About Accreditation & Fees
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Under Title 38 CFR Section 14.629, the Department of Veterans Affairs (DVA) requires periodic renewal of your accreditation authority for the preparation, presentation, and prosecution of claims for veterans through 3 hours of continuing legal education every 2 years.
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Is the Company or the Individual Helping You to Obtain Veterans Benefits Operating Legally?
Federal law dictates that no one may help a veteran in the preparation, presentation and prosecution of an initial claim for VA benefits unless that person is accredited. The only exception to this law is that any one person can help any veteran -- one-time only -- with a claim. To help any veteran a second time requires accreditation.
VA recognizes 3 types of individuals for purposes of accreditation.
Accredited agents, and
Accredited representatives of service organizations (Veterans Service Officers).
In order to be accredited to help veterans with new claims, an individual desiring this certification from VA must submit a formal application, must meet certain character requirements and work history requirements and, except for attorneys, must pass a comprehensive test relating to veterans claims and benefits. There are also requirements for ongoing continuing education.
Without accreditation no one may help a veteran with a claim more than one time.
What Does It Mean to Help a Veteran with a Claim?
VA interprets its prohibition on preparing, presenting and prosecuting a claim to mean that talking to a veteran or a veteran's qualifying spouse or dependent after that person has indicated an intent to file a specific claim or claims for benefits requires accreditation. Anyone can talk about veterans benefits in general with any veteran and need not be accredited. The point at which discussion narrows down to specific information about the veteran's service record, medical conditions, financial situation including income and assets and other issues directly relating to a claim specific to a veteran or dependent triggers accreditation. At this point, according to VA, once the veteran, surviving spouse or dependent expresses an intent to file a claim for veterans benefits, the individual helping the veteran must be accredited.
Stated again: An individual cannot advise a veteran or other eligible beneficiary about that person's specific claim for VA benefits unless that individual is accredited.
It does not matter whether physical help with filing the claim is provided or not. The need for accreditation occurs at a much earlier stage than becoming physically involved in the claim. For a better understanding of how VA General Counsel interprets the need for accreditation please read the section included in this paper entitled " VA Office of General Counsel Website -- Frequently Asked Questions about Accreditation."
Working under the Umbrella of an Accredited Attorney or Accredited Claims Agent
Most individuals who are not accredited and who are promoting and helping veterans obtain their benefits are generally attempting to work under someone who is accredited. Most of these individuals are doing it wrong and not complying with the law.
These individuals make sure that the application is done by an accredited attorney or an accredited agent. In some cases, non-accredited individuals will refer veteran households to a local veterans service officer (an accredited representative of a service organization).
Unfortunately, most individuals who are not accredited and who are operating with someone who is accredited are still illegal. This is because they become involved in the claim by providing advice after an intent to file and in many cases they help gather documents and other pertinent information. As mentioned above, these activities require accreditation. The only way that a non-accredited individual can operate legally to assist someone who is accredited is to immediately refer a veteran or dependent to an accredited person when first learning about the intent to file the claim. No additional help or advice may be given.
It goes without saying that any insurance agent who is sitting down with a potential client and suggesting that the client rearrange assets in order to qualify for the VA benefit must be accredited regardless of how the claim is handled. The client at this point has obviously expressed an intent to file a claim. This is really no different from the requirement to be licensed for insurance in order to make solicitation for insurance sales or to be an RIA in order to provide investment advice. In both of these examples, no money needs to change hands yet the advice or solicitation cannot occur without the proper licensing. Accreditation by VA is no different from the legal licensing requirements used in these examples.
Many accredited attorneys are also not operating legally. Only an accredited attorney -- one-on-one with the client -- may be involved with a claim. Anyone else, inside or outside of the office, cannot assist with the claim except under certain specific and limiting conditions. Specifically, in order to work under an attorney, an assistant must either be a certified paralegal in the attorney's office or a law student or an intern in the office. No other arrangement is allowed. Therefore, all of those agencies who are using an attorney in their office to process claims for veterans who are sent to them by insurance agents are in most cases not operating legally. The only legal way to work with an attorney who is accredited is for the insurance agent to turn over the client to the attorney immediately when the veteran or surviving spouse declares an intent to file a claim. The insurance agent who is not accredited and referring to the attorney can no longer be involved in the claim.
We are seeing examples of non-accredited individuals acting independently or as employees for assisted living or home care companies who are told by the attorney they can operate as if they were assisting the attorney in the preparation and presentation of a claim. They think they are operating legally as assistants to the attorney. And of course, the attorneys facilitating these arrangements also think they are operating legally. Under the specific rules in 38 CFR § 14.629(c), they are not. Please read the citation from 38 CFR below which we have included in this paper. Also read the treatment of this in the questions and answers section below from the VA General Council website.
