---
kind: "range"
citation: "38 C.F.R. §§ 14.631–14.637"
title: "38"
from: "14.631"
to: "14.637"
count: 7
url: "https://uscodex.org/cfr/38/14.631..14.637"
---

# §14.631. Powers of attorney; disclosure of claimant information.

- (a) A power of attorney, executed on either VA Form 21-22, “Appointment of Veterans Service Organization as Claimant's Representative,” or VA Form 21-22a, “Appointment of Attorney or Agent as Claimant's Representative,” is required to represent a claimant before VA and to authorize VA's disclosure of information to any person or organization representing a claimant before the Department. Without the signature of a person providing representation for a particular claim under [§ 14.630](/cfr/38/14.630.md) of this part or an accredited veterans service organization representative, agent, or attorney, the appointment is invalid, and the person appointed to provide representation is under no obligation to do so. The power of attorney shall meet the following requirements:
  - (1) **Contain signature by—**
    - (i) The claimant, or
    - (ii) The claimant's guardian, or
    - (iii) In the case of an incompetent, minor, or otherwise incapacitated person without a guardian, the following in the order named—spouse, parent, other relative or friend (if interests are not adverse), or the director of the hospital in which the claimant is maintained; and
    - (iv) An individual providing representation on a particular claim under [§ 14.630](/cfr/38/14.630.md) of this part or an accredited veterans service organization representative, agent, or attorney; and
  - (2) **Shall be presented to the appropriate VA office for filing in the veteran's claims folder.**
- (b) VA may, for any purpose, treat a power of attorney naming as a claimant's representative an organization recognized under [§ 14.628](/cfr/38/14.628.md), a particular office of such an organization, or an individual representative of such an organization as an appointment of the entire organization as the claimant's representative, unless the claimant specifically indicates in the power of attorney a desire to appoint only the individual representative. Such specific indication must be made in the space on the power-of-attorney form for designation of the representative and must use the word “only” with reference to the individual representative.
- (c) An organization, individual providing representation on a particular claim under [§ 14.630](/cfr/38/14.630.md), representative, agent, or attorney named in a power of attorney executed pursuant to [paragraph (a)](#a) of this section may withdraw from representation provided before a VA agency of original jurisdiction if such withdrawal would not adversely impact the claimant's interests. This section is applicable unless [38 CFR 20.6](/cfr/38/20.6.md) governs withdrawal from the representation. Withdrawal is also permissible if a claimant persists in a course of action that the organization or individual providing representation reasonably believes is fraudulent or criminal and is furthered through the representation of the organization or individual; the claimant fails to uphold an obligation to the organization or individual providing representation regarding the services of the organization or individual; or other good cause for withdrawal exists. An organization or individual providing representation withdraws from representation by notifying the claimant, the VA organization in possession of the claims file, and the agency of original jurisdiction in writing prior to taking any action to withdraw and takes steps necessary to protect the claimant's interests including, but not limited to, giving advance notice to the claimant, allowing time for appointment of alternative representation, and returning any documents provided by VA in the course of the representation to the agency of original jurisdiction or pursuant to the claimant's instructions, to the organization or individual substituted as the representative, agent, or attorney of record. Upon withdrawing from representation, all property of the claimant must be returned to the claimant. If the claimant is unavailable, all documents provided by VA for purposes of representation must be returned to the VA organization in possession of the claims file. Any other property of the claimant must be maintained by the organization or individual according to applicable law.
- (d) Questions concerning the validity or effect of powers of attorney shall be referred to the appropriate District Chief Counsel for initial determination. This determination may be appealed to the General Counsel.
- (e)
  - (1) Only one organization, representative, agent, or attorney will be recognized at one time in the prosecution of a particular claim. Except as provided in [§ 14.629(c)](/cfr/38/14.629.md?p=c) and [paragraph (f)(2)](#f-2) of this section, all transactions concerning the claim will be conducted exclusively with the recognized organization, representative, agent, or attorney of record until notice of a change, if any, is received by the appropriate office of VA.
  - (2) An organization named in a power of attorney executed in accordance with [paragraph (a)](#a) of this section may employ an attorney to represent a claimant in a particular claim. Unless the attorney is an accredited representative of the organization, the written consent of the claimant shall be required.
- (f)
  - (1) A power of attorney may be revoked at any time, and an agent or attorney may be discharged at any time. Unless a claimant specifically indicates otherwise, the receipt of a new power of attorney executed by the claimant and the organization or individual providing representation shall constitute a revocation of an existing power of attorney.
  - (2) If an agent or attorney limits the scope of his or her representation regarding a particular claim by so indicating on VA Form 21-22a, or a claimant authorizes a person to provide representation in a particular claim under [§ 14.630](/cfr/38/14.630.md), such specific authority shall constitute a revocation of an existing general power of attorney filed under [paragraph (a)](#a) of this section only as it pertains to, and during the pendency of, that particular claim. Following the final determination of such claim, the general power of attorney shall remain in effect as to any new or reopened claim.
- (g) If a request to substitute is granted pursuant to [38 CFR 3.1010](/cfr/38/3.1010.md), then a new VA Form 21-22, “Appointment of Veterans Service Organization as Claimant's Representative,” or VA Form 21-22a, “Appointment of Individual as Claimant's Representative,” under [paragraph (a)](#a) of this section is required in order to represent the substitute before VA. If the substitute desires representation on a one-time basis pursuant to [§ 14.630(a)](/cfr/38/14.630.md?p=a), a statement signed by the person providing representation and the substitute that no compensation will be charged or paid for the services is also required.

