


73 FR 29852. 29870. May 22, 2008, redesignated this section, effective June 23, 2008. For compliance date

information, see 73 FR 29852. May 22, 2008.]


[CROSS REFERENCE:

This section was formerly§ 14.641. ]




1544, 1545, Jan. 11, 2000; 66 FR 44052, 44053. Aug. 22, 2001; 66 FR 66763. 66767. Dec. 27, 2001; 67 FR 16023,

Apr. 4, 2002; 73 FR 79645. 79647. Dec. 30, 2008.]


EDITORIAL NOTE: Nomenclature changes to Part 1 appear at 61 FR 7216. Feb. 27, 1996.



End of Document

38 CFR 1.602








§ 1.602 Utilization of access.

(a)Once an individual or organization has been issued the necessary passwords to obtain read-only access to

the automated claims records of individuals represented, access will be exercised in accordance with the

following requirements:

(1 )The individual or organization will obtain access only from equipment and software approved in

advance by the Regional Office from the location where the individual or organization primarily

conducts its representation activities which also has been approved in advance;

(2)The individual will use only his or her assigned password to obtain access;

(3)The individual will not reveal his or her password to anyone else, or allow anyone else to use his or

her password;

(4)The individual will access only the VBA automated claims records of VA claimants who are

represented by the person obtaining access or by the organization employing the person obtaining

access;

(S)The individual will access a claimant's automated claims record solely for the purpose of

representing that claimant in a claim for benefits administered by VA;

(6)Upon receipt of the password, the individual will destroy the hard copy; no written or printed record

containing the password will be retained; and

(?)The individual and organization will comply with all security requirements VBA deems necessary to

ensure the integrity and confidentiality of the data and VBA's automated computer systems.

(b)An organization granted access shall ensure that all employees provided access in accordance with these

regulations will receive regular, adequate training on proper security, including the items listed in § 1.603(a).

Where an individual such as an attorney or registered agent is granted access, he or she will regularly review

the security requirements for the system as set forth in these regulations and in any additional materials

provided by VBA.

(c)VBA may, at any time without notice:

(1 )Inspect the computer hardware and software utilized to obtain access and their location;

(2)Review the security practices and training of any individual or organization granted access under

these regulations; and

(3)Monitor an individual's or organization's access activities. By applying for, and exercising, the access

privileges under §§ 1.600 through 1.603, the applicant expressly consents to VBA monitoring the

access activities of the applicant at any time.

Page 2 of 2

38 CFR 1.602

Statutory Authority



History


Annotations

Notes


73 FR 29852, 29870, 29879, May 22, 2008, redesignated and amended this section, effective June 23, 2008. For

compliance date information, see 73 FR 29852, May 22, 2008.]


[CROSS REFERENCE:





1544, 1545. Jan. 11, 2000; 66 FR 44052, 44053. Aug. 22, 2001; 66 FR 66763. 66767. Dec. 27, 2001; 67 FR 16023,

Apr. 4, 2002; 73 FR 79645. 79647. Dec. 30, 2008.]





End of Document

38 CFR 1.603








§ 1.603 Disqualification.

(a)The Regional Office Director or the Regional Office Director's designee may revoke an individual's or an

organization's access privileges to a particular claimant's records because the individual or organization no

longer represents the claimant, and, therefore, the beneficiary's consent is no longer in effect. The individual or

organization is no longer entitled to access as a matter of law under the Privacy Act, 5 U.S.C. 552a, and 38

U.S.C. 5701 and 7332. Under these circumstances, the individual or organization is not entitled to any hearing

or to present any evidence in opposition to the revocation.

(b)The Regional Office Director or the Regional Office Director's designee may revoke an individual's or an

organization's access privileges either to an individual claimant's records or to all claimants' records in the VBA

automated claims benefits systems if the individual or organization:

(1 )Violates any of the provisions of§§ 1.600 through 1.603;

(2)Accesses or attempts to access data for a purpose other than representation of an individual

veteran;

(3)Accesses or attempts to access data other than the data specified in these regulations;

(4)Accesses or attempts to access data on a VA beneficiary who is not represented either by the

individual who obtains access or by the organization employing the individual who obtains access;

(5)Utilizes unapproved computer hardware or software to obtain or attempt to obtain access to VBA

computer systems;

(G)Modifies or attempts to modify data in the VBA computer systems.

(c)lf VBA is considering revoking an individual's access under § 1.603(b), and that individual works for an

organization, the Regional Office of jurisdiction will notify the organization of the pendency of the action.

(d)After an individual's access privileges are revoked, if the conduct which resulted in revocation was such that

it merits reporting to an appropriate governmental licensing organization such as a State bar, the VBA Regional

Office of jurisdiction will immediately inform the licensing organization in writing of the fact that the individual's

access privileges were revoked and the reasons why.

(e)The VBA Regional Office of jurisdiction may temporarily suspend access privileges prior to any

determination on the merits of the proposed revocation where the Regional Office Director or the Director's

designee determines that such immediate suspension is necessary in order to protect the integrity of the

system or confidentiality of the data in the system from a reasonably foreseeable compromise. However, in

such case, the Regional Office shall offer the individual or organization an opportunity to respond to the

charges immediately after the temporary suspension.

Page 2 of 2

38 CFR 1.603

Statutory Authority


38 U.S.C. 501 (a), and as noted in specific sections.

History


Annotations

Notes


73 FR 29852, 29870, 29879, May 22, 2008, redesignated and amended this section, effective June 23, 2008. For

compliance date information, see 73 FR 29852, May 22, 2008.]


[CROSS REFERENCE:



[PUBLISHER'S NOTE: Nomenclature changes to chapter I appear at 54 FR 34978, Aug. 23, 1989; 57 FR 31 006,


1 544, 1545. Jan. 11, 2000; 66 FR 44052, 44053. Aug. 22, 2001; 66 FR 66763. 66767. Dec. 27, 2001; 67 FR 16023,

Apr. 4, 2002; 73 FR 79645. 79647. Dec. 30, 2008.]





End of Document

DEPARTMENT OF VETERANS AFFAIRS Veterans Benefits Administration

Washington, D.C. 20420

June 19, 2017

Douglas J. Rosinski, Esq. Veterans Justice Group, LLC 701 Gervas St. Suite 150-450 Columbia, SC 29201

Dear Mr. Rosinski:

Thank you for your letter relaying your concerns about Veterans Benefits Administration (VBA)'s policies and procedures around private attorney notification. We understand the importance of complying with 38 C.F.R § 3.103 which states a "claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payments of benefrts or granting relief."

VBA's Compensation and Pension's Adjudication Procedures Manual (M21 -1) Part I, Chapter 3, Section B, Topic 1, Blocks band e-g (attached) directs claims processers to send a paper copy of any correspondence to a private attorney or claim agent when they represent a Veteran/claimant. Furthermore, when correspondence is associated with a claimant represented by a private attorney or claims agent, the address of the representative is included in the carbon copy (cc) line of the correspondence. The manual does not provide any exceptions to this directive.

Field Personnel were reminded of the manual provisions and their importance in a National Call with Regional Offices' Leadership Teams on June 15, 2017. In addition, VBA is currently working on system improvements to the Veteran Benefit Management System (VBMS) to allow private attorneys the option of receiving power of attorney correspondences electronically or by traditional mail. This system driven solution will help ensure compliance with the requirement to notify representatives.

I hope this information is helpful to you. Thank you for your concern regarding private attorney notification. If you have any future questions or concerns, please feel free to contact the Office of the Under Secretary for Benefits at [email protected].

[Enclosure(s): M21-1 1.3.8 .1.b, e-g]

~JkA--Beth Murphy Director

M21-1, Part I, Chapter 3, Section B- Power of Attorney (POA) Rights to Notification and Review of Records Updated May 08, 2017

Topics M21-1 Adjudication Procedures Manual > Part 01 (Part I) Claimants Rights and Resoons1b1lines > Chapter 3. Power of Attomey

1. VA's Duty to Notify POAs

Introduction

Change Date

1.3.8 .1.a. A Claimant's Right to Representation

1.3.8.1.b. Notices That Must be Provided to the Representative

- -- ----·-·--------·-----------This topic contains information on VA's duty to notify POAs, including

• a claimant's right to representation • notices that must be provided to the representative • VA's partnership policy with POAs • providing notice of correspondence to VSO POAs • providing notice of correspondence to private attorneys or claims agents • requirement to list the private attorney or claims agent address in the

carbon copy {cc} line. and • editing the cc line to list a representative and address.

---.. -·- ··----·-·---~--· ··"-.... --... ---·-···-.. --- .._........ - - - -February 10, 2017

-------- -- . The Department of Veterans Affairs' 0./A's) policy is that all claimants have the right to representation before the department in claims affecting the payment of benefits or relief.

Claimants before VA are provided representation by Veterans service organizations (VSOs), attorneys, agents and other accredited individuals to ensure that such claimants have responsible, qualified representation to assist in the preparation, presentation, and prosecution of claims for Veterans' benefits.

References: For more information on

• a claimant's right to representation before VA, see 38 CFR 3.1 03(a) , and

• the purpose of representation before VA, see 38 CFR 14.626.

,~- -----·--··-------·~- ·-··---------··· .. --~--- -· Unless representation is limited by the claimant, power of attorney (POA) representatives are entitled to notice of any VA decisions affecting the payment of benefits or relief sought by claimants whom they represent. Representatives also must receive other forms of correspondence sent to claimants. These include

• decision notices • statements of the case and supplemental statements of the case • notice of certification and transfer of appeals to the Board of Veterans'

Appeals (BVA) • intent to file a claim notices

• incomplete application notices, and • requests for information and evidence needed to substantiate a claim

(e.g. development letters).

fmporlant Disclosure of Federal tax information (FTI) to a representative requires special considerations as noted in M21 -1, Part X. 9.B.3.c .

References: For more information, on

• limited attorney representation, see M21-1, Part I, 3.A.2.d • records protected by 38 U.S.C. 7332, see M21-1. Part I. 3.B.2.d • VSO review of rating decisions, see M21-1, Part I. 3.6 .3 • intent to file a claim notices, see 38 CFR 3.155(b) • notice of decisions. see 38 U.S.C. 5104 • incomplete applications. see 38 U.S.C. 5102, and • information and evidence needed to substantiate a claim, see 38 U.S.C.

5103(a).

·---~------- -----~---

1.3.B.1.c. VA's Partnership Policy with PO As

VA's policy in working with POA representatives is that of an equal partnership that seeks to effectively serve Veterans and their dependents and survivors. VA employees are expected to render timely and effective assistance to POA representatives. ______ ,_. ..... - .. ......... .__,_ ... . ........ .,,,.._ __ ,_. --·~· .... ---- .. -..... _ ..

1.3.8 .1.d. Providing Notice of Correspondence to VSOPOAs

1.3.8 .1.e. Providing Notice of Correspondence to Private Attorneys

For VSO POAs who have access to a Veteran's electronic claims folder (eFolder) via the VSO work queue. work queue indicators in the Veterans Benefits Management System (VBMS) provide adequate notice that correspondence is available for their review.

Provide a paper copy of correspondence to the claimant's VSO POA if

• the VSO POA does not have access to the eFolder • there is a paper claims folder • a rating decision or correspondence is generated and the end product

(EP) will be cleared the same day, or • the correspondence consists of a statement of the case (SOC) or

supplemental statement of the case (SSOC).

Important:

• If providing a paper copy of a decision notice to a VSO POA, and that decision notice is based on a rating decision, attach a copy of the rating decision narrative and codesheet.

• This block does not apply to notice to private attorneys and claims agents. For guidance on providing notice to attorneys and claims agents, see M21-1. Part I. 3.B.1.e.

Reference: For more information on printing and filing requirements for

• SOC, see M21 -1, Part I, 5.0 .3.f, and • an SSOC, see M21 -1, Part I ~ 5.0 .4J.

Send all accredited private attorneys or claims agents a paper copy of any correspondence regarding the claim they represent.

Important: When providing a paper copy of a decision notice based on a

or Claims Agents rating decision to a POA, and that decision notice is based on a rating decision, attach a copy of the rating decision narrative and codesheet.

References: For more information on

• providing notice of correspondence to VSO POAs, see M21-1. Part I. 3.8.1 .d, and

• the accreditation of private attorneys and claims agents, see the Office of General Counsel (OGC) Accreditation Search.

1.3.8 .1.f. Requirement to List the Private Attorney or Claims Agent Address in the CC Line

When regional office (RO) personnel generate correspondence associated with a claimant represented by a private attorney or claims agent, they must include the address of the private attorney or claims agent in the carbon copy (cc} line of the correspondence.

1.3.B.1 .g. Editing the CC Line to List a Representative and Address

Including the full address in the cc line will allow mail processors to quickly and accurately address outgoing private attorney or claims agent copies of correspondence.

Reference: For more information on editing the cc line to list the representative and address, see M21-1 . Part I, 3.8 .1.g.

Follow the instructions in the table below to update the cc line for letters generated by each program.

If the Jetter is generatedThen .. . in ... ---- -Modern Awards ProcessingDevelopment. (MAP-D), Personal Computer Generated Letter (PCGL) or the Letter Creator tool - . ~ --VBMS-Core

• delete the generic POA designation (PRIVATE ATIORNEYWITH EXCLUSIVE CONTACT or AGENT OR PVT ATIY-EXCLUSIVE CONTACT NOT) within the Microsoft Word document from the cc line, if one exists

• replace the deleted text with the private attorney/agent's name and address

• finalize the letter, and • follow the instructions in M21 -1, Part Ill , Subpart II,

4.G.2.b to upload the letter to the eFolder.

• select CARBON COPY as the FREE TEXT option within the letter creation screen

• type the name and address of the private attorney/agent in the free text field as shown in this fictional example:

VBMS Awards/Auto mated Decision Letter (ADL)

Free Text - - -·--·------·

~ a:r ··· ·· ·· .-.;. G ~·. ·- · - .. ·.=;: ~;.

:-- ~ ... .. - · ~ - : .... ;c.- ~.;.

= ;; . .. -:.' ·: .

Add Paragraph

• select ADD PARAGRAPH • preview the letter to ensure the cc line contains the

private attorney/agent name, and

l1ullk :vou for yoar :;cn-,ct.

cc: FAUXU\\i"ERE~.

