thomaspfkiely

The Fees Which May Be Charged by an Attorney

Wed, 23 Sep 2020 21:47:00 GMT

The National Organization for Veterans’ Advocates, Inc. (NOVA) is committed to the continuing education of agents and attorneys who represent veterans and their families in claims before the Department of Veterans Affairs (VA), the Board of Veterans' Appeals (BVA), the U.S. Court of Appeals for Veterans Claims (CAVC), and the U.S. Court of Appeals for the Federal Circuit. Consistent with that goal, providing information to the public about how fees are charged for such representation is both appropriate and necessary. NOVA believes that it is important for veterans and their families to be fully informed on the subject of how fees are charged by agents and attorneys. The following information is being provided to ensure that all parties to a fee agreement understand the rules concerning the charging of fees for representation in this area of the law.

Fees for representation by agents or attorneys in proceedings before VA, BVA, and the CAVC are defined by statute and regulation.

See 38 U.S.C. § 5904 and 38 C.F.R. § 14.636.

Text of 38 USC 5904 - Recognition of agents and attorneys generally.

Text of 38 CFR 14.636 - Payment of fees for representation by agents and attorneys in proceedings before Agencies of Original Jurisdiction and before the Board of Veterans' Appeals.

WHEN FEES MAY BE CHARGED

Agents and attorneys may not charge or be paid for services with respect to services provided before the date on which a notice of disagreement is filed with respect to the veteran’s case. 38 U.S.C. § 5904(c)(1). This provision of law went into effect in June 2007 and applies to all cases where there is a notice of disagreement after June 21, 2007. NOTE: As the result of the passage of the Veterans Appeals Improvement and Modernization Act of 2017, which is slated for implementation no earlier than February 2019, a veteran will be able to hire an attorney or agent after an initial decision on a claim. NOVA will provide more details on this page when the Act is implemented.

Under current law, fees may not be charged by an agent or an attorney for work performed in connection with the filing of a claim for VA benefits. An agent or attorney may assist a veteran or a claimant without charge in the initial presentation of an application for benefits. Once VA makes its initial decision and a notice of disagreement has been filed, only then may a fee be charged for services provided after the filing of a notice of disagreement.

There are three stages of the appeal process at which representation can commence: (1) at the regional office level after the filing of a notice of disagreement; (2) at BVA on the issue after the filing of a notice of disagreement; or (3) at the CAVC. An agent or attorney may represent prior to the filing of a notice of disagreement but may not charge a fee for such services.

A fee may not be charged, allowed, or paid for services of agents and attorneys with respect to services provided before the date on which a notice of disagreement is filed with respect to the case. 38 U.S.C. § 5904(c)(1).

This limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. 38 U.S.C. § 5904(c)(1).

FEE AGREEMENTS ARE REQUIRED

All agreements for the payment of fees for services of agents and attorneys must be in writing and signed by both the claimant or appellant and the agent or attorney. 38 C.F.R. § 14.636(g).

To be valid, a fee agreement must include the following information:

(1) The name of the veteran.

(2) The name of the claimant or appellant if other than the veteran.

(3) The name of any disinterested third‑party payer and the relationship between the third‑party payer and the veteran, claimant, or appellant.

(4) The applicable VA file number.

(5) The specific terms under which the amount to be paid for the services of the attorney or agent will be determined. 38 C.F.R. § 14.636(g)(1).

Fee agreements must also clearly specify if VA is to withhold and pay the agent or attorney directly out of the claimant’s award 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. See 38 C.F.R. § 14.636(g)(2).

A fee agreement that does not clearly specify that VA is to pay the agent or attorney out of past‑due benefits or that specifies a fee greater than 20 percent of past‑due benefits awarded by VA shall be considered to be an agreement in which the agent or attorney is responsible for collecting any fees for representation from the claimant without assistance from VA.

See 38 C.F.R. § 14.636(g)(2).