# §14.632. Standards of conduct for persons providing representation before the Department

- (a)
  - (1) All persons acting on behalf of a claimant shall faithfully execute their duties as individuals providing representation on a particular claim under [§ 14.630](/cfr/38/14.630.md), representatives, agents, or attorneys.
  - (2) All individuals providing representation are required to be truthful in their dealings with claimants and VA.
- (b) An individual providing representation on a particular claim under [§ 14.630](/cfr/38/14.630.md), representative, agent, or attorney shall:
  - (1) **Provide claimants with competent representation before VA.** Competent representation requires the knowledge, skill, thoroughness, and preparation necessary for the representation. This includes understanding the issues of fact and law relevant to the claim as well as the applicable provisions of [title 38](/cfr/38.md), United States Code, and [title 38, Code of Federal Regulations](/cfr/38.md);
  - (2) **Act with reasonable diligence and promptness in representing claimants.** This includes responding promptly to VA requests for information or assisting a claimant in responding promptly to VA requests for information.
- (c) An individual providing representation on a particular claim under [§ 14.630](/cfr/38/14.630.md), representative, agent, or attorney shall not:
  - (1) Violate the standards of conduct as described in this section;
  - (2) Circumvent a rule of conduct through the actions of another;
  - (3) Engage in conduct involving fraud, deceit, misrepresentation, or dishonesty;
  - (4) Violate any of the provisions of [title 38](/cfr/38.md), United States Code, or [title 38, Code of Federal Regulations](/cfr/38.md);
  - (5) Enter into an agreement for, charge, solicit, or receive a fee that is clearly unreasonable or otherwise prohibited by law or regulation;
  - (6) Solicit, receive, or enter into agreements for gifts related to services for which a fee could not lawfully be charged;
  - (7) Delay, without good cause, the processing of a claim at any stage of the administrative process;
  - (8) Mislead, threaten, coerce, or deceive a claimant regarding benefits or other rights under programs administered by VA;
  - (9) Engage in, or counsel or advise a claimant to engage in acts or behavior prejudicial to the fair and orderly conduct of administrative proceedings before VA;
  - (10) Disclose, without the claimant's authorization, any information provided by VA for purposes of representation; or
  - (11) **Engage in any other unlawful or unethical conduct.**
- (d) In addition to complying with standards of conduct for practice before VA in [paragraphs (a) through (c)](#a..c) of this section, an attorney shall not, in providing representation to a claimant before VA, engage in behavior or activities prohibited by the rules of professional conduct of any jurisdiction in which the attorney is licensed to practice law.