C~. D3.110ro & A:.~ 1001 fue A\-e. S~ 1-4:!~9 Fake Cuy. OH 1:!3~5

• final ize the letter.

•

• •

CeR-t

select CC RECIPIENTS from the AWARD LEITER INTERVIEW screen in VBMS-Awards select ADD enter the POA information into the free text field

o If the private attorney/agent has a unique POA code associated with the Veteran's record , type the address of the private attorney/agent in the free text field as shown in this fictional example. The name of the attorney or agent will be automatically inserted.

~arne Of RetiOEOl

~11Fi:~-; S! A<Cfjll ·o.·iiiJt!li'JI' !): ~.x;s

lc-n~l lir.t•~; ~~ Alwndon

• If the private attorney/agent does not have a unique POA code and the generic 099 or 066 code is being used, add the attorney or agent name in addition to the address in the free text field.

• select ACCEPT • preview the letter to ensure the cc line contains the

priva.te .. §.!t.Q!IJ.~Xfa~q~nt_r:l~IJI~ ~-s~IJ..<?.Y.-''1. if! J~~ fol!.q.wina

the SOC/SSOC Program

example, and------- -

. "1\'e seur a copy off~ letter to BRL-\..\ RJOHNSO~. 1\'00 you wnuppowted ~your representall\'e. li you baw questiOIIS or llffii asststance. yUlt can alw •'Oiltatl your rq>rcsturah\-e.

Thallt you for your ~ice.

\ '.-\ Fonu ~ 107 \'.-\ Forw ! 1.()958 \\lle:re ro Send Your Written C'orrespoodeuce

~c · BRL\.\ R JOHNSO~ 1~3 Fictitiou:. Sr \\ 'asbiugrou. DC ~0005

• finalize the letter.

. .. _ .. - ·- -• the program will prompt the user to complete cover

letter fields including a cc line. • Add the representative's name and address to the cc

line when a private attorney or claims agent is representing the appellant.

:References: For more information on

• the sections of the SOC and actions required when completing each section (to include the transmittal letter). see M21-1 , Part I, 5.0 .3.c

• SOC transmittal letter requirements. seeM21-1. Part I, 5.0.3.h

• SSOC transmittal letter requirements, see M21-1 , Part I, 5.0.4.e

• printing a representative copy of the SOC, see M21 -1, Part I, 5.0.3.f, and

• printing a representative copy of the SSOC. See M21 -1, Part I, 5.0.4.f.

Department of Veterans Affairs

Date: APR - 5 2017

Memorandum

From: Acting Assistant Secretary for Information & Technology and Chief Information Officer (005)

Subj: VA Information Security Rules of Behavior for Non-Organizational Users (VAIQ #7772935)

To: Under Secretaries, Assistant Secretaries and Other Key Officials

1. The Department of Veterans Affairs (VA) Information Security Rules of Behavior (ROB) for Non-Organizational Users sets forth the minimum standards of behavior with which non-organizational users must comply in order to access VA information or information systms. Non-organizational users are defined as information users who are not explicitly categorized as VA organizational users. Examples of nonorganizational users include representatives of Veteran Service Organizations (VSO) and individals with Veteran/claimant power of attorney.

2. The VA ROB for Non-Organizational Users fulfills requirements of 38 U.S.C. § 5723(f)(5); OMB Circular A-130, Appendix I,§§ 4(h)(6-7); and VA Handbook 6500, Managing Information Security Risk: VA Information Security Program. All require VA to promulgate rules of behavior that clearly delineate responsibilities and expected behavior required of users with access to VA information systems, as well as to outline the consequences for behavior inconsistent with the ROB. Under 38 U.S.C. § 5723(f)(5); the requirement specifically encompasses all users of VA information systems, including non-organizational users.

3. Effective immediately, new non-organizational users will be required to sign the VA ROB for Non-Organizational Users before accessing VA information systems. In addition, all non-organizational users will be required to re-sign the ROB as part of their annual information security awareness training.

4. If you have any questions about this direction , please have a member of your staff contact Gary Stevens at [email protected] or on 202.632.7538.

<h-J<..J- c ~ ::tL ROB C. THOMAS, II

Attachment: Department of Veterans Affairs Information Security Rules of Behavior for NonOrganizational Users

Page 2.

VA Information Security Rules of Behavior

cc: Acting Principal Deputy Assistant Secretary for Information and Technology (OOSA) Acting Chief Information Security Officer (OOSR) Chief Financial Officer (OOSF) Deputy Chief Information Officer, Architecture, Strategy and Design (OOSE) Deputy Assistant Secretary, Enterprise Program Management Office (OOSQ) Deputy Assistant Secretary, IT Operations and Services (OOSOP) Deputy Chief Information Officer, Quality, Privacy and Risk (OOSPR) Deputy Director, Interagency Program Office (OOSJ) Deputy Chief Information Officer, Account Manager for Corporate (OOSC) Acting Deputy Chief Information Officer, Account Manager for Benefits (OOSC) Deputy Chief Information Officer, Account Manager for Health (005C)

DEPARTMENT OF VETERANS AFFAIRS INFORMATION SECURITY RULES OF BEHAVIOR

FOR NON-ORGANIZATIONAL USERS

1. COVERAGE

a. Department of Veterans Affairs (VA) Information Security Rules ofBehavior (ROB) for Non-Organizational Users provides the specific responsibilities and expected behavior for non-organizational users of VA systems and VA information as required by 38 U.S.C. § 5723(f)(5), OMB Circular A-130, Appendix I, §§ 4(h)(6-7) and VA Handbook 6500, Managing Information Security Risk: VA Information Security Program.

b. Organizational users are identified as VA employees, contractors,researchers, students, volunteers, and representatives of Federal, state, local or tribal agencies not representing a Veteran or claimant.

c. Non-organizational users are identified as all information system usersother than VA users explicitly categorized as organizational users. These include individuals with a Veteran/claimant power of attorney. Change Management Agents at the local facility are responsible for on-boarding power of attorney/private attorneys.

d. VA information is information under the control of VA or stored on a VAinformation system. This includes both VA sensitive and non-sensitive information. Information properly disclosed by VA to a non-organizational user (e.g., contents of a Veteran’s claims file for purposes of representing a Veteran or claimant) is no longer VA information and its security and confidentiality is the responsibility of the recipient.

e. The VA ROB for Non-Organizational Users does not supersede anypolicies of VA facilities or other agency components that provide higher levels of protection to VA’s information or information systems. The ROB simply provides the minimum standards with which individual users must comply, and VA facilities and other agency components may issue standards for protection that exceed the ROB. In addition, authorized users are required to go beyond stated rules using due diligence and the highest ethical standards.

2. COMPLIANCE

a. Non-compliance with the VA ROB for Non-Organizational Users may because for suspension or removal of access to VA information or information systems. Such a suspension would not prevent the authorized disclosure of records to an individual; however, it may prevent disclosure through a particular method, e.g., by suspending of access through a VA information system. Depending on theseverity of the violation and management discretion, consequences may include restricting access or suspension of access privileges. Theft, conversion, or unauthorized access, disposal, or destruction of Federal property or disclosure of information may result in criminal sanctions.

b. Accessing, uploading, downloading, changing, circumventing, or deletingof information on VA systems without authorization; modifying VA systems, denying or granting access to VA systems without authorization; using VA resources for unauthorized purpose on VA systems; or otherwise misusing VA systems or resources is strictly prohibited and may result in criminal sanctions.

c. The VA ROB for Non-Organizational Users does not create any other rightor benefit, substantive or procedural, enforceable by law by a party in litigation with the U.S. Government.

3. ACKNOWLEDGEMENT

a. The VA ROB for Non-Organizational Users must be signed before accessis provided to VA information or information systems and annually thereafter by non-organizational users of VA information or information systems. This signature indicates agreement to adhere to the ROB. Refusal to sign the ROB will result in denial of access to VA information or information systems.

b. The VA ROB for Non-Organizational Users may be signed in hard copy orelectronically. If signed using the hard copy method, the user should initial and date each page and provide the information requested under Acknowledgement and Acceptance.

4. INFORMATION SECURITY RULES of BEHAVIOR

Access and Use of VA Information Systems I Will: • Comply with all federal and VA information security, privacy, and recordsmanagement policies. SOURCE: VA Handbook 6500 Control PM-1 • Have NO expectation of privacy in my activities while accessing or using VAinformation systems, as I understand that all activity is logged for security purposes. SOURCE: VA Handbook 6500 Control AC-8 • Follow established procedures for requesting access to any VA informationsystem and for notifying VA when the access is no longer needed. SOURCE: VA Handbook 6500 Control AC-2 • Only use my access to VA computer systems and/or records for officiallyauthorized purposes. SOURCE: VA Handbook 6500 Control AC-6 • Only use VA-approved solutions, software, or services for connecting non-VA-owned systems to VA’s network either remotely or directly. SOURCE: VA Handbook 6500 Control AC-20, AC-17 I Will Not: • Attempt to probe computer systems to exploit system controls or to obtainunauthorized access to VA sensitive data. SOURCE: VA Handbook 6500 Control AC-6 • Use personally-owned equipment on-site at a VA facility to directly connect to theVA network, or connect remotely to the VA network unless approved prior to use

(i.e., approval from VA ISO or Change Management Agent). SOURCE: VA Handbook 6500 Control AC-20

Protection of Computing Resources I Will: • Protect Government Furnished Equipment (GFE) from theft, loss, destruction,misuse, and threats. SOURCE: VA Handbook 6500 Control AC-17

• Follow VA policies and procedures for handling Federal Government ITequipment and sign for items provided to me for my exclusive use and return them when no longer required for VA activities. SOURCE: VA Handbook 6500 Control CM-8(4) I Will Not: • Swap or surrender VA hard drives or other storage devices to anyone other thanan authorized OI&T employee. SOURCE: VA Handbook 6500 Control MP-4 • Attempt to override, circumvent, alter, or disable operational, technical, ormanagement security configuration controls unless expressly directed to do so by authorized VA staff. SOURCE: VA Handbook 6500 Control CM-3

Electronic Data Protection I Will: • If authorized to directly connect to a VA system, only use virus protectionsoftware, anti-spyware, and firewall/intrusion detection software authorized by VA. SOURCE: VA Handbook 6500 Control SI-3

I Will Not: • Download or install prohibited software from the Internet, or other publiclyavailable sources, offered as free trials, shareware, or other unlicensed software to a VA-owned system. SOURCE: VA Handbook 6500 Control CM-11 • Disable or degrade software programs used by VA that install security softwareupdates to VA computer equipment, to computer equipment used to connect to VA information systems, or used to create, store, or use VA information. SOURCE: VA Handbook 6500 Control CM-10

Remote Access I Will: • Protect information about remote access mechanisms from unauthorized useand disclosure. SOURCE: VA Handbook 6500 Control AC-17 I Will Not: • Access non-public VA information systems from publicly-available IT computers,such as remotely connecting to the internal VA network from computers in a public library. SOURCE: VA Handbook 6500 Control AC-17

• Access any VA information system from any foreign country unless approved by a VA ISO, local CIO, and Information System Owner. SOURCE: VA Handbook 6500 Control AC-17

User Accountability I Will: • Complete mandatory security and privacy awareness training within designated time frames. SOURCE: VA Handbook 6500 Control AT-3 • Complete any additional role-based security training required based on my role and responsibilities. SOURCE: VA Handbook 6500 Control AT-3 • I understand that authorized VA personnel may review my conduct or actions concerning VA information and information systems, and take appropriate action. SOURCE: VA Handbook 6500 Control AU-1 • If applicable, have my GFE scanned and serviced by VA authorized personnel. This may require me to return it promptly to a VA facility upon request. SOURCE: VA Handbook 6500 Control MA-2 • Permit only those authorized by OI&T to perform maintenance on GFE or VA IT components, including installation or removal of hardware or software. SOURCE: VA Handbook 6500 Control MA-5 • Sign specific or unique ROBs as required for access or use of specific VA systems or non-VA systems. SOURCE: VA Handbook 6500 Control PL-4

Sensitive Information I Will Not: • Disclose information relating to the diagnosis or treatment of drug abuse, alcoholism or alcohol abuse, HIV, or sickle cell anemia by VA without appropriate legal authority. Unauthorized disclosure of this information may have a serious adverse effect on agency operations, agency assets, or individuals, and includes criminal penalties. SOURCE: VA Handbook 6500 Control IP-1, 38 U.S.C. § 7332 Identification and Authentication I Will: • Use passwords that meet the VA minimum requirements. SOURCE: VA Handbook 6500 Control IA-5(1) • Protect my passwords; verify codes, tokens, and credentials from unauthorized use and disclosure. SOURCE: VA Handbook 6500 Control IA-5(h) I Will Not: • Store my VA passwords or verify codes in any file on any IT system, unless that file has been encrypted using FIPS 140-2 (or its successor) validated encryption, and I am the only person who can decrypt the file. SOURCE: VA Handbook 6500 Control IA-5

• Hardcode credentials into scripts or programs. SOURCE: VA Handbook 6500 Control IA-5(1)(c) • Divulge a personal username, password, access code, verify code, or other access credential to anyone. SOURCE: VA Handbook 6500 Control AC-17

Incident Reporting I Will: • Report suspected or identified information security incidents including anti-virus, antispyware, firewall or intrusion detection software errors, or significant alert messages (security and privacy) on VA information systems to a VA ISO, local CIO, and Information System Owner immediately upon suspicion. SOURCE: VA Handbook 6500 Control IR-6

5. ACKNOWLEDGEMENT AND ACCEPTANCE • I acknowledge that I have received a copy of the VA Information Security Rules of Behavior for Non-Organizational Users. • I understand, accept, and agree to comply with all terms and conditions of the VA Information Security Rules of Behavior for Non-Organizational Users.