A copy of the agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), 810 Vermont Avenue, NW, Washington, DC 20420. Only fee agreements and documents related to review of fees under paragraph (i) of this section and expenses under § 14.637 may be filed with the Office of the General Counsel. All documents relating the adjudication of a claim for VA benefits, including any correspondence, evidence, or argument, must be filed with the agency of original jurisdiction, Board of Veterans Appeals, or other VA office as appropriate.

38 C.F.R. § 14.636(g)(3).

FEES CAN BE WITHHELD FROM PAST-DUE BENEFITS

The payment of fees may be made by VA directly to an agent or attorney from past‑due benefits. 38 U.S.C. § 5904(d) and 38 C.F.R. § 14.636(h).

The claimant or appellant and an agent or attorney may enter into a fee agreement providing that payment for the services of the agent or attorney will be made directly to the agent or attorney by VA out of any past‑due benefits awarded in any proceeding before VA or the CAVC. 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. 38 C.F.R. § 14.636(h)(1).

Such an agreement will be honored by VA only if the following conditions are met:

(1) The total fee payable (excluding expenses) does not exceed 20 percent of the total amount of the past‑due benefits awarded,

(2) The amount of the fee is contingent on whether or not the claim is resolved in a manner favorable to the claimant or appellant, and

(3) 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); 38 CFR 3.750; 38 C.F.R. § 14.636(h)(1)).

A claim will be considered to have been resolved in a manner favorable to the claimant or appellant if all or any part of the relief sought is granted. See 38 C.F.R. § 14.636(h)(2).

Fees are only withheld when the fee called for in the fee agreement is contingent, meaning that the fee is payable only when there is an award of past-due benefits.

FEE OPTIONS

Fees may be charged on an hourly basis, a flat fee, or a contingent fee basis, or a combination of all three. 38 C.F.R. § 14.636(e).

The fees payable for representation can be based on an agreed upon hourly rate. Although this type of payment is permitted, few agents or attorneys practicing in this area charge an hourly rate for two reasons. First, most veterans and their families are unable to pay for the services as those services are provided. Second, because of the length of time these matters take to be resolved, most agents and attorneys do not find charging on an hourly basis the most practical method for charging fees.

The fees payable for representation can be based on an agreed upon flat fee or fixed rate. This method means the agent or attorney work is paid based on a predetermined or specified amount for the services. Once again, agents or attorneys practicing in this area are unlikely to charge a fee in this manner.

The contingent fee basis is the most likely way in which fees will be charged.

A contingent fee agreement means that the agent or attorney is paid only when the veteran or claimant receives an award of past-due benefits. The fee is based on an agreed upon percentage of the amount of the past-due benefits awarded.

As noted above, when a contingent fee is limited to 20% of the amount of the past-due benefits awarded, those fees may be withheld from the award of past-due benefits and paid by VA directly to the agent or attorney.

For a contingent fee amount greater than 20% of the amount of the past due-benefits awarded, those fees are payable by the veteran or claimant to the agent or attorney.

FEES MUST BE REASONABLE

Fees may neither be excessive nor unreasonable. VA may on its own motion or at the request of a veteran or claimant seek review of a fee agreement concerning the amount of the fee to determine whether the amount called for in the fee agreement is either excessive or unreasonable. 38 U.S.C. § 5904(c)(3).

There are specific factors to be considered in determining whether the fee called for in the fee agreement is reasonable. Those factors 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. 38 C.F.R. § 14.636(e).

PRESUMPTIONS RELATED TO THE REASONABLENESS OF FEES

There are certain presumptions related to whether the amount of a contingent fee is reasonable. See 38 C.F.R. § 14.636(f).

Fees which do not exceed 20 percent of any past‑due benefits awarded shall be presumed to be reasonable.

Fees which exceed 33 1/3 percent of any past‑due benefits awarded shall be presumed to be unreasonable.

These presumptions may be rebutted through an examination of the factors in 38 C.F.R. § 14.636(e) establishing that there is clear and convincing evidence that a fee which does not exceed 20 percent of any past‑due benefits awarded is not reasonable or that a fee which exceeds 33 1/3 percent is reasonable in a specific circumstance.