# §14.633. Termination of accreditation or authority to provide representation under § 14.630.

- (a) Accreditation or authority to provide representation on a particular claim under [§ 14.630](/cfr/38/14.630.md) may be suspended or canceled at the request of an organization, individual providing representation under [§ 14.630](/cfr/38/14.630.md), representative, agent, or attorney. When an organization requests suspension or cancellation of the accreditation of a representative due to misconduct or lack of competence on the part of the representative or because the representative resigned to avoid suspension or cancellation of accreditation for misconduct or lack of competence, the organization shall inform VA of the reason for the request for suspension or cancellation and the facts and circumstances surrounding any incident that led to the request.
- (b) Accreditation shall be canceled at such time as a determination is made by the General Counsel that any requirement of [§ 14.629](/cfr/38/14.629.md) is no longer met by a representative, agent, or attorney.
- (c) Accreditation or authority to provide representation on a particular claim shall be canceled when the General Counsel finds, by clear and convincing evidence, one or more of the following:
  - (1) Violation of or refusal to comply with the laws administered by VA or with the regulations governing practice before VA including the standards of conduct in [§ 14.632](/cfr/38/14.632.md);
  - (2) Knowingly presenting or prosecuting a fraudulent claim against the United States, or knowingly providing false information to the United States;
  - (3) Demanding or accepting unlawful compensation for preparing, presenting, prosecuting, or advising or consulting, concerning a claim;
  - (4) **Knowingly presenting to VA a frivolous claim, issue, or argument.** A claim, issue, or argument is frivolous if the individual providing representation under [§ 14.630](/cfr/38/14.630.md), representative, agent, or attorney is unable to make a good faith argument on the merits of the position taken or to support the position taken by a good faith argument for an extension, modification, or reversal of existing law;
  - (5) Suspension or disbarment by any court, bar, or Federal or State agency to which such individual providing representation under [§ 14.630](/cfr/38/14.630.md), representative, agent, or attorney was previously admitted to practice, or disqualification from participating in or appearing before any court, bar, or Federal or State agency and lack of subsequent reinstatement;
  - (6) Charging excessive or unreasonable fees for representation as determined by VA, the Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit; or
  - (7) Any other unlawful or unethical practice adversely affecting an individual's fitness for practice before VA.
- (d) Accreditation or authority to provide representation on a particular claim shall be canceled when the General Counsel finds that the performance of an individual providing representation under [§ 14.630](/cfr/38/14.630.md), representative, agent, or attorney before VA demonstrates a lack of the degree of competence necessary to adequately prepare, present, and prosecute claims for veteran's benefits. A determination that the performance of an individual providing representation under [§ 14.630](/cfr/38/14.630.md), representative, agent, or attorney before VA demonstrates a lack of the degree of competence required to represent claimants before VA will be based upon consideration of the following factors:
  - (1) The relative complexity and specialized nature of the matter;
  - (2) The individual's general experience;
  - (3) The individual's training and experience; and
  - (4) The preparation and study the individual is able to give veterans benefits matters and whether it is feasible to refer such matters to, or associate or consult with, an individual of established competence in the field of practice.
- (e) As to cancellation of accreditation under paragraphs [(c)](#c) or [(d)](#d) of this section, upon receipt of credible written information from any source indicating improper conduct, or incompetence, the Chief Counsel with subject-matter jurisdiction shall inform the subject of the allegations about the specific law, regulation, or policy alleged to have been violated or the nature of the alleged incompetence and the source of the complaint, and shall provide the subject with the opportunity to respond. If the matter involves an accredited representative of a recognized organization, the notice shall include contact with the representative's organization. When appropriate, including situations where no harm results to the claimant or VA, the Chief Counsel will provide the subject with an opportunity to correct the offending behavior before deciding whether to proceed with a formal inquiry. If the subject refuses to comply and the matter remains unresolved, or the behavior subsequently results in harm to a claimant or VA, the Chief Counsel shall immediately initiate a formal inquiry into the matter.
  - (1) If the result of the inquiry does not justify further action, the Chief Counsel will close the inquiry and maintain the record for 3 years.
  - (2) If the result of the inquiry justifies further action, the Chief Counsel shall:
    - (i) Inform the General Counsel of the result of the inquiry and notify the individual providing representation under [§ 14.630](/cfr/38/14.630.md), representative, agent or attorney of an intent to cancel accreditation or authority to provide representation on a particular claim. The notice will be sent to individuals providing representation on a particular claim by certified or registered mail to the individual's last known address of record as indicated on the VA Form 21-22a on file with the agency of original jurisdiction. The notice will be sent to accredited individuals by certified or registered mail to the individual's last known address of record as indicated in VA's accreditation records. The notice will state the reason(s) for the cancellation proceeding and advise the individual to file an answer, in oath or affidavit form or the form specified for unsworn declarations under penalty of perjury in [28 U.S.C. 1746](/usc/28/1746.md), within 30 days from the date the notice was mailed, responding to the stated reasons for cancellation and explaining why he or she should not be suspended or excluded from practice before VA. The notice will also advise the individual of the right to submit additional evidence and the right to request a hearing on the matter. Requests for hearings must be made in the answer. If the individual does not file an answer with the Office of the General Counsel within 30 days of the date that the Chief Counsel mailed the notice, the Chief Counsel shall close the record before the Office of the General Counsel and forward it with a recommendation to the General Counsel for a final decision.
    - (ii) In the event that a hearing is not requested, the Chief Counsel shall close the record before the Office of the General Counsel and forward it with a recommendation to the General Counsel for a final decision.
    - (iii) The Chief Counsel may extend the time to file an answer or request a hearing for a reasonable period upon a showing of sufficient cause.
    - (iv) For purposes of computing time for responses to notices of intent to cancel accreditation, days means calendar days. In computing the time for filing this response, the date on which the notice was mailed by the Chief Counsel shall be excluded. A response postmarked prior to the expiration of the 30th day shall be accepted as timely filed. If the 30th day falls on a weekend or legal holiday, the first business day thereafter shall be included in the computation. As used in this section, legal holiday means New Year's Day, Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President or the Congress of the United States, or by the State in which the individual resides.
- (f) If a hearing is requested, it will be held at the VA Regional Office nearest the individual's principal place of business. If the individual's principal place of business is Washington, DC, the hearing will be held at the VA Central Office or other VA facility in Washington, DC. For hearings conducted at either location, the Chief Counsel with subject-matter jurisdiction shall present the evidence. The hearing officer shall not report, directly or indirectly to, or be employed by the General Counsel or the head of the VA agency of original jurisdiction before which the individual provided representation. The hearing officer shall provide notice of the hearing to the individual providing representation under [§ 14.630](/cfr/38/14.630.md), representative, agent, or attorney by certified or registered mail at least 21 days before the date of the hearing. Hearings shall not be scheduled before the completion of the 30-day period for filing an answer to the notice of intent to cancel accreditation. The hearing officer will have authority to administer oaths. The party requesting the hearing will have a right to counsel, to present evidence, and to cross-examine witnesses. Upon request of the individual requesting the hearing, an appropriate VA official designated in [§ 2.1](/cfr/38/2.1.md) of this chapter may issue subpoenas to compel the attendance of witnesses and the production of documents necessary for a fair hearing. The hearing shall be conducted in an informal manner and court rules of evidence shall not apply. Testimony shall be recorded verbatim. The evidentiary record shall be closed 10 days after the completion of the hearing. The hearing officer shall submit the entire hearing transcript, any pertinent records or information, and a recommended finding to the Chief Counsel within 30 days of closing the record. The Chief Counsel shall immediately forward the record and the hearing officer's recommendation to the General Counsel for a final decision.
- (g) The General Counsel may suspend the accreditation of a representative, agent, or attorney, under paragraphs [(b)](#b), [(c)](#c), or [(d)](#d) of this section, for a definite period or until the conditions for reinstatement specified by the General Counsel are satisfied. The General Counsel shall reinstate an individual's accreditation at the end of the suspension period or upon verification that the individual has satisfied the conditions for reinstatement.
- (h) The decision of the General Counsel is a final adjudicative determination of an agency of original jurisdiction that may only be appealed to the Board of Veterans' Appeals.
  - (1) **Decisions issued before the effective date of the modernized review system.** Notwithstanding provisions in this section for closing the record before the Office of the General Counsel at the end of the 30-day period for filing an answer or 10 days after a hearing, appeals of decisions issued before the effective date of the modernized review system as provided in [§ 19.2(a)](/cfr/38/19.2.md?p=a) of this chapter shall be initiated and processed using the procedures in 38 CFR parts [19](/cfr/38/part19.md) and [20](/cfr/38/part20.md) applicable to legacy appeals. Nothing in this section shall be construed to limit the Board's authority to remand a matter to which this [paragraph (h)(1)](#h-1) applies to the General Counsel under [38 CFR 20.904](/cfr/38/20.904.md) for any action that is essential for a proper appellate decision or the General Counsel's ability to issue a Supplemental Statement of the Case under [38 CFR 19.31](/cfr/38/19.31.md).
  - (2) **Decisions issued on or after the effective date of the modernized review system.** Notwithstanding provisions in this section for closing the record before the Office of the General Counsel at the end of the 30-day period for filing an answer or 10 days after a hearing, appeals of decisions issued on or after the effective date of the modernized review system as provided in [§ 19.2(a)](/cfr/38/19.2.md?p=a) of this chapter shall be initiated and processed using the procedures in [38 CFR part 20](/cfr/38/part20.md) applicable to appeals under the modernized system.
- (i) In cases where the accreditation of an agent or attorney is suspended or cancelled, the Office of the General Counsel may notify all agencies, courts, and bars to which the agent or attorney is admitted to practice.
- (j) The effective date for suspension or cancellation of accreditation or authority to provide representation on a particular claim shall be the date upon which the General Counsel's final decision is rendered.