Print or type your full name Signature Date Office Phone Position Title

DEPARTMENT OF VETERANS AFFAIRS

Veterans Benefits Administration Washington, D.C. 20420

September 22, 2016

VBA Letter 20-16-08

Director (00) All VBA Regional Offices and Centers SUBJ: Internal VBA Systems Access for Claimant and Appellant Representatives

Purpose

The purpose of this letter is to provide procedures to grant access to VA information systems to accredited claimant and appellant representatives. Users cannot access internal systems without a Personal Identity Verification (PIV) badge; therefore, in order for accredited claims agents, attorneys, and employees of Veterans Service Organizations (VSOs) to gain access to VBA systems, VA must issue them a PIV badge.

VA has a responsibility to preserve the ability of a claimant’s representative to access that claimant’s VA claims records while complying with Homeland Safety Presidential Directive 12 (HSPD 12), Federal Information Processing Standards Publication (FIPS PUB 201-2), and applicable laws, rules, and regulations related to access to secure government information systems.

To achieve this balance, VBA follows the policies and procedures of the VA Office of Information Security, specifically in regards to completing identity verification, background investigations, and PIV badge issuance to any individual granted access to VA information systems.

Prerequisites for System Access

Due to the cost involved in establishing system access, VA will only establish access for individuals:

Accredited by VA’s Office of General Counsel (OGC) to represent Veterans as a claims agent, attorney, or employee of a Veterans Service Organization and

Designated by one or more Veterans to represent him or her in pursuing a claim or appeal for VA benefits.

If a person requesting access does not meet these requirements, VA will not issue a PIV card and establish system access until the need for such access is demonstrated.

http://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.201-2.pdf

Page 2. VBA Letter 20-16-08

VBA System Access Security Requirements

The security requirements for VBA systems access are:

Fingerprinting (favorable outcome); Office of Personnel Management (OPM) background investigation (initiated); Completed information security training; Completed Optional Form (OF) - 306, Declaration of Federal Employment, and Signed Rules of Behavior (ROB).

Upon successful adjudication of the background investigation and issuance of a PIV badge, VA will grant access to the VA network and to the Veterans Benefits Management System (VBMS). An individual granted access to VBMS will have a user role of “POA” and will be associated with the electronic records of Veterans he or she represents. The VA National Service Desk (NSD) will provide IT support to representatives with remote access to VA systems. The National Service Desk is available to provide assistance 24 hours a day, 7 days a week at 1-855-NSD-HELP or 1-855-673-4357. Processing VA System Access Requests

To request remote access, accredited representatives should submit a completed OF-306, Declaration of Federal Employment and VA Form 20-0344, Annual Certification of Veterans Status and Veteran-Relatives to the Change Management Agent (CMA) at the closest regional office. A list of CMAs is available online at:

http://www.benefits.va.gov/COMPENSATION/cma-poc.asp

Upon receipt of a request, the CMA will send the accredited representative an e-mail acknowledging receipt of his or her documents, providing the requestor with the CMA’s contact information, and informing the requestor a background investigation will be initiated.

The Information Security Officer (ISO) will verify accreditation or employment with a VSO by searching the Office of General Counsel’s (OGC) online Accreditation Database. If the requestor is not accredited, the ISO will refer the case to the VBA’s Office of Field Operations (OFO) via email at [email protected]. OFO will review the circumstances of the application, communicate with OGC, and if not able to resolve the issue, refer the requestor to OGC to pursue accreditation.

Under exceptional circumstances, OGC may direct VBA to issue a PIV card and grant systems access to an individual who is not an accredited representative. When these situations occur, OFO will contact the regional office directly to provide further instructions.

https://www.opm.gov/forms/pdf_fill/of0306.PDF

http://www.reginfo.gov/public/do/DownloadDocument?objectID=46070201

http://www.reginfo.gov/public/do/DownloadDocument?objectID=46070201

http://www.benefits.va.gov/COMPENSATION/cma-poc.asp

http://www.va.gov/ogc/apps/accreditation/index.asp

http://www.va.gov/ogc/apps/accreditation/index.asp



Regional Office Change Management Agent

The CMA will be the representative’s primary point of contact throughout the process. The CMA’s role is to ensure timely action is being taken on the representative’s request for access and to respond to status inquiries from representatives seeking access. The CMA will also accept documents and forward them to the appropriate office or individual within the RO.

Note: Under no circumstances is the CMA permitted to keep or otherwise maintain application documents containing representative’s personally-identifiable information once it has been sent to the appropriate office or individual for action.

Regional Office Human Resource Liaison / Specialist

The Human Resource (HR) Liaison / Specialist is responsible for coordinating PIV card issuance, receiving the completed OF-306 and VA Form 20-0344, and providing security requirements to the requestor. If the attorney fails the background investigation based on HSPD-12 denial guidelines, the HR Liaison / Specialist will deny access and inform both OGC and OFO immediately. HR and Human Resources Centers will follow the same background investigation guidelines used for VSO employees.

Regional Office Training Manager

The RO Training Manager is responsible for establishing a Talent Management System (TMS) account so the requestor can complete required information security training and digitally sign the ROB. Upon the requestor’s successful completion of information security training and receipt of a signed ROB document, the regional office may grant access to VBA systems.

Power of Attorney (POA) Code for Accredited Representatives

To gain access to Veteran records, a representative must have a personal login to the VA network and appropriate VA systems and be associated with a POA code. For example, an attorney named John Q. Public would receive a login under his name and a POA code in his name as well. In order for this attorney to access client records, a Veteran must have “John Q Public” selected as his or her POA code in the system.

Agents or attorneys can also be associated with multiple POA codes. An example of this would be attorney John Q. Public representing Veterans personally and also on behalf of an organization such as Disabled American Veterans. In this scenario, John Q. Public’s account would be associated with both the John Q Public and Disabled American Veterans POA codes.


Note: Association in the OGC accreditation database or a written statement from an additional organization is required prior to associating an account with multiple POA codes.

Some accredited representatives do not have a POA code in the system. For these representatives, the regional office may still guide the representative through the PIV process and establish remote network access, but may not grant access to VBMS or any other VA system. When such a representative is found, the regional office will contact the NSD and open a ticket for POA code establishment. NSD personnel will assign this task to the appropriate office within VBA Central Office and notify the regional office of completion.

Questions Questions regarding accreditation may be directed to the VA Office of General Counsel via e-mail to [email protected]. Questions regarding other matters may be sent to the Office of Field Operations via e-mail to [email protected]. /s/ Thomas J. Murphy Principal Deputy Under Secretary for Benefits Performing the Duties of Under Secretary for Benefits Enclosure: Attachment A: Access Process




Attachment A: Access Process Step 1: To request VA system access, a representative must provide:

OF-306, Declaration of Federal Employment –

(a) Complete OF-306, Declaration of Federal Employment

(b) CMA sends representative acknowledgement e-mail

(c) CMA submits to local Human Resource Liaison/Specialist

Veteran Status and Relative Status – (a) Complete VA Form 20-0344, Annual Certification of Veteran Status and

Veteran-Relatives

(b) CMA submits to local Human Resource Liaison/Specialist

Step 2: The CMA:

Request a background Investigation from their local Human Recourse Liaison/Specialist –

(a) The local Human Resource Liaison/Specialist initiates background investigation and provides the CMA with an e-QIP link. The CMA provides the link information to the representative.

(b) Complete required background investigation including the Special Agreement Check (SAC) for fingerprinting. The SAC is normally completed within 1-3 days of fingerprint submission

(c) If the representative does not pass the background investigation or if the fingerprints are not acceptable, the CMA will notify OFO.

Initiates training requirements - (a) CMA contacts local Training Manager for creation of the Talent Management

System (TMS) account (b) Training Manager creates TMS account and assigns HIPPA and TMS VA

10176 to representative (c) The CMA provides the TMS account information to the representative to

complete the required training Requests VA Network Access and User Account – (a) CMA submits VA Form 20-8824e, Common Security Services (CSS) User

Access Request to ISO via CSEM


(b) CMA submits VA Form 20-8824f , Veteran Benefits Administration/Central

Office Network Access Request to their local ISO (c) ISO reviews and approves 20-8824f and submits to local IT staff for

implementation and to create user account (d) The IT staff sends account creation email and instructions to obtain network

access credentials to the CMA Step 2: After completion of these requirements, the CMA will Request PIV –

(a) The Human Resource Liaison / Specialist serves as the representative’s PIV Sponsor. He or she initiates the PIV card request in PIV enrollment portal.

(b) The CMA will advise the representative of the need to have two forms of ID (acceptable forms of ID listed on FIPS 201-2, section 2.7, and Identity Document Matrix)

(c) The CMA will assist the representative with scheduling an appointment with a badge office

i. See the list of PCI Facilities to find the closest one ii. You must bring two forms of ID with you to your appointment iii. Use the new VA PIV Scheduling tool. Click here to determine if your

local PCI Facility is utilizing the tool

(d) Activate PIV card.

Provide the representative with VA System Access – CMA to provide login instructions to representative

http://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.201-2.pdf

http://vaww.va.gov/PIVPROJECT/ID%20Matrix%20(update).pdf

http://vaww.va.gov/PIVPROJECT/ID%20Matrix%20(update).pdf

http://vaww.va.gov/PIVPROJECT/PIV_Badge_Offices.asp

http://vaww.va.gov/PIVPROJECT/PIV_Badge_Offices.asp

38 CFR 20.608





CHAPTER I -- DEPARTMENT OF VETERANS AFFAIRS > PART 20 -- BOARD OF VETERANS'

APPEALS: RULES OF PRACTICE > SUBPART G -- REPRESENTATION

§ 20.608 Rule 608. Withdrawal of services by a representative.

(a)Withdrawal of services prior to certification of an appeal. A representative may withdraw services as

representative in an appeal at any time prior to certification of the appeal to the Board of Veterans' Appeals by

the agency of original jurisdiction by complying with the requirements of§ 14.631 of this chapter.

(b) Withdrawal of services after certification of an appeal --

(1 )Applicability. The restrictions on a representative's right to withdraw contained in this paragraph

apply only to those cases in which the representative has previously agreed to act as representative in

an appeal. In addition to express agreement, orally or in writing, such agreement shall be presumed if

the representative makes an appearance in the case by acting on an appellant's behalf before the

Board in any way after the appellant has designated the representative as such as provided in §§

20.602 through 20.605 of this part. The preceding sentence notwithstanding, an appearance in an

appeal solely to notify the Board that a designation of representation has not been accepted will not be

presumed to constitute such consent.

(2)Procedures. After the agency of original jurisdiction has certified an appeal to the Board of Veterans'

Appeals, a representative may not withdraw services as representative in the appeal unless good

cause is shown on motion. Good cause for such purposes is the extended illness or incapacitation of

an agent admitted to practice before the Department of Veterans Affairs, an attorney-at-law, or other

individual representative; failure of the appellant to cooperate with proper preparation and presentation

of the appeal; or other factors which make the continuation of representation impossible, impractical, or

unethical. Such motions must be in writing and must include the name of the veteran, the name of the

claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary

appointed to receive VA benefits on an individual's behalf), the applicable Department of Veterans

Affairs file number, and the reason why withdrawal should be permitted, and a signed statement

certifying that a copy of the motion was sent by first-class mail, postage prepaid, to the appellant,

setting forth the address to which the copy was mailed. Such motions should not contain information

which would violate privileged communications or which would otherwise be unethical to reveal. Such

motions must be filed at the following address: Office of the Principal Deputy Vice Chairman (01 C),

Board of Veterans' Appeals, P.O. Box 27063, Washington, DC 20038. The appellant may file a

response to the motion with the Board at the same address not later than 30 days following receipt of

the copy of the motion and must include a signed statement certifying that a copy of the response was

sent by first-class mail, postage prepaid, to the representative, setting forth the address to which the

copy was mailed.

(Approved by the Office of Management and Budget under control number 2900-0085)

Statutory Authority

(38 U.S.C. 5901-5904, 7105(a))

38 CFR 20.608

Page 2 of 3

History

[57 FR 4109, Feb. 3, 1992; 61 FR 20447, 20450, May 7, 1996; 69 FR 21068, 21069, Apr. 20, 2004; 73 FR 29852,

29879, May 22, 2008; 81 FR 32648, 32649, May 24, 2016]

Annotations

Notes


73 FR 29852, 29879, May 22, 2008, revised paragraph (a), effective June 23, 2008. For compliance date

information, see 73 FR 29852, May 22, 2008; 81 FR 32648, 32649, May 24, 2016, revised the fifth sentence of

paragraph (b )(2), effective May 24, 2016.]

Case Notes

LexisNexis® Notes

Case Notes Applicable to Entire Part

Part Note






Apr. 4, 2002; 73 FR 79645, 79647, Dec. 30, 2008.]

NOTES APPLICABLE TO ENTIRE SUBPART:

Note to subpart G: The representation provisions in§§ 14.626 through 14.637 of this title replace former§§ 20.601

through 20.607 concerning representation before the Board of Veterans' Appeals.



Page 3 of 3

38 CFR 20.608

End of Document

38 uses§ 110s


United States Code Service - Titles 1 through 54 > TITLE 38. VETERANS' BENEFITS > PART V.

BOARDS, ADMINISTRATIONS, AND SERVICES > CHAPTER 71. BOARD OF VETERANS'

APPEALS

§ 7105. Filing of notice of disagreement and appeal [Caution: See

prospective amendment note below.]

(a) Appellate review will be initiated by a notice of disagreement and completed by a substantive appeal after astatement of the case is furnished as prescribed in this section. Each appellant will be accorded hearingand representation rights pursuant to the provisions of this chapter (38 uses §§ 7101 et seq.] andregulations of the Secretary.

(b)

(1) Except in the case of simultaneously contested claims, notice of disagreement shall be filed within oneyear from the date of mailing of notice of the result of initial review or determination. Such notice, andappeals, must be in writing and be filed with the activity which entered the determination with whichdisagreement is expressed (hereinafter referred to as the "agency of original jurisdiction"). A notice ofdisagreement postmarked before the expiration of the one-year period will be accepted as timely filed.

(2) Notices of disagreement, and appeals, must be in writing and may be filed by the claimant, theclaimant's legal guardian, or such accredited representative, attorney, or authorized agent as may beselected by the claimant or guardian. Not more than one recognized organization, attorney, or agentwill be recognized at any one time in the prosecution of a claim.

