25930 Federal Register / Vol. 72, No. 87 / Monday, May 7, 2007 / Proposed Rules 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Parts 1, 14, 19 and 20 

RIN 2900–AM62 

Accreditation of Agents and Attorneys; 

Agent and Attorney Fees 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) proposes to amend its 

regulations governing the representation 

of claimants for veterans benefits in 

order to implement provisions of the 

Veterans Benefits, Health Care, and 

Information Technology Act of 2006, 

and to reorganize and clarify existing 

regulations. The proposed regulations 

would establish the procedures and 

rules necessary for VA to facilitate the 

paid representation of claimants by 

accredited agents and attorneys after a 

notice of disagreement has been filed 

with respect to a case. The intended 

effect of these regulations is to fulfill 

Congress’ direction that agents and 

attorneys may be paid for services 

rendered after a notice of disagreement 

is filed with respect to a decision by an 

agency of original jurisdiction while 

ensuring that claimants for veterans 

benefits have responsible qualified 

representation in the preparation, 

presentation, and prosecution of claims 

for veterans benefits. 

DATES: Comment Date: Comments must 

be received by VA on or before June 6, 

2007. 

ADDRESSES: Written comments may be 

submitted by through 

www.Regulations.gov; by mail or handdelivery to Director, Regulations 

Management (00REG), Department of 

Veterans Affairs, 810 Vermont Ave., 

NW., Room 1068, Washington, DC 

20420; or by fax to (202) 273–9026. 

Comments should indicate that they are 

submitted in response to ‘‘RIN 2900– 

AM62—Accreditation of Agents and 

Attorneys; Agent and Attorney Fees.’’ 

Copies of comments received will be 

available for public inspection in the 

Office of Regulation Policy and 

Management, Room 1063B, between the 

hours of 8 a.m. and 4:30 p.m., Monday 

through Friday (except holidays). Please 

call (202) 273–9515 for an appointment. 

(This is not a toll free number.) In 

addition, during the comment period, 

comments are available online through 

the Federal Docket Management System 

(FDMS) at www.Regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Michael G. Daugherty, Staff Attorney, 

Office of the General Counsel (022G2), 

Department of Veterans Affairs, 810 

Vermont Avenue, NW., Washington, DC 

20420, (202) 273–6315. (This is not a 

toll free number.) 

SUPPLEMENTARY INFORMATION:

Statutory Authority—Section 101 of 

Public Law 109–461 

Section 101 of Public Law 109–461, 

the Veterans Benefits, Health Care, and 

Information Technology Act of 2006, 

amends chapter 59 of title 38, United 

States Code, governing the recognition 

of individuals for the preparation, 

presentation, and prosecution of claims 

for benefits before VA. Prior to the 

amendments, 38 U.S.C. 5904(a) 

authorized VA to accredit individuals 

who show that they are of good 

character and reputation and qualified 

to provide competent representation. In 

current 38 CFR 14.629, VA 

implemented section 5904(a) by 

requiring agents to establish their good 

character and reputation through an 

application process and pass a written 

examination administered by VA as a 

prerequisite to accreditation. Attorneys 

were presumed to be qualified for VA 

accreditation based upon membership 

in good standing of a State bar. The 

amendments to chapter 59 require VA 

to: (1) Regulate the qualifications and 

standards of conduct applicable to 

accredited agents and attorneys; (2) 

annually collect information about 

accredited agents’ and attorneys’ 

standing to practice or appear before 

any court, bar, or Federal or State 

agency; (3) proscribe accreditation of 

individuals who have been suspended 

or disbarred by any such entity without 

reinstatement; (4) add to the list of 

grounds for suspension or exclusion of 

agents or attorneys from further practice 

before VA; and (5) subject veterans 

service organization representatives and 

individuals recognized for a particular 

claim to suspension and exclusion from 

further practice before VA on the same 

grounds as apply to agents and 

attorneys. 

Section 101 of Public Law 109–461 

also amends the fee provisions in 

chapter 59 including the point in the 

VA appeals process at which an agent 

or attorney can charge fees for 

representation. The VA appeals process 

begins when an individual disagrees 

with a decision made by an Agency of 

Original Jurisdiction (AOJ), such as a 

VA Regional Office (RO). To appeal a 

decision, an individual must file a 

Notice of Disagreement (NOD) with the 

AOJ expressing disagreement with the 

decision and a desire for appellate 

review. If the AOJ receives a timely 

NOD, it will change its decision or send 

the claimant a Statement of the Case 

(SOC) designed to provide information 

necessary to appeal the case to the 

Board of Veterans’ Appeals (Board). 

After submitting a timely NOD, and 

following the receipt of a SOC, an 

individual may complete his or her 

appeal to the Board by timely filing a 

substantive appeal. Once the appeal has 

been submitted and assuming the Board 

has sufficient information to reach a 

decision, the Board will issue a final 

administrative decision in the case. 

Prior to the amendments, section 

5904(c)(1) proscribed the charging of 

fees by agents and attorneys for services 

provided before a first final decision of 

the Board in a case. Under the 

amendments, accredited agents and 

attorneys may charge fees for services 

provided after the claimant files a NOD. 

The amendments also authorize VA 

to: (1) Restrict the amount of fees agents 

or attorneys may charge and subject fee 

agreements between agents or attorneys 

and claimants to review by VA, such 

review to be appealable to the Board; 

and (2) collect an assessment from any 

agent or attorney to whom VA pays fees 

directly from past-due benefits. Further, 

the amendments eliminate fee matters 

as grounds for criminal penalties under 

38 U.S.C. 5905. 

To implement the amendments to 

chapter 59 and to reorganize and clarify 

existing regulations, VA proposes to 

amend 38 CFR parts 14, 19 and 20 

relating to the representation of 

claimants for veterans benefits, the 

accreditation of individuals who may 

provide representation, and the 

limitation on fees. VA also proposes to 

move regulations relating to remote 

access to computerized veterans’ claims 

records from part 14 to 38 CFR part 1 

concerning release of information from 

claimant records. VA has made no 

substantive changes to the remote access 

regulations and is moving these 

regulations to part 1 because they are 

similar in content to other part 1 

regulations governing the disclosure of 

claimant information and will be easier 

to locate in that part. 

Section 14.627—Definitions 

We propose to define ‘‘agency of 

original jurisdiction,’’ ‘‘service,’’ and 

‘‘representation’’ to clarify current 

regulations and assist in 

implementation of other provisions 

discussed below. With respect to 

‘‘agency of original jurisdiction,’’ in 

Bates v. Nicholson, 398 F.3d 1355 (Fed. 

Cir. 2005), the United States Court of 

Appeals for the Federal Circuit held that 

the VA General Counsel’s final decision 

to cancel the accreditation of a 

representative, agent, or attorney may be 


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appealed to the Board. Accordingly, for 

purposes of part 14, we propose to 

clearly state that ‘‘agency of original 

jurisdiction’’ means the VA activity or 

administration that made the initial 

determination on a claim or matter, 

including the General Counsel’s 

cancellation-of-accreditation decisions 

under 38 CFR 14.633 and decisions 

regarding the reasonableness of fees and 

expenses under 38 CFR 14.636 and 

14.637. Current § 14.627 provides that 

an ‘‘attorney’’ is a member in good 

standing of a State bar. We propose to 

amend that definition consistent with 

38 U.S.C. 5904 to additionally provide 

that an ‘‘attorney’’ is an individual who 

has met the standards and qualifications 

established by VA in proposed 

§ 14.629(b). 

Section 14.629—Requirements for 

Accreditation of Representatives; 

Agents; and Attorneys 

The introductory text to current 

§ 14.629 tasks the VA Regional Counsel 

of jurisdiction with resolving any 

question concerning the current 

qualifications of an accredited service 

organization representative, agent, or 

attorney. Current 38 CFR 14.632 also 

tasks the Regional Counsel of 

jurisdiction with determining the 

qualifications of prospective 

representatives, agents, and attorneys. 