# §14.634. Banks or trust companies acting as guardians.


Banks or trust companies, corporate entities, acting as guardians for claimants, may be represented before adjudicating agencies as authorized representatives of claimants by an officer or employee, including a regularly employed attorney, if the employee or attorney represents the corporation in its fiduciary capacity.


# §14.635. Office space and facilities.


The Secretary may furnish office space and facilities, if available, in buildings owned or occupied by the Department of Veterans Affairs, for the use of paid full-time representatives of recognized national organizations, and for employees of recognized State or tribal organizations who are accredited to national organizations, for purposes of assisting claimants in the preparation, presentation, and prosecution of claims for Department of Veterans Affairs benefits.

- (a) Request for office space should be made by an appropriate official of the organization to the Director of the Department of Veterans Affairs facility in which space is desired and should set forth:
  - (1) The number of full-time paid representatives who will be permanently assigned to the office;
  - (2) The number of secretarial or other support staff who will be assigned to the office;
  - (3) The number of claimants for whom the organization holds powers of attorney whose claims are within the jurisdiction of the facility or who reside in the area served by the facility, the number of such claimants whose claims are pending, and the number of claims prosecuted during the previous three years; and
  - (4) **Any other information the organization deems relevant to the allocation of office space.**
- (b) When in the judgment of the Director office space and facilities previously granted could be better used by the Department of Veterans Affairs, or would receive more effective use or serve more claimants if allocated to another recognized national organization, the Director may withdraw such space or reassign such space to another organization. In the case of a facility under the control of the Veterans Benefits Administration or the Veterans Health Administration, the final decision on such matters will be made by the Under Secretary for Benefits or the Under Secretary for Health, respectively.

# §14.636. Payment of fees for representation by agents and attorneys in proceedings before Agencies of Original Jurisdiction and before the Board of Veterans' Appeals.