(c) If no notice of disagreement is filed in accordance with this chapter (38 uses§§ 7101 et seq.] within theprescribed period, the action or determination shall become final and the claim will not thereafter bereopened or allowed, except as may otherwise be provided by regulations not inconsistent with this title.

(d) (1) Where the claimant, or the claimant's representative, within the time specified in this chapter (38 uses

§§ 7101 et seq.], files a notice of disagreement with the decision of the agency of original jurisdiction, suchagency will take such development or review action as it deems proper under the provisions of regulationsnot inconsistent with this title. If such action does not resolve the disagreement either by granting thebenefit sought or through withdrawal of the notice of disagreement, such agency shall prepare a statementof the case. A statement of the case shall include the following:

(A) A summary of the evidence in the case pertinent to the issue or issues with which disagreement hasbeen expressed.

(B) A citation to pertinent laws and regulations and a discussion of how such laws and regulations affect theagency's decision.

(C) The decision on each issue and a summary of the reasons for such decision.

(2) A statement of the case, as required by this subsection, will not disclose matters that would becontrary to section 5701 of this title {38 uses§ 5701] or otherwise contrary to the public interest.Such matters may be disclosed to a designated representative unless the relationship between theclaimant and the representative is such that disclosure to the representative would be as harmfulas if made to the claimant.

(e)

Page 2 of 21

38 uses § 7105

(3) Copies of the "statement of the case" prescribed in paragraph (1) of this subsection will besubmitted to the claimant and to the claimant's representative, if there is one. The claimant will beafforded a period of sixty days from the date the statement of the case is mailed to file the formalappeal. This may be extended for a reasonable period on request for good cause shown. Theappeal should set out specific allegations of error of fact or law, such allegations related to specificitems in the statement of the case. The benefits sought on appeal must be clearly identified. Theagency of original jurisdiction may close the case for failure to respond after receipt of thestatement of the case, but questions as to timeliness or adequacy of response shall be determinedby the Board of Veterans' Appeals.

(4) The claimant in any case may not be presumed to agree with any statement of fact contained in thestatement of the case to which the claimant does not specifically express agreement.

(5) The Board of Veterans' Appeals may dismiss any appeal which fails to allege specific error of fact orlaw in the determination being appealed.

(1) If, either at the time or after the agency of original jurisdiction receives a substantive appeal, theclaimant or the claimant's representative, if any, submits evidence to either the agency of originaljurisdiction or the Board of Veterans' Appeals for consideration in connection with the issue or issueswith which disagreement has been expressed, such evidence shall be subject to initial review by theBoard unless the claimant or the claimant's representative, as the case may be, requests in writing thatthe agency of original jurisdiction initially review such evidence.

(2) A request for review of evidence under paragraph (1) shall accompany the submittal of the evidence.

History

(Added Sept. 19, 1962,P.L. 87-666, § 1, 76 Stat. 553; Oct. 28, 1986, P.L. 99-576, Title VI I, § 701 (85), 100 Stat.

3298; Nov. 18, 1988, P.L. 100-687, Div A, Title II,§§ 203(b), 206, 102 Stat. 4111; May 7, 1991, P.L. 102-40, Title IV, § 402(b)(1 ), (d)(1 ), 105 Stat. 238, 239; Aug. 6, 1991, P.L. 102-83, § 4(b)(1 ), 105 Stat. 404; June 5, 2001, P.L.

107-14, § 8(a)(16), 115 Stat. 35.)

(As amended Aug. 6, 2012,P.L. 112-154, Title V, § 501(a), 126 Stat. 1190; Aug. 23, 2017, P.L. 115-55, § 2(q)(1), 131 Stat. 1111.)

Annotations

Notes

Prospective amendment:

Amendment of section, effective as provided by§ 2(x) of Act Aug. 23, 2017, P.L. 115-55, which appears as

38 USCS § 101 note. Act Aug. 23, 2017, P.L. 115-55, § 2(q)(1 ), 131 Stat. 1111 (effective as provided by § 2(x) of such Act, which appears as 38 USCS § 101 note), provides:

"(q) Modification of procedures for appeals to Board of Veterans' Appeals.

"(1) In general. Section 7105 of title 38, United States Code, is amended--

"(A) in subsection (a), by striking the first sentence and inserting 'Appellate review shall be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary.';

"(B) by amending subsection (b) to read as follows:

"'(b)

( 1)

38 uses § 7105

Page 3 of 21

(A) Except in the case of simultaneously contested claims, a notice of disagreement shall be filed withinone year from the date of the mailing of notice of the decision of the agency of original jurisdiction pursuant to section 5104, 5104B, or 5108 of this title [38 uses§ 5104, 5104B, or 5108).

" '(B) A notice of disagreement postmarked before the expiration of the one-year period shall be accepted as timely filed.

" '(C) A question as to timeliness or adequacy of the notice of disagreement shall be decided by the Board.

" '(2)

(A) Notices of disagreement shall be in writing, shall identify the specific determination with which theclaimant disagrees, and may be filed by the claimant, the claimant's legal guardian, or such accredited representative, attorney, or authorized agent as may be selected by the claimant or legal guardian.

" '(B) Not more than one recognized organization, attorney, or agent may be recognized at any one time in the prosecution of a claim.

" '(C) Notices of disagreement shall be filed with the Board.

" '(3) The notice of disagreement shall indicate whether the claimant requests--

" '(A) a hearing before the Board, which shall include an opportunity to submit evidence in accordance with section 7113(b) of this title {38 uses§ 7113(b ));

" '(B) an opportunity to submit additional evidence without a hearing before the Board, which shall include an opportunity to submit evidence in accordance with section 7113(c) of this title [38 uses§ 7113(c)); or

" '(C) a review by the Board without a hearing or the submittal of additional evidence.

" '(4) The Secretary shall develop a policy to permit a claimant to modify the information identified in the notice of disagreement after the notice of disagreement has been filed under this section pursuant to such requirements as the Secretary may prescribe.';

"(C) by amending subsection (c) to read as follows:

" '(c) If no notice of disagreement is filed in accordance with this chapter within the prescribed period, the action or decision of the agency of original jurisdiction shall become final and the claim shall not thereafter be readjudicated or allowed, except--

" '(1) in the case of a readjudication or allowance pursuant to a higher-level review that was requested in accordance with section 5104B of this title [38 uses§ 5104Bt

" '(2) as may otherwise be provided by section 5108 of this title [38 uses§ 5108); or

" '(3) as may otherwise be provided in such regulations as are consistent with this title.';

"(D) by striking subsection (d) and inserting the following new subsection (d):

" '(d) The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees.';

"(E) by striking subsection (e); and

Page 4 of 21

38 uses § 7105

"(F) in the section heading, by striking 'notice of disagreement and'.".

Effective date of section:

This section is effective Jan. 1, 1963, as provided by Act Sept. 19, 1962, P.L. 87-666, § 3, 76 Stat. 554, which appears as a note to this section.

Amendments:

1986 . Act Oct. 28, 1986, in subsec. (b )(2) substituted "the claimant's" for "his" and "the claimant or guardian" for "him"; and in subsec. (d)(1 ), (3), substituted "the claimant's" for "his" wherever appearing.

1988. Act Nov. 18, 1988 (effective 1/1/89 as provided by§ 401(d) of such Act, which appears as 38 uses§ 7251

note), in subsec. (d), in para. (1 ), in the introductory matter, substituted "shall prepare a statement of the case. A statement of the case shall include the following:" and subparas. (A)-(C) for "will prepare a statement of the case consisting of-- " and former subparas. (A)-(C) which read:

"(A) A summary of the evidence in the case pertinent to the issue or issues with which disagreement has been expressed;

"(B) A citation or discussion of the pertinent law, regulations, and where applicable, the provisions of the Schedule for Rating Disabilities;

"(C) The decision on such issue or issues and a summary of the reasons therefor. ".

Such Act further (effective as above), in subsec. (d), substituted para. (4) for one which read: "The appellant will be presumed to be in agreement with any statement of fact contained in the statement of the case to which no exception is taken." and, in para. (5), deleted "will base its decision on the entire record and" following "Board of Veterans' Appeals".

1991 . Act May 7, 1991 redesignated this section, formerly 38 uses§ 4005, as 38 uses§ 7105, and amended the references in this section to reflect the redesignations made by§§ 401(a)(4) and 402(b) of such Act (see Table

II preceding 38 uses§ 101).

Act Aug. 6, 1991 substituted "Secretary" for "Administrator" wherever appearing.

2001 . Act June 5, 2001, in subsec. (b )(1 ), substituted "hereinafter" for "hereafter".

2012. Act Aug. 6, 2012 (effective 180 days after enactment and applicable to claims filed on or after such date, as provided by§ 501 (b) of such Act, which appears as a note to this section), added subsec. (e).

Other provisions:

Effective date of Sept. 19, 1962 amendments. Act Sept. 19, 1962, P.L. 87-666, § 3, 76 Stat. 554, provides: "The amendments made by this Act [repealing 38 uses §§ 4005, 4007; redesignating 38 uses § 4006 as § 4007

(now§ 7107); and adding 38 uses§§ 4005, 4005A, 4006 (now §§ 7105, 7105A, 7106)] shall be effective January 1, 1963. ".

Effective date and application of Aug. 6, 2012 amendment. Act Aug. 6, 2012, P. L. 112-154, Title V, § 501(b), 126 Stat. 1190, provides: "Subsection (e) of such section, as added by subsection (a), shall take effect on the date

that is 180 days after the date of the enactment of this Act, and shall apply with respect to claims for which a substantive appeal is filed on or after the date that is 180 days after the date of the enactment of this Act.".

Case Notes

I. IN GENERAL

1. Entitlement to prosecute claims

Page 5 of 21

38 uses § 7105

2. Statement of case

3. Perfection and timeliness of appeal

4. Judicial review, generally

5. Miscellaneous

II. NOTICE OF DISAGREEMENT

6. Generally

7. Timeliness of notice

8. Sufficiency and validity of notice

9. Number of notices

10. Finality when no notice is properly filed

11. Relation of notice to particular claim

12. Survivor's claims

13. Judicial review

14. --Filing prior to Veteran's Judicial Review Act

15. Miscellaneous

I. IN GENERAL

1. Entitlement to prosecute claims

Applications for review on appeal entered by accredited ex-service organization, attorney, or claims agent are to be accepted as valid unless repudiated by claimants concerned, but persons entering and signing such application are not to be recognized in prosecution of claims on appeal unless proper power of attorney is presented to Administration [now Department] and, in applications signed by persons other than accredited representatives, until such persons have been duly admitted to practice as pension attorneys or pension claims agents. 1934 ADVA 234.

Right of appeal under former 38 USC §§ 701 et seq. died with claimant who fails to appeal decision rendered during his lifetime. 1934 ADVA 219.

2. Statement of case

Although termination of benefits was not specifically listed in issue section, statement of case required by 38 USCS

§ 7105(d)(1) adequately put veteran on notice that termination was at issue; failure did not rise to level of violationof due process. Herndon v Principi (2002, CA FC) 311 F3d 1121.

Board of Veterans' Appeals' discussion of hypothetical application of 38 C.F.R. § 3.306(b)(1) by Veterans' Affairs regional office was deficient because it did not explain how that regulation would apply to facts of appellant's service connection claim for hypothyroidism; moreover, Statement of Case did not comply with former 38 USCS §

4005(d)(1) (redesignated 38 USCS § 7105) because it did not refer to, discuss, or summarize in any way § 3.306(b)(1 ); thus, there was reasons-or-bases deficiency requiring remand under 38 USCS § 7104(d)(1 ). Hines v

Principi (2004) 18 Vet App 227, 2004 US App Vet Claims LEXIS 526, appeal after remand, decision reached on appeal by (2007, US) 2007 US App Vet Claims LEXIS 2052.

Although veteran never received a statement of the case for a notice of disagreement for a 197 4 regional office decision that denied his claim for "nerves, " the failure to issue an SOC did not keep the matter open and pending where a 1986 United States Board of Veterans' Appeals decision adjudicating the claim for compensation for a nervous condition to include PTSD terminated the pending status of the veteran's 1974 claim. Jones v Shinseki



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Unpublished: Statement of case (SOC) was not jurisdictional prerequisite for Board of Veterans' Appeals to act on appeal after notice of disagreement (NOD) had been filed; in instant case, 1986 Board had jurisdiction over veteran's post-traumatic stress disorder claim where he filed both NOD and Substantive Appeal notwithstanding fact that no SOC was issued by regional office (RO). Parrish v Shinseki (2009, US) 2009 US App Vet Claims LEXIS

1315.

Unpublished: Regional Office (RO) notified widow that her accrued benefits claim was denied in July 2003 and record reflected that she filed timely notice of disagreement (NOD); because there was no indication that RO had issued statement of case (SOC) following NOD regarding denial of her accrued benefits claim, procedural compliance was required on remand. Enos v Shinseki (2009, US) 2009 US App Vet Claims LEXIS 1370.

3. Perfection and timeliness of appeal

Appellant did not perfect her appeal from denial of dependency and indemnity compensation where she did not inquire about claim until more than year after RO issued decision and appellant filed notice of disagreement, despite her claim that she never received RO's statement of case (SOC), since record showed that RO issued SOC and forwarded copy to appellant"s service representative, nothing in record reflected that it was not mailed to appellant at address she gave, and that her address did not change in relevant time period. YT v Brown (1996) 9 Vet App 195.

Board did not err in dismissing appeal where, after filing NOD, veteran did not file within time limit provided for substantive appeal nor did he request extension of time to do so. Bridges v Brown (1993) 5 Vet App 496.

NOD is not sufficient to perfect appeal; after statement of case, appellant must file formal appeal within 60 days. Roy v Brown (1993) 5 Vet App 554.

There was no problem, with regard to timeliness of filing of appeal, which would deprive Board of jurisdiction over case as original claim, where veteran filed timely notice of appeal pursuant to 38 USCS § 7105(d)(3), which he later withdrew, but upon expressing his desire to pursue appeal, Regional Office (RO) treated appeal as timely, there was no indication that RO closed appeal, and RO appeared to have treated veteran's filing as timely. Gonzalez

Morales v Principi (2003) 16 Vet App 556, 2003 US App Vet Claims LEXIS 60.

