Attorney Accreditation; Acts Requiring Accreditation
Question: I am an attorney not yet accredited by VA; however, in response to a request for representation by a veteran, I have filed a VA Form 21-22a (Appointment of Individual as Claimant’s Representative) with a VA Regional Office indicating my appointment as a claimant’s representative. What will VA do with my VA Form 21-22a until I am accredited?
Response: When VA receives a VA Form 21-22a from an unaccredited attorney, it will contact the claimant and advise him or her that VA will not recognize the unaccredited attorney as the representative of record until he or she is accredited. VA will advise the claimant that he or she may (1) seek other representation, or (2) proceed without representation until the attorney is accredited. VA will direct the claimant to http://www.va.gov/ogc/apps/accreditation/, VA’s Office of the General Counsel’s accreditation search page, as a means to find an accredited attorney, accredited agent, or accredited representative of a recognized veterans service organization. VA will not return a claims application because it was accompanied by the VA Form 21-22a of an unaccredited attorney.
Question: If an attorney’s practice consists solely of advising clients that they might be eligible for benefits and referring them to a recognized service organization or accredited agent or attorney, does the attorney need to be accredited?
Response: No. As a general rule, an attorney’s practice of advising veterans about VA benefits not involving a specific claim does not require accreditation. Aside from regulating admission to practice before the Department, VA’s accreditation authority is generally limited to regulating the conduct of individuals in assisting claimants with the preparation, presentation, and prosecution of claims for benefits and reviewing the fees and expenses charged for representation in proceedings before the Department. Reviewing a veteran’s records, researching available VA benefits, and advising a veteran as to potential benefits before he or she decides to file for a benefit is not part of the preparation, presentation, or prosecution of a claim, and as such, is outside VA’s accreditation authority. Accordingly, accreditation is not required for such consultation by attorneys.
Question: If an attorney works with pension benefit clients and advises clients as to eligibility requirements, but does not file the application for them, do they need to be accredited?
Response: Yes. In answering this question, we assume that (1) a “pension benefit client” means a veteran not currently receiving VA pension but one who has expressed intent to file for such benefit, and (2) that the advice provided includes those acts in making the claim ready for filing, but not the actual filing of the claim. Here, the advice constitutes preparation of a claim and therefore requires accreditation. This is because the advice is given in regards to a specific application for benefits rather than general advice not related to a specific claim. The difference is significant in that the purpose of VA’s accreditation program is to ensure that claimants for VA benefits receive qualified assistance in preparing and presenting their claims.
Question: Is VA accreditation required to assist a veteran in preparing his or her claim?
Response: Yes. Accreditation means the authority granted by VA to assist claimants in the preparation, presentation, and prosecution of claims for benefits. 38 C.F.R. § 14.627(a). Unaccredited individuals may provide other services to veterans so long as they do not assist in the preparation, presentation, and prosecution of claims for benefits.
Question: I am providing pro bono representation to a veteran. Does this require VA accreditation?
Response: Yes. Generally, all attorneys who assist claimants in the preparation, presentation, and prosecution of claims for VA benefits must be accredited by VA. An exception exists for attorneys who initiated representation on a claim prior to June 23, 2008 (effective date of VA’s final rules that implemented section 101 of Public Law 109-461 (Dec. 22, 2006)). Those attorneys need not seek accreditation for representation provided on that claim. Initiation of a representation before June 23, 2008 would be indicated by appointment on a VA Form 21-22a or an attorney’s letterhead.
Question: In a law office with attorneys and paralegals working under the supervision of a single VA-accredited attorney, who needs to apply for VA accreditation using a VA Form 21a (Application for Accreditation as a Claims Agent or Attorney)?
Response: Accreditation means the authority granted by VA to representatives, agents, and attorneys to assist claimants in the preparation, presentation, and prosecution of claims for VA benefits. 38 C.F.R. § 14.627(a). Without accreditation, an individual may not independently assist claimants in the preparation, presentation, and prosecution of claims for VA benefits.
VA regulations allow legal interns, paralegals, and law students to assist in the preparation, presentation, and prosecution of claims for VA benefits of claimants for benefits, but only under the direct supervision of the attorney of record, and with the specific written consent of the claimant. 38 C.F.R. § 14.629(c)(3). VA does not accredit these individuals. With the written consent of the claimant, attorneys affiliated or associated with the attorney of record may assist in the representation of the claimant, and may do so without the requirement for direct supervision by the attorney of record. 38 C.F.R. § 14.629(c)(2).