- (a) **Applicability of rule.** The provisions of this section apply to the services of accredited agents and attorneys with respect to benefits under laws administered by VA in all proceedings before the agency of original jurisdiction or before the Board of Veterans' Appeals regardless of whether an appeal has been initiated.
- (b) **Who may charge fees for representation.** Only accredited agents and attorneys may receive fees from claimants or appellants for their services provided in connection with representation. Recognized organizations (including their accredited representatives when acting as such) and individuals recognized under [§ 14.630](/cfr/38/14.630.md) of this part are not permitted to receive fees. An agent or attorney who may also be an accredited representative of a recognized organization may not receive such fees unless he or she has been properly designated as an agent or attorney in accordance with [§ 14.631](/cfr/38/14.631.md) of this part in his or her individual capacity as an accredited agent or attorney.
- (c) **Circumstances under which fees may be charged.** Except as noted in [paragraph (d)](#d) of this section, agents and attorneys may only charge fees as follows:
  - (1)
    - (i) Agents and attorneys may charge claimants or appellants for representation provided after an agency of original jurisdiction has issued notice of an initial decision on the claim or claims if the notice of the initial decision was issued on or after the effective date of the modernized review system as provided in [§ 19.2(a)](/cfr/38/19.2.md?p=a) of this chapter, and the agent or attorney has complied with the power of attorney requirements in [§ 14.631](/cfr/38/14.631.md) and the fee agreement requirements in [paragraph (g)](#g) of this section. For purposes of this [paragraph (c)(1)(i)](#c-1-i), an initial decision on a claim would include an initial decision on an initial claim for an increase in rate of benefit, an initial decision on a request to revise a prior decision based on clear and unmistakable error (unless fees are permitted at an earlier point pursuant to [paragraph (c)(1)(ii)](#c-1-ii) or [paragraph (c)(2)(ii)](#c-2-ii) of this section), and an initial decision on a supplemental claim that was presented after the final adjudication of an earlier claim. However, a supplemental claim will be considered part of the earlier claim if the claimant has continuously pursued the earlier claim by filing any of the following, either alone or in succession: A request for higher-level review, on or before one year after the date on which the agency of original jurisdiction issued a decision; a supplemental claim, on or before one year after the date on which the agency of original jurisdiction issued a decision; a Notice of Disagreement, on or before one year after the date on which the agency of original jurisdiction issued a decision; a supplemental claim, on or before one year after the date on which the Board of Veterans' Appeals issued a decision; or a supplemental claim, on or before one year after the date on which the Court of Appeals for Veterans Claims issued a decision.
    - (ii) Agents and attorneys may charge fees for representation provided with respect to a request for revision of a decision of an agency of original jurisdiction under [38 U.S.C. 5109A](/usc/38/5109A.md) or the Board of Veterans' Appeals under [38 U.S.C. 7111](/usc/38/7111.md) based on clear and unmistakable error if notice of the challenged decision on a claim or claims was issued on or after the effective date of the modernized review system as provided in [§ 19.2(a)](/cfr/38/19.2.md?p=a), and the agent or attorney has complied with the power of attorney requirements in [§ 14.631](/cfr/38/14.631.md) and the fee agreement requirements in [paragraph (g)](#g) of this section.
  - (2)
    - (i) Agents and attorneys may charge claimants or appellants for representation provided: After an agency of original jurisdiction has issued a decision on a claim or claims, including any claim to reopen under [38 CFR 3.156(a)](/cfr/38/3.156.md?p=a) or for an increase in rate of a benefit; the agency of original jurisdiction issued notice of that decision before the effective date of the modernized review system as provided in [§ 19.2(a)](/cfr/38/19.2.md?p=a) of this chapter; a Notice of Disagreement has been filed with respect to that decision on or after June 20, 2007; and the agent or attorney has complied with the power of attorney requirements in [§ 14.631](/cfr/38/14.631.md) and the fee agreement requirements in [paragraph (g)](#g) of this section.
    - (ii) Agents and attorneys may charge fees for representation provided with respect to a request for revision of a decision of an agency of original jurisdiction under [38 U.S.C. 5109A](/usc/38/5109A.md) or the Board of Veterans' Appeals under [38 U.S.C. 7111](/usc/38/7111.md) based on clear and unmistakable error if notice of the challenged decision was issued before the effective date of the modernized review system as provided in [§ 19.2(a)](/cfr/38/19.2.md?p=a); a Notice of Disagreement was filed with respect to the challenged decision on or after June 20, 2007; and the agent or attorney has complied with the power of attorney requirements in [§ 14.631](/cfr/38/14.631.md) and the fee agreement requirements in [paragraph (g)](#g) of this section.
  - (3) In cases in which a Notice of Disagreement was filed on or before June 19, 2007, agents and attorneys may charge fees only for services provided after both of the following conditions have been met:
    - (i) A final decision was promulgated by the Board with respect to the issue, or issues, involved in the appeal; and
    - (ii) The agent or attorney was retained not later than 1 year following the date that the decision by the Board was promulgated. (This condition will be considered to have been met with respect to all successor agents or attorneys acting in the continuous prosecution of the same matter if a predecessor was retained within the required time period.)
- (d) **Exceptions—**
  - (1) **Chapter 37 loans.** With respect to services of agents and attorneys provided after October 9, 1992, a reasonable fee may be charged or paid in connection with any proceeding in a case arising out of a loan made, guaranteed, or insured under chapter 37, United States Code, even though the conditions set forth in [paragraph (c)](#c) of this section are not met.
  - (2) **Payment of fee by disinterested third party.**
    - (i) An agent or attorney may receive a fee or salary from an organization, governmental entity, or other disinterested third party for representation of a claimant or appellant even though the conditions set forth in [paragraph (c)](#c) of this section have not been met. An organization, governmental entity, or other third party is considered disinterested only if the entity or individual does not stand to benefit financially from the successful outcome of the claim. In no such case may the attorney or agent charge a fee which is contingent, in whole or in part, on whether the matter is resolved in a manner favorable to the claimant or appellant.
    - (ii) For purposes of this part, a person shall be presumed not to be disinterested if that person is the spouse, child, or parent of the claimant or appellant, or if that person resides with the claimant or appellant. This presumption may be rebutted by clear and convincing evidence that the person in question has no financial interest in the success of the claim.