Where Department of Veterans Affairs (VA) regional office (RO) mailed statement of case (SOC) to widow and used incorrect ZIP Code, and widow claimed that she did not receive SOC, presumption of regularity of mailing was rebutted, and since Secretary of Veterans Affairs did not establish that mailing was regular or that SOC was delivered to veteran, period for filing substantive appeal under 38 USCS § 7105(d)(3) was tolled and did not begin to run again until RO mailed new copy of SOC to correct address. Crain v Principi (2003) 17 Vet App 182, 2003 US App Vet Claims LEXIS 532.

Where veteran's entire claim file, including Statement of Case (SOC), was sent to representative of veteran in response to request of representative who alleged that veteran never received SOC, veteran's appeal was not timely filed after receipt of file; despite representative's assertion that representative was not required to search contents of file to find SOC, it was undisputed that representative was in actual receipt of copy of SOC when file was received and there was no showing that reviewing file was particularly onerous task. Matthews v Principi

(2005) 19 Vet App 23, 2005 US App Vet Claims LEXIS 18, reaffirmed, on reconsideration, supplemented (2005) 19

Vet App 202, 2005 US App Vet Claims LEXIS 425, affd (2006, CA FC) 176 Fed Appx 110, reh den (2006, CA FC) 2006 US App LEXIS 12634.

Where veteran filed Veterans Affairs (VA) Form 9, upon which he wrote "See attached sheets," after VA regional office (RO) denied his service-connection claim, but before RO issued statement of case, filing was properly deemed to be only notice of disagreement, and not substantive appeal, because filing lacked specificity required by 38 uses§ 7105(d)(3). Gibson v Peake (2007) 22 Vet App 11. 2007 US App Vet Claims LEXIS 1947.

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Where veteran mistakenly sent substantive appeal to Board of Veterans' Appeals, instead of regional office (RO), prerequisites for application of equitable tolling of filing deadline set forth in 38 USCS § 7105(d)(3) were met because (1) veteran exercised due diligence in pursuing his legal rights, (2) based on Board's forwarding of document to RO, VA understood veteran's intent was to seek further review of his claim, and (3) substantive appeal, though misfiled, put VA on notice of his intent to seek further review of RO decision. Hunt v Nicholson


38 USCS § 7105(d)(3) is clear on its face; statute does not operate as jurisdictional bar to Board of Veterans' Appeals' consideration of Substantive Appeal filed more than 60 days after Statement of Case (SOC) is mailed. Percy v Shinseki (2009) 23 Vet App 37, 2009 US App Vet Claims LEXIS 630.

No congressional intent is found to forbid VA from adjudicating appeals in which untimely Substantive Appeals was filed; rather than forbidding Board of Veterans' Appeals from adjudicating matters for which claimant has failed to file timely Substantive Appeal, Congress has explicitly allowed Board to adjudicate such matters; that Congress chose to use permissive language in 38 USCS § 7105(d)(3) rather than mandatory language it applied to Notice of Disagreement requirement clearly demonstrates that Congress did not intend untimely Substantive Appeal to foreclose Board's exercise of jurisdiction over matter. Percy v Shinseki (2009) 23 Vet App 37, 2009 US App Vet

Claims LEXIS 630.

By treating disability rating matter as if it were part of his timely filed Substantive Appeal for more than five years, VA waived any objections it might have had to timeliness of filing; further, because VA treated disability rating matter as adequately appealed for more than five years, VA waived any objection it might have had to content of that appeal. Percy v Shinseki (2009) 23 Vet App 37, 2009 US App Vet Claims LEXIS 630.

Veteran filed Substantive Appeal within 60 days of Statement of Case and, after filing September 1999 Substantive Appeal, clearly indicated that he sought Board of Veterans' Appeals review of disability rating matter; Board needed hardly to have applied liberal reading of his filings and statements before Board in order to have determined that he sought Board's review of that matter; therefore Board erred as matter of law by determining that it lacked jurisdiction over increased disability rating matter. Percy v Shinseki (2009) 23 Vet App 37, 2009 US App Vet Claims LEXIS

630.

In context of 38 USCS § 4005(d) (3) (1980), "should," coupled with latter sentence in same statute regarding Board of Veterans' Appeals express authority to dismiss appeal that does not allege error, means "must" when Board dismisses appeal for failing to set out specific allegations of error; by giving Board authority to dismiss appeal for claimant's failure to state error, statute essentially makes assertion of error mandatory or, at minimum, provides that claimant assumes risk of dismissal by Board if no error is asserted; of course, if claimant does not assert error and Board does not dismiss Substantive Appeal for failure to assert error, Court would not be in position to review issue whether Substantive Appeal was sufficient; in that sense, where Board has essentially accepted Substantive Appeal despite no assertion of error, Board has waived its authority to dismiss appeal based upon no assertion of error. Ortiz v Shinseki (20 1 0) 23 Vet App 353, 201 0 US App Vet Claims LEXIS 327.

Correspondence was not sufficient to satisfy Substantive Appeal requirement where: (1) nothing in it referenced any part of Statement of Case or why denial of claim might have been erroneous, (2) it did not dispute any finding of fact made by Regional Office (RO) decision, (3) it did not include even vaguest outline of error for Board of Veterans' Appeals to address, (4) it did not reference any argument made in prior correspondence during claim, (5) clearly, claimant was dissatisfied, but mere dissatisfaction was essence of Notice of Disagreement (NOD), and (6) similarly, to extent claimant"s request for VA in March 1980 to "search records" for his appeal was inquiry into status of his appeal, such status inquiry, without some assertion of RO error, was insufficient to constitute Substantive Appeal.

Ortiz v Shinseki (2010) 23 Vet App 353, 2010 US App Vet Claims LEXIS 327.

In context of Substantive Appeal, 38 USCS § 7105(d)(3) and regulations in effect require appellant to state in at least general terms why Regional Office's decision was erroneou s. Ortiz v Shinseki (2010) 23 Vet App 353, 2010

US App Vet Claims LEXIS 327.

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Unpublished: Claimant's filing of Notice of Disagreement (NO D) within meaning of 38 USCS § 7105 and 38 CFR §

20.201 initiates appellate review in administrative adjudication process of VA, and request for appellate review is completed by claimant's filing of Substantive Appeal, generally after Statement of Case is issued by VA. Cortez v

Peake (2008, US) 2008 US App Vet Claims LEXIS 565.

Unpublished: Veteran's claim for knee condition that was allegedly secondary to removal of soft-tissue sarcoma from veteran's hip was not presently before Board of Veterans' Appeals because veteran had perfected appeal only from sarcoma condition and not from knee condition. Cardwell v Peake (2008, US) 2008 US App Vet Claims LEXIS

1 605.

Unpublished: Board of Veterans' Appeals did not clearly err in determining that veteran's ex-wife had not timely filed substantive appeal, as required by 38 USCS § 7105(d)(1) and (d)(3), where her argument that VA employee had

told her that VA sent her wrong information and that she had additional 30 days to get appeal sounded in equity, court could not ignore law to correct alleged unfairness, and she had not otherwise shown that Board's determination that she had not filed timely substantive appeal was clearly erroneous. Taylor v Shinseki (2009, US) 2009 US App Vet Claims LEXIS 267.

Unpublished: Although presumption existed that, had veteran filed timely Substantive Appeal under 38 USCS §

7105(b), it would have been on record with VA, he was able to rebut that presumption of regularity; totality of

circumstances, including telephone conversation recorded in writing by Disabled American Veterans, veteran's continued assertions that he filed appeal, and his documented trips to regional office following issuance of Statement of Case clearly pointed to fact that he did submit appeal. Young v Shinseki (2009, US) 2009 US App Vet

Claims LEXIS 467.

Unpublished: Board of Veterans' Appeals determination in this case, i.e., that it was without jurisdiction to adjudicate veteran's claim on merits because Substantive Appeal was untimely, was incorrect as matter of law and Board was not required to dismiss appeal; furthermore, court was not persuaded that his VA Form 1-9 did not constitute Substantive Appeal simply because it was prematurely filed 19 days prior to Statement of Case addressing those claims. Underwood v Shinseki (2010, US) 2010 US App Vet Claims LEXIS 52 7.

Unpublished: After examining contents and circumstances surrounding filing of veteran's VA Form 1-9, court determined that this document constituted Substantive Appeal; furthermore, VA Form 1-9 was timely filed since statement was received within one-year period that began on date Regional Office decision being appealed was mailed under 38 CFR 20. 302(b)(1). Underwood v Shinseki (2010, US) 2010 US App Vet Claims LEXIS 527.

Unpublished: Veteran failed to file timely substantive appeal to Board of Veterans' Appeals because document was

not substantive appeal, under 38 uses § 7105(a), (d)(1 ), (d)(3), because document demonstrated veteran's

subjective desire to have VA regional office's (RO) determination reviewed by Board, and letter unmistakably informed veteran that nothing he had submitted was accepted as substantive appeal by RO. Rodriguez v Shinseki (201 1 , US) 201 1 US App Vet Claims LEXIS 840.

Unpublished: Veteran who did not timely file substantive appeal in education assistance benefits overpayment dispute did not rebut by clear evidence presumption of regularity as to mailing by U.S. VA of counsel's copy of statement of case; omission of counsel's address from cover letter did not demonstrate irregularity absent evidence it was VA's regular practice to include counsel's address. Dolson v Shinseki (2014, US) 201 4 US App Vet Claims

LEXIS 280.

4. Judicial review, generally

No jurisdiction exists in District Court or Court of Appeals to review final action of Administrator [now Secretary]. Redfield v Driver ( 1966, CA9 Cal) 364 F2d 812.

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Jurisdiction of Court of Veterans Appeals is determined by date of notice of disagreement that initiates appellate review of particular claim in BVA, and fact that new issues may be raised during course of proceedings in BVA and on remand to agency of original jurisdiction does not alter that rule. Jackson v Brown (1 995. CA FC) 55 F3d 589.

reh den (1995, CA FC) 1 995 US App LEXIS 13904.

United States Court of Appeals for Federal Circuit declined to consider whether trial court should have applied doctrine of equitable tolling to 38 USCS § 7105 because issue was neither presented to nor considered by trial court. Morgan v Principi (2003, CA FC) 327 F3d 1357, reh den (2003, CA FC) 2003 US App LEXIS 12017.

In case in which Veterans Claims held that veteran's finality claim was impermissible freestanding challenge to finality of 1979 Veterans Administration regional officer (RO) decision, veteran unsuccessfully argued on appeal that she was entitled to challenge finality of 1979 RO decision because finality was prerequisite to valid request for revision of that decision on basis of clear and unmistakable error; veteran did not need initial determination of whether 1979 RO decision was final in order to request revision because, under 38 USCS § 7105(c), 1 979 RO decision became final when she did not directly appeal it. Knowles v Shinseki (2009. CA FC) 571 F3d 1 167.

Claimant for veterans benefits was denied relief from order of Board of Veterans' Appeals (Board), although his counsel's letter to Board was sufficient to constitute timely notice of disagreement under 38 USCS § 7105(b), giving Board jurisdiction to review whether substantive appeal on merits of claim was timely. Matthews v Nicholson (2005)

19 Vet App 202, 2005 US App Vet Claims LEXIS 425. affd (2006, CA FC) 176 Fed Appx 1 10, reh den (2006, CA FC) 2006 US App LEXIS 12634.


Unpublished: Administrative action which veteran filed with U.S. VA ("VA") in April 2003, claiming that VA made clear and unmistakable error when it denied his claim for service-connected veterans benefits in March 1971, was barred by doctrine of res judicata because it was essentially same challenge he filed in March 1997 that was denied and became final, pursuant to 38 USCS § 71 05(c), when he did not appeal. Newgard v Shinseki (201 1. CA FC)

201 1 US App LEXIS 2180.

Unpublished: Although claimant's aggravation of his preexisting post-traumatic stress disorder might be basis for new claim under 38 USCS § 1 153, his claim for benefits from his original tour of duty was beyond court's jurisdiction

to consider, under 38 uses § 7292(d)(2), and was final decision under 38 uses § 7105(c). Dixon v Shinseki

(201 2, CA FC) 2012 US App LEXIS 4934.

Unpublished: U.S. Court of Appeals for Veterans Claims reviews de nova whether document constitutes Notice of Disagreement (NOD) within meaning of 38 USCS § 71 05 and 38 CFR § 20.201 ; in determining whether written

communication constitutes NOD, Court looks at both actual wording of communication and context in which it was written. Cortez v Peake (2008, US) 2008 US App Vet Claims LEXIS 565.

Unpublished: It was error for Board of Veteran's Appeals to conclude that it did not have jurisdiction to address veteran's claim for migraine headaches because veteran's untimely substantive appeal did not necessarily preclude Board from exercising jurisdiction over matter. Whitney v Peake (2008. US) 2008 US App Vet Claims LEXIS 1305.

Unpublished: When Board of Veterans' Appeals did not consider whether veteran's mental condition or transient living situation triggered consideration of principles of equitable tolling for filing of Substantive Appeal under 38

USCS § 7105(d) , appellate court was precluded from making factual determination on this issue in first place; thus,

remand was required. Schultz v Peake (2008, US) 2008 US App Vet Claims LEXIS 1 694.

Unpublished: It was not error for Board of Veterans' Appeals to deny adjudication of claims that were still pending before Department of Veterans' Affairs Regional Office and Veterans Claims did not have jurisdiction to hear claims unless appealed from final administrative order. Kennedy v Shinseki (2009. US) 2009 US App Vet Claims LEXIS

779.

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Unpublished: Where appellant veteran's disability application listed post-traumatic stress disorder (PTSD) and "depression secondary to PTSD" as two separate disabilities, but there was nothing in record to show that separate depression claim was decided by regional office or Board of Veterans' Appeals, there was no jurisdiction under 38

USCS § 7252 for court to review that claim, and, to extent that claim for service connection for depression secondary to PTSD remained pending and unadjudicated, appropriate procedure under 38 USCS §§ 5104, 7105,

was to pursue resolution of claim by regional office (RO), i.e., seek issuance of final RO decision with proper notification of appellate rights and, if decision was unfavorable, initiate notice of disagreement. Wisthoff v Shinseki

(201 1, US) 20 1 1 US App Vet Claims LEXIS 589.