Thus, in a law firm where several attorneys and paralegals work on VA claims for a single accredited attorney properly appointed on a VA Form 21-22a as the attorney of record, each attorney must be accredited if their work involves assisting claimants in the preparation, presentation, and prosecution of claims for veterans benefits. Paralegals may assist the attorney of record subject to the written consent of the claimant but may not independently provide representation to claimants.
Question: Do VA regulations permit accreditation of attorneys licensed only in foreign countries?
Response: No. Although 38 U.S.C. § 5904(a) provides that the “Secretary [of Veterans Affairs] may recognize any individual as an agent or attorney,” VA regulations do not permit attorney accreditation based on membership in the bar of a foreign country.
VA’s accreditation regulations define an attorney as “a member in good standing of a State bar who has met the standards and qualifications in § 14.629(b).” 38 C.F.R. § 14.627(d). “State includes any State, possession, territory, or Commonwealth of the United States, and the District of Columbia.” 38 C.F.R. § 14.627(p). VA’s regulatory definition of the term “State” is in harmony with the statutory definition of the term. See 38 U.S.C. § 101(20) (defining a State as “each of the several states, territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico”). Because attorney accreditation is premised on membership in a State bar as defined by law, VA may not accredit attorneys based on membership in the bar of a foreign country.
Continuing Legal Education (CLE)
Question: Would you provide a list of CLE providers?
Response: We do not maintain a list of CLE providers. Contact your State bar association to obtain information regarding local CLE providers or search the internet for relevant courses.
Question: I live in a state that does not require CLE. Can otherwise qualifying veterans law training accredited for CLE in a State other than mine satisfy VA’s CLE requirement?
Response: Pursuant to 38 C.F.R. § 14.629(b)(1)(iii) and (iv), a qualifying CLE course must be approved for a minimum of 3 hours of CLE credit by any State bar association; therefore, CLE approved by a State other than the one in which you are licensed or admitted is acceptable for purposes of VA accreditation.
Question: Can otherwise qualifying CLE attended prior to my VA accreditation be used to satisfy VA’s CLE requirement?
Response: Because VA’s regulations require completion of qualifying CLE “during the first 12-month period following the date of initial accreditation by VA,” at this time, we cannot accept CLE courses taken before accreditation as satisfying the requirements of 38 C.F.R. § 14.629(b)(1)(iii).
Question: I teach a State-bar approved CLE course on veterans law. Does an attendee have to have the VA Form 21a submitted to your office before getting credit for attending a workshop/CLE course?
Response: Your question is more appropriately framed as whether an agent or attorney may complete qualifying CLE before accreditation. Because VA’s regulations require completion of qualifying CLE “during the first 12-month period following the date of initial accreditation by VA,” at this time, we cannot accept CLE courses taken before accreditation as satisfying the requirements of 38 C.F.R. § 14.629(b)(1)(iii).
Question: What specific proof of attendance and State bar approval is required by VA for purposes of accreditation?
Response: VA regulations do not specify a particular form of proof for verifying attendance at qualifying CLE. Instead, VA regulations require that accredited agents and attorneys certify in writing to VA’s Office of the General Counsel that they have completed qualifying CLE. The certification must include the title of the CLE, the date and time of the CLE, and identification of the CLE provider.
VA regulations do not specify a particular form of proof for verifying State bar approval of qualifying CLE. We note that State bar associations generally require sponsors of CLE activities to seek approval for the activity and communicate such approval to the sponsor in writing. In the event that VA would need to verify whether a State bar association had approved a particular veterans law course for CLE credit, VA would look for some sort of official communication from the bar association to the sponsor of the CLE activity granting approval for CLE credit.
Question: Does the presenter of the workshop get credit for presenting the workshop and providing the CLE or would he or she need to actually attend a different CLE course?
Response: VA regulations require the completion of qualifying CLE as a condition of accreditation. If a State bar association awards an individual credit for presenting qualifying veterans law CLE, VA will accept that for purposes of accreditation provided that it meets all the other requirements of 38 C.F.R. § 14.629(b)(1)(iii).
Question: Will VA accept for purposes of accreditation otherwise qualifying veterans law CLE distributed via means other than live, in-person conferences?