Consistent with current practice, we 

propose to amend the introductory text 

to § 14.629 to provide that it is the 

Assistant General Counsel of 

jurisdiction or his or her designee who 

manages VA’s accreditation program 

and makes initial determinations 

concerning the qualifications of 

prospective representatives, agents, and 

attorneys. The Assistant General 

Counsel would accredit qualified 

individuals and would notify other 

individuals concerning the reasons for 

disapproval, an opportunity to submit 

additional information, and any 

restrictions on further application for 

accreditation. The Assistant General 

Counsel’s determination concerning the 

current qualifications of an applicant is 

a final decision unless appealed by the 

applicant to the General Counsel. Any 

such appeal must be in writing, limited 

to the evidence before the Assistant 

General Counsel, and filed with the 

General Counsel not later than 30 days 

from the date on which the Assistant 

General Counsel’s decision was mailed. 

The General Counsel’s decision 

concerning the current qualifications of 

an applicant is a final decision of the 

agency not subject to further review. 

Questions regarding the current 

qualifications of accredited 

representatives, agents, and attorneys 

would be resolved using the procedures 

in § 14.633. 

Section 5904(a)(2) requires agents and 

attorneys, as a condition of 

accreditation, to establish that they are 

of good character and reputation; are 

qualified to render claimants valuable 

service, and are otherwise competent to 

assist claimants in presenting claims; 

possess the level of experience or 

specialized training specified by VA; 

and certify to VA that they have 

satisfied the qualification standards 

established by VA. Section 5904(a)(3) 

requires VA to annually collect 

information about accredited agents’

and attorneys’ standing to practice or 

appear before any court, bar, or Federal 

or State agency, and section 5904(a)(4) 

prohibits VA from recognizing any agent 

or attorney who has been suspended or 

disbarred by any court, bar, or Federal 

or State agency to which the agent or 

attorney was previously admitted and 

not subsequently reinstated. 

To implement the accreditation 

requirements established by Congress, 

we propose to establish a two-step 

process for accrediting agents and 

attorneys that is similar to the process 

for agents under current § 14.629(b). 

Individuals desiring accreditation 

would be required to file with the Office 

of the General Counsel a written 

application (VA Form 21a) on which 

they provide background information 

relevant to a determination of good 

character and reputation. Pursuant to 

the requirements of section 5904(a)(4), 

applicants would also be required to 

provide information about their 

standing to practice or appear before 

any court, bar, or Federal or State 

agency, to include a certification of good 

standing that may be available from the 

court, bar, or agency, and would be 

required to provide VA with a release to 

enable VA to obtain such other 

information that may be necessary to 

process the application. Upon a 

determination that the prospective agent 

or attorney is of good character and 

reputation, an applicant would then be 

given the opportunity to demonstrate 

his or her qualification to render 

valuable service to claimants and 

competence to assist claimants in 

presenting claims by achieving a score 

of 75 percent or more on a written 

examination administered at the office 

of a VA Regional Counsel or the VA 

Central Office. Currently, VA notifies 

prospective claims agents that they will 

be tested on information available in the 

United States Code and the Code of 

Federal Regulations. To assist agents 

and attorneys in preparing for future 

accreditation examinations, VA would 

make relevant materials available in a 

format widely available to the general 

public. 

In section 5904(a)(2), Congress gave 

VA the option of requiring a specific 

‘‘level of experience’’ or ‘‘specialized 

training’’ as a condition of accreditation. 

VA has determined that successful 

completion of a written examination 

that covers veterans benefits law and 

procedures would provide the best 

proof that an agent or attorney has the 

requisite qualifications for accreditation 

under section 5904(a)(2). First, State 

licensing authorities generally require 

an examination to be admitted to the 

bar. Accordingly, attorneys are familiar 

with written examinations as an 

objective measure of their skill, 

competence, and qualifications to 

represent clients. Second, written 

examinations are a practical means of 

carrying out Congress’ intent to allow 

veterans to choose their own counsel. 

An attorney who meets the character 

and reputation requirements and 

possesses the requisite knowledge of 

veterans benefits law could take the 

examination without waiting to achieve 

a specific ‘‘level of experience’’ or 

attending ‘‘specialized training,’’ which 

may not be readily available or 

adequately demonstrate the competence 

desired by Congress. Third, under 

current § 14.629(b), VA Regional 

Counsels administer exams to 

applicants for accreditation as claims 

agents and that procedure could be 

made available to attorneys at each of 

the Regional Counsel’s local offices. 

Finally, Congress has also authorized 

the United States Patent and Trademark 

Office (PTO) to accredit agents and 

attorneys for purposes of practice before 

that agency. Under that authority, the 

PTO determined that, among other 

requirements not relevant to VA’s 

accreditation program, objective testing 

would suffice for purposes of making 

qualification determinations. We believe 

that successful completion of a written 

examination demonstrates that an agent 

or attorney possesses a level of 

knowledge better than mere evidence of 

training or a period of experience. 

Therefore, proposed § 14.629(b) would 

implement a testing requirement that is 

based upon our experience in 

accrediting agents under current 

procedures and the PTO’s experience in 

accrediting agents and attorneys under 

37 CFR part 11. 

In proposed § 14.629(b), VA would 

also expand its inquiry into an 

applicant’s background to provide a 

more complete basis for the 

Department’s determination of good 

character and reputation. In addition, 

proposed § 14.629(b) would provide 

specific examples of conduct that would 


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25932 Federal Register / Vol. 72, No. 87 / Monday, May 7, 2007 / Proposed Rules 

demonstrate a lack of good character 

and reputation for purposes of 

accreditation. 

Proposed § 14.629(c) would amend 

provisions relating to representation 

provided by attorneys, law firms, law 

students and paralegals to clarify that a 

claimant must use a VA Form 21–22a to 

appoint an accredited attorney. As will 

be discussed further below, a VA Form 

21–22a, signed by the claimant, is also 

necessary to authorize VA to disclose 

protected claimant information to an 

agent or attorney. VA intends to 

facilitate efficient adjudication of claims 

through universal use of this form. VA’s 

field personnel cannot efficiently or 

accurately sort through a variety of 

appointment forms and releases, many 

of which would require further legal 

review to determine whether VA could 

lawfully release a claimant’s 

information. 

Section 14.630—Authorization for a 

Particular Claim 

Section 5903 authorizes VA to 

recognize any individual for purposes of 

providing representation on one claim, 

provided that the individual certifies 

that he or she will not charge a fee for 

the representation and files the 

appropriate power of attorney. Proposed 

§ 14.630 would clarify that a properly 

executed VA Form 21–22a is necessary 

to allow VA to disclose claimant 

information to a person providing 

representation under the authority of 

this section. This change is necessary to 

comply with 38 CFR part 1, which 

implements the disclosure provisions of 

the Privacy Act, 38 U.S.C. 5701, and 38 

U.S.C. 7332. It would also commit an 

individual providing representation 

under this section to comply with the 

laws administered by VA and the rules 

of conduct in proposed § 14.632. New 

paragraph (d) would implement section 

5903(b), which authorizes VA to 

suspend or exclude an individual 

providing representation under this 

section on the same basis as accredited 

agents or attorneys. 

Section 14.631—Powers of Attorney; 

Disclosure of Claimant Information 

We propose to amend § 14.631(a) to 

clarify that a properly executed VA 

Form 21–22a, signed by the claimant 

and the accredited representative, agent, 

attorney, or individual authorized to 

provide representation for a particular 

claim, is required for purposes of both 

representation and VA’s disclosure of 

claimant information to the individual 

designated on the form. 

Current § 14.631(b), which permits 

attorneys to submit declarations of 

representation on letterhead, would be 

removed to reflect Congress’

amendment of section 5904 and to 

comply with the disclosure provisions 

in 38 CFR part 1. VA acknowledges that 

this change would impose some 

additional responsibilities in the nearterm for attorneys who use letterhead 

declarations in their veterans’ law 

practice. However, the use of a standard 

authorization form, with language that 

VA has approved as legally sufficient, 

will expedite VA’s correspondence with 

attorneys and ensure that claimant 

information is released only according 

to law. 

