Attorney Fees, Costs, and Accreditation
Robert Chisholm: Good afternoon and welcome to CCK live, joining me today is Zachary Stolz and Bradley Hennings. In today’s episode, we are discussing representation for the Department of Veterans Affairs and the Court of Appeals for Veterans Claims. We are going to break down different options for representation before the VA. What accreditation means? What about cost and fees, we are going to discuss that as well and different types of representation.
Robert: We are also going to go over some important questions to ask a potential representative and red flags to be warned of and the benefits of having representation for your VA claim. Brad, can you start off by telling us what accreditation means and why it is important for a claimant or veteran in a claim before the VA.
Bradley Hennings: Thanks, Robert. Accreditation is key. It is important to note your representative must be accredited by VA. It is a requirement that the Department of Veterans Affairs have and what that means is that person has the legal authority to prepare, present and prosecute claims before VA on behalf of veterans, dependents and their survivors. So, these accredited representatives are trained to help claimants understand and pursue the VA benefits to them.
Bradley: So, that raises the question of how does this accreditation process work? What is involved and what is involved is an individual has to apply to the VA Office of general counsel. They have to provide a self-certification of admission information concerning practice before any other court bar or state or federal agency and that is if it is an attorney that is applying to be accredited. There has to be a determination of permanent determination of character and fitness by the VA and if it is a non-attorney practitioner or non-attorney that is applying for accreditation, they have to take a written examination and pass that written examination deals with various aspects of the VA claims process, compensation and pension programs that the VA has.
Bradley: Now, if someone is not accredited by VA, they are not allowed to represent veterans in this capacity. So, no accreditation means they should not be representing veterans before VA. So, how can you determine if your representative is accredited and what you want to do is you want to go to VA’s website, the office of the general counsel has a website where you can look and see who is accredited and if your representative is on there or your potential representative is on there. You are good to go.
Robert: So Brad, I think it is important to emphasize that if someone is not accredited, they cannot represent someone before the VA. That applies to both agents that have to get accredited, that applies to attorneys, they have to be accredited.
Bradley: Much like courts require attorneys to be admitted to them for example, in different states, VA is exactly the same way. Even if you have a family lawyer, let us say. If they are not accredited by the VA, they will likely not be able to represent you in a VA claim.
Robert: Zach, can you tell us the different types of accredited representatives that can potentially represent a veteran or a claimant before the VA?
Zachary Stolz: Yes, it gets a little bit complicated because there are several entities that can represent veterans as well as individual attorneys and agents. So, the nomenclatures can start to get a little bit confusing. Traditionally, who is represented veterans and who continue to do the bulk frankly of representation of veterans at the agency level are VSO’s which are Veterans Service Organizations. These places are very familiar to most Americans, people see the American Legion doing its work, the Veterans of Foreign Wars doing its work, the DAV or Disabled American Veterans doing its work. These are Veteran Service Organizations, they are chartered by Congress and in particular, DAV has a very strong core of Veteran Service Representatives who are licensed before the Department of Veterans Affairs by virtue of being affiliated with using DAV as our example with DAV and they are able to be co-located at most regional offices across the country and they provide their services free of charge for veterans and they have been as I said, the traditional bulwark of representation of veterans claims across the country for many years.
Zachary: It is only pretty recently that attorneys and accredited agents have been allowed into the process at the agency. They were always able to represent veterans free of charge, attorneys were but it was not until very recently that attorneys were able to start charging fees and therefore became a little bit more enticed to do work at the agency level. So, people should be aware of Veteran’s Service Organizations. These Veteran Service Organizations operate sometimes at the county level as well as at a national level, and they are able again through their affiliation with the Veteran Service Organizations.
Zachary: These veteran service representatives are able to go ahead and help veterans through the claims process. A difference between them aside from the charging of fees, the most agents and attorneys in our experience are going to want to charge fees because that is how they are able to make a living at representing veterans. Another key difference between the two, when a veteran or a veteran’s spouse or who ever is going to enter the VA process executes a 22-A which is the form that we use to designate who is representing the veteran before the agency. They were able to designate DAV, for example or VFW to represent them. Whereas, for an agent or an attorney, they need to actually have the name of that agent or attorney.