FEE AGREEMENTS MAY BE REVIEWED

There is a specific procedure which must be followed when filing a motion for the review of a fee agreement for reasonableness. 38 C.F.R. § 14.636(i).

(1) The motion must be filed before the expiration of 120 days from the date of the final VA action, the Office of the General Counsel may review a fee agreement between a claimant or appellant and an agent or attorney upon its own motion or upon the motion of the claimant or appellant.

(2) The Office of the General Counsel may order a reduction in the fee called for in the agreement if it finds by a preponderance of the evidence, or by clear and convincing evidence in the case of a fee presumed reasonable under paragraph (f) of this section, that the fee is unreasonable.

(3) The Office of the General Counsel may approve a fee presumed unreasonable under paragraph (f) of this section if it finds by clear and convincing evidence that the fee is reasonable.

(4) The Office of the General Counsel’s review of the agreement under this paragraph will address the issues of eligibility under paragraph (c) of this section and reasonableness under paragraph (e) of this section.

(5) The Office of the General Counsel will limit its review and decision under this paragraph to the issue of reasonableness if another agency of original jurisdiction has reviewed the agreement and made an eligibility determination under paragraph (c) of this section.

(6) Motions for review of fee agreements must be in writing and must include the name of the veteran, the name of the claimant or appellant if other than the veteran, and the applicable VA file number.

(7) Such motions must set forth the reason, or reasons, why the fee called for in the agreement is unreasonable and must be accompanied by all evidence the moving party desires to submit.

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.

See 38 C.F.R. § 14.636(i)(1).

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. See 38 C.F.R. § 14.636(i)(2).

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.

38 C.F.R. § 14.636(i)(3).

ELIGIBILITY DETERMINATIONS ARE MADE BY THE REGIONAL OFFICE AND NOT THE OFFICE OF THE VA GENERAL COUNSEL

In cases where a fee agreement requires VA to withhold the fee of an agent or an attorney from the award of past-due benefits under the provisions of 38 U.S.C. § 5904(d), the VA regional office will make a written fee eligibility determination.

Unfortunately, VA has not written regulations addressing this process.

What will occur, generally, is that in the same notice which informs a veteran or a claimant of an award of past-due benefits, VA will inform both the veteran or claimant and the agent or attorney that a decision has been made on the eligibility of the agent or attorney to charge the fee called for in the fee agreement of the parties.

This notice will also inform the veteran or claimant and the agent or attorney that if either is dissatisfied with the VA’s decision on the eligibility of the agent or attorney to charge the fee called for in the fee agreement of the parties, that party may initiate an appeal.

APPEALING ELIGIBILITY DETERMINATIONS

An appeal of an eligibility determination may be taken by either the claimant or the agent or attorney and is initiated by the filing of a notice of disagreement. There is a significant difference between this appeal and an appeal of the VA’s denial of a VA benefit; the notice of disagreement must be filed within 60 days of the VA’s decision as opposed to one year.

The notice of disagreement will result in the VA’s submission of a statement of the case. Another significant difference in this circumstance is that the time for filing a substantive appeal is 30 days and not 60 days.

BVA reviews these decisions and makes a new decision which is appealable to the CAVC.

It is important that both the veteran or claimant and the agent or attorney recognize that when such appeals are initiated, the parties will thereafter have different and competing interests and continuing representation will not be possible.

FINAL THOUGHTS

No one wants disputes over fees.

Disputes over fees are unpleasant for all involved.

In order to avoid fee disputes, ask questions before signing a fee agreement.

If you do not understand anything in the fee agreement, then do not sign it.

The law presumes that a signed contract has been read and understood.

Take the time to ask questions before signing a fee agreement.

Take the fee agreement to an attorney and ask that attorney to explain the things that you do not understand.

Agents and attorneys, particularly members of NOVA, do not want to have disputes about fees.

Agents and attorneys, particularly members of NOVA, want to assist veterans and their families in obtaining every benefit which they are entitled to under the law.

Agents and attorneys, particularly members of NOVA, do not want to spend years representing veterans and their families and then spend years litigating with their former clients over fees.