Redesignated § 14.631(c) would not 

include the procedure for an 

organization or individual to decline 

representation, which we propose to 

remove consistent with the signature 

requirement in proposed § 14.631(a). In 

its place we propose to provide 

guidance regarding the circumstances 

under which an individual or 

organization may withdraw from 

representation and the procedure for 

withdrawing. 

Redesignated § 14.631(f) would clarify 

that agents and attorneys may limit the 

scope of their representation regarding a 

particular claim by describing the 

limitation in writing on the VA Form 

21–22a. This clarification is necessary to 

ensure that claimants and their agents or 

attorneys understand the scope of 

representation. 

Section 14.632—Standards of Conduct 

for Persons Providing Representation 

Before the Department 

We propose to remove current 

§ 14.632 consistent with our above 

discussion of amendments to the 

introductory text to § 14.629. In its 

place, we propose to add new 

provisions governing the standards of 

conduct for accredited representatives, 

agents, and attorneys as required by 

Congress in section 5904(a). In 

developing the proposed standards of 

conduct, we reviewed both the 

American Bar Association’s Model 

Rules of Professional Conduct and other 

Federal agency rules of practice. We 

propose to establish general affirmative 

duties of honesty, competence, and 

diligence for all persons providing 

representation before VA. The proposed 

rules would also list specific conduct 

and behavior expressly prohibited in 

representing claimants before VA. 

Finally, in addition to the requirement 

concerning VA’s standards of conduct, 

the rules would also require attorneys to 

conform to the standards of conduct 

established by the jurisdictions in 

which they are admitted to practice. 

Violation of VA’s standards of conduct 

or those of the jurisdiction in which an 

attorney is admitted to practice, would 

be a basis for cancellation of 

accreditation under proposed 38 CFR 

14.633. 

Section 14.633—Cancellation of 

Accreditation of Representatives, 

Agents, and Attorneys 

Proposed § 14.633(c) would 

implement sections 5904(b)(6) through 

(9) by adding to the list of grounds for 

suspension or exclusion of agents or 

attorneys from further practice before 

VA. 

We propose to further amend § 14.633 

to clarify the roles and responsibilities 

of VA personnel during cancellation-ofaccreditation proceedings. Currently 

§ 14.633(d) requires the Regional 

Counsel of jurisdiction to initiate an 

inquiry upon the receipt of information 

indicating that a representative, agent, 

or attorney no longer meets 

accreditation requirements, has engaged 

in improper conduct, or has 

demonstrated a lack of competence in 

providing representation. However, the 

accreditation program is managed by an 

Assistant General Counsel at VA’s 

Central Office, and, generally, 

allegations of misconduct are initially 

directed to the Central Office for 

evaluation. As a result, we have 

determined that it would be more 

efficient for the Assistant General 

Counsel managing the program to 

handle all inquiries and forward certain 

investigative tasks to a Regional Counsel 

as necessary. Accordingly, in proposed 

§ 14.633(d), we state that the Assistant 

General Counsel of jurisdiction shall 

conduct the inquiry into allegations that 

may warrant suspension or cancellation 

of accreditation under § 14.633(b) 

through (d). 

Currently, § 14.633(e) distinguishes 

representatives from agents and 

attorneys in that representatives are 

immediately suspended upon 

notification of the General Counsel’s 

intent to cancel accreditation. However, 

section 5901(b)(2) subjects 

representatives to suspension and 

exclusion on the same basis as agents 

and attorneys. Because all individuals 

providing representation for VA 

claimants are held to the same standards 

of conduct, and subject to suspension 

and exclusion on the same basis, we 

propose to amend § 14.633(e) to provide 

accredited representatives and 

individuals providing representation 

under § 14.630 with the same 

procedural rights as are afforded to 

accredited agents and attorneys. 

Additionally, the process for notifying 

agents and attorneys of VA’s intent to 

cancel accreditation in current 

§ 14.633(e) provides a period of only 10 


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days for an agent or attorney to decide 

whether a hearing is appropriate or to 

submit additional evidence and does 

not require an agent or attorney to 

answer VA’s notice. In proposed 

§ 14.633(e), we propose to notify the 

individual providing representation 

under § 14.630, representative, agent or 

attorney of VA’s intent to cancel 

accreditation, the right to submit 

additional evidence, and the right to 

request a hearing by certified or 

registered mail. We would also require 

the individual to provide VA with an 

answer, in oath or affidavit form or the 

form specified for unsworn declarations 

under penalty of perjury in 28 U.S.C. 

1746, responding to VA’s notice. The 

answer would include a statement of 

facts that constitute the individual’s 

defense to VA’s reasons for cancellation 

and would admit or deny each 

allegation contained in VA’s notice of 

intent to cancel accreditation. Failure to 

deny an allegation would be treated as 

an admission of the allegation. 

Individuals receiving notice of intent to 

cancel accreditation would have 30 days 

from the date the notice was mailed to 

provide the answer to VA, submit 

additional evidence, and request a 

hearing on the matter. Any request for 

a hearing would be made in the answer. 

Failure to file an answer or request a 

hearing within the time allowed would 

result in the Assistant General Counsel 

closing the evidentiary record at the end 

of the 30-day period and forwarding the 

record and a recommendation to the 

General Counsel for a final decision. 

Currently, § 14.633(f) through (g) 

provides that the General Counsel may 

cancel an accreditation after notice and 

opportunity for a hearing conducted by 

a hearing officer who is not an employee 

of the Office of the Regional Counsel. 

However, in some cases, the VA Central 

Office is a more appropriate forum for 

the hearing because the evidence 

required to conduct a hearing is located 

at or near the Central Office, or the 

events and circumstances providing the 

basis for the hearing took place at or 

near the Central Office. As a result, 

referral to a Regional Office for a hearing 

may unnecessarily delay cancellation 

proceedings. In § 14.633(f), we propose 

to establish an alternate hearing location 

at the VA Central Office following the 

same general procedure as exists in 

current rules for a Regional Office 

hearing with the exception that the 

Director of the Compensation and 

Pension Service would appoint the 

hearing officer and the Assistant 

General Counsel or the Assistant 

General Counsel’s designee would 

present the evidence for VA. In both 

instances, the General Counsel would 

make the final decision on suspension 

or cancellation of accreditation based on 

the recommendation of the Assistant 

General Counsel. 

Current § 14.633(f) does not restrict 

VA’s ability to schedule a hearing in 

disaccreditation proceedings. As 

discussed above, proposed § 14.633(e) 

requires individuals served with notice 

of intent to cancel accreditation to file 

an answer with the Office of the General 

Counsel within 30 days from the date 

the notice was mailed. To ensure that an 

individual receives adequate notice of a 

hearing conducted under § 14.633 and 

to prevent a hearing from being 

scheduled during the 30-day period 

allowed for an answer, we propose to 

require that a hearing officer provide 

notice of a hearing at least 21 days 

before the date of the hearing and to 

prohibit hearings from being scheduled 

during the 30-day period allowed for an 

answer. 

In a proceeding under § 14.633, 

current § 14.633(f) does not establish a 

deadline for the introduction of 

evidence by VA or by an individual 

providing representation under 

§ 14.630, representative, agent or 

attorney. Unlike a benefits claim, in a 

§ 14.633 proceeding, the evidence of 

record associated with a decision to 

suspend or cancel accreditation should 

be sufficiently developed at the 

completion of a hearing such that no 

additional evidence relevant to the 

General Counsel’s decision is likely to 

exist, and, as a result, the record can be 

closed at the completion of the hearing. 

Accordingly, in proposed § 14.633(g), 

we state that, if an individual has not 

provided VA with an answer within 30 

days from the date the notice was 

mailed, the record will be closed; 

otherwise the record will be closed 10 

days after the completion of the hearing. 

The procedures in § 14.633(g) are 

necessary to provide individuals an 

expeditious decision on cancellation of 

their accreditation and to ensure that 

veterans receive competent 

representation. 

To maintain the integrity of the record 

and ensure expeditious processing, we 

would also make corresponding 

technical amendments in parts 19 and 

20 to prohibit the parties from 

introducing additional evidence after 

the record is closed and before the 

Board of Veterans’ Appeals renders a 

decision on the matter. A decision of the 

General Counsel to close the record in 

a § 14.633 proceeding at the completion 

of a hearing in no way limits the ability 

of the Board of Veterans’ Appeals to 

conduct a de novo review of the 

material issues of fact and law in the 

record on appeal or to remand to the 

General Counsel under 38 CFR 19.9 for 

any action essential for a proper 

appellate decision. 