Response: Yes. Many States approve for CLE purposes courses distributed through a variety of technological means including, but not limited to, the internet, telephone conferences, CD-ROM, audio, and video. So long as a veterans law course has been approved for CLE credit by a State bar association and satisfies the requirements of 38 C.F.R. § 14.629(b)(1)(iii), VA will accept is for purposes of accreditation.
Question: Are there any guidelines in VA regulations that govern the content of the qualifying veterans law CLE?
Response: Yes, VA regulations prescribe the content required for qualifying veterans law CLE: “[t]o qualify under this subsection, a CLE course must be approved for a minimum of 3 hours of CLE credit by any State bar association and, at a minimum, must cover the following topics: representation before VA, claims procedures, basic eligibility for VA benefits, right to appeal, disability compensation (38 U.S.C. Chapter 11), dependency and indemnity compensation (38 U.S.C. Chapter 13), and pension (38 U.S.C. Chapter 15).” 38 C.F.R. § 14.629(b)(1)(iii).
Question: I am a CLE provider developing a program to satisfy VA CLE requirements. Do we have to include all the topics listed in 38 C.F.R. § 14.629(b)(1)(iii) to meet VA requirements?
Response: Yes. Section 14.629(b)(1)(iii) provides that the qualifying CLE attended taken during the first year after accreditation “at a minimum, must cover the following topics: representation before VA, claims procedures, basic eligibility for VA benefits, right to appeal, disability compensation (38 U.S.C. Chapter 11), dependency and indemnity compensation (38 U.S.C. Chapter 13), and pension (38 U.S.C. Chapter 15).”
VA does not require that a CLE presentation allocate the same amount of time to each topic. As long as all the topics in section 14.629(b)(1)(iii) are adequately addressed, a CLE provider may use his or her discretion in deciding how much time should be spent on a given topic. Such discretion is appropriate to account for different factors such as the experience level or practice focus of the CLE audience.
In addition to the initial CLE requirement prescribed in section 14.629(b)(1)(iii), VA requires the completion of follow-up CLE not later than 3 years from the date of the initial accreditation and every 2 years thereafter. In complying with section 14.629(b)(1)(iv), follow-up CLE may be dedicated to any topic within the broad “veterans benefits law and procedure” category.
Disclosure of Claimant Information
Question: I am a VA accredited attorney and currently represent many claimants in proceedings before VA Regional Offices, the Board of Veterans’ Appeals, and at the United States Court of Appeals for Veterans Claims. Each of my clients has properly executed a VA Form 21-22a appointing me as their representative of record. I employ an administrative staff and paralegals to help me in my practice, but VA call centers will not disclose claimant information to my staff. This seems impracticable given the number of claimants I represent. Why won’t VA disclose claimant information to my staff?
Response: Claimant information is protected by the Privacy Act, 5 U.S.C. § 552a, and by 38 U.S.C. §§ 5701 and 7332, and implementing VA regulations. Section 5701 provides that all claimant records are confidential and prohibits disclosure with certain exceptions. Section 5701 also provides that any disclosure of claimant information must be in accordance with the Privacy Act.
Under the Privacy Act, VA may not disclose claimant information without the express written consent of a claimant. However, the express written consent provided by a claimant for purposes of authorizing VA’s disclosure to an individual attorney appointed on a VA Form 21-22a does not extend to that attorney’s staff. Extending the claimant’s specific consent authorizing VA’s disclosure to a named attorney to the attorney’s staff constitutes an impermissible form of “implied consent” prohibited by the Privacy Act. In such a situation, the attorney, not the claimant, would be authorizing VA’s disclosure of the claimant’s protected information to his or her staff based solely on employment affiliation, a result not contemplated by the Privacy Act.
Question: When is a fee agreement considered effective?
Response: For purposes of whether a fee agreement is subject to the accreditation and fee regulations found at 38 C.F.R. §§ 14.626-14.637, a fee agreement is considered effective the date on which the parties entered into a legally binding contract under the laws of the appropriate jurisdiction. Note that this assumes the other requirements in 38 C.F.R. § 14.636(c) have been satisfied.
Question: How do I submit fee agreements?
Response: Fee agreements may be mailed to the Department of Veterans Affairs, Office of the General Counsel (022D), 810 Vermont Avenue, NW, Washington, DC 20420. As an alternative, fee agreements may be submitted by sending a pdf version of the document to the following e-mail address: FeeAgreements.OGC@va.gov. The format for naming the scanned fee agreements shall be as follows:
Attorney last name.Client Last Name,Client First Initial.Date Agreement Signed.
