Custom Federal Regulations Service™

**This is supplemental material**

**for Book A of your set of**

**Federal Regulations**

Title 38, Parts 0, 1, 2, 12, 14-16,

18--20, 25-26, 38-45, 48--49, 75

*General*

**Veterans Benefits Administration**

Supplement No. 81

Covering period of *Federal Register* issues

through January 4, 2008

Copyright © 2008 Jonathan Publishing

**Need Assistance?**

Questions concerning **[missing supplements]{.smallcaps}**, need for
**[additional books]{.smallcaps}**, and other **[distribution
list]{.smallcaps}** issues for this loose-leaf service should be
directed to:

Department of Veterans Affairs

Veterans Benefits Administration

Administration

Mail Code: 20M33

810 Vermont Avenue, N.W.

Washington DC 20420

Telephone: 202/273-7588

Fax: 202/275-5947

E-mail: coarms@vba.va.gov

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Copyright © 2008 Jonathan Publishing

# GENERAL INSTRUCTIONS

Custom Federal Regulations Service™

**Supplemental Materials for *Book A***

**Code of Federal Regulations**

**Title 38, Parts 0, 1, 2, 12, 14-16, 18--20, 25-26, 39-45, 48--49, 75**

***General***

**Veterans Benefits Administration**

**Supplement No. 81**

5 January 2008

Covering the period of Federal Register issues

through January 4, 2008

When **Book A** was originally prepared, it was current through final
regulations published in the *Federal Register* of 21 April 1992. These
supple­mental materials are designed to keep your regulations up to date.
You should file the attached pages immediately, and record the fact that
you did so on the *Supplement Filing Record* which begins on page A-8 of
Book A, *General*.

> **To ensure accuracy and timeliness of your materials,**
>
> **it is important that you follow these simple procedures:**
>
> 1\. Always file your supplemental materials immediately upon receipt.
>
> 2\. Before filing, always check the Supplement Filing Record (page
> A-8) to be sure that all prior supplements have been filed. If you are
> missing any supple­ments, contact the Veterans Benefits Administration
> at the address listed on page A-2.
>
> 3\. After filing, enter the relevant information on the Supplement
> Filing Record sheet (page A-8)---the date filed, name/initials of
> filer, and date through which the *Federal Register* is covered.
>
> 4\. If as a result of a failure to file, or an undelivered supplement,
> you have more than one supplement to file at a time, be certain to
> file them in chronological order, lower number first.
>
> 5\. Always retain the filing instructions (simply insert them at the
> back of the book) as a backup record of filing and for reference in
> case of a filing error.
>
> 6\. Be certain that you *permanently discard* any pages indicated for
> removal in the filing instructions in order to avoid confusion later.

To execute the filing instructions, simply remove *and throw away* the
pages listed under *Remove These Old Pages,* and replace them in each
case with the corres­pond­ing pages from this supplement listed under *Add
These New Pages*. Occasionally new pages will be added without removal
of any old material (reflecting new regulations), and occasionally old
pages will be removed with­out addition of any new material (reflecting
rescinded regulations)---in these cases the word *None* will appear in
the appropriate column.

> **FILING INSTRUCTIONS**

**Book A, Supplement No. 81**

**January 5, 2008**

*Remove these Add these Section(s)*

*[old pages]{.underline} [new pages]{.underline} [Affected]{.underline}*

**Do not file this supplement until you confirm that**

**all prior supplements have been filed**

14.628-3 to 14.629-3 14.628-3 to 14.629-3 §14.629

14.633-1 to 14.633-2 14.633-1 to [14.633-4]{.underline} §14.633

## Be sure to complete the 

***Supplement Filing Record* (page A-8)**

**when you have finished filing this material.**

> **HIGHLIGHTS**

**Book A, Supplement No. 81**

**January 5, 2008**

***Supplement* Highlights *references***: Where substantive changes are
made in the text of regulations, the paragraphs of *Highlights* sections
are cited at the end of the relevant section of text. Thus, if you are
reading §3.263, you will see a note at the end of that section which
reads: "Supplement *Highlights* references---6(2)." This means that
paragraph 2 of the *Highlights* section in Supplement No. 6 contains
information about the changes made in §3.263. By keeping and filing the
*Highlights* sections, you will have a reference source explaining all
substantive changes in the text of the regulations.

***Supplement frequency***: This Book A (*General*) was originally
supplemented twice a year, in April and October. Beginning 1 August
1995, supplements will be issued *every month* during which a final rule
addition or modification is made to the parts of Title 38 covered by
this book. Supplements will be numbered consecutively as issued.