Zachary: For example in our case, Robert Chisholm is the person on the 22-A that represents that veteran. There are several movements of foot to maybe get that changed but as of right now, the 22-A designates an individual and you are going to want to do that as Brad said whether you choose to retain an accredited agent or an attorney if you are not being represented by a VSO, you want to make sure that you have an individual named on the 22-A, the person that you want to represent you. It can get a little bit confusing but be sure that you do that and again, be sure to check and make sure that the person is an accredited agent with the Department of Veterans Affairs.
Zachary: The last thing you want to do is start going down the road with somebody who may not have some experience in this or who may just not ever be recognized by VA to be able to properly handle your case. The CAVC, The Court of Appeals for Veterans Claims also allows, it is one of the very few federal courts in our country that allows for non-attorneys to represent you at court. However, unlike at the agency level which is the regional office or Board of Veterans Appeals. That is what I mean when I say agency level. When you get to the next step of the appeals process which is the Court of Appeals for Veterans Claims, you can have a non-attorney represent you but that non-attorney needs to be able to be affiliated with an actual licensed attorney to sign the pleadings for you.
Zachary: So, it gets a little bit complicated at the CABC. You are going to want to really be careful about who you choose to trust with that part of the process but it is something that is an interesting part of veterans law is that federal court does allow non-attorneys to practice before it and there are several that are licensed to practice there and do a very, very nice job on behalf of our nation’s veterans.
Robert: Zach, you mentioned the forms that are required to be signed in order for a veteran or a claimant to be represented before the VA and there is really two different forms here. If a veteran or a claimant wants to be represented by a Veteran Service Organization, they need to sign what is called a VA form 21-22. If a veteran or claimant wants to hire and have a attorney or credited representative agent to represent them before the VA, they need to sign a different form a 21-22A. Unless one of these forms are signed, the VA will not recognize either the Veteran Service Organization or an attorney or an accredited agent.
Robert: So, I think it is really important to point out that a person could sign a fee agreement that says, I agree to represent claimant A in this matter before the VA but unless and until that person also signs VA form 21-22A, VA will not recognize and allow that person to be represented by an attorney or an agent. So, make sure that you sign one of these two forms when you hire either a VSO or an attorney or an agent. Brad, this leads us really to the next step in the process when you are hiring a VSO or an attorney and agent and can you talk a little bit about how fees and or costs work in the VA system?
Bradley: Yes, I think there is something really important to note up front and that is that no one can charge veterans for assistance in filing initial claims and no one can take any portion of your future VA monthly payments. It is really important because there is folks out there who do not necessarily abide by that.
Robert: Can you just describe what you mean or what VA means when we are talking about an initial claim because I think that can be confusing to people.
Bradley: What they are talking about is when a veteran files a claim for a benefit and say benefits for their back condition that they incurred during their service, they file an initial claim requesting benefits and VA then ultimately issues a reading decision. So, that that is really what VA is talking about there. It is prior to any of these cases being on appeal as we call them.
Robert: But there is no problem with a veteran or a claimant going to an attorney or VSO and having them help with the initial claim as long as there is no fee charge.
Bradley: Exactly. They can certainly assist but you cannot base your fee upon any of the work done prior to that initial claim. I think that is really important because the only people who can legally charge fees in the VA system are accredited attorneys and accredited claims agents. Veteran Service Organizations as Zach said like our friends at DAV, they do not charge fees associated with this. Again, there is a lot of folks out there who do charge a fees prior to an initial claim. They are not accredited and according to VA that is not allowed by the law.