Under current § 14.633(g), the 

decision of the General Counsel to 

suspend or cancel the accreditation of 

an individual providing representation 

under § 14.630, representative, agent, or 

attorney is final. However, the 

regulation does not prescribe the 

procedure required to appeal such a 

decision. We propose to amend 

§ 14.633(g) to provide that appeals of a 

General Counsel decision cancelling 

accreditation would be initiated and 

processed according to the provisions in 

38 CFR parts 19 (subpart B) and 20 

(subpart C). Proposed § 14.633(g) would 

also clarify that closing the record 30 

days after the date the notice of intent 

to cancel accreditation was mailed or 10 

days after the completion of the hearing 

would not affect the General Counsel’s 

ability to issue a supplemental 

statement of the case pursuant to a 

remand from the Board as provided in 

§ 19.9 of this title or to correct a 

deficient statement of the case as 

provided in § 19.31 of this title. 

In section 5904(a)(4), Congress 

prohibited VA from recognizing any 

agent or attorney suspended or 

disbarred by any court, bar, or Federal 

or State agency to which the individual 

was admitted to practice and not 

subsequently reinstated. Similarly, in 

section 5904(b)(7), Congress added as 

grounds for suspension or exclusion of 

agents and attorneys from practice 

before the Department suspension or 

disbarment by any court, bar, or Federal 

or State agency to which the individual 

was admitted to practice and not 

subsequently reinstated. We interpret 

these provisions to reflect Congress’

intent that the Office of the General 

Counsel should act upon any 

information that it receives concerning 

accredited agents and attorneys who 

have been barred from practice before 

any court, bar, or agency. Further, 

consistent with Congress’ intent to 

maintain the integrity of judicial and 

administrative proceedings by 

excluding persons subject to 

disciplinary sanctions, we believe it is 

appropriate for VA to notify courts, bars, 

or agencies of VA’s disciplinary 

proceedings. Accordingly, we propose 

in § 14.633(h) to provide notice, at the 

discretion of the General Counsel, of 

any suspension or cancellation of VA 

accreditation to the courts, bars, 

agencies, or jurisdictions in which the 

agent or attorney is admitted to practice. 


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Section 14.636—Payment of Fees for 

Representation by Agents and 

Attorneys in Proceedings Before the 

Agency of Original Jurisdiction and 

Before the Board of Veterans’ Appeals 

Current 38 CFR 20.609, codified in 

the Board’s Rules of Practice, governs 

the payment of fees for representation 

provided by accredited agents and 

attorneys. In section 5904(c)(1), 

Congress directed that agents and 

attorneys may be paid for services 

provided after a notice of disagreement 

is filed in a case, directed that fee 

agreements shall be filed with the 

Secretary rather than with the Board, 

and authorized VA to review fee 

agreements and order a reduction in the 

fee if it is found unreasonable or 

excessive, such decisions being 

appealable to the Board. Accordingly, 

we have determined that the fee 

provisions in current § 20.609 are no 

longer appropriate for inclusion in the 

Board’s Rules of Practice and should be 

moved to part 14. We propose to 

redesignate § 20.609 as § 14.636, and 

amend it consistent with section 

5904(c). 

Proposed § 14.636(c) would 

implement section 5904(c)(1) by 

providing that agents and attorneys may 

charge fees for services rendered on a 

particular claim or claims only after an 

agency of original jurisdiction has 

rendered a decision on such particular 

claim or claims and a notice of 

disagreement has been filed with 

respect to the decision. 

Proposed § 14.636(d)(2)(i) would 

clarify that a ‘‘disinterested third party’’

means an organization, government 

entity, or person that will not benefit 

financially from resolution of a claim. 

This clarification is necessary to prevent 

agents and attorneys from charging and/ 

or receiving fees for representation 

provided before a notice of 

disagreement is filed in a case from 

third parties who will directly benefit 

from the outcome of a case. We intend 

to preclude conflicts of interest that 

would arise as a result of agents and 

attorneys receiving fees from these third 

parties by proposing, in § 14.636(g), that 

fee agreements involving alleged 

disinterested third-party payers must 

identify the relationship between the 

third-party payer and the veteran, 

claimant or appellant. 

Proposed § 14.636(g) would establish 

new requirements for fee agreements 

between claimants and agents or 

attorneys. Agents and attorneys would 

be required to file fee agreements with 

the Office of the General Counsel in 

Washington, DC, and clearly specify in 

the agreements whether VA is to 

directly pay agent or attorney fees out of 

an award of past-due benefits. Any fee 

agreement calling for fees exceeding 20 

percent of past-due benefits would not 

be considered a direct-pay fee 

agreement and, as a result, the agent or 

attorney would be responsible for 

collecting any fees for representation 

from the claimant without assistance 

from VA. 

Current § 20.609 provides that the 

Board may review a fee agreement 

between a claimant or appellant and an 

attorney or agent upon its own motion 

or that of any party to the agreement and 

may order a reduction in the fee called 

for if it finds that the fee is excessive or 

unreasonable. Proposed § 14.636(i) 

implements section 5904(c) by shifting 

the authority to review fee agreements 

for reasonableness to the Office of the 

General Counsel, subject to review by 

the Board. We also propose to clarify 

that, following a decision by the Office 

of the General Counsel that the terms of 

the fee agreement are unreasonable, the 

agent or attorney must refund any 

excess payment to the claimant unless 

the agent or attorney files a notice of 

disagreement concerning the General 

Counsel’s decision. Such refund must 

occur within the time allowed for filing 

a notice of disagreement. 

Current provisions in § 20.609 do not 

clearly establish a deadline for the 

introduction of evidence in a motion for 

review of a fee agreement. For the 

reasons discussed above concerning 

proceedings under § 14.633, we propose 

in § 14.636 to close the record in 

proceedings to review fee agreements 15 

days after the date on which the agent 

or attorney files a response to the 

motion with the Office of the General 

Counsel or 30 days after the moving 

party served the motion on the agent or 

attorney if there is no response. The 

Assistant General Counsel will forward 

the record and a recommendation to the 

General Counsel for a final decision. To 

maintain the integrity of the record, we 

would also make corresponding 

technical amendments in parts 19 and 

20 to prohibit the parties from 

introducing additional evidence after 

the record is closed and before the 

Board of Veterans’ Appeals renders a 

decision on the matter. A decision of the 

General Counsel to close the record in 

a fee review proceeding in no way limits 

the ability of the Board to conduct a de 

novo review of the material issues of 

fact and law in the record on appeal or 

to remand to the General Counsel under 

38 CFR 19.9 for any other action 

essential for a proper appellate decision. 

Provisions in current 38 CFR part 3 

provide that the amount of 

compensation or pension paid to 

incarcerated veterans shall be reduced. 

Provisions in current 38 CFR part 1 

provide that a debt owed to VA 

resulting from participation in a benefits 

program may be collected through 

administrative offset. Current § 20.609 

states that VA’s payment of fees out of 

past-due benefits is to be paid out of a 

cash award to the claimant. We propose 

to clarify in § 14.636(h)(3)(iv) that, 

under current law, the amount of fees 

paid to an agent or attorney representing 

a claimant shall be based upon the 

amount of past-due benefits actually 

paid to the claimant after all applicable 

reductions. 

In proposed § 14.636(h), we would 

implement section 5904(a)(6), which 

provides that VA may collect an 

assessment out of the fees paid directly 

to agents or attorneys from past-due 

benefits. Such an assessment would be 

equal to five percent of the amount of 

the fee required to be paid to the agent 

or attorney, not to exceed $100 for each 

such payment. 

Section 14.637—Payment of the 

Expenses of Agents and Attorneys in 

Proceedings Before the Agency of 

Original Jurisdiction and Before the 

Board of Veterans’ Appeals 

We propose to redesignate and amend 

current § 20.610 governing payment of 

expenses to agents and attorneys as 

§ 14.637 for the same reasons as 

discussed above concerning current 

§ 20.609. 

