Sunday, October 10, 2010
Legal Issues with Veterans Benefits
by Anne Pagnoni
Federal law dictates that no one may help a veteran in the preparation, presentation and prosecution of an initial claim for VA benefits unless that person is accredited. The only exception to this law is that any one person can help any veteran -- one-time only -- with a claim. To help any veteran a second time requires accreditation.
VA recognizes 3 types of individuals for purposes of accreditation.
(1) Accredited attorneys
(2) Accredited agents and
(3) Accredited representatives of service organizations. (Veterans Service Officers)
In order to be accredited to help veterans with new claims, an individual desiring this certification from VA must submit a formal application, must meet certain character requirements and work history requirements and -- except for attorneys -- must pass a comprehensive test relating to veterans claims and benefits. There are also requirements for ongoing continuing education.
Without accreditation no one may help a veteran with a claim more than one time.
What Does It Mean to Help a Veteran with a Claim?
VA interprets its prohibition on preparing, presenting and prosecuting a claim to mean that talking to a veteran or a veteran's qualifying spouse or dependent after that person has indicated an intent to file a specific claim for benefits requires accreditation. Anyone can talk about veterans benefits in general with any veteran and need not be accredited. The point at which discussion narrows down to specific information about the veteran's service record, medical conditions, financial situation including income and assets and other issues relating to a claim specific to a veteran or dependent triggers accreditation. According to VA, discussing the specifics of the claim means that the veteran has expressed an intent to file an application for veterans benefits, and at this point, the consultant helping the veteran must be accredited.
Stated again: An individual cannot advise a veteran or other eligible beneficiary about that person's specific claim for VA benefits unless that individual is accredited.
It does not matter whether physical help with filing the claim is provided or not. The need for accreditation occurs at a much earlier stage than becoming physically involved in the claim. For a better understanding of how VA General Counsel interprets the need for accreditation please go to the VA Office of General Counsel Website -- Frequently Asked Questions about Accreditation at http://www4.va.gov/ogc/accred_faqs.asp
Working under the Umbrella of an Accredited Attorney or Accredited Claims Agent
Many individuals or organizations who are not accredited and who are promoting and helping veterans obtain their benefits are often attempting to work under someone who is accredited. Most of these individuals are doing it wrong and not complying with the law.
These individuals make sure that the application is done by an accredited attorney or an accredited agent. In some cases, non-accredited individuals will refer veteran households to a local veterans service officer (an accredited representative of a service organization).
Unfortunately, most individuals who are not accredited and who are operating with someone who is accredited are still illegal. This is because the non-accredited individuals become involved in the claim by providing advice after an intent to file and in many cases they help gather documents and other pertinent information. As mentioned above, these activities require accreditation. The only way that a non-accredited individual can operate legally to assist someone who is accredited is to immediately refer a veteran or dependent to an accredited person when first understanding an intent to file a claim. No additional help or advice may be given after the intent to file has been recognized.
Many accredited attorneys are also not operating legally. Only an accredited attorney -- one-on-one with the client -- may be involved with a claim. Anyone else, inside or outside of the office, cannot assist with the claim except under certain limiting conditions. Specifically, in order to work under an attorney, a non-accredited assistant must either be another attorney in the office, a certified paralegal in the attorney's office or an office law student or an intern. The client must also sign a consent letter allowing this arrangement. This consent must be filed with the original application. No other arrangement is allowed. Please see 38 CFR § 14.629 for an explanation of this requirement.
Charging a Fee for Help with Filing a Claim
Generally, no individual or organization may charge a fee for help with filing an initial application for benefits. There is only one exception to this rule and that is under the third-party exemption in 38 CFR § 14.636 (d). The requirements under this exception are very specific. In our opinion, no one that we know of, who is charging a fee, thinking he or she is operating under this exception, is doing it legally. Here are the ways these people are violating this law. (In most cases those who are operating illegally are engaging in all 4 of these unlawful activities.)
(1) The person paying the fee is not a disinterested third party as required by law.
(2) The person filing the claim is not submitting the fee agreement to VA general counsel as required.
(3) The person filing the claim is not submitting the disclaimer to General Counsel as required.
(4) The fee is contingent upon a percentage of the amount of the approved benefit.
We are seeing various financial arrangements for filing claims that are disguised fees in one way or another. As a general rule, anyone who would directly benefit financially from helping a veteran file a claim -- whether a direct fee is charged or not -- is in essence charging a fee. We know from numerous discussions with representatives, this is the way VA General Counsel treats these arrangements.
If you are working with someone who is not operating legally as outlined above, you should stop using that person's services. If you yourself are operating in a manner that is not in accord with the conditions outlined above, you must stop doing that. You're not legal. Not only could unauthorized individuals get a notice to cease and desist but in some cases there could be fines or legal action involved as well. It's not worth it. For help with accreditation issues you can contact the National Care Planning Council at firstname.lastname@example.org.