    - (iii) The provisions of [paragraph (g)](#g) of this section (relating to fee agreements) shall apply to all payments or agreements to pay involving disinterested third parties. In addition, the agreement shall include or be accompanied by the following statement, signed by the attorney or agent: “I certify that no agreement, oral or otherwise, exists under which the claimant or appellant will provide anything of value to the third-party payer in this case in return for payment of my fee or salary, including, but not limited to, reimbursement of any fees paid.”
- (e) **Fee reasonableness factors.** Fees set forth in a fee agreement, charged, or received for the services of an agent or attorney admitted to practice before VA must be reasonable. They may be based on a fixed fee, hourly rate, a percentage of benefits recovered, or a combination of such bases. Factors considered in determining whether fees are reasonable include:
  - (1) The extent and type of services the agent or attorney performed;
  - (2) The complexity of the case;
  - (3) The level of skill and competence required of the agent or attorney in giving the services;
  - (4) The amount of time the agent or attorney spent on the case;
  - (5) The results the agent or attorney achieved, including the amount of any benefits recovered;
  - (6) The level of review to which the claim was taken and the level of the review at which the agent or attorney was retained;
  - (7) Rates charged by other agents or attorneys for similar services;
  - (8) Whether, and to what extent, the payment of fees is contingent upon the results achieved;
  - (9) If applicable, the reasons why an agent or attorney was discharged or withdrew from representation before the date of the decision awarding benefits; and
  - (10) If applicable, the fee entitlement of another agent or attorney in the case.
- (f) **Presumptions and discharge.**
  - (1) Fees which do not exceed 20 percent of any past-due benefits awarded as defined in [paragraph (h)(3)](#h-3) of this section shall be presumed to be reasonable if the agent or attorney provided representation that continued through the date of the decision awarding benefits. Fees which exceed 33 1/3 percent of any past-due benefits awarded shall be presumed to be unreasonable. These presumptions may be rebutted through an examination of the factors in [paragraph (e)](#e) of this section establishing that there is clear and convincing evidence that a fee which does not exceed 20 percent of any past-due benefits awarded is not reasonable or that a fee which exceeds 33 1/3 percent is reasonable in a specific circumstance.
  - (2) With regard to a fee agreement in which the amount of the fee is contingent on the claimant receiving an award of benefits, a reasonable fee for an agent or attorney who is discharged by the claimant or withdraws from representation before the date of the decision awarding benefits is one that fairly and accurately reflects his or her contribution to and responsibility for the benefits awarded. The amount of the fee is informed by an examination of the factors in [paragraph (e)](#e) of this section.
- (g) **Fee agreements.** All agreements for the payment of fees for services of agents and attorneys (including agreements involving fees or salary paid by an organization, governmental entity or other disinterested third party) must be in writing and signed by both the claimant or appellant and the agent or attorney.
  - (1) To be valid, a fee agreement must include the following:
    - (i) The name of the veteran,
    - (ii) The name of the claimant or appellant if other than the veteran,
    - (iii) The name of any disinterested third-party payer (see [paragraph (d)(2)](#d-2) of this section) and the relationship between the third-party payer and the veteran, claimant, or appellant,
    - (iv) The applicable VA file number, and
    - (v) The specific terms under which the amount to be paid for the services of the attorney or agent will be determined.
  - (2) Fee agreements must also clearly specify if VA is to pay the agent or attorney directly out of past due benefits. A direct-pay fee agreement is a fee agreement between the claimant or appellant and an agent or attorney providing for payment of fees out of past-due benefits awarded directly to an agent or attorney. A fee agreement that does not clearly specify that VA is to pay the agent or attorney out of past-due benefits or that specifies a fee greater than 20 percent of past-due benefits awarded by VA shall be considered to be an agreement in which the agent or attorney is responsible for collecting any fees for representation from the claimant without assistance from VA.
  - (3) A copy of a direct-pay fee agreement, as defined in [paragraph (g)(2)](#g-2) of this section, must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420. Only fee agreements that do not provide for the direct payment of fees, documents related to review of fees under paragraph (i) of this section, and documents related to review of expenses under [§ 14.637](/cfr/38/14.637.md), may be filed with the Office of the General Counsel. All documents relating to the adjudication of a claim for VA benefits, including any correspondence, evidence, or argument, must be filed with the agency of original jurisdiction, Board of Veterans' Appeals, or other VA office as appropriate. VA may accept fee agreements that were not filed within 30 days of execution upon a showing of sufficient cause.
- (h) **Payment of fees by Department of Veterans Affairs directly to an agent or attorney from past-due benefits.**
  - (1) Subject to the requirements of the other paragraphs of this section, including paragraphs [(c)](#c) and [(e)](#e), the claimant or appellant and an agent or attorney may enter into a fee agreement providing that payment for the services of the agent or attorney will be made directly to the agent or attorney by VA out of any past-due benefits awarded in any proceeding before VA or the United States Court of Appeals for Veterans Claims. VA will charge and collect an assessment out of the fees paid directly to agents or attorneys from past-due benefits awarded. The amount of such assessment shall be equal to five percent of the amount of the fee required to be paid to the agent or attorney, but in no event shall the assessment exceed $100. Such an agreement will be honored by VA only if the following conditions are met:
    - (i) The total fee payable (excluding expenses) does not exceed 20 percent of the total amount of the past-due benefits awarded,
    - (ii) The amount of the fee is contingent on whether or not the claim is resolved in a manner favorable to the claimant or appellant,
    - (iii) The agent or attorney is accredited (see §§ [14.627(a)](/cfr/38/14.627.md?p=a) and [14.629(b)](/cfr/38/14.629.md?p=b)) on the date of VA's fee allocation notice (see paragraph (i) of this section), and
    - (iv) The award of past-due benefits results in a cash payment to a claimant or an appellant from which the fee may be deducted. (An award of past-due benefits will not always result in a cash payment to a claimant or an appellant. For example, no cash payment will be made to military retirees unless there is a corresponding waiver of retirement pay. (See 38 U.S.C. [5304(a)](/usc/38/5304.md?p=a) and [38](/usc/38/38.md) CFR 3.750))
  - (2) For purposes of this [paragraph (h)](#h), a claim will be considered to have been resolved in a manner favorable to the claimant or appellant if all or any part of the relief sought is granted.