Current provisions in § 20.610 do not 

clearly establish a deadline for the 

introduction of evidence in a motion for 

review of expenses. For the reasons 

discussed above concerning proceedings 

under § 14.633, we propose in § 14.637 

to close the record in proceedings to 

review expenses 15 days after the date 

on which the agent or attorney files a 

response to the motion with the Office 

of the General Counsel or 30 days after 

the moving party served the motion on 

the agent or attorney if there is no 

response. The Assistant General 

Counsel will forward the record and a 

recommendation to the General Counsel 

for a final decision. To maintain the 

integrity of the record, we would also 

make corresponding technical 

amendments in parts 19 and 20 to 

prohibit the parties from introducing 

additional evidence after the record is 

closed and before the Board of Veterans’

Appeals renders a decision on the 

matter. A decision of the General 

Counsel to close the record in a review 

of expenses in no way limits the ability 

of the Board to conduct a de novo 

review of the material issues of fact and 

law in the record on appeal or to 

remand to the General Counsel under 38 


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CFR 19.9 for any other action essential 

for a proper appellate decision. 

Paperwork Reduction Act 

In accordance with section 3507(d) of 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.), the information 

collection requirements included in this 

proposed regulation are revisions of 

existing collections under Office of 

Management and Budget (OMB) Control 

No. 2900–0321, which pertains to the 

appointment of an individual as a 

claimant’s representative, and OMB 

Control No. 2900–0605, which pertains 

to the application for accreditation as a 

claims agent. 

We note that the proposed rules 

would affect two other collections of 

information. In proposed § 14.629(b), 

the appeal to the General Counsel of a 

decision by the Assistant General 

Counsel to deny an application for 

accreditation would involve a new 

collection of information; however, 

under the current regulations VA denies 

less than ten applications every year, 

which is outside the scope of the 

Paperwork Reduction Act. See 5 CFR 

1320.3(c)(4). In proposed § 14.633, the 

General Counsel’s decision to cancel 

accreditation is appealable to the Board. 

The Board currently maintains a 

collection of information under OMB 

Control No. 2900–0085 pertaining to 

appeals. In the last three years, 

accreditation cancellation actions have 

resulted in three appeals to the Board. 

Based on the infrequent nature of such 

appeals, a revision of the Board’s 

existing collection of information is 

unwarranted under the Paperwork 

Reduction Act. 

Comments on the information 

collections included in this proposed 

rule should be submitted to the Office 

of Management and Budget, Attention: 

Desk Officer for the Department of 

Veterans Affairs, Office of Information 

and Regulatory Affairs, Washington, DC 

20503, with copies sent by mail or hand 

delivery to the Director, Regulations 

Management (00REG), Department of 

Veterans Affairs, 810 Vermont Avenue, 

NW., Room 1068, Washington, DC 

20420; fax to (202) 273–9026; e-mail 

through http://www.Regulations.gov. 

Comments should indicate that they are 

submitted in response to ‘‘RIN 2900–

AM62,’’ and must be received on or 

before June 6, 2007. 

Comments by the public on proposed 

collections of information will help VA 

in—

Evaluating whether the proposed 

collections of information are necessary 

for the proper performance of the 

functions of the Department, including 

whether the information will have 

practical utility; 

Evaluating the accuracy of the 

Department’s estimate of the burden of 

the proposed collections of information, 

including the validity of the 

methodology and assumptions used; 

and 

Enhancing the quality, usefulness, 

and clarity of the information to be 

collected; and Minimizing the burden of 

the collections of information on those 

who are to respond, including through 

the use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

OMB assigns control numbers to 

collections of information it approves. 

VA may not conduct or sponsor, and a 

person is not required to respond to, a 

collection of information unless it 

displays a currently valid OMB control 

number. 

Title: Accreditation of Service 

Organization Representatives and 

Agents. 

Summary of collection of information: 

Section 14.629(b)—Under this section, 

VA requires individuals seeking 

accreditation to establish their good 

character, reputation, and qualifications 

to represent claimants before the 

Department. VA proposes to require 

attorneys to file with the Office of the 

General Counsel VA Form 21a, on 

which they would provide information 

relevant to establishing their good 

character, reputation, and qualifications 

for representing claimants. After an 

affirmative determination of character 

and fitness, VA proposes to require 

attorneys to demonstrate experience and 

training in veterans benefits law and 

procedure by successfully passing a 

written examination with a score of 75 

percent or more. To initially 

demonstrate fitness for representation 

and annually thereafter, VA proposes to 

require agents and attorneys to provide 

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. 

Additionally, attorneys shall annually 

provide VA with a certification of good 

standing for every jurisdiction admitted. 

Section 14.631(a)—Under this section, 

VA requires claimants to identify to VA 

the individual acting on their behalf in 

the preparation, presentation, and 

prosecution of claims before the 

Department. VA proposes to require all 

persons providing representation before 

the Department to sign this form to 

indicate acceptance of appointment of 

representation, and proposes to require 

agents and attorneys to indicate on the 

form whether the agent or attorney 

desires to limit the scope of their 

representation with this claimant to a 

particular claim and, if so, to identify 

the limits of such representation. 

Description of need for information 

and proposed use of information: The 

collection of information is necessary to 

ensure that claimants for VA benefits 

have responsible, qualified 

representation in the preparation, 

presentation, and prosecution of claims. 

VA will use this information to 

determine whether particular 

individuals are qualified to represent 

claimants before VA and to ensure that 

claimants obtain representation and 

understand the limits of such 

representation. 

Description of likely respondents: 

Individuals applying for accreditation as 

agents and attorneys to provide 

representation before the Department; 

individuals accepting appointment for 

purposes of representation before the 

Department. 

Estimated number of respondents: For 

applications for accreditation under 38 

CFR 14.629(b), in addition to the 20 

applications we normally receive from 

prospective agents in a given year, at a 

minimum, we anticipate receiving 117 

responses from attorneys seeking 

accreditation in 2007. This number 

(117) represents the number of attorneys 

who filed fee agreements with the Board 

under the predecessor law. For 

individuals accepting appointment for 

purposes of representation under 38 

CFR 14.631(a), we anticipate receiving a 

signature from each person accepting 

appointment for purposes of 

representation. Because each accredited 

service organization representative, 

agent, and attorney normally represents 

more than one claimant, we initially 

estimate 703 respondents (agents and 

attorneys) will indicate acceptance for 

purposes of representing an estimated 

6,400 claimants before the Department. 

It is important to note that our 

estimated number of respondents for 

collections of information under both 38 

CFR 14.629(a) and 14.631(b) reflects 

data relating to representation under 

prior law. We anticipate that the 

number of respondents will increase 

slightly in 2007 and to a greater extent 

in future years based upon increased 

opportunities for paid agent and 

attorney representation, but we 

currently lack the information necessary 

to develop a reasonably accurate 

estimate. We may revise our estimated 

number of respondents based on 

comments received during the 

applicable public comment period. 


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Estimated frequency of responses: For 

applications for accreditation under 38 

CFR 14.629(b), once with the initial 

application for accreditation, and 

annually thereafter for accredited agents 

and attorneys. For individuals accepting 

appointment for purposes of 

representation under 38 CFR 14.631(a), 

once for each case. 

Estimated average burden per 

response: For applications for 

accreditation under 38 CFR 14.629(b), 

45 minutes. For individuals accepting 

appointment for purposes of 

representation under 38 CFR 14.631(a), 

5 minutes. 

Estimated total annual reporting 

burden: For applications for 

accreditation under 38 CFR 14.629(b), 

102 hours in 2007. For individuals 

accepting appointment for purposes of 

representation under 38 CFR 14.631(a), 

533 hours in 2007. 