Bradley: The statute does not permit charging those kinds of fees. So, that gets into, “Okay. How much can an agent or attorney charge?” And the regulations that VA put forward that says that fees that do not exceed twenty percent of any past due benefits will be presumed to be reasonable. If the agent or attorney provided representation that continued through the date of the decision awarding benefits. So, most of the time when attorneys or agents are representing veterans at VA, they are engaged in what we call a contingency fee arrangement meaning that if a veteran wins their case, they get retroactive benefits meaning benefits that go back to their date of claim and the attorney or agent is entitled to a percentage of those benefits, and that is the total fee.
Bradley: It does not affect any of the veterans compensation on a monthly basis going forward. So, it is presumed that anything up to twenty percent is presumed reasonable and fees which exceed thirty-three point thirty-three percent or thirty-three and a third, anything that exceeds that are presumed to be unreasonable. That being said, there are times where it will be found to be reasonable. We are just talking about presumptions and the same thing with the twenty percent, if you take a twenty percent fee and have literally done nothing. I mean, nothing in the case that may not be reasonable but generally speaking, those are the guidelines.
Robert: So Brad, I just want to make sure that I have this down and that veterans and claimants understand that generally speaking, an agent or attorney is going to charge a contingency fee out of the retroactive amount of the benefits. So, if someone is charging fees out of future benefits, so you get an award and increase say from fifty to a hundred percent and someone wants a portion of that for four years into the future, that is now allowed.
Bradley: That is correct. That is prohibited by law, you can only receive a fee on these lump sums of retroactive benefits and you cannot charge for the benefits that the veterans going to receive into the future.
Robert: Zach, that brings us to what factors will VA look at to determine whether a fee is reasonable or not?
Zachary: Yes, this can become a pretty interesting area pretty quickly because the factors that agents and attorneys tend to work almost exclusively on contingency agreements in this line of work. It is like a plaintiff’s type of law. So, as Brad and Robert both talked about, both agents and attorneys when acting ethically are going to take a percentage of past due benefits awarded as a fee but that is not the end of the story because different amounts of work going to different amounts of victories and it can become complicated pretty quickly. So, you need to look at a little bit of a totality of the situation to determine what is in fact reasonable.
Zachary: So, I have them written down here. So, excuse me while I make sure that I follow my notes so that I do not miss any of them. Courts have struggled with this for many decades now, there is a lot of cases from both the federal circuit and the Court of Appeals for Veterans Claims about this and then there are also ethical rules of reasonableness that attorneys are held to from which VA kind of gets the guidelines that employers to ensure that somebody is charging you a reasonable fee. They look at the extent and the type of service a representative performed, the complexity of the case and many veterans cases get extremely complex very, very quickly which helps for agents and attorneys to be entitled to the fee that they charge but level of skill and competence required of the representative and giving the services the amount of time that the representative spent on the case, the results the representative achieved including the amount of any benefits recovered, the level of review to which the claim was taken and the level of the review at which the representative was retained as a fancy way of saying how many different levels of appeal did you go through whether it was something that happened very quickly at the regional office level or whether there was an appeal involved to a higher level review in the A and B new system or to the Board of Veterans Appeals or to the Court of Appeals for Veterans Claims or to the United States Court of Appeals for the federal circuit or to the United States Supreme Court.
Zachary: By the time you get through all of these many years of litigation if unfortunately it becomes necessary. Obviously, that would mitigate in favor of a representative being able to be entitled to the full fee that he or she agreed to with the veteran. Rates charged by other representatives for similar services whether and to what extent the payment of fees is contingent upon the results achieved and if applicable, the reasons why an agent or attorney was discharged or withdrew from representation before the date of the decision awarding benefits. This is really frankly ninety-nine point nine percent of the time, veterans attorneys and their agents have agreed to a reasonable fee. The attorney or agent does a really nice job for the veteran, the veterans are not going to have any problem paying the fee.