  - (3) For purposes of this [paragraph (h)](#h), “past-due benefits” means a nonrecurring payment resulting from a benefit, or benefits, granted on appeal or awarded on the basis of a claim readjudicated after a denial by a VA agency of original jurisdiction or the Board of Veterans' Appeals or the lump sum payment that represents the total amount of recurring cash payments that accrued between the effective date of the award, as determined by applicable laws and regulations, and the date of the grant of the benefit by the agency of original jurisdiction, the Board of Veterans' Appeals, or an appellate court.
    - (i) When the benefit granted on appeal, or as the result of the readjudicated claim, is service connection for a disability, the “past-due benefits” will be based on the initial disability rating assigned by the agency of original jurisdiction following the award of service connection. The sum will equal the payments accruing from the effective date of the award to the date of the initial disability rating decision. If an increased evaluation is subsequently granted as the result of an appeal of the disability evaluation initially assigned by the agency of original jurisdiction, and if the agent or attorney represents the claimant or appellant in that phase of the claim, the agent or attorney will be paid a supplemental payment based upon the increase granted on appeal, to the extent that the increased amount of disability is found to have existed between the initial effective date of the award following the grant of service connection and the date of the rating action implementing the appellate decision granting the increase.
    - (ii) Unless otherwise provided in the fee agreement between the claimant or appellant and the agent or attorney, the agent's or attorney's fees will be determined on the basis of the total amount of the past-due benefits even though a portion of those benefits may have been apportioned to the claimant's or appellant's dependents.
    - (iii) If an award is made as the result of favorable action with respect to several issues, the past-due benefits will be calculated only on the basis of that portion of the award which results from action taken on issues concerning which the criteria in [paragraph (c)](#c) of this section have been met.
  - (4) As required by [paragraph (g)(3)](#g-3) of this section, the agent or attorney must file with the agency of original jurisdiction within 30 days of the date of execution a copy of the agreement providing for the direct payment of fees out of any benefits subsequently determined to be past due.
    - (i) **Fee review.** For purposes of this paragraph (i), “party” means the claimant or appellant or any agent or attorney who represented the claimant or appellant in the case; “eligible for direct payment” means eligible for direct payment of a fee under the requirements of paragraphs (c), (g), and [(h)](#h) of this section; “continuous agent or attorney” means the agent or attorney who provided representation that continued through the date of the decision awarding benefits; and “timely filed” means within 60 days of the fee allocation notice.
  - (1) When one or more direct-pay fee agreements has been filed in accordance with [paragraph (g)](#g) of this section and a decision awards past-due benefits in a case, the agency of original jurisdiction that issued the decision shall issue to the parties a fee allocation notice. The fee allocation notice shall decide whether the agents or attorneys who filed direct-pay fee agreements in the case are eligible for direct payment, and shall provide one of two default fee allocations:
    - (i) In cases where a continuous agent or attorney is eligible for direct payment, the default shall be allocation of the fee to the continuous agent or attorney.
    - (ii) In cases where paragraph (i)(1)(i) of this section does not apply, the default shall be an equal split of the fee based on the number of agents or attorneys who are eligible for direct payment plus the claimant or appellant.
  - (2) A party that disagrees with the default fee allocation in a given case may file a request for Office of the General Counsel fee review, as provided in paragraph (i)(3) of this section. A party that disagrees with a direct payment eligibility determination may only appeal to the Board of Veterans' Appeals. Absent a timely filed request for Office of the General Counsel fee review or a timely filed appeal to the Board of Veterans' Appeals, the default fee allocation described in paragraphs (i)(1)(i) and (ii) of this section is final and VA may release the fee.
  - (3) A request for Office of the General Counsel fee review under this paragraph (i) must be filed electronically in accordance with the instructions on the Office of the General Counsel's website, or at the following address: Office of the General Counsel (022D), 810 Vermont Avenue NW, Washington, DC 20420. The request must include the names of the veteran and all parties, the applicable VA file number, and the date of the decision awarding benefits. The request must set forth the requestor's proposal as to reasonable fee allocation, and the reasons therefor, and must be accompanied by all argument and evidence the requestor desires to submit.
  - (4) Upon the receipt of a timely filed request under paragraph (i)(3) of this section, or upon his or her own initiative, the Deputy Chief Counsel with subject-matter jurisdiction will initiate the Office of the General Counsel's motion for a fee review by sending notice to the parties. Not later than 30 days from the date of the motion, any party may file a response, with all argument and evidence the party desires to submit, electronically in accordance with the instructions on the Office of the General Counsel's website, or at the following address: Office of the General Counsel (022D), 810 Vermont Avenue, NW, Washington, DC 20420. Such responses must be served on all other parties. The Deputy Chief Counsel with subject-matter jurisdiction may, for a reasonable period upon a showing of sufficient cause, extend the time for any party's response.
  - (5) The General Counsel or his or her designee shall render the Office of the General Counsel's decision on the matter. The decision will be premised on the reasonableness factors of [paragraph (e)](#e) of this section, the standards of [paragraph (f)](#f) of this section, the limitation on direct payment of [paragraph (h)(1)(i)](#h-1-i) of this section, the claims file, the parties' submissions, and all relevant factors. The decision may address the issue of fee eligibility if no other agency of original jurisdiction has made a determination on that issue.
  - (6) The Office of the General Counsel's decision is a final adjudicative action that may only be appealed to the Board of Veterans' Appeals. Unless a party files a Notice of Disagreement with the Office of the General Counsel's decision, the parties must allocate any excess payment in accordance with the decision not later than the expiration of the time within which the Office of the General Counsel's decision may be appealed to the Board of Veterans' Appeals.
- (j) **Failure to comply.** In addition to whatever other penalties may be prescribed by law or regulation, failure to comply with the requirements of this section may result in proceedings under [§ 14.633](/cfr/38/14.633.md) to terminate the agent's or attorney's accreditation to practice before VA.
- (k) **Appeals.** Except as otherwise provided in this section, appeals shall be initiated and processed using the procedures in [38 CFR part 20](/cfr/38/part20.md) applicable to appeals under the modernized system.