NOVA believes that this information is of value to anyone entering into a fee agreement for representation before VA in understanding the fee process. A copy of the statute and the regulation follows this information.

ADDITIONAL CONSIDERATIONS

During the course of an appeal, a veteran or claimant may desire to change representation.

Veterans and claimants should understand that, in some states, attorneys are ethically prohibited from discussing a matter with an individual who is currently represented by another attorney.

In some states, it may be necessary for the new attorney to confirm that the prior attorney/client relationship has been terminated before the new attorney may ethically speak to a veteran or claimant who has been previously represented.

This confirmation should be in writing, indicating the date that representation ended with a description of the matter(s) on which the veteran or claimant was represented.

It would also be advisable for a veteran or claimant to obtain from former counsel a written waiver of the contingent fee called for in the fee agreement with that attorney.

It is important that if you have had a prior fee agreement on an issue(s) that you inform the new attorney of that prior representation and confirmation of the termination of that relationship.

There can be a number of issues which can arise when the veteran or claimant has been represented by and had fee agreements with multiple attorneys.

It is in the interest of all parties that these issues be addressed at the beginning of the representation and not at the end of that representation.

It is better to avoid problems which might create litigation about fees after you have received your award of past-due benefits.

Why Hire a National Organization of Veterans Advocates (NOVA) Attorney, such as Tom Kiely, Esq.?

Wed, 23 Sep 2020 21:36:43 GMT

When contacting NOVA for assistance, veterans are referred to the NOVA Directory on our website, which provides a list of our sustaining members by State. To be listed in our directory, these attorneys and agents must meet certain practice and training requirements.

These members:

MUST be actively engaged in representing claimants pursuing VA benefits, and be accredited by the Department of Veterans Affairs and/or admitted to practice at the U.S. Court of Appeals for Veterans Claims (CAVC).
MUST agree to comply with minimum standards of practice in representation of a veteran, including a thorough review of the veteran’s claims folder and timely filing/responses to all VA- and CAVC-designated timeframes for filings, pleadings, and motions.
MUST attend one Continuing Legal Education (CLE) course every 24 months, which is specific to veterans law, and certify to NOVA the confirmation of such attendance.

Each NOVA member operates independently, so there are different procedures regarding intake, screening, and acceptance of cases. Because of their legal training, experience, and focus on veterans law, after a review of the veteran’s claim file, NOVA attorneys and agents know when a veteran’s claim(s) has merit.

As trained litigators, NOVA members assist veterans by obtaining vital military service records, military medical records, and independent medical opinions regarding veterans’ medical conditions. In cases where veterans have significant impairment, such as mental health conditions and brain injury, these attorney-provided services are essential in order to win the claim. In some instances, NOVA members’ representation of veterans results in significant changes in the case law, which improves the likelihood that future veterans will receive appropriate, prompt, and full disability compensation.

Attorneys and agents who attend NOVA’s semi-annual CLE seminars receive at least 24 hours of training each year by leading practitioners and experts who understand the latest developments in veterans law. Our members are trained to assess a veteran’s case thoroughly and argue the facts and law relevant to the veteran’s case at every stage of the VA appellate process. NOVA members also have the support and advice of NOVA and its fellow members, who are available to consult on strategies and interpretation of ever-changing VA law.

Representation by a NOVA member is not a guarantee that you will prevail. But, professional appellate advocacy by a well-trained, experienced NOVA attorney or agent ensures that you will have a knowledgeable advocate. Our members hold VA accountable by making sure that the Department applies its laws and regulations to your case correctly.

Congress intended VA to be a veteran-friendly benefits system. Unfortunately, VA has often subverted that intent. Veterans (and their beneficiaries) with VA appeals need and deserve a professional advocate who knows the law to navigate a complicated bureaucracy. Hiring a professional veterans law practitioner is definitely your best option for obtaining the benefits you or your loved one earned while serving and defending our country.

When to Hire an Attorney / Agent

A recent change in VA law now allows a veteran to hire an attorney or qualified agent once the VA's appeals process has been initiated; that is, once a veteran has filed a Notice of Disagreement (NOD) at his or her Regional Office (RO).