**Modifications in this supplement include the following:**

1\. On 12 October 2007, the VA published a final rule, effective 10
January 2008, to amend regulations governing the accreditation of
representatives of claimants for veterans' benefits by requiring service
organizations to recertify the qualifications of their accredited
representatives every 5 years, and to notify VA when requesting
cancellation of a representative's accreditation based upon misconduct
or lack of competence, or if a representative resigns to avoid
cancellation of accreditation for misconduct or lack of competence; and
to clarify that VA's authority to cancel accreditation includes the
authority to suspend accreditation. Changes:

In §14.629, revised paragraph (a) introductory text; and

In §14.633, revised paragraphs (a), (b), (c), (d), and (e); redesignated
paragraph (g) as (h); added a new paragraph (g); and revised
redesignated paragraph (h).

\(B\) If an organization does not intend to represent each claimant
requesting assistance, the organization shall submit a statement of its
policy concerning the selection of claimants and the proposed method of
informing claimants of this policy, with advice concerning the
availability of alternative sources of claims service.

> **Note to Paragraph (d)(1)(iv):** An organization may be considered to
> provide complete claims service notwithstanding the exercise of
> discretion to determine that provision of representation in a
> particular case is impracticable or inappropriate because, under the
> circumstances, the facts or law do not support the filing of a claim
> or appeal, an appropriate representative-claimant relationship cannot
> be maintained, or representation would give rise to a conflict of
> interest on the part of the organization.

\(v\) Take affirmative action, including training and monitoring of
accredited representatives, to ensure proper handling of claims. In
establishing that it meets this requirement, an organization requesting
recognition shall submit:

\(A\) A statement of the skills, training, and other qualifications of
current paid or volunteer staff personnel for handling veterans' claims;
and

\(B\) A plan for recruiting and training qualified claim
representatives, including the number of hours of formal classroom
instruction, the subjects to be taught, the period of on-the-job
training, a schedule or timetable for training, the projected number of
trainees for the first year, and the name(s) and qualifications of the
individual(s) primarily responsible for the training.

\(2\) In addition, the organization requesting recognition shall supply:

\(i\) A statement that neither the organization nor its accredited
representatives will charge or accept a fee or gratuity for service to a
claimant and that the organization will not represent to the public that
Department of Veterans Affairs recognition of the organization is for
any purpose other than claimant representation; and

\(ii\) The names, titles, and addresses of officers and the official(s)
authorized to certify representatives.

\(e\) *Recognition or denial*. Only the Secretary is authorized to
recognize organizations. Notice of the Secretary's determination on a
request for recognition will be sent to an organization within 90 days
of receipt of all information to be supplied.

\(f\) *Requests for further information.* The Secretary or the
Secretary's designee may request further information from any recognized
organization, including progress reports, updates, or verifications.
(Authority: 38 U.S.C. 501(a), 5902).

(The Office of Management and Budget has approved the information
collection requirements in this section under control number 2900-0439.)

\[53 FR 52419, Dec. 28, 1988, as amended at 57 FR 33878, July 31, 1992;
68 FR 8544, Feb. 24, 2003\]

**§14.629 Requirements for accreditation of service organization
representatives; agents;**

> **and attorneys.**

The Regional Counsel of jurisdiction will resolve any question of
current qualifications of a service organization representative, agent,
or attorney. The claimant, the service organization representative,
agent, or attorney, or an official of the organization for which such
person acts, or a Department of Veterans Affairs Veterans Service Center
Manager may appeal such determination to the General Counsel.

\(a\) *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 official. 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 the Department of Veterans
Affairs;

\(2\) Is 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 recognized
organization; or, in the case of a county veteran's service officer
recommended by a recognized State organization, meets the following
criteria:

\(i\) Is a paid employee of the county 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 Regional Counsel with
jurisdiction for the State; and

\(iii\) Will receive either regular supervision and monitoring or annual
training to assure continued qualification as a representative in the
claim process; and

\(3\) Is not employed in any civil or military department or agency of
the United States. (Authority: 38 U.S.C. 501(a), 5902)

\(b\) *Agents*.

\(1\) An individual desiring accreditation as an agent must establish
that he or she is of good character and reputation and is qualified to
render assistance to claimants in the presentation of their claim(s). An
individual desiring accreditation as an agent must file a completed
application with the Office of the General Counsel on VA Form 21a on
which the applicant submits the following:

> \(i\) His or her full name and business address;
>
> \(ii\) Information concerning the applicant's military and civilian
> employment history (including character of military discharge, if
> applicable);
>
> \(iii\) Information concerning representation provided by the
> applicant before any department, agency, or bureau of the Federal
> government;
>
> \(iv\) Information concerning any criminal background of the
> applicant;
>
> \(v\) Information 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;
>
> \(vi\) Information 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;
>
> \(vii\) The names, addresses, and phone numbers of three character
> references; and
>
> \(viii\) Information relevant to whether or not the applicant has any
> physical limitations which would interfere with the completion of a
> comprehensive written examination administered under the supervision
> of a VA Regional Counsel.

