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When You Can Hire An Attorney


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  • In Memoriam

If you are hiring an attorney, it might be worth it to wait until the answer, from the VA, to your first NOD.

Legal Representation for Veterans

Since the American Civil War, Congress has regulated the representation of

veterans before the VA and its predecessors. This regulation has continued to evolve

over the years, with Congress establishing various standards for representation,

criteria and guidelines for fees, and limitation on when a veteran may engage the

services of an attorney (on a fee basis) to represent him or her in the appeals process.

The VA claims appeal process is a detailed multistep procedure.42 A recently

enacted law — the Veterans Benefits, Health Care, and Information Technology Act

of 200643 ("act") — has modified attorney participation in appeals. The Secretary of

Veterans Affairs ("Secretary") is required to provide additional qualifications and

CRS-19

44 "Agents" or representatives of various veterans' service organizations may represent a

veteran in his/her appeal process. See CRS Report RL33704, Veterans Affairs: The Appeal

Process for Veterans' Claims, by Douglas Reid Weimer.

45 Id. at 3. See Figure I. Appeal Process.

46 Id.

47 38 U.S.C. § 7104.

standards for agents44 and attorneys who represent veterans before the VA. These

standards deal with (1) training and character and (2) fee criteria and limitations. The

Secretary is authorized to charge and collect fees from the agents or attorneys to be

used for administrative expenses for veterans' benefits programs. The following

grounds for suspension of agents and attorneys are provided in the act: presenting

frivolous claims, prior suspensions, charging excessive or unreasonable fees, or

failure to comply with the Secretary's regulations.

A significant change that the act made in the role of attorneys in the appeal

process is when in the appeal process an attorney may commence services for fees.

Previously, an attorney could not represent a veteran for a fee until the Board of

Veterans Appeals (BVA) made a final decision.45 This had the effect of excluding

an attorney from the process until all of the administrative appeals had been

exhausted. The act now permits an attorney to enter the appeal process at a much

earlier date — after the veteran has received a decision on his or her claim from the

VA and decides to appeal this initial decision administratively through the filing of

a Notice of Disagreement (NOD).46 An attorney may now provide representation for

a fee after the NOD is filed. The act requires the Secretary to provide Congress with

an evaluation of the effect of the new system of representation. The act also modified

the requirements to file attorney fee agreements so as to reflect the earlier point when

an attorney or agent can enter the appeal process. The Secretary is also authorized

to review a fee agreement, and the Secretary may order a reduction in an agreed upon

fee if the Secretary finds the fee excessive or unreasonable. The Secretary's decision

may be reviewed by the BVA, which is authorized to make the final review of the

issue.47

This change in the veterans' appeal procedure has been somewhat controversial.

While veterans' groups such as the National Organization of Veterans Advocates

(NOVA) and the Paralyzed Veterans of America (PVA) have supported the change,

other groups — most notably, the Disabled American Veterans (DAV) — have

vigorously opposed the legislative change, continue to oppose implementation of the

law, and are seeking a repeal of the law.48 Opposition to the change may be

summarized into three broad categories. First, representatives of veterans' groups

have been the exclusive representatives of veterans in the VA administrative appeal

process and are reluctant to change this arrangement. Second, there is a belief that

any benefits should belong exclusively to the veteran and should not be shared or

paid to a legal representative. Third, there may be a reluctance to have previous work

done by veteran representatives reviewed by attorneys.

CRS-20

49 See CRS Report RL33704, Veterans Affairs: The Appeal Process for Veterans' Claims,

by Douglas Reid Weimer.

50 See CRS Report RL33704, Veterans Affairs: The Appeal Process for Veterans' Claims,

by Douglas Reid Weimer.

51 See CRS Report RS22561, Veterans Affairs: The U.S. Court of Appeals for Veterans

Claims — Judicial Review of VA Decision Making, by Douglas Reid Weimer.

52 38 U.S.C. § 7261.

53 See CRS Report RS22561, Veterans Affairs: The U.S. Court of Appeals for Veterans

Claims — Judicial Review of VA Decision Making, by Douglas Reid Weimer.

54 Representation before the court is governed by U.S. Vet. App. R. 46.

55 38 U.S.C. § 7263(a).

56 Id. § 7292.

57 28 U.S.C. § 2107.

58 38 U.S.C. § 7292©. A petition for certiorari requests the Supreme Court to review the

decision of the lower court. The Court has broad discretion in deciding which cases it

chooses to review.

H.R. 1318 (introduced by Representative Ron Lewis) would repeal the authority

for certain agent or attorney representation in veterans' benefit cases before the VA.

In effect, the bill would return to the procedure that existed before P.L. 109-461

became law and permit representation only after the BVA renders a final decision in

the case.

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