Click Here for a Summary of the Claims Process.

Unfortunately, the change in law (see 38 U.S.C.S. § 5904) only applies to claimants who filed their NOD on or after June 20, 2007.

If the veteran filed the NOD prior to June 20, 2007, then he or she must wait until the BVA issues a final decision before hiring an attorney or agent for a fe

How to Choose an Advocate

As a result of the change in the law, some newly-trained and inexperienced advocates are promoting free, or pro bono, representation for veterans before VA. This is different from veterans advocates who represent veterans for free only in front of the CAVC. Like any individual seeking legal assistance, veterans need to protect themselves from incompetent or incomplete representation. Important questions to consider at the outset are whether these pro bono representatives intend to continue learning and studying VA law. Another important consideration is whether they intend to continue with the veteran’s claim until the veteran receives the highest possible rating with the earliest possible effective date. Incompetent representation or representation for an artificially short time is no gift to the veteran and can actually result in harm.

Don't be afraid to ask questions and speak to a few potential advocates before you make a decision.

Why Professional Advocacy is the Veteran’s Best Option

Tue, 15 Sep 2020 16:32:39 GMT

Did You Know?

According to the Board of Veterans' Appeals Annual Report Fiscal Year (FY) 2017, veterans waited an average of three years for VA to resolve an appeal. If their appeal was resolved by the Board of Veterans' Appeals (BVA), they waited an average of seven years for an appeal to wind its way to resolution. No question, the length of time it takes to appeal an unfavorable VA decision has grown in recent years. If BVA does not resolve an appeal favorably, a veteran may choose to appeal to the U.S. Court of Appeals for Veterans Claims (CAVC) where, depending on the complexity of the case, a veteran could wait as much as another year or more for a decision. All said, if a claim for VA benefits is denied, a veteran can spend 10 years or more waiting for resolution.

Veterans who pursue their appeals for VA benefits without professional representation are at a severe disadvantage, because VA laws and regulations are complex, convoluted, and under constant change. For example, in August 2017, Congress passed the Veterans Appeals Improvement and Modernization Act, P.L. 115-55. As a result, as early as February 2019, the entire appeals process will change. NOVA is actively educating its members on what these changes mean and how to assist veterans in this new process.

Success Rates Improve with Professional Advocacy

Veterans have many options and agencies to help assist and represent them in securing their claims. However, veterans represented by attorneys have the lowest denial rate in front of the BVA, at 13.79 percent, well below the average 21.59 percent denial rate, according to the Board of Veterans’ Appeals Annual Report Fiscal Year (FY) 2017.

Veterans with attorney representation before the BVA also have the highest rate of allowances, at 39.49 percent, compared with the average of 29.94 percent. Veterans who are represented by claims agents also have a high success rate at 33.63 percent.

What Professional Advocacy Means to You

Your attorney or non-attorney practitioner advocates zealously on your behalf, answers your claim-related questions in a timely manner, and helps you understand (and obtain) the evidence needed to support your claim.
Your advocate analyzes your entire VA claim history and assesses the best and most efficient path to getting you ALL of the benefits you deserve – both those you know about AND those you don’t.
Your advocate assists you in providing sworn testimony at a hearing at the local VARO level or before a BVA Veterans Law Judge (VLJ).

The Law Gives Vets and Their Attorneys Tools to Contest

Robinson v. Shinseki holds a veteran who appeals while represented by an attorney must be treated the same way by the BVA as a veteran without an attorney.
Gambill v. Shinseki holds a veteran may submit written questions to the VA’s physicians to obtain information about their findings and assessments.
Stefl v. Nicholson holds VA medical examiners must consider presumptive and direct theories of service connection.
The process, while complex, is sympathetic to claimants, meaning that VA must read claims and appeals in the broadest way possible to ensure that veterans receive the most benefits to which they are entitled. Veterans with attorneys who have extensive knowledge of the claims and appeals process are the best suited to take advantage of this sympathetic environment.

Lastly, BVA uses attorneys to consider every appeal: it makes sense for a veteran to be on equal footing when their appeal reaches this important level of review.