\(2\) Applicants 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. (Authority: 38 U.S.C. 501(a), 5904)

\(c\) *Attorneys*.

\(1\) An attorney may represent a claimant upon submission of
authorization as described in §14.631(a) or (b).

\(2\) 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) or (b), if the
claimant's written consent is furnished to the Department of Veterans
Affairs. 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. (See
§20.606).

\(4\) 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.
(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.)

\[53 FR 52421, Dec. 28, 1988, as amended at 55 FR 38057, Sept. 17, 1990;
61 FR 7216, Feb. 27, 1996; 68 FR 8545, Feb. 24, 2003; 71 FR 28586, May
17, 2006; 72 FR 58012, Oct. 12, 2007\]

**Supplement *Highlights* reference**: 81(1)

**§14.633 Termination of accreditation of agents, attorneys, and
representatives.**

\(a\) Accreditation may be suspended or canceled at the request of an
agent, attorney, representative, or organization. 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 suspended or canceled at such time a
determination is made that any requirement of §14.629 is no longer met
by an agent, attorney, or representative.

\(c\) Accreditation shall be suspended or canceled when the General
Counsel finds, by clear and convincing evidence, one of the following:

\(1\) Violation of or refusal to comply with the laws administered by
the Department of Veterans Affairs or with the regulations governing
practice before the Department of Veterans Affairs;

\(2\) 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;

\(4\) Any other unlawful, unprofessional, or unethical practice.
(Unlawful, unprofessional, or unethical practice shall include but not
be limited to the following---deceiving, misleading or threatening a
claimant or prospective claimant; neglecting to prosecute a claim for 6
months or more; failing to furnish a reasonable response within 90 days
of request for evidence by the Department of Veterans Affairs, or
willfully withholding an application for benefits.)

\(d\) Accreditation shall be suspended or canceled when the General
Counsel finds an agent's, attorney's, or representative's performance
before the Department of Veterans Affairs demonstrates a lack of the
degree of competence necessary to adequately prepare, present, and
prosecute claims for veteran's benefits.

\(e\) As to suspension or cancellation of accreditation under paragraphs
(b), (c) or (d) of this section, upon receipt of information from any
source indicating failure to meet the requirements of §14.629, improper
conduct, or incompetence, the Regional Counsel of jurisdiction shall
initiate an inquiry into the matter. If the matter involves an
accredited representative of a recognized organization, this inquiry
shall include contact with the representative's organization.

\(1\) If the result of the inquiry does not justify further action, the
Regional Counsel will close the inquiry.

\(2\) If the result of the inquiry justifies further action, the
Regional Counsel shall take the following action:

\(i\) As to representatives, suspend accreditation immediately and
notify the representative and the representative\'s organization of the
interim suspension and of an intent to cancel or continue suspension of
accreditation. The notice to the representative will also state the
reasons for the interim suspension and impending cancellation or
continuation of suspension, and inform the representative of a right to
request a hearing on the matter or to submit additional evidence within
10 working days following receipt of such notice. Such time may be
extended for a reasonable period upon a showing of sufficient cause.

\(ii\) As to agents or attorneys, inform the General Counsel of the
result of the inquiry and notify the agent or attorney of an intent to
further suspend or cancel accreditation. The notice will also state the
reason(s) for the impending suspension or cancellation and inform the
party of a right to request a hearing on the matter or to submit
additional evidence within 10 working days of receipt of such notice.
Such time may be extended for a reasonable period upon a showing of
sufficient cause.

\(iii\) In the event that a hearing is not requested, the Regional
Counsel shall forward the record to the General Counsel for final
determination.

\(f\) If a hearing is requested, a hearing officer will be appointed by
the Director of the regional office involved. The hearing officer shall
not be from the Office of the Regional Counsel. The hearing officer will
have authority to administer oaths. A member of the Regional Counsel's
office will present the evidence. The party requesting the hearing will
have a right to counsel, to present evidence, and to cross-examine
witnesses. Upon request of the party requesting the hearing, an
appropriate Department of Veterans Affairs 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
hearing officer shall submit the entire hearing transcript, any
pertinent records or information, and a recommended finding to the
Regional Counsel within 10 working days after the close of the hearing.
The Regional Counsel will immediately forward the entire record to the
General Counsel for 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 final. The effective date
for suspension or termination of accreditation shall be the date upon
which a final decision is rendered. (Authority: 38 U.S.C. 501(a), 5902,
5904)

(The Office of Management and Budget has approved the information
collections requirements in this section control number 2900-0018.)

\[53 FR 52422, Dec. 28, 1988, as amended at 61 FR 7216, Feb. 27, 1996;
72 FR 58012, Oct. 12, 2007\]

**Supplement *Highlights* reference**: 81(1)

Reserved