Unpublished: While appellant veteran asserted that his testimony before Board of Veterans Appeals at his motion to reopen added new and material details about how he hurt his back during service and had no back problems prior to service, testimony was cumulative of evidence that was of record at time of service connection denial and did not raise reasonable possibility of substantiating claim. Askew v Shinseki (2011. US) 2011 US App Vet Claims LEXIS

2047.

5. Miscellaneous

Veteran had not established that he was entitled to earlier effective date for his disability award because of allegedly inadequate notice that veteran received when his claim was denied in March 1988; notice complied with statutory scheme for notice and appeal set forth in 38 USCS §§ 5108 and 7105(b)(1) and was adequate and

reasonably calculated to apprise veteran of his rights, and further sufficiently apprised veteran that he had one year in which to file appeal or thereafter claim could only be reopened upon submission of new and material evidence. Edwards v Peake (2008) 22 Vet App 29, 2008 US App Vet Claims LEXIS 6.

Board of Veterans Appeals erred when it dismissed veteran's case claiming that it did not have discretion to hear appeal because veteran failed to identify specific error of law or fact, as purportedly required by 38 C.F. R. § 20. 202

and 38 USCS § 7105(d)(5), because Board was not required to dismiss appeal on jurisdictional grounds and in fact,

given nature of veteran's appeal, veteran was not required to provide any additional specifics on factual or legal errors that had occurred. Gomez v Principi (2003) 17 Vet App 369, 2003 US App Vet Claims LEXIS 905.

Veteran's submission of evidence of his unemployability based on post-traumatic stress disorder (PTSD) within the one-year period after the PTSD claim was issued, was, as a matter of law, new and material evidence that should have been considered in conjunction with the PTSD claim pursuant to 38 CFR § 3. 156(b) and not as a new and separate claim. Rice v Shinseki (2009) 22 Vet App 447, 2009 US App Vet Claims LEXIS 789.


Unpublished: With respect to veteran's contention that his appeal involved constitutional challenge centered on new medical conditions that he added in filing his appeal to Board of Veterans' Appeals and that Board then referred to VA regional office for consideration in first instance, that claim was unfounded, as Board's actions appropriately protected veteran's rights under two-tiered system of review within agency. Torrez v McDonald (2016, CA FC) 637

Fed Appx 593.

Unpublished: Veteran's claim for entitlement to service connection for right knee injury was properly denied because, inter alia, Board of Veterans' Appeals did not err when it concluded that there was no new and material evidence indicating veteran had right knee condition related to service since veteran, as lay person, was not competent to diagnosis in-service right knee injury. Miller v Peake (2008, US) 2008 US App Vet Claims LEXIS

1487.

Unpublished: VA's mailing of notice to address given by veteran in his application for benefits constituted sufficient notice pursuant to 38 USCS § 5104 of VA's denial of that application despite fact that there were other addresses in

his record because it was veteran's duty to keep VA apprised of address at which he could be contacted; thus, oneyear period for filing of Notice of Disagreement provided by 38 USCS § 7105(a) began on date that notice was

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mailed despite fact that it was later returned to VA as undeliverable. Fodor v Peake (2008, US) 2008 US App Vet

Claims LEXIS 1653.

Unpublished: Board of Veterans' Appeals finding that new and material evidence had not been presented to reopen claim of entitlement to service connection for eye disability pursuant to 38 USCS §§ 5108 and 7105(c) was not in error because findings of fact and conclusions of law were supported by plausible basis in record and adequate statement of reasons or bases as required by 38 USCS § 7104(d)(1); while medical opinion was new, Board concluded that it did not create reasonable possibility of substantiating claim since it was based on speculation, and Board determined that veteran would not be competent to render probative opinion on etiology of eye disability. Dixon v Shinseki (2009, US) 2009 US App Vet Claims LEXIS 71 1 .

Unpublished: Board of Veterans' Appeals did not err in finding that no new and material evidence had been submitted to reopen veteran's previously denied claim for entitlement to VA benefits for back disorder, under 38

USCS §§ 5108, 7104(b), 7105(c). and 38 CFR § 3.156(a). because Board discussed how some of evidence veteran submitted was duplicative of evidence already of record at time of last final denial of his claim, and that newly submitted VA medical center treatment records did not show that his current disability was in any way related to his service. Vaughn v Shinseki (2010. US) 2010 US App Vet Claims LEXIS 494.

Unpublished: Holding of Board of Veterans' Appeals (Board), that claimant veteran had not presented new and material evidence under 38 USCS §§ 5108, 7104(b), and 7105(c), was clearly erroneous, because Board was obligated to presume that such evidence was credible; Board's decision was accordingly reversed. Roman v

Shinseki (20 1 0. US) 2010 US App Vet Claims LEXIS 665.

Unpublished: Although VA regional office decision became final, Board of Veterans' Appeals was required to consider whether veteran was entitled to rating of total disability based on individual unemployability under 38 CFR

§ 4.16(a) or (b) because record contained evidence that veteran could not work as result of veteran's serviceconnected disability. Keyser v Shinseki (2010. US) 2010 US App Vet Claims LEXIS 1364.

Unpublished: Although statement of case and appeal certification specifically raised depression issue, Board of

Veterans Appeals failed to adjudicate or explain its reasons for not adjudicating depression issue; because Board's decision was not adequate for judicial review, remand was warranted. Morie/lo v Shinseki (2013, US) 2013 US App

Vet Claims LEXIS 1 590.

I I . NOTICE OF DISAGREEMENT

6. Generally

Board may exercise jurisdiction based on N OD timely filed under statute, i.e., postmarked within one year after notice of unfavorable RO decision is mailed to claimant, or under "not inconsistent" regulations prescribed by Secretary, but not on any basis not provided by statute or regulation. Rowell v Principi (1993) 4 Vet App 9.


Unpublished: Notice of Disagreement (NOD) within meaning of 38 USCS § 7105 and 38 CFR § 20.201 is any

written communication from claimant expressing dissatisfaction or disagreement with adjudicative determination by Regional Office (RO) of Department of Veterans Affairs that reflects desire to contest disposition of claim ; although special wording is not required, NOD must be in terms which can be reasonably construed as disagreement with RO determination and desire for appellate review. Cortez v Peake (2008, US) 2008 US App Vet Claims LEXIS 565.

Unpublished: Veteran who charged that Department of Veterans' Affairs had failed to issue statement of case as provided by 38 USCS § 7105 did not need order of U.S. Court of Appeals for Veterans Claims to obtain same,

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though any subsequent failure by Board of Veterans' Appeals in connection therewith was subject to appellate review by veterans claims court. Shellabarger v Peake (2008, US) 2008 US App Vet Claims LEXIS 892.

7. Timeliness of notice

There was nothing in 38 USCS § 7105 that required documentary evidence that reflected date notice of decision was mailed and lack of such evidence did not bar application of presumption of regularity. Miley v Principi (2004,

CA FC) 366 F3d 1343, 64 Fed Rules Evid Serv 85.

Notice of disagreement from denial of service-connected death compensation was untimely; Board had clearly rejected claimant's only grounds that might support extension for good cause, namely, allegation that she had never originally filed earlier claim and received notice of denial of it. Bellavance v Principi (1992) 3 Vet App 402.

Time for filing NOD may be extended, or untimely NOD may be accepted, only when such extension or acceptance has been requested and good cause for it has been shown, consistent with regulations, and Board may exercise jurisdiction based on such NODs, but not on any other basis not provided for by statute or regulations. Rowell v

Principi (1993) 4 Vet App 9.

BVA's decision on question of timeliness of veteran's notice of disagreement was procedurally deficient since it failed to address whether its sua sponte consideration of question without first according veteran opportunity to submit evidence of argument on questions was prejudicial. Marsh v West (1998) 11 Vet App 468, subsequent app, remanded (2001, US) 2001 US App Vet Claims LEXIS 1303.

Record that was presented to Court of Appeals for Veterans Claims did not contain clear evidence rebutting presumption that Department of Veterans Affairs would not have issued statement of case if notice of disagreement veteran submitted was untimely, and court reversed Board of Veterans' Appeals' decision finding that veteran's

appeal was untimely under 38 uses § 7105(b). Marsh v Nicholson (2005) 19 Vet App 381, 2005 US App Vet

Claims LEXIS 734.


Unpublished: On de nova review, Board of Veterans' Appeals was found to have erred by concluding that veteran had not perfected his appeal from determination by VA relative to proper effective date for disability compensation

as governed by 38 uses § 511 0(a) because, as required by 38 uses § 7105(d)(3) and 38 CFR § 20.302(b)(1)

(2008) , veteran had timely filed completed Form 9 on which he had stated that he believed that he had been entitled to higher rating effective as of date of his original claim and same was sufficient to perfect his appeal. Butcher v Peake (2008, US) 2008 US App Vet Claims LEXIS 981.

Unpublished: Veteran did not file timely substantive appeal as to rating decision where there was no communication received from veteran that could have been construed as substantive appeal in 60 days that followed issuance of statement of case, nor within year following rating decision. Bentley v Peake (2008, US) 2008 US App Vet Claims

LEXIS 11 58.

Unpublished: Although claimant for veterans disability benefits had timely filed notice of disagreement under 38

USCS § 7105 and Board of Veterans' Appeals (Board) erred in finding notice was not timely filed, claimant was clearly not entitled to relief and Board's error was harmless. Massol-Santana v Shinseki (2009, US) 2009 US App


Unpublished: Board of Veterans' Appeals did not err in concluding that veteran failed to file timely Substantive Appeal from rating decision that denied his claim for entitlement to VA benefits because veteran did not file Substantive Appeal within requisite time limit as required by 38 USCS § 71 05(d)(3); to extent veteran's argument

could be construed to contend that he demonstrated good cause for his request for extension, veteran did not file

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written request for extension of time within which to file his Substantive Appeal as required by 38 CFR § 20.303.

Jardeleza v Shinseki (2009. US) 2009 US App Vet Claims LEXIS 681.

8. Sufficiency and validity of notice

Veterans Administration's (VA) final rule requ ir ing appeals to be initiated on standard form identifying specific decisions was not invalid because (1) 38 USCS § 7105(b) did not limit VA's authority, and (2) rule was rationally related to efficiently adjudicating appeals. Veterans Justice Grp .• LLC v Sec 'y of Veterans Affairs (2016. CA FC)

818 F3d 1336.

Veteran's letter to RO constituted valid notice of disagreement where it was filed within one year after mailing notice of decision, was from veteran's representative, and specifically referred to veteran's clear and unmistakable error (CUE) claim and to decision as having considered that claim, and expressly disagreed with contents of RO's subsequent supplement statement of case as deficient in having failed to address CUE issue. Beyrle v Brown

(1996) 9 Vet App 24.

Veteran's letters to Board and secretary did not constitute jurisdictionally required notice of disagreement since they did not disagree with regional office but with Board. Burton v Derwinski (1991. CA) 933 F2d 988.

Veterans' substantive appeal, along with Va Form 1-646, constituted jurisdictionally valid notice of disagreement. Drenkhahn v Derwinski (1992) 2 Vet App 207.

Veteran's Form 1-9 expressing disagreement with decision made by Director, Compensation and Pension Service of Veteran's Benefits Administration was jurisdictionally valid notice of disagreement under statute. Malgapo v

Derwinski (1991) 1 Vet App 397.

Any notice of disagreement which meets agency regulation's requirements is valid for purposes of conferring jurisdiction. Whitt v Derwinski (1990) 1 Vet App 40. vacated on other grounds, in part, on reh (1991) 1 Vet App 201

and vacated without op, remanded on other grounds (1992, CA) 979 F2d 215, reported in full (1992, CA FC) 1992

US App LEXIS 36770 and (ovrld in part on other grounds as stated in Hamilton v Brown (1994, CA FC) 39 F3d

1574) and (ovrld in part on other grounds by Hamilton v Brown (1993) 4 Vet App 528).

Expression of disagreement with BVA's remand of appellant's claim to VA regional office was not jurisdictionally valid NOD; 1989 remand continued 1987 rating decisions on appeal status until final BVA decision in 1990. Sudranski v Brown (1993) 6 Vet App 27. affd without op (1995, CA FC) 57 F3d 1083, reported in full (1995, CA FC) 1995 US App LEXIS 13906. reh, en bane, den (1995, CA FC) 1995 US App LEXIS 35059 and cert den (1996) 517

US 1 1 10, 134 L Ed 2d 483, 1 16 S Ct 1333, reh den (1996) 517 US 1205, 134 L Ed 2d 807, 116 S Ct 1709.

Oral statement by veteran's accredited representative during hearing before regional office, when later reduced to writing in transcript, constituted valid notice of disagreement ; there are no technical, formal requirements for N OD beyond those set in statute since to impose any would exceed Secretary's authority. Tomlin v Brown (1993) 5 Vet

App 355.

Appellant's representative's letter expressing disagreement with RO's denial of rating increase was valid and jurisdiction-conferring NOD in connection with denial of claim for increased rating for PTSD. Hauck v Brown (1994)

6 Vet App 518. remanded (1994, Vet App) 1994 US Vet App LEXIS 674.

Veteran's statements expressing his disagreement with RO's decision as to disability rating and effective date assigned to back-disability claim constituted notice of disagreement. Holland v Gober (1997) 10 Vet App 433.

Congressman's letter to VA on veteran's behalf was valid notice of disagreement to confer jurisdiction on cou rt where record showed that veteran was not advised of existence of debt for default on his VA home-loan guaranty until salary offset went into effect two months before Congressman's letter. Donovan v West (1998) 11 Vet App

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481. motion gr, op withdrawn on other grounds (1999) 12 Vet App 500, 1999 US App Vet Claims LEXIS 775, app dismd on other grounds (2000) 13 Vet App 489, 2000 US App Vet Claims LEXIS 364.

Veteran's letters stating that denial of veteran's claim of service connection for knee disability failed to consider all of evidence were sufficient to constitute Notice of Disagreement (NOD), since statute in effect at time letters were

written, former 38 uses§ 4005(b) (1) (now 38 uses§ 7105), required only that NOD express disagreement with

decision and there was no requirement for explicit request for appellate review. Palmer v Nicholson (2007) 21 Vet App 434. 2007 US App Vet Claims LEXIS 1280.