Regulatory Flexibility Act 

The Secretary hereby certifies that 

this proposed rule would not have a 

significant economic impact on a 

substantial number of small entities as 

they are defined in the Regulatory 

Flexibility Act, 5 U.S.C. 601 et seq. At 

a minimum, this proposed rule would 

affect the 117 attorneys who filed fee 

agreements with the Board under the 

predecessor law and the 47 agents 

currently accredited by VA. However, it 

would not have a significant economic 

impact on these individuals because it 

would only impose accreditation 

requirements the costs of which would 

not be significant. Therefore, pursuant 

to 5 U.S.C. 605(b), this proposed 

amendment is exempt from the initial 

and final regulatory flexibility analysis 

requirements of sections 603 and 604. 

Executive Order 12866 

Executive Order 12866 directs 

agencies to assess all costs and benefits 

of available regulatory alternatives and, 

when regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety, and other advantages; 

distributive impacts; and equity). The 

Executive Order classifies a ‘‘significant 

regulatory action,’’ requiring review by 

the Office of Management and Budget 

(OMB) unless OMB waives such review, 

as any regulatory action that is likely to 

result in a rule that may: (1) Have an 

annual effect on the economy of $100 

million or more or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or tribal 

governments or communities; (2) create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency; (3) 

materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. VA has examined the economic, 

legal, and policy implications of this 

proposed rule and has concluded that it 

is a significant regulatory action under 

Executive Order 12866. 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

of 1995 requires, at 2 U.S.C. 1532, that 

agencies prepare an assessment of 

anticipated costs and benefits before 

issuing any rule that may result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

year. This final rule would have no such 

effect on State, local, and tribal 

governments, or on the private sector. 

Catalog of Federal Domestic Assistance 

Numbers and Titles 

There are no Federal Domestic 

Assistance programs associated with 

this proposed rule. 

List of Subjects 

38 CFR Part 1 

Administrative practice and 

procedure, Archives and records, 

Cemeteries, Claims, Courts, Crime, 

Flags, Freedom of information, 

Government contracts, Government 

employees, Government property, 

Infants and children, Inventions and 

patents, Parking, Penalties, Privacy, 

Reporting and recordkeeping 

requirements, Seals and insignia, 

Security measures, Wages. 

38 CFR Part 14 

Administrative practice and 

procedure, Claims, Courts, Foreign 

relations, Government employees, 

Lawyers, Legal services, Organization 

and functions (Government agencies), 

Reporting and recordkeeping 

requirements, Surety bonds, Trusts and 

trustees, Veterans. 

38 CFR Parts 19 and 20 

Administrative practice and 

procedure, Claims, Veterans. 

Approved: March 23, 2007. 

Gordon H. Mansfield, 

Deputy Secretary of Veterans Affairs. 

For the reasons set forth in the 

preamble, the Department of Veterans 

Affairs proposes to amend 38 CFR parts 

1, 14, 19 and 20 as follows: 

PART 14—LEGAL SERVICES, 

GENERAL COUNSEL, AND 

MISCELLANEOUS CLAIMS 

1. The authority citation for part 14 

continues to read as follows: 

Authority: 5 U.S.C. 301; 28 U.S.C. 2671–

2680; 38 U.S.C. 501(a), 512, 515, 5502, 5902–

5905; 28 CFR part 14, appendix to part 14, 

unless otherwise noted. 

2. Redesignate §§ 14.640 through 

14.643 as §§ 1.600 through 1.603 

respectively. 

3. Revise § 14.626 to read as follows: 

§ 14.626 Purpose. 

The purpose of the regulation of 

representatives, agents, attorneys, and 

individuals is to ensure that claimants 

for Department of Veterans Affairs (VA) 

benefits have responsible, qualified 

representation in the preparation, 

presentation, and prosecution of claims 

for veterans’ benefits. 

(Authority: 38 U.S.C. 501(a), 5902, 5903, 

5904) 

4. Amend § 14.627 by: 

a. Revising the introductory text. 

b. Revising paragraph (a). 

c. Redesignating paragraphs (b) 

through (l) and (m) and (n) as 

paragraphs (c) through (m) and (p) and 

(q), respectively. 

d. Adding new paragraphs (b), (n), 

and (o). 

e. Revising newly redesignated 

paragraphs (d), (e), (g), (l), and (m). 

The revisions read as follows: 

§ 14.627 Definitions. 

As used in regulations on 

representation of VA claimants: 

(a) Accreditation means recognition 

by VA of representatives, attorneys, and 

agents to represent claimants. 

(b) Agency of original jurisdiction 

means the VA activity or administration 

that made the initial determination on a 

claim or matter, including the 

proceedings before the General Counsel 

under part 14 of this chapter to suspend 

or cancel accreditation or to review fee 

agreements and expenses for 

reasonableness. 

* * * * * 

(d) Attorney means a member in good 

standing of a State bar who has met the 

standards and qualifications in 

§ 14.629(b). 

(e) Benefit means any payment, 

service, commodity, function, or status, 

entitlement to which is determined 

under laws administered by the VA 

pertaining to veterans, dependents, and 

survivors. 

* * * * * 


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(g) Claim means application made 

under title 38 U.S.C., and implementing 

directives, for entitlement to VA 

benefits, reinstatement, continuation, or 

increase of benefits, or the defense of a 

proposed agency adverse action 

concerning benefits. 

* * * * * 

(l) Recognition means certification by 

VA of organizations to represent 

claimants. 

(m) Representative means a person 

who has been recommended by a 

recognized organization and accredited 

by VA. 

(n) Representation means the acts 

associated with the preparation, 

presentation, and prosecution of claims 

under laws administered by VA for a 

claimant as defined in paragraph (h) of 

this section. Representation includes 

but is not limited to counseling on 

veterans benefits, gathering information 

necessary to file a claim for benefits, 

preparing claim forms, submitting claim 

information to VA, and communicating 

with VA on behalf of a claimant. 

(o) Service means the delivery of a 

motion, response, or reply to a person 

or entity to which it is directed. Proof 

of service consists of a statement by the 

person who made service certifying (1) 

the date and manner of service, (2) the 

names of the persons served, and (3) the 

addresses of the place of delivery. For 

service by mail, proof of service shall 

include the date and manner by which 

the document was mailed. 

* * * * * 

5. Amend § 14.629 by: 

a. Revising the introductory text. 

b. In paragraph (a)(1), removing ‘‘the 

Department of Veterans Affairs, and 

adding, in its place, ‘‘VA’’. 

c. Revising paragraph (b) heading. 

d. Redesignating paragraph (b)(2) as 

(b)(6), and paragraph (b)(1) as new 

paragraph (b)(2). 

e. Adding a new paragraph (b)(1). 

f. Revising newly redesignated 

paragraph (b)(2) introductory text and 

paragraph (b)(2)(i). 

g. Redesignating paragraphs (b)(2)(vii) 

and (viii) as paragraphs (b)(2)(viii) and 

(ix), respectively. 

h. Adding a new paragraph (b)(2)(vii). 

i. Adding new paragraphs (b)(2)(x), 

(b)(3), (b)(4), and (b)(5). 

j. Revising newly redesignated 

paragraph (b)(6). 

k. Revising paragraph (c) heading. 

l. Revising paragraphs (c)(1) and 

(c)(3). 

m. Revising the note following 

paragraph (c)(4). 

The additions and revisions read as 

follows: 

§ 14.629 Requirements for accreditation of 

service organization representatives; 

agents; and attorneys. 

The Assistant General Counsel of 

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 Assistant General 

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 Assistant General Counsel 

or the Assistant General Counsel’s 

designee and will constitute authority to 

prepare, present, and prosecute claims 

before an agency of original jurisdiction 

or the Board of Veterans’ Appeals. If the 

Assistant General Counsel determines 

that the prospective representative, 

agent, or attorney does not meet the 

requirements for accreditation, 

notification will be issued by the 

Assistant General Counsel concerning 

the reasons for disapproval, an 

opportunity to submit additional 

information, and any restrictions on 

further application for accreditation. 

The determination of the Assistant 

General 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 

Assistant General Counsel’s decision 

was mailed. In deciding the appeal, the 

General Counsel’s decision shall be 

limited to the evidence of record before 

the Assistant General Counsel. A 

decision of the General Counsel is a 

final agency decision not subject to 

appeal. 

