Frivolous Claims. Introduction. PL 109-461 (12/22/06) allows attorneys to represent veterans before VA for a fee after NOD is filed. VA required to create Regulation (Rule) to implement new law. Proposed Reg. published 5/7/07
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According to VA, purpose of reg. is to fulfill Congress mandate that attorneys and agents may be paid for services rendered after NOD is filed while ensuring that claimants seeking VA benefits have responsible qualified representation.
Governs behavior and accreditation of lay advocates and attorneys.
Governs fees that attorneys and agents may charge.
The 2008 regulation, 38 CFR 14.633(c)(4), states that
“Accreditation or authority to provide representation on a particular claim shall be canceled when the General Counsel finds, by clear and convincing evidence,” that an attorney, agent or service representative knowingly presents to VA a frivolous claim, issue or argument.
VA response – vet’s right to representation does not include right to representation for frivolous claims. Plain language of section 5904(b)(6) made applicable to representatives by section 5902(b)(2), provides that VA may suspend or exclude agents and attorneys who present a frivolous claim, issue or argument.
In the Committee Report accompanying the predecessor bill to S.3421, S.2694 the Senate Committee on Veterans’ Affairs specifically recognized the adverse impact that frivolous claims filed by service organizations have on VA’s system of adjudication. See S. Rep. No. 109-297, at 17 (2008) (“service organizations must ensure that *** frivolous claims are removed so that valid claims are not needlessly delayed”)
Noting the growth in the number of claims filed with VA, the Committee resolved that “requiring all veterans’ representatives to advocate responsibly, by avoiding frivolous claims, arguments, or issues, could be of significant help in ensuring that valid claims are not needlessly delayed.”
To the extent that the existence of a State or local law requiring an organization to provide representation conflicts with the prohibition on the filing of frivolous claims under section 5904(b)(6) and 38 CFR 14.633(c)(4), we do not agree that a change is necessary. Federal law generally preempts the application of State law by virtue of the preemption doctrine. See U. S. const. art. VI, cl.
“Like agents and attorneys, VSO representatives must inform themselves about the facts of each case and the applicable law, and before providing further representation, determine whether they can make a good faith argument in support of a claim.”
VA interprets “good faith” as “honesty of purpose” and “freedom of intention to defraud.” Black’s Law dictionary 477 (6th ed. 1991). In the event that a good faith argument cannot be made, reps must withdraw from representation or assume the risk of suspension or exclusion from further practice before VA.