Document did not constitute a notice of disagreement, 38 USCS § 7261 (a)(1); in particular, (1) it could not

reasonably have been construed to express disagreement with a particular decision or reflect an intent to seek appellate review, (2) regarding the veteran's post-traumatic stress syndrome (PTSD) claim, the document stated only the veteran's request to reopen his service connected claim for an increase in his PTSD rating and noted that his counselor had determined that a vocational rehabilitation program was not feasible, and (3) the document did not mention the September 1996 regional office decision, it did not express disagreement with the rating assigned therein, nor did it request any review of the PTSD disability rating. Young v Shinseki (2009) 22 Vet App 461. 2009



Unpublished: Common law "mailbox rule" applies to filing of Notice of Disagreement with decision of Regional Office of Department of Veterans Affairs (VA) under 38 USCS § 7105(b)(1 ), and evidence that applicant seeking

benefits actually mailed, i.e., placed in mailbox or delivered to postman, letter to VA within one year of rating decision creates presumption that VA timely received that letter in ordinary course of business. Savitz v Peake

(2008, US) 2008 US App Vet Claims LEXIS 900.

Unpublished: No indication of disagreement was found with Regional Office's (RO) August 1999 decision in October 1999 letter, which twice expressly stated that it presented "claim; " there was no implicit or explicit expression of disagreement with August 1999 RO decision or any other VA' decision; based upon absence of expression of disagreement with prior RO decision and desire for appellate review, October 1999 submission was not Notice of Disagreement. Sanders v Peake (2008, US) 2008 US App Vet Claims LEXIS 1039.

Unpublished: Veterans Administration (VA) erred by failing to construe VA disability claimant's September 2006 letter as properly filed notice of disagreement under 38 USCS § 7105, 38 CFR § 20.201, because letter clearly

disputed regional office's decision to reduce his benefit level by requesting reinstatement of his 30 percent disability rating; thus, no final administrative decision had issued on subject , no judicial jurisdiction existed, and remand was necessary. Wood v Peake (2008, US) 2008 US App Vet Claims LEXIS 1478.

Unpublished: Veteran's statement did not constitute Notice of Disagreement under 38 USCS § 7105(a) because,

even construed in most liberal manner, it could not be reasonably construed as disagreement with regional office decision or as expressing desire for appellate review. Bullock v Peake (2008, US) 2008 US App Vet Claims LEXIS

1661. reh den (2008, US) 2008 US App Vet Claims LEXIS 1563.

Unpublished: Board of Veterans' Appeals correctly treated veteran's claim as one for increased disability rating for already service-connected right knee condition because veteran's statement in support of claim could not be reasonably construed as Notice of Disagreement with regional office decision assigning 10% disability rating for that condition. Fisher v Peake (2008, US) 2008 US App Vet Claims LEXIS 1 754.

Unpublished: Veteran's submission constituted notice of disagreement with clear and unmistakable error (CU E) determination where, in that statement, filed month after issuance of supplemental statement of case, veteran expressed desire to appeal determination and reiterated his belief that reduction of his disability rating was CUE.

Bell v Shinseki (2009. US) 2009 US App Vet Claims LEXIS 66.

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Unpublished: Under 38 USCS § 7105(b)(1), veteran's written communication did not constitute Notice of

Disagreement (NOD) with initial rating decision denying service connection for bipolar disorder because it bore no relationship to his bipolar disorder, stating only that he requested reevaluation on effect of Agent Orange; therefore, no NOD was filed and no appeal was left pending, and Board of Veterans' Appeals did not clearly err under 38

USCS § 7261(a)(4) in denying veteran's entitlement to earlier effective date for his service-connected bipolar condition. Ferricks v Shinseki (2009, US) 2009 US App Vet Claims LEXIS 133.

Unpublished : It was error for Board of Veterans' Appeals to conclude that submission by veteran in August 2006 to VA was not notice of disagreement for veteran's claim on clear and unmistakable error (CUE) and Board should have addressed CUE claim; because issue of correct effective date for veteran's 100 % disability claim was inextricably intertwined with claim for CUE effective date claim also needed to be remanded. Alcendor v Shinseki

(2009, US) 2009 US App Vet Claims LEXIS 612.

Unpublished: Veteran's purported change of address form could not be construed as notice of disagreement (NOD) with denial of earlier effective date for increased compensation under 38 USCS § 511 0(a) that was properly before VA under 38 USCS § 7105(b)(1) because it was merely correspondence between veterans' service organization

and Disabled American Veterans; it was evident that change of address letter merely referred to then-pending NOD and was not another NOD, and even assuming that veteran's letter was written after his receipt of rating decision, it simply did not meet criteria for NOD because it did not state intent to contest specific decision as required by 38

CFR § 20.201 . Wilson v Shinseki (2009, US) 2009 US App Vet Claims LEXIS 1 405.

Unpublished : Because appellant veteran's 1968 letter in response to denial of claim (with denial stating that veterans' conditions were not diseases or injuries) asked what his condition would be classified as, and Notice of Disagreement (NOD) did not require showing desire for appellate review until 1992, under 38 USCS § 7105 and 38 CFR § 19.113 (1968), letter was sufficient NOD. Brown v Shinseki (2009, US) 2009 US App Vet Claims LEXIS

1 724.

Unpublished: Veteran's correspondence constituted valid notice of disagreement, under 38 uses § 7105, because

it stated that it was request for reconsideration on his claim for post-traumatic stress disorder, listed evidence to support his claim, was in writing, was submitted within one year of regional office decision, and expressed disagreement with that decision; it was therefore error for VA to require new and material evidence to reopen claim because veteran's original claim remained pending, under 38 USCS § 7105(a). Nearhood v Shinseki (2010, US)


9. Number of notices

For jurisdictional purposes, there can be only one NOD relating to same claim; plain language of statute supports conclusion that NOD referred to is one which initiates appellate review, and legislative history also supports conclusion. Hamilton v Brown (1994, CA FC) 39 F3d 1574.

Claim appealed by veteran's February 1988 NOD was not satisfied by September 1988 award of 30 percent rating, and because that NOD was not withdrawn by veteran or his representative, veteran could not have filed additional jurisdiction-conferring NOD on or after Act's effective date. AB v Brown (1993) 6 Vet App 35.

There can be only one valid NOD as to particular claim, extending to all subsequent RO and BVA adjudications on same claim until final RO or BVA decision has been rendered in that matter or appeal has been withdrawn by claimant; where BVA remands to RO for further development and readjudication claim previously decided by RO and properly appealed to BVA, expression of disagreement with subsequent RO readjudication on remand cannot be NOD; where BVA remands to RO for development and adjudication claim not decided by RO and claimant files timely expression of disagreement with RO, that is NOD as to that claim. Hamilton v Brown (1993) 4 Vet App 528,

remanded sub nom Powell v Brown (1993) 5 Vet App 275, reported in full (1993) 6 Vet App 325 and motion gr sub nom Contreras v Brown (1993) 5 Vet App 492 and affd (1994, CA FC) 39 F3d 1574.

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10. Finality when no notice is properly filed

Even if Board of Veteran's Affairs committed grave procedural error and violated its duty to assist under 38 USCS §

5107(a) by failing to request certain medical records in determining that veteran was not disabled, finality of its decision was not vitiated; judicially-created exception to rule of finality for such errors had been overruled and veteran did not assert either of exceptions set out in 38 USCS § 7105(c). Tetro v Principi (2003, CA FC) 314 F3d

1310.

Court rejected veteran's argument that regional office's alleged failure to comply with "detailed reasons" aspect of notice provision in 38 C.F.R. § 3. 105(e) amounted to exception to principle of finality articulated in 38 USCS §

7105(c) because statutory scheme provided only two exceptions to rule of finality, namely "new and material

evidence" and clear and unmistakable error, and Congress did not intend to allow exceptions to rule of finality in addition to two that it expressly created. Norton v Principi (2004, CA FC) 376 F3d 1336.


Unpublished: Where veteran did not appeal VA regional office decisions that determined effective date of his award, decisions were final and he could not sidestep finality of those decisions through use of freestanding earlier effective date "claim"; accordingly, Board of Veterans' Appeals erred when it adjudicated, on merits, veteran's freestanding claim for earlier effective date. Burrell v Peake (2008, US) 2008 US App Vet Claims LEXIS 1021 .

Unpublished: Widow could not properly file and Department of Veterans had no authority to adjudicate her argument for earlier effective date because it was freestanding earlier effective date claim attempting to overcome finality of unappealed regional office decision assigning effective date for dependency and indemnity compensation benefits and she did not file notice of disagreement appealing that final decision, pursuant to 38 USCS § 7105, or file claim alleging clear and unmistakable error in that rating decision. Eaton v Peake (2008, US) 2008 US App Vet

Claims LEXIS 1 1 56.

Unpublished: Actual wording of April 1 970 application for service connection, combined with context in which it was written, showed that application did not constitute Notice of Disagreement (NOD) where actual wording of April 1 970 formal application stated that veteran was seeking service connection for "nervous condition." This statement could not constitute NOD because he did not specify regional office (RO) decision with which he disagreed and did not express dissatisfaction with any particular adjudicative determination, and, since he did not submit valid N OD with respect to January 1 970 RO decision, that decision was therefore final. Robbins v Peake (2008, US) 2008 US App Vet Claims LEXIS 1635.

Unpublished: Since appellant veteran did not disagree with rating decision as to left ear hearing loss, it was final under 38 USCS § 7105(b)(1). and thus had not been before Board of Veterans' Appeals, and could not be

considered by Veterans Claims under 38 USCS § 7252. Casciato v Shinseki (2009, US) 2009 US App Vet Claims

LEXIS 2322.

Unpublished: Appellant veteran could not pursue freestanding claim for earlier effective date in attempt to overcome finality of unappealed decision which became final under 38 USCS § 7105(c); thus, that claim was entitled to be dismissed rather than denied. Suehle v Shinseki (2010, US) 2010 US App Vet Claims LEXIS 1 187.

11. Relation of notice to particular claim

Veteran's newly asserted PTSD claim was not inextricably intertwined with rated depressive neurosis, and thus it was new claim for jurisdictional purposes; it had not been diagnosed and considered at time of prior notice of disagreement filed before November 1 8, 1 988. Ephraim v Brown (1996, CA FC) 82 F3d 399, on remand, remanded ( 1 996, Vet App) 1 996 US Vet App LEXIS 482, costs/fees proceeding sub nom Ephraim v West (1998,

Vet App) 1998 US Vet App LEXIS 959.

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Veteran's 1990 NOD with RO's decision on remand was part of earlier claim of which NOD was premature to confer jurisdiction on court, hence appeal would be dismissed. Cadwell v Brown (1993) 5 Vet App 386.

Neither of documents relied upon by veteran as NODs would provide jurisdiction since they related to claims that were already on appeal by virtue of prior NOD. Danko v Brown (1993) 5 Vet App 445.

If claimant uses VA Form 9 and checks box 9.A stating that he wants to appeal all issues, then all issues listed in Statement of Case are on appeal to BVA and it has waived any ability to dismiss any of those issues under 38

uses§ 7105(d)(5). Evans v Shinseki (2011) 24 Vet App 292. 2011 US App Vet Claims LEXIS 198.

BVA erred in concluding that veteran's claims for asbestos exposure, Hepatitis B, and Hepatitis C were not before it because veteran had listed these issues, along with others, on his Statement of Case and he had used VA Form 9 and checked box 9.A stating that he wanted to appeal all issues, and fact that veteran had agreed to hearing officer's limitation of case to other particular issues did not constitute waiver of these remaining claims because HO did not inform veteran, and veteran did not affirmatively agree, that he was abandoning his right to appeal his claims for asbestos exposure, Hepatitis B. and Hepatitis C. Evans v Shinseki (2011) 24 Vet App 292. 2011 US App



Unpublished: Letter sent by veteran who was suffering from service-connected post-traumatic stress disorder that challenged disability rating awarded by VA constituted Notice of Disagreement (NOD) within meaning of 38 USCS § 7105 and 38 CFR § 20.201 because it clearly expressed veteran's disagreement with rating and met all of other

criteria for NOD, and triggered duty on part of VA to issue Statement of Case; failure of VA to do so rendered initial rating decision nonfinal. Cortez v Peake (2008, US) 2008 US App Vet Claims LEXIS 565.

Unpublished: It was not error for Board of Veterans' Appeals to conclude that veteran was not entitled to earlier effective date under 38 USCS § 5110 for his claimed disabilities because veteran did not perfect appeal from

October 2000 VA regional office (RO) decision; veteran's correspondence in December 2000 was properly construed as notice of disagreement, but veteran did not follow up with timely substantive appeal as he was advised to do by RO in statement of case. Copeland v Peake (2008, US) 2008 US App Vet Claims LEXIS 781.

Unpublished: Board of Veterans' Appeals' decision denying earlier effective date for veteran's supraclavicular thoracic outlet syndrome was affirmed where findings that regional office had rendered prior decision as to his claim seeking disability compensation for, inter alia, right-shoulder condition and numbness on right hand and arm were not clearly erroneous, and thus, BVA had not misinterpreted 38 USCS § 7105 with respect to his notice of disagreement. Thomas v Peake (2008, US) 2008 US App Vet Claims LEXIS 868.

Unpublished: It was not error for Board of Veterans' Appeals to conclude that appropriate effective date for veteran's claim was June 28, 1994 because earlier correspondence in 1979 could not be construed as appeal of denial to reopen earlier claim and 1979 claim was considered closed; VA regional office 1979 decision was thus considered closed and could not provide basis for assignment of earlier effective date. Ortiz v Peake (2008, US)


Unpublished: Even under liberal reading, considering all of veteran's communications with VA during course of his Board of Veterans' Appeals' appeal, it was clear that his Notice of Disagreement was narrowly worded to initiate appeal only of regional office's (RO's) right knee disability rating determination; accordingly, RO did not err by addressing only his right knee disability in June 2005 statement of case (SOC) and Board did not err by not remanding matter for RO to issue SOC as to left knee disability rating. Frye v Peake (2008, US) 2008 US App Vet

Claims LEXIS 1203.