* * * * * 

(b) Accreditation of Agents and 

Attorneys. (1) No individual may 

provide representation to claimants 

before the Department as an agent or 

attorney unless he or she has first been 

accredited by VA for such purpose. The 

accreditation process consists of a 

character and fitness determination, and 

after an affirmative determination of 

character and fitness, a written 

examination. 

(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 21a) 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; 

* * * * * 

(vii) Information concerning the 

applicant’s level of education and 

academic history; 

* * * * * 

(ix) Information relevant to whether 

the applicant has any physical 

limitations that would interfere with the 

completion of a comprehensive written 

examination administered under the 

supervision of a VA Regional Counsel; 

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 section 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. 

(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. 

(6) After an affirmative determination 

of character and fitness for practice 

before the Department, applicants must 

achieve a score of 75 percent or more on 


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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. (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). 

* * * * * 

(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 

as noted in paragraph (d). 

* * * * * 

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. 

* * * * * 

6. Amend § 14.630 by: 

a. Revising paragraph (a). 

b. Revising paragraph (b)(1) 

introductory text. 

c. Adding paragraphs (c) and (d) 

immediately preceding the authority 

citation at the end of the section. 

The revisions and additions read as 

follows: 

§ 14.630 Authorization for a particular 

claim. 

(a) Any person may be authorized to 

prepare, present, and prosecute one 

claim. A power of attorney executed on 

VA Form 21–22a (Appointment of 

Attorney or Agent as Claimant’s 

Representative), and a statement signed 

by the person and the claimant that no 

compensation will be charged or paid 

for the services, shall be filed with the 

agency of original jurisdiction where the 

claim is presented. The power of 

attorney identifies to VA the claimant’s 

appointment of representation and 

authorizes VA’s disclosure of 

information to the person representing 

the claimant. 

(b) * * * (1) The number of 

accredited representatives, agents, and 

attorneys operating in the claimant’s 

geographic region; 

* * * * * 

(c) Persons providing representation 

under this section must comply with the 

laws administered by VA and with the 

regulations governing practice before 

VA including the rules of conduct in 

§ 14.632 of this part. 

(d) Persons providing representation 

under this section are subject to 

suspension and or exclusion from 

representation of claimants before VA 

on the same grounds as apply to 

representatives, agents, and attorneys in 

§ 14.633 of this part. 

* * * * * 

7. Amend § 14.631 by: 

a. Revising the section heading. 

b. Revising paragraph (a) introductory 

text. 

c. Adding paragraph (a)(1)(iv). 

d. In paragraph (a)(2), removing 

‘‘Department of Veterans Affairs’’ and 

adding, in its place, ‘‘VA’’. 

e. Removing paragraph (b). 

f. Redesignating paragraphs (c) 

through (g) as paragraphs (b) through (f). 

g. Revising newly redesignated 

paragraph (c). 

h. In newly redesignated paragraph 

(e)(1), removing ‘‘the Department of 

Veterans Affairs’’ and add, in its place, 

‘‘VA’’. 

i. Revising newly redesignated 

paragraph (f). 

The revisions and addition read as 

follows: 

§ 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) * * * 

(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 

* * * * * 

(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 if such withdrawal 

would not adversely impact the 

claimant’s interests. 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 


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criminal and is furthered through the 

representation of the organization or 

individual; the claimant fails to uphold 

an obligation 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 both the 

claimant 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 

surrendering any documents provided 

by VA in the course of the 

representation. 

* * * * * 

(f)(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. 

* * * * * 

8. Revise § 14.632 to read as follows: 

§ 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 § 14.630, representatives, agents, 

or attorneys. 

(2) All individuals providing 

representation are required to be 

truthful in their dealings with claimants 

and VA, and shall conduct themselves 

in accordance with the non-adversarial 

nature of practice before the agency of 

original jurisdiction and the Board. The 

general provision on non-adversarial 

practice does not apply in proceedings 

before the General Counsel conducted 

under part 14 of this chapter to cancel 

accreditation or to review fee 

agreements and expenses for 

reasonableness. 

(b) An individual providing 

representation on a particular claim 

under § 14.630, 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, excessive, or 

otherwise prohibited by law or 

regulation; 

(6) Solicit, receive, or enter into 

agreements for gifts in lieu of fees for 

representation provided before a notice 

of disagreement is filed with respect to 

the case; 

(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; or 

(11) Engage in any other unlawful, 

unprofessional, or unethical conduct. 

(d) In addition to complying with 

standards of conduct for practice before 

VA in paragraphs (a) through (c), 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. 

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

9. Amend § 14.633 by: 

a. Revising the section heading. 

b. Revising paragraphs (a), (b), (c) 

introductory text, and (c)(1). 

c. Redesignating paragraph (c)(4) as 

paragraph (c)(7). 

d. Revising newly redesignated 

paragraph (c)(7). 

e. Adding new paragraphs (c)(4), 

(c)(5), and (c)(6). 

f. Revising paragraphs (d) through (g). 

g. Adding new paragraph (h). 

The revisions and additions read as 

follows: 

§ 14.633 Termination of accreditation of 

individuals providing representation under 

§ 14.630, representatives, agents, and 

attorneys. 

(a) Accreditation or authority to 

provide representation on a particular 

claim under § 14.630 may be canceled at 

the request of an organization, 

individual providing representation 

under § 14.630, representative, agent, or 

attorney. 

(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; 

* * * * * 

(4) 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 


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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 

(7) Any other unlawful, 

unprofessional, or unethical practice. 

(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. 

(e) As to cancellation of accreditation 

under paragraphs (c) or (d) of this 

section, upon receipt of information 

from any source indicating improper 

conduct, or incompetence, the Assistant 

General 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 Assistant 

General Counsel will close the inquiry 

and maintain the record for 3 years. 

(2) If the result of the inquiry justifies 

further action, the Assistant General 

Counsel shall: 

(i) Inform 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 Assistant General 

Counsel mailed the notice, the Assistant 

General Counsel shall close the record 

and forward it with a recommendation 

to the General Counsel for a final 

decision. 

(ii) In the event that a hearing is not 

requested, the Assistant General 

Counsel shall close the record and 

forward it with a recommendation to the 

General Counsel for a final decision. 

(iii) The Assistant General Counsel 

may extend the time to file an answer 

or request a hearing for a reasonable 

period upon a showing of sufficient 

cause. 

(f) If a hearing is requested, at the 

discretion of the General Counsel, it 

may be held at a VA Regional Office or 

at the VA Central Office. For hearings 

conducted at a Regional Office, the 

Regional Office Director involved will 

appoint a hearing officer and the 

Regional Counsel of jurisdiction or his 

or her designee will present the 

evidence. For hearings conducted at the 

VA Central Office, the Director of the 

Compensation and Pension Service 

shall appoint a hearing officer and the 

Assistant General Counsel or his or her 

designee shall present the evidence. The 

hearing officer shall not be from the 

Office of the General Counsel and 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 crossexamine 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 Assistant 

General Counsel within 30 days of 

closing the record. The Assistant 

General Counsel will review the record 

and forward it to the General Counsel 

with a recommendation for a final 

decision. 

(g) 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. 

(h) In 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. 

* * * * * 

10. Add § 14.636 to read as follows: 

§ 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 


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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 (d) of this section, agents and 

attorneys may charge claimants and 

appellants for representation provided 

on a particular claim or claims within 

a case only after an agency of original 

jurisdiction has rendered a decision on 

such particular claim or claims and a 

notice of disagreement has been filed 

with respect to the decision. 

(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) Presumption of reasonableness. 

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. This presumption may be 

rebutted by a preponderance of the 

evidence relating to the factors in 

paragraph (e) of this section establishing 

that such fees are not reasonable. 

(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 

calling for payment of an amount 

exceeding 20 percent of past-due 

benefits 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. 

(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 pastdue 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 § 3.750 

et seq. of this chapter.) 

(2) For purposes of this paragraph, a 

claim will be considered to have been 

resolved in a manner favorable to the 


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claimant or appellant if all or any part 

of the relief sought is granted. 

(3) For purposes of this paragraph, 

‘‘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 the Board of 

Veterans’ Appeals or the lump sum 

payment which represents the total 

amount of recurring cash payments 

which 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) If 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. 