For example, if your last name is Smith, the client’s name is Frank A. Jones, and the fee agreement was signed on March 5, 2008, you would save the pdf file as “Smith.Jones,F.3-5-08.pdf.”
The only document that you should send to the Office of the General Counsel is the fee agreement. All other documents relating to the adjudication of a claim must be filed with the Board of Veterans’ Appeals, or other VA office as appropriate. See 38 C.F.R. § 14.636(g)(3).
Please note that this 38 C.F.R. § 14.636(g)(3) filing requirement is separate and distinct from the filing requirements for direct-pay fee agreements. For direct-pay fee agreements, submitting a fee agreement to the Office of the General Counsel does not obviate the requirement for filing the fee agreement with the agency of original jurisdiction. See 38 C.F.R. § 14.636(h)(4). For direct-pay, an agent or attorney must also provide to the regional office a copy of the direct-pay fee agreement.
Question: I represent clients at the Court of Appeals for Veterans Claims (Veterans Court) only; do I need to provide VA’s Office of the General Counsel with a copy of the fee agreement?
Response: Because our authority to regulate representation extends only to practice before VA Regional Offices and the Board of Veterans’ Appeals, 38 C.F.R. § 14.636(a), VA does not require attorneys to provide the Office of the General Counsel with copies of fee agreements for representation provided solely before the Veterans Court. If the fee agreement, in addition to covering representation before the Veterans Court, also includes provisions for representation before the Regional Offices or the Board of Veterans’ Appeals, however, agents and attorneys must provide the Office of the General Counsel with a copy of the fee agreement.
The Application Process
Question: May I submit my application for accreditation via facsimile?
Response: Yes. You may fax a completed application for accreditation to (202) 495-5457.
Question: May I submit an application for accreditation via e-mail?
Response: Yes. You may send a pdf version of the document to OGCAccreditationMailbox@va.gov.
Question: How long does the attorney accreditation application process take?
Response: We are currently making attorney accreditation determinations on complete applications with accurate information in 60-90 days.
Question: What if I don’t know three people who can attest to my character and qualifications?
Response: We cannot process applications that are incomplete. An application that is submitted without the required references will be considered incomplete unless the applicant provides an acceptable written explanation for being unable to list references.
Question: What if my references don’t understand veterans law and therefore are not qualified to attest to my qualifications as an attorney?
Response: Because the regulation allows you to take the qualifying CLE up to 12 months after accreditation, your references need only be able to attest to your character and qualifications as an attorney – not necessarily as a veterans law attorney.
Question: Why do I have to provide references as to my qualifications if I have been certified by the State bar?
Response: Although VA will generally accept a State bar’s character and fitness determination, 38 C.F.R. § 14.629(b)(1)(ii), it may be necessary to speak with references if the information provided by the applicant raises questions about his or her fitness to practice before VA.
Question: May an accredited agent or attorney charge fees for preparing a claims form?
Response: No. Accredited agents and attorneys may only charge fees for representation. VA regulations define “representation” as those acts associated with representing a claimant in a proceeding before VA pursuant to appointment on a VA Form 21-22a, “Appointment of Individual as Claimant’s Representative.” Generally, to charge fees for representation before VA, an agency of original jurisdiction (AOJ) must have issued a decision on a claim and a claimant must have filed a notice of disagreement (NOD) on or after June 20, 2007, with respect to that decision.
Question: Can attorneys assist with and charge to help veterans complete and file the EVR (eligibility verification report) at the end of each year?
Response: Accredited attorneys may assist with filing the EVR, but in most cases may not charge claimants for doing so. As a starting point, VA accreditation is required to assist claimants in the preparation, presentation, and prosecution of claims for benefits before VA regardless of whether fees are charged. Unless the EVR is being prepared subsequent to an adverse decision of an AOJ involving a pension claim and the claimant has filed a NOD regarding that decision, no fees may be charged for such assistance.
Question: If a current service connected veteran/widow who is receiving compensation wants to see if they would be eligible for additional service connected benefits or for a change in benefit to pension with aid and attendance, can an attorney charge to assess whether they would be eligible for the different or increase in benefits?
Response: No. As discussed above, unless the assistance is provided subsequent to an adverse decision of an AOJ involving a claim and the claimant has filed a NOD with respect to that decision, no fees may be charged for such assistance.
For further questions or comments, please email us at OGCAccreditationMailbox@va.gov