Charging a Fee for Help with Filing a Claim
Generally, no individual or organization may charge a fee for help with filing an initial application for benefits. There is only one exception to this rule and that is under the third-party exemption in 38 CFR § 14.636 (d). We have included this citation in this paper. The requirements under this exception are very limiting and very demanding. No one that we know of, who is charging a fee, thinking he or she is operating under this exception, is doing it legally. Here are the ways they are violating this law. (In most cases those who are operating illegally are engaging in all 4 of these unlawful activities.)
(1) The person paying the fee is not a disinterested third party as required by law.
(2) The person filing the claim is not submitting the fee agreement to VA general counsel as required.
(3) The person filing the claim is not submitting the disclaimer to General Counsel as required.
(4) In some cases, the paying of the fee is contingent upon a percentage of the amount of the claim being approved -- this is not legal.
If you are working with someone who is not operating legally as outlined above, you should not continue to use that person's services. If you yourself are operating in a manner that is not in accord with the conditions outlined above, you must stop doing that. You're not legal. Not only could unauthorized people get a notice to cease and desist but in some cases there could be fines or legal action involved as well. It's not worth it.
38 CFR § 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:
A final decision was promulgated by the Board with respect to the issue, or issues, involved in the appeal; and
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 331/3percent 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 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 331/3percent 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:
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 (see paragraph (d)(2) of this section) 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.
(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 the 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), 810 Vermont Avenue, NW., Washington, DC 20420. Only fee agreements and documents related to review of fees under paragraph (i) of this section and expenses under §14.637 may be filed with the Office of the General Counsel. All documents relating 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.
38 CFR § 14.629 Requirements for accreditation of service organization representatives; agents; and attorneys.
(c) Representation by Attorneys, Law Firms, Law Students and Paralegals.
(1) After accreditation by 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, Management and Administration (01E), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. 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.
VA Office of General Counsel Website -- Frequently Asked Questions about Accreditation
Question: In a law office with attorneys and paralegals working under the supervision of a single Department of Veterans Affairs (VA) accredited attorney, who needs to apply for VA accreditation using a VA Form 21a?
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 interns, paralegals, and law students to assist in 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.
Question: If an attorney’s practice consists solely of advising clients that they might be eligible for benefits and referring them to a recognized service organization or accredited agent or attorney, does the attorney need to be accredited?
Response: No. As a general rule, an attorney’s practice of advising veterans about VA benefits not involving a specific claim does not require accreditation. Aside from regulating admission to practice before the Department, VA’s accreditation authority is generally limited to regulating the conduct of individuals in assisting claimants with the preparation, presentation, and prosecution of claims for benefits and reviewing the fees and expenses charged for representation in proceedings before the Department. Reviewing a veteran’s records, researching available VA benefits, and advising a veteran as to potential benefits before he or she decides to file for a benefit is not part of the preparation, presentation, or prosecution of a claim, and as such, is outside VA’s accreditation authority. Accordingly, accreditation is not required for such consultation by attorneys.
Question: If an attorney works with pension benefit clients and advises clients as to eligibility requirements, but does not file the application for them, do they need to be accredited?
Response: Yes. In answering this question, we assume that (1) a “pension benefit client” means a veteran not currently receiving VA pension but one who has expressed intent to file for such benefit, and (2) that the advice provided includes those acts in making the claim ready for filing, but not the actual filing of the claim. Here, the advice constitutes preparation of a claim and therefore requires accreditation. This is because the advice is given in regards to a specific application for benefits rather than general advice not related to a specific claim. The difference is significant in that the purpose of VA’s accreditation program is to ensure that claimants for VA benefits receive qualified assistance in preparing and presenting their claims.
Question: Is VA accreditation required to assist a veteran in preparing his or her claim?
Response: Yes. Accreditation means the authority granted by VA to assist claimants in the preparation, presentation, and prosecution of claims for benefits. 38 C.F.R. § 14.627(a). Unaccredited individuals may provide other services to veterans so long as they do not assist in the preparation, presentation, and prosecution of claims for benefits.
Question: I am providing pro bono representation to a veteran. Does this require VA accreditation?
Response: Yes. Our intent is that attorneys will apply for accreditation for any new representation as indicated by the filing of a VA Form 21-22a after June 22, 2008. The claim and a VA Form 21-22a may be filed while the accreditation application is pending. VA Regional Offices (RO) have been instructed to accept such filings and communicate to the attorney the need for accreditation. Although representation without accreditation is not permissible, the RO will hold the VA Form 21-22a (permitting the claimant to have his or her choice of representation) until the accreditation application has been processed.
Attorneys who initiated representation on a claim prior to the June 23, 2008 effective date of the new rules, need not seek accreditation for representation provided on that claim. Initiation of a representation before the effective date of the new rules would be indicated by appointment on a VA Form 21-22a or an attorney’s letterhead.
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