Zachary: However, that not how life works sometimes and sometimes an attorney may be discharged and veteran becomes dissatisfied with his or her representation. You can fire your lawyer, you can fire your agent, this is all about the client and a veteran client can always fire somebody for whatever reason they want to. However, once the attorney or agent is fired, it does not mean that they are not entitled to a fee that they may have worked on. So, VA will and the courts will look to see if an attorney or agent did some level of work that led to the ultimate award of benefits. So, even if you fire an attorney often times, the fired attorney will move on with their lives and both parties can proceed with representation that they are comfortable with but occasionally, there is going to be a discharged attorney that is going to be entitled to a fee and be able to take that into account as well. So, something to be aware of.
Robert: Thank you, Zach. We are going to pivot now and talk about what questions you should ask when you are going to hire a representative? First and most importantly is this individual organization accredited? And you can confirm that as Brad said by looking up on the Office of General Counsel website to see whether they are credited. When did they received the accreditation? Was it a week ago? Was that a year ago? Was it five years ago, ten years ago and that gets to the next question is how long have you been practicing veterans law?
Robert: Veterans law is very dynamic, it keeps changing. Why does he keep changing? For a few reasons. One, congress keeps updating the statutes. So, the most recent change was in how the whole appeal system worked? For over fifty years, there was one way to do appeals but starting in February 2019, everything changed and we are in a new world of how appeals work. So, you want to have someone that understands both the old world and the new world. When was the last time this person attended a veteran’s law training? Are they a member of the National Organizations of Veteran’s Advocates who do two seminars a year? Will this individual only represent me before the VA or will they also represent me should we lose at the Court of Appeals for Veterans Claims or at the federal circuit? These are all things to consider in hiring a representative. Brad, can you tell us some of the benefits of having an accredited representative help on a case as supposed to going on your own per se.
Bradley: Well, one of the benefits of having an accredited representative is there is a certain amount of quality assurance that is baked in that the VA thinks is important and the expectation is that if you have got an accredited representative, they are knowledgeable about VA claims. They are knowledgeable about the appeal system, will be good in helping you meet deadlines and most importantly they are going to be knowledgeable about helping you develop your claim which is really key that they are going to help you get medical records, service records, lay statements, expert reports potentially and then shape this into the strongest claim possible. So, you can win the benefits that you are entitled to.
Bradley: In addition, an accredited attorney or agent can get access to the VA systems which includes the veterans benefits management system, which is now the electronic version of the veterans claims file so they will have real-time access to what is actually going on within VA zone systems. Non-accredited representatives cannot get that access. In fact, getting that access is very difficult even once your accredited intake many layers of review, it can take months and months and months but it is incredibly important thing to be able to access the veteran or the clients records within the VA system.
Bradley: You can also get status updates about your case through an accredited representative and most importantly, they are going to help you to fully pursue your claim to get you the maximum benefits available, everything from potentially total disability to do due to individual unemployability, maybe a hundred percent rating, maybe different levels of special monthly compensation.
Robert: What we are sharing here today and what we have shared here today is things to consider in hiring a representative. We talked about accreditation, we have talked about fees, we talked about the benefits of hiring someone who is accredited to help on a claim whichever path you choose. We believe that with the new appeal system, it is best to get some help and it is best to get someone who is accredited to help you, whichever way you choose whether it is a Veteran Service Organization, an accredited agent or an attorney. Zach, do you have any final thoughts you would like to share?
Zachary: I do not, good luck out there. This is a very complicated area of law and made much more complicated by congress’s recent actions in passing the appeal’s modernization act. Hopefully, what that all does is it does end up helping veterans out but for right now, it is a new system and so it is going to be a little bit complicated so careful out there.
Robert: Brad, any final thoughts from you?
Bradley: Just get an accredited representative like you said Robert. There is a lot of folks out there, unfortunately who are not accredited and I do not think that they are helping veterans in a way that is meaningful or appropriate.
Robert: Well, Zach and Brad. Thank you both for joining us here at CCK live. Please check out our blog, check out our YouTube channel, follow us on Facebook, Instagram and Twitter. This is Robert Chisholm signing off from Chisholm Chisholm and Kilpatrick. Thank you all.
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