# §14.637. Payment of the expenses of agents and attorneys in proceedings before Agencies of Original Jurisdiction and before the Board of Veterans' Appeals.

- (a) **Applicability of rule.** The provisions of this section apply to the services of accredited agents and attorneys with respect to benefits under laws administered by VA in all proceedings before the agency of original jurisdiction or before the Board of Veterans' Appeals regardless of whether an appeal has been initiated.
- (b) **General.** Any agent or attorney may be reimbursed for expenses incurred on behalf of a veteran or a veteran's dependents or survivors in the prosecution of a claim for benefits pending before VA. Whether such an agent or attorney will be reimbursed for expenses and the method of such reimbursement is a matter to be determined by the agent or attorney and the claimant or appellant in the fee agreement filed with the Office of the General Counsel or the agency of original jurisdiction under [§ 14.636](/cfr/38/14.636.md) of this part. Expenses are not payable directly to the agent or attorney by VA out of benefits determined to be due to a claimant or appellant.
- (c) **Nature of expenses subject to reimbursement.** “Expenses” include nonrecurring expenses incurred directly in the prosecution of a claim for benefits on behalf of a claimant or appellant. Examples of such expenses include expenses for travel specifically to attend a hearing with respect to a particular claim, the cost of copies of medical records or other documents obtained from an outside source, and the cost of obtaining the services of an expert witness or an expert opinion. “Expenses” do not include normal overhead costs of the agent or attorney such as office rent, utilities, the cost of obtaining or operating office equipment or a legal library, salaries of the representative and his or her support staff, and the cost of office supplies.
- (d) **Expense charges permitted; motion for review of expenses.** Reimbursement for the expenses of an agent or attorney may be obtained only if the expenses are reasonable. The Office of the General Counsel may review the expenses charged by an agent or attorney upon its own motion or the motion of the claimant or appellant and may order a reduction in the expenses charged if it finds that they are excessive or unreasonable. The Office of the General Counsel's review of expenses under this paragraph will address the issues of eligibility under [§ 14.636(c)](/cfr/38/14.636.md?p=c) and reasonableness. The Office of the General Counsel will limit its review and decision under this paragraph to the issue of reasonableness if another agency of original jurisdiction has reviewed the fee agreement between the claimant and the agent or attorney and determined that the agent or attorney is eligible for reimbursement of expenses. Motions for review of expenses must be in writing and must include the name of the veteran, the name of the claimant or appellant if other than the veteran, and the applicable VA file number. Such motions must specifically identify which expenses charged are unreasonable; must set forth the reason, or reasons, why such expenses are excessive or unreasonable and must be accompanied by all evidence the claimant or appellant desires to submit. Factors considered in determining whether expenses are excessive or unreasonable include the complexity of the case, the potential extent of benefits recoverable, and whether travel expenses are in keeping with expenses normally incurred by other representatives.
  - (1) A claimant's or appellant's motion for review of expenses must be served on the agent or attorney and must be filed at the following address: Office of the General Counsel (022D), 810 Vermont Avenue, NW., Washington, DC 20420. The agent or attorney may file a response to the motion, with any accompanying evidence, with the Office of the General Counsel not later than 30 days from the date on which the claimant or appellant served the motion on the agent or attorney. Such responses must be served on the claimant or appellant. The claimant or appellant then has 15 days from the date on which the agent or attorney served a response to file a reply with the Office of the General Counsel. Such replies must be served on the agent or attorney.
  - (2) The Deputy Chief Counsel with subject-matter jurisdiction shall initiate the Office of the General Counsel's review of expenses on its own motion by serving the motion on the agent or attorney and the claimant or appellant. The agent or attorney may file a response to the motion, with any accompanying evidence, with the Office of the General Counsel (022D), 810 Vermont Avenue, NW., Washington, DC 20420, not later than 30 days from the date on which the Office of the General Counsel served the motion on the agent or attorney. Such responses must be served on the claimant or appellant.
  - (3) The Office of the General Counsel shall close the record before the Office of the General Counsel in proceedings to review expenses 15 days after the date on which the agent or attorney served a response on the claimant or appellant, or 30 days after the claimant, appellant, or the Office of the General Counsel served the motion on the agent or attorney if there is no response. The Deputy Chief Counsel with subject-matter jurisdiction may, for a reasonable period upon a showing of sufficient cause, extend the time for an agent or attorney to serve an answer or for a claimant or appellant to serve a reply. The Deputy Chief Counsel shall forward the record and a recommendation to the General Counsel or his or her designee for a final decision. Unless either party files a Notice of Disagreement, the agent or attorney must refund any excess payment to the claimant or appellant not later than the expiration of the time within which the Office of the General Counsel's decision may be appealed to the Board of Veterans' Appeals.
- (e) In addition to whatever other penalties may be prescribed by law or regulation, failure to comply with the requirements of this section may result in proceedings under [§ 14.633](/cfr/38/14.633.md) of this part to terminate the agent's or attorney's accreditation to practice before VA.
- (f)
  - (1) **Decisions issued before the effective date of the modernized review system.** Notwithstanding provisions in this section for closing the record before the Office of the General Counsel at the end of the 30-day period for serving a response or 15 days after the date on which the agent or attorney served a response, appeals of decisions issued before the effective date of the modernized review system as provided in [§ 19.2(a)](/cfr/38/19.2.md?p=a) of this chapter, shall be initiated and processed using the procedures in 38 CFR parts [19](/cfr/38/part19.md) and [20](/cfr/38/part20.md) applicable to legacy appeals. Nothing in this section shall be construed to limit the Board's authority to remand a matter to the General Counsel under [38 CFR 20.904](/cfr/38/20.904.md) for any action that is essential for a proper appellate decision or the General Counsel's ability to issue a Supplemental Statement of the Case under [38 CFR 19.31](/cfr/38/19.31.md).
  - (2) **Decisions issued on or after the effective date of the modernized review system.** Notwithstanding provisions in this section for closing the record before the Office of the General Counsel at the end of the 30-day period for serving a response or 15 days after the date on which the agent or attorney served a response, appeals of decisions issued on or after the effective date of the modernized review system as provided in [§ 19.2(a)](/cfr/38/19.2.md?p=a) of this chapter, shall be initiated and processed using the procedures in [38 CFR part 20](/cfr/38/part20.md) applicable to appeals under the modernized system.