Benefits

When it is Illegal to Assist Veterans with Benefits

You might see ads or receive a flyer offering assistance in applying for veteran’s benefits.  Most of those offers violate federal law. 

Personnel at Assisted Living Centers and Nursing Homes can inadvertently run afoul of the law by helping veteran clients apply for VA benefits. For the most part, these are well-intentioned people who know a veteran needs benefits to pay for his or her care, but that veteran is unable to gather the relevant documents and fill out the forms without help.  They may think they are just doing the leg work to get the claim ready for an accredited attorney to process.  They believe their actions are not legal because they are just helping out. However, by collecting documents, locating claim forms and helping with paperwork, those people violate federal rules in 38 CFR § 14.630 and 38 U.S.C. § 5903. This article is designed to help you understand who can help with your application for benefits, when help is legal, and when fees can be charged for assistance.

Only Accredited Individuals Are Permitted to Assist With Applications.

The federal law is clear.  No one is allowed to help a veteran in the preparation, presentation, and prosecution of an initial claim for VA benefits unless that person is accredited under the law. (38 USC § 5901).  The only exception to the rule is a provision allowing one person to assist one veteran one time only.  Any effort to assist with a second claim requires accreditation.  Helping with a claim is very broadly defined under the law and as that law is interpreted by the VA’s General Counsel.  In addition to preparing paperwork and presenting a claim, the prohibition on assistance includes things like gathering documents, discussing financial needs, reviewing the service record, discussing the claims process and giving advice on a claim to a veteran, surviving spouse, or dependent. The following 3 types of agents are recognized by the VA:

  • Accredited Attorneys
  • Accredited Agents
  • Accredited representatives at Veterans Service Organizations.

How does one become accredited?  To earn the legal ability to assist with new VA claims, a person must submit a formal application, meet requirements for character fitness and work history.  Everyone except attorneys must take a written exam on VA benefits and claims.

If an accredited attorney is working on a claim, his secretary, assistant, and investigator are not permitted to meet with the veteran or assist with the claim in any way.  The only members of the attorney’s staff who may work on the claim are certified paralegals and law students interning at the firm.

A claimant is defined as an individual who has expressed an intent to file a claim.  That means once the veteran says: “I am going to file a claim,” “I think I’m ready to file a claim,” or any similar statement, unaccredited people may not offer advice, fill out forms, or do anything toward preparing or processing a veteran’s claim. The bottom line is this.  Except for that one veteran, one-time exception, no one can help a veteran file an initial claim except for accredited individuals.

When Is It Legal To Charge A Fee For Assistance?

It is never legal to charge a fee to help with an initial claim.  It doesn’t matter if the helper is an attorney or accredited agent.  Charging a fee to assist with preparing filing or prosecuting an initial claim is illegal under federal law.  Until February 19, 2019, 38 U.S.C. § 5904(c)(1) stated that the applicant must receive a “notice of disagreement” from the VA before fees can be charged.  With the implementation of the Veterans Appeals Improvement and Modernization Act, that rule has been slightly modified.  Now, veterans can hire an attorney as soon as they learn their claim is denied.  They no longer need wait for a formal “notice of disagreement.”

 A VA claims appeal has three stages, and a claimant can hire representation at any stage: (1) the regional office stage, (2) at the Board of Veterans Appeals, or (3) when the claim reaches the U.S. Court of Appeals for Veterans’ Claims.

Who Is Allowed To Charge A Fee?

Only VA accredited attorneys and agents may charge, and all fees must be approved by the Office of the General Counsel in Washington, D.C.  Veterans need to be alert for “home health care organizations” or “financial planners” offering to assist with VA claims.  Sometimes, home health care organizations will handle the claim, but they also take some of the money meant for actual health care providers.  Financial planners will sometimes offer to handle the claim if the claimant or one of the claimant’s family members purchases an annuity or some other financial product.  These are illegal, back-door methods of charging fees.  If you receive such an offer, report it immediately to the Office of General Counsel for the Department of Veterans Affairs.

Fees Must Be Reasonable And Documented With A Signed Fee Agreement.

The terms of fee agreements are regulated by federal law.  38 C.F.R. § 14.636(g).  Both the accredited attorney or agent must sign the agreement along with the claimant. The following items are required to be included in the fee agreement: 

  • The name of the veteran.
  • The name of the claimant or applicant if other than the veteran.
  • The name of any disinterested third-party payer and the relationship between the third-party payer and the veteran, claimant or appellant.[1]
  • The applicable VA file number.
  • The specific terms under which the amount to be paid to the attorney or agent is to be calculated and determined.

The fee may be an hourly fee, a contingent fee, or a combination of both – so long as the fee is reasonable under VA standards.  The VA uses specific factors in determining if a fee is reasonable.

  1. The extent and type of services performed;
  2. The complexity of the case;
  3. The skill level required in the representation. (Perhaps, the claimant has a complex     medical history that requires special knowledge);
  4. How much time the representative must put into the case;
  5. The result achieved by the representation;
  6. How far up the review process the claim went before settlement, and when in that process the agent or attorney was retained;
  7. Rates charged by others for similar services;
  8. To what extent, if any, the fee is contingent on the result.

Some fees are presumed to be reasonable.  If the fee does not exceed 20% of the past due benefits awarded, it is presumed reasonable.  Fees of more than 33 1/3% are considered unreasonable.  If there is a dispute between the attorney and the claimant over the amount of the fee, the VA Office of General Counsel will decide the issue.  The General Counsel may order a fee to be reduced if it considers the amount unreasonable.

Before you sign a fee agreement with an accredited attorney or agent, read it carefully.  Ask questions before you sign on the dotted line.  Keep in mind that costs and fees are two different things.  Costs include charges for records and expenses incurred by the attorney or agent in taking the claim up the appeals ladder. While you may or may not incur those types of costs, ask up front how costs are to be handled.  The more you know going into a representation, the better off you are.

Resources

www.va.gov/disability/get-help-filing-claim/

www.veteransaidbenefit.org/about_accreditation_and_fees.htm

www.va.gov/OGC/docs/Accred/PensionProgram_Representation.pdf

www.blogs.va.gov/VAntage/56694/vas-appeals-modernization-act-takes-effect-today/

 

[1]  The VA defines a disinterested third-party as an organization or person who has no financial interest in the claim but chooses to pay the attorney or agent’s fee.  It cannot be a family member.  It may be a charitable foundation or other such disinterested party.

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This website has been prepared for general information purposes only. The information on this website is not legal advice. Legal advice is dependent upon the specific circumstances of each situation. Also, the law may vary from state-to-state or county-to-county, so that some information in this website may not be correct for your situation. Finally, the information contained on this website is not guaranteed to be up to date. Therefore, the information contained in this website cannot replace the advice of competent legal counsel licensed in your jurisdiction.

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