Unpublished: Board of Veterans' Appeals correctly determined that only issue on appeal at time of veteran's death that related to surviving daughter's accrued benefits claim was entitlement to earlier effective date of one year for 70 percent disability rating for post-traumatic stress disorder, to include total disability based on individual

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unemployability (TDIU); veteran had not filed notice of disagreement regarding entitlement to earlier effective date for his TDIU rating and that issue was not before Board in accrued benefits claim. Mecum v Shinseki (2009, US) 2009 US App Vet Claims LEXIS 802.

Unpublished: Where appellant's letter to Regional Office in 1980 on 1979 decision assigning 1997 effective date for his foot disability clearly disagreed with effective date and was timely under 38 USCS § 7105(a) as it existed in

1980 and 38 CFR § 19.113 (1980), that letter was sufficient Notice of Disagreement, and since nothing indicated that letter was responded to, claim for earlier effective date for his foot disability was still unadjudicated under § 7105(b)(1 ), (d)(1) and 1979 grant of service connection did not subsume pending, unadjudicated 1968 claim because 1980 letter was NOD as to 1979 effective date finding and Statement of Case was never issued; thus, 1979 decision was not final, and 1977 claim remained pending and 1968 claim also remained unadjudicated. Brown

v Shinseki (2009, US) 2009 US App Vet Claims LEXIS 1724.

12. Survivor's claims

Veteran's son's claim for accrued benefits is predicated upon accrued-benefits application filed after veteran's death and since it could not have been filed prior to veteran's death on December 1, 1988, NOD could not have been filed prior to effective date of statute providing appeal to court. Laconti v Principi (1992) 3 Vet App 550.

Widow's claim for accrued benefits was separate from that of veteran, hence her letter disagreeing with supplemental statement of case was disagreement in relation to veteran's claim, not hers, so no valid NOD was filed. Cates v Brown (1993) 5 Vet App 399.

Widow claiming DIC failed to file valid NOD since her letter could not express disagreement of her § 1318 claim since there had never been adjudication of that claim. Lyon v Brown (1993) 5 Vet App 507.

Accrued-benefits claim is different from service-connection claims of veteran from whose service former claim is derived, therefore, in order for survivor to pursue accrued-benefits claim based on deceased veteran's claim which was pending at time of his death, accrued-benefits claimant must file NOD as to accrued-benefits claim in order to initiate review by BVA, and ultimately Court, of that claim. Zevalkink v Brown (1994) 6 Vet App 483, affd (1996, CA FC) 102 F3d 1236, cert den (1997) 52 1 US 1 1 03, 138 L Ed 2d 988, 1 1 7 S Ct 2478.

It was error for Board of Veterans' Appeals to dismiss surviving spouse's claim for earlier effective date for deceased veteran's service connected chronic obstructive pulmonary disease because time period for filing notice of disagreement had not expired when veteran died and claim could not be deemed to be finally adjudicated; spouse's application for accrued benefits should have been reviewed to determine whether or not claim of error had merit. Taylor v Nicholson (2007) 21 Vet App 126, 2007 US App Vet Claims LEXIS 698.

Surviving spouse of veteran was entitled to writ of mandamus where she had clear and indisputable right to writ based on 38 USCS § 7105(d)(1), which required VA to prepare SOC unless benefit sought was granted or NOD

was withdrawn; there was no provision for prejudging merits of arguments raised in NOD and declining to issue SOC on that basis. Youngman v Peake (2008) 22 Vet App 152, 2008 US App Vet Claims LEXIS 739.

13. Judicial review

Where veteran neither alleged nor showed that notice of disagreement relating to assignment of effective date was filed before decision of Board of Veterans' Appeals, Board did not err under 38 USCS § 7105(a) by not addressing that issue. Urban v Principi (2004) 18 Vet App 143. 2004 US App Vet Claims LEXIS 384, subsequent app (2005, CA FC) 128 Fed Appx 154.

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Notice of disagreement, filed in response to RO decision subsequent to VA Form 1-9 hearing, was not filed with agency of original jurisdiction, thus not effective for court's review purposes. Hudson v Principi (1992) 3 Vet App

467.

Court of Appeals for Veterans Claims has no jurisdiction over any claim for authorization for payment of private medical expenses where record on appeal does not contain document or reference to document which could possibly serve as jurisdiction-conferring notice of disagreement under 38 USCS § 7105(b)(1 ). Tellex v Principi


Record that was presented to Court of Appeals for Veterans Claims did not contain clear evidence rebutting presumption that Department of Veterans Affairs would not have issued statement of case if notice of disagreement veteran submitted was untimely, and court reversed Board of Veterans' Appeals' decision finding that veteran's appeal was untimely under 38 USCS § 7105(b). Marsh v Nicholson (2005) 19 Vet App 381, 2005 US App Vet

Claims LEXIS 734.


Unpublished: Where claimant who is seeking benefits from VA timely submits written communication that satisfies requirements in 38 USCS § 7105 and 38 CFR § 20.201 for Notice of Disagreement (NOD) as to claim, but Regional

Office (RO) of VA fails to respond by issuing statement of case, appropriate remedy is to vacate ensuing decision by Board of Veterans' Appeals and remand matter to Board for appropriate procedural compliance; claim remains pending where RO fails to issue SOC. Cortez v Peake (2008, US) 2008 US App Vet Claims LEXIS 565.

Unpublished: Board of Veterans' Appeals' finding that new and material evidence had not been received to reopen claim under 38 USCS §§ 5108, 7104(b), 7105(c), and 38 CFR § 3.156(a) was not supported by adequate reasons

or bases under 38 USCS § 7104(d)(1): Board did not explain why, in light of new medical treatise evidence, lay

statements by veteran, his wife, and his sister were not sufficiently material evidence of continuity of symptoms to reopen veteran's claim for Harada's disease. Cole v Shinseki (2009, US) 2009 US App Vet Claims LEXIS 781.

14. --Filing prior to Veteran's Judicial Review Act

Veteran's son's claim for accrued benefits is predicated upon accrued-benefits application filed after veteran's death and since it could not have been filed prior to veteran's death on December 1, 1988, NOD could not have been filed prior to effective date of statute providing appeal to court. Laconti v Principi (1992) 3 Vet App 550.

Remand for development of PTSD claim was part of claim more generally described as "nervous condition, " hence applicable NOD was one filed before November, 1988. Calvert v Brown (1993) 5 Vet App 461.

NOD dated 1990 did not confer jurisdiction over case since it related to continuation of claim as to which original NOD was filed prior to effective date of Veterans ' Judicial Review Act. Baker v Brown (1994) 7 Vet App 194.

Appellant's first-filed notice of disagreement preceded court's jurisdictional date and it therefore had no jurisdiction. Smith v Brown (1994) 8 Vet App 217.

Fact that three appeals were fortuitously consolidated could not give court jurisdiction over two as to which notices of disagreement were filed before November 18, 1988. Tucker v Derwinski (1992) 2 Vet App 201.

15. Miscellaneous

Since RO was acting in appellate role, subsequent adjudication was not decision of agency of original jurisdiction for purposes of filing jurisdiction-conferring notice of disagreement. King v Derwinski (1992) 3 Vet App 242.

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Board of Veterans Appeals erred when denying veteran earlier effective date for service connection for veteran's back condition; Board properly concluded that veteran's 1959 letter stating that veteran wished to "refile" and to

"reopen" veteran's claim met requirements of former 38 uses § 4005 (redesignated as 38 uses § 7105), but

erred by concluding that letter was not application for review on appeal. Myers v Principi (2002) 16 Vet App 228. 2002 US App Vet Claims LEXIS 585.

Veteran's January 1990 NOD, which disagreed with December 1989 RO denial of rating increase for appellant's chronic eczema, encompassed appellant's total disability-individual unemployability (TD IU) claim which was denied December 1990; well-grounded TDIU informal claim was submitted as separate but related claim when appellant filed for increased rating for his skin condition and supported his application with evidence of his unemployability, TDIU claim originated in 1972 when appellant stated he had been laid off from employment repeatedly because of his skin condition, recurred throughout years, and January 1990 NOD included assertion that appellant's skin and ulcer condition caused loss of seven jobs over 20-year period. lsenbart v Brown (1995) 7 Vet App 537.

No further review was permitted of veteran's denial of service connection claim because he failed to file notice of disagreement within one-year time period after decision became final pursuant to 38 USCS § 7105. Fournier v

Shinseki (201 0) 23 Vet App 480. 20 1 0 US App Vet Claims LEXIS 1 099.


Unpublished: Board of Veterans' Appeals' conclusion that veteran had withdrawn his claim for bilateral hearing loss was inadequate where, although veteran did not list his hearing claim within box on VA Form 9 that required this information, he made argument regarding hearing claim on different part of form. Burbank v Peake (2008, US) 2008


Unpublished: It was not error for Board of Veterans' Appeals to conclude that veteran failed to file timely notice of appeal for his claim for total disability based on individual unemployability (TDIU) because veteran did not submit any notice concerning TD IU claim, which was separate from claim for increased disability for ankle disability, within 60 days of issuance of statement of case. Ferrell v Peake (2008. US) 2008 US App Vet Claims LEXIS 1078.

Unpublished: Veteran had not established grounds for petition in nature of writ of mandamus because veteran had not pursued appeal with Board of Veterans Appeals, pursuant to 38 USCS § 7105(d) . and thus could not demonstrate that he lacked adequate alternative means for relief sought. Rodrigues v Peake (2009. US) 2009 US

App Vet Claims LEXIS 40.

Unpublished: Board of Veterans' Appeals" findings of fact and conclusions of law were supported by plausible basis in record and adequate statement of reasons or bases as required by 38 USCS § 7104(d)(1 ); while hospital

treatment records, letters, and testimony were new, Board found that they were not material to reopen widow's claim of entitlement to service connection for cause of veteran's death under 38 USCS §§ 5108 and 7105(c)

because they did not relate to unestablished fact necessary to substantiate widow's claim. Aberin v Shinseki (2009.

US) 2009 US App Vet Claims LEXIS 708.

Unpublished: Issue concerning whether or not claimant has filed timely appeal is appealable decision that is subject to review by Veterans Claims after Board of Veterans Appeals determines adequacy or timeliness of appeal pursuant to 38 USCS § 7105(d)(3) . Sabbia v Shinseki (2009, US) 2009 US App Vet Claims LEXIS 1244.



Department of Veterans Affairs--National Cemeteries of the Department of Veterans Affairs, 38 CFR 38. 600 et seq.

38 uses § 7105


This section is referred to in 38 uses §§ 7105A, 7106.

Federal Procedure:

5 Administrative Law (Matthew Bender), ch 48, Ripeness and Finality§ 48.03.

Am Jur:


Am Jur Trials:

121 Am Jur Trials, Litigation Before Department of Veterans Affairs, p. 357.

U N ITED STATES CODE SERVICE

Copyright © 20 1 7 Matthew Bender & Company, I nc. a member of the LexisNexis Group T M All r ights reserved .

End of Document

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From https://www.va.gov/ogc/accred_faqs.asp Attorney Accreditation; Acts Requiring Accreditation Question: I am an attorney accredited by VA and I also operate a law-related business. What are my ethical obligations with regard to my other business interest? Response: There are an increasing number of agents and attorneys seeking VA accreditation to represent claimants on VA benefit claims who also have law-related businesses, such as an accounting, financial planning, referral, or elder care business. When a VA-accredited representative performs law-related services, or controls an organization that does so, there is a heightened potential for ethical conflicts and violations of VA’s standards of conduct and state bar rules of professional conduct. It is a VA-accredited representative’s professional responsibility to adequately address all conflicts of interest and obtain informed consent before entering into law-related business transactions with VA claimants. See MODEL RULES OF PROFESSIONAL CONDUCT R. 1.7(a)(2) (conflict of interest exists if “there is a significant risk that the representation … will be materially limited by … a personal interest of the lawyer”), 1.8(a), (b), (f), 5.7 (AM. BAR ASS’N 2016), available athttp://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct.html; see also 38 C.F.R. § 14.632(c)(11) (VA-accredited representative may not “engage in any [ ] unlawful or unethical conduct”), (d) (VA-accredited attorney shall not “engage in behavior or activities prohibited by the rules of professional conduct of any jurisdiction in which the attorney is licensed to practice law”). It is paramount that a VA-accredited representative “not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed financial interest.” MODEL RULE 1.7, cmt. [10]. A VA-accredited representative should not “enter into a business transaction with a client” unless specific safeguards are provided, including full disclosure “of the material and reasonably foreseeable ways that the [transaction] could have adverse effects on the interests of that client,” and the provision of written advice “of the desirability of seeking … the advice of independent legal counsel on the transaction.” MODEL RULES 1.8(a), 1.7, cmt. [18]. Given the relationship of trust and the imbalance of legal knowledge between the representative and client, it is imperative that the client understand the risk that the representative “will structure the transaction or give legal advice in a way that favors the lawyer’s interests at the expense of the client.” MODEL RULE 1.8, cmts. [1] and [3]. It is also important to note that, when a representative operates a law-related business in a manner not readily distinguishable from the VA benefits representation, both the business and the representation must be in compliance with VA’s standards of conduct (and, if applicable, the rules of professional conduct for the state in which the attorney is barred). MODEL RULE 5.7(a); see 38 C.F.R. § 14.632(c)(11) and (d). This means that any unlawful or unethical conduct with regard to the law-related business would be considered a violation of VA’s standards of conduct. 38 C.F.R. § 14.632(c)(11). Moreover, even if the business and the representation are distinguishable (for example, through separate entities), the representative must ensure that the client understands that the business is not a legal service and that the protections of the client-lawyer relationship do not apply. MODEL RULE

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct.html

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct.html

5.7(b). If this is not communicated clearly to the client, then the law-related business will be subject to VA’s standards of conduct. Id. We stress that disclosing information relating to a VA benefits representation is strictly prohibited absent specific circumstances. See MODEL RULE 1.6; see also 38 C.F.R. § 14.632(c)(10), (11) and (d). Finally, we caution that advertising in any way associated with VA benefits representation must be presented in an ethical manner. See MODEL RULES 7.1 thru 7.3; see also 38 C.F.R. § 14.632(c)(3), (8), (11) and (d).

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