(iv) In cases where an award of pastdue benefits is reduced by law 

including administrative offset to collect 

a debt or overpayment, VA will 

calculate the amount of fees to be paid 

to an agent or attorney based on the cash 

payment to the claimant or appellant 

after all applicable reductions. 

(4) In addition to filing a copy of the 

fee agreement with the Office of the 

General Counsel as required by 

paragraph (g) of this section, the agent 

or attorney must notify the agency of 

original jurisdiction within 30 days of 

the date of execution of the agreement 

of the existence of an agreement 

providing for the direct payment of fees 

out of any benefits subsequently 

determined to be past due and provide 

that agency with a copy of the fee 

agreement. 

(i) Motion for review of fee agreement. 

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 

and may order a reduction in the fee 

called for in the agreement if it finds 

that the fee is excessive or unreasonable 

in light of the standards set forth in 

paragraph (e) of this section. 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, and the 

applicable VA file number. Such 

motions must set forth the reason, or 

reasons, why the fee called for in the 

agreement is excessive or 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 

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 Assistant General Counsel 

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 

Assistant General Counsel 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 Assistant General Counsel 

shall forward the record and a 

recommendation to the General Counsel 

for a final decision. Unless either party 

files a notice of disagreement with the 

Office of the General Counsel, the agent 

or attorney must refund any excess 

payment to the claimant or appellant 

not later than the expiration of the time 

within which the General Counsel’s 

decision may be appealed to the Board 

of Veterans’ Appeals. 

(j) In 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) 

(Authority: 38 U.S.C. 5902, 5904, 

5905) 

(The Office of Management and Budget has 

approved the information collection 

requirements in this section under control 

number 2900–0085) 

11. Add § 14.637 to read as follows: 

§ 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 


rwilkins on PROD1PC63 with PROPOSALS3
Federal Register / Vol. 72, No. 87 / Monday, May 7, 2007 / Proposed Rules 25943 

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 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. 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, 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 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 (022D), 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 Assistant General Counsel 

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 (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 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 

Assistant General Counsel 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. Unless either party files a notice 

of disagreement with the General 

Counsel’s decision, 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 

General Counsel’s decision may be 

appealed to the Board of Veterans’

Appeals. 

(e) In 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) 

(The Office of Management and Budget has 

approved the information collection 

requirements in this section under control 

number 2900–0085) 

PART 1—GENERAL PROVISIONS 

12. The authority citation for part 1 

continues to read as follows: 

Authority: 38 U.S.C. 501(a), and as noted 

in specific sections. 

13. Amend newly redesignated 

§ 1.600 by: 

a. Adding an undesignated center 

heading before the section heading. 

b. In paragraph (a) introductory text, 

removing ‘‘14.640 through 14.643’’ and 

adding, in its place, ‘‘1.600 through 

1.603’’. 

c. In paragraph (b)(1), removing 

‘‘14.640 through 14.643’’ and adding, in 

its place, ‘‘1.600 through 1.603’’. 

d. In paragraph (b)(4), removing 

‘‘14.640 through 14.643’’ and adding, in 

its place, ‘‘1.600 through 1.603’’. 

e. In paragraph (d) introductory text, 

removing ‘‘14.640 through 14.643’’ and 

adding, in its place, ‘‘1.600 through 

1.603’’. 

The revision and addition read as 

follows: 

Expanded Remote Access to 

Computerized Veterans Claims Records 

by Accredited Representatives 

§ 1.600 Purpose. 

* * * * * 

§ 1.602 [Amended] 

14. Amend newly redesignated 

§ 1.602 by: 

a. In paragraph (b), removing 

‘‘14.643’’ and adding, in its place, 

‘‘1.603’’. 

b. In paragraph (c)(3), removing 

‘‘14.640 through 14.643’’ and adding, in 

its place, ‘‘1.600 through 1.603’’. 


rwilkins on PROD1PC63 with PROPOSALS3
25944 Federal Register / Vol. 72, No. 87 / Monday, May 7, 2007 / Proposed Rules 

§ 1.603 [Amended] 

15. Amend newly redesignated 

§ 1.603 by: 

a. In paragraph (b)(1), removing 

‘‘14.640 through 14.643’’ and adding, in 

its place, ‘‘1.600 through 1.603’’. 

b. In paragraph (c), removing 

‘‘14.643’’ and adding, in its place, 

‘‘1.603’’. 

PART 19—BOARD OF VETERANS’

APPEALS: APPEALS REGULATIONS 

16. The authority citation for part 19 

continues to read as follows: 

Authority: 38 U.S.C. 501(a) unless 

otherwise noted. 

17. Amend § 19.31 by adding a 

paragraph (d) and revising the authority 

citation at the end of the section to read 

as follows. 

§ 19.31 Supplemental statement of the 

case. 

* * * * * 

(d) Exception. Paragraph (b)(1) of this 

section does not apply in proceedings 

before the General Counsel conducted 

under part 14 of this chapter to cancel 

accreditation or to review fee 

agreements and expenses for 

reasonableness. 

(Authority: 38 U.S.C. 7105(d); 38 U.S.C. 

5902, 5903, 5904) 

18. Amend § 19.36 by adding a 

sentence at the end of the paragraph and 

revising the authority citation to read as 

follows: 

§ 19.36 Notification of certification of 

appeal and transfer of appellate record. 

* * * Provisions in this section for 

submitting additional evidence and 

references to § 20.1304 do not apply in 

proceedings before the General Counsel 

conducted under part 14 of this chapter 

to suspend or cancel accreditation or to 

review fee agreements and expenses for 

reasonableness. 

(Authority: 38 U.S.C. 7105; 38 U.S.C. 5902, 

5903, 5904) 

19. Amend § 19.37 by adding a 

paragraph (c) and revising the authority 

citation at the end of the section to read 

as follows. 

§ 19.37 Consideration of additional 

evidence received by the agency of original 

jurisdiction after an appeal has been 

initiated. 

* * * * * 

(c) The provisions of this section do 

not apply in proceedings before the 

General Counsel conducted under part 

14 of this chapter to cancel accreditation 

or to review fee agreements and 

expenses for reasonableness. 

(Authority: 38 U.S.C. 7105(d)(1), 5902, 5903, 

5904) 

PART 20—BOARD OF VETERANS’

APPEALS: RULES OF PRACTICE 

20. The authority citation for part 20 

continues to read as follows: 

Authority: 38 U.S.C. 501(a) and as noted in 

specific sections. 

§§ 20.609 and 20.610 [Removed] 

21. Remove §§ 20.609 and 20.610. 

22. Amend § 20.800 by adding a 

sentence at the end of the paragraph and 

revising the authority citation to read as 

follows: 

§ 20.800 Rule 800. Submission of 

additional evidence after initiation of 

appeal. 

* * * The provisions of this section 

do not apply in proceedings before the 

General Counsel conducted under part 

14 of this chapter to cancel accreditation 

or to review fee agreements and 

expenses for reasonableness. 

(Authority: 38 U.S.C. 7105(d)(1); 38 U.S.C. 

5902, 5903, 5904) 

23. Amend § 20.1304 by adding a 

paragraph (e) and revising the authority 

citation at the end of the section to read 

as follows. 

§ 20.1304 Rule 1304. Request for change 

in representation, request for personal 

hearing, or submission of additional 

evidence following certification of an appeal 

to the Board of Veterans’ Appeals. 

* * * * * 

(e) Relationship to proceedings before 

the General Counsel to cancel 

accreditation or to review the 

reasonableness of fees and expenses. 

The provisions of paragraphs (a), (b), 

and (d) of this section allowing 

appellants to submit additional 

evidence do not apply in proceedings 

before the General Counsel conducted 

under part 14 of this chapter to cancel 

accreditation or to review fee 

agreements and expenses for 

reasonableness. 

(Authority: 38 U.S.C. 7104, 7105, 7105A; 38 

U.S.C. 5902, 5903, 5904) 

[FR Doc. E7–8642 Filed 5–4–07; 8:45 am] 

BILLING CODE 8320–01–P 


rwilkins on PROD1PC63 with PROPOSALS3