Frivolous Claims

Introduction  PL (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 Final Reg. published 5/22/08 and effective 6/23/08. It amends 38 CFR Parts 1, 14, 19, and 20.

The New Regulation  In general, the new reg. 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 New Regulation  38 CFR (b)(1) states that the representative, agent, or attorney shall provide claimants with competent representation. The VA then defines “competent representation” as representation that  Requires knowledge, skill, thoroughness and preparation necessary for the representation. This includes:  Understanding the relevant issues of fact,  Understanding the relevant issues of law,  Understanding the applicable provision of title 38, and  Understanding the applicable provisions of 38 CFR

The New Regulation  38 CFR (c)(4) states that the submission of a frivolous claim, issue or argument constitutes grounds for suspension or exclusion from practice before VA.  For the first time advocates have to deal with regulation that prohibits attorneys, agents and service representatives from submitting frivolous claims or arguments.

Frivolous Claims  The 2008 regulation, 38 CFR (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.

Frivolous Claims  The 2008 regulation then defines a frivolous claim as:  A claim, issue or argument is frivolous if the individual providing representation under , as a representative, agent or attorney, is unable to make a good faith argument on  1) The merits of the position taken, or  2) To support the position taken by a good faith argument for an extension, modification or reversal of existing law.

Frivolous Claims  In its comments discussing the 2008 regulation, the VA discussed several objections that were submitted to the VA when the draft regulation was published. Re (c)(4)

Comments & Objections  Because all veterans are entitled to representation, it is VSO policy to present all claims to VA for processing even if the claimant does not have evidence supporting a grant of benefits.

Comments & Objections  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.

Comments & Objections  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 , at 17 (2008) (“service organizations must ensure that *** frivolous claims are removed so that valid claims are not needlessly delayed”)

Comments & Objections  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.”

Comments & Objections  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 (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.

Frivolous Claims  The VA stated  “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.”

Frivolous Claims  VA interprets “good faith” as “honesty of purpose” and “freedom of intention to defraud.” Black’s Law dictionary 477 (6 th 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.

Frivolous Claims  Issues to consider:  Can a claim or argument shift from non- frivolous to frivolous?  Tension between need to file claim to gain earliest possible effective date and need to determine whether claim, issue or argument frivolous.

Examples of Frivolous Claims- Argument Determinations  Other examples of actions deemed sanctionable include, but are not limited to:  Making irrelevant and illogical arguments  Misrepresenting facts or law to the court  Failing to reference or discuss controlling precedents

Three Levels of Representation  There are three main types of service officers (VSOs)  VSOs located outside of the regional offices – county, state, hospitals  VSOs located in the ROs  VSOs located at the AMC or BVA