Payment of attorney or agent fees (U. S. Department of Veteran Affairs)

6. Reasonableness Review of Fees by OGC

Introduction

This topic contains information on OGC attorney or agent fee reasonableness reviews, including what is a reasonableness review time limit for motions for reasonableness review statements that possibly constitute requests for reasonableness review referral required by fee eligibility for multiple attorneys/agents, the importance of prompt referrals to OGC, and the process of RO referrals for reasonableness review.

Change Date

July 31, 2015

a. What is a Reasonableness Review

A reasonableness review is an analysis and determination by OGC, initiated by a motion filed by the claimant/appellant (or by OGC’s own motion) for review under 38 CFR 14.636(i), of whether an attorney fee meets the requirement in 38 CFR 14.636(e) that fees be reasonable. When conducting a reasonableness review, OGC rarely addresses issues of eligibility. OGC only addresses eligibility under 38 CFR 14.636(c) when the fee agreement does not instruct VA to pay the fee directly out of past due benefits. As contrasted with the bases for an appeal from a RO fee eligibility determination listed in M21-1, Part I, 3.C.5.a, a motion for a reasonableness review is appropriate when a claimant believes that the attorney or agent did not earn the fee called for in the fee agreement the fee is too high, or the fee is otherwise unreasonable. A reasonableness review must also be requested when eligibility to fees from past due benefits is established for multiple attorneys and/or agents. Reference: For more information on motions for reasonableness reviews see the OGC Fact Sheet “How to Challenge a Fee.”

b. Time Limit for Motions For Reasonableness Review

OGC may only review the fee agreement on motion before the expiration of 120 days after final VA action. In most cases final VA action means 120 days from the date of the fee eligibility decision.

c. Statements that Possibly Constitute Requests for Reasonableness Review

Although 38 CFR 14.636(i) requires that a claimant’s motion be filed with OGC, when the claimant submits the following statements, immediately refer the matter to OGC for consideration as a request for reasonableness the attorney/agent fee amount or percentage is excessive, or unreasonable the attorney or agent did not earn the fee called for in the fee agreement the attorney or agent should be paid for fees only until the date the POA was revoked, or the claimant requests review for reasonableness, or the claimant does not want to pay the attorney or agent. Important: The examples in this list are not exclusive. For example, a document styled as a NOD in response to a RO decision finding an attorney or agent eligible for fees may also state, or be reasonable read as stating, that the claimant desires a reasonableness review. References: For more information on required referral for reasonableness review in cases involving multiple attorneys or agents, see M21-1, Part I, 3.C.6.d, and the RO process for referrals for reasonableness review, see M21-1, Part I, 3.C.6.f.

d. Referral Required by Fee Eligibility for Multiple Attorneys or Agents

An RO eligibility determination under M21-1, Part I, 3.C.4 finding two or more attorneys /agents eligible for payment of fees must be referred to OGC for a reasonableness review regardless of whether the claimant submits any statement implicating reasonableness of fees.

e. Importance of Prompt Referrals to OGC

It is urgent to provide information necessary for OGC’s reasonableness review on the earliest possible date after a statement is received from the claimant that can be construed as a possible reasonableness request or after a determination is made finding multiple agents or attorneys eligible to fees. Do not delay referral of cases implicating reasonableness review to OGC. Explanation: Timely action by VBA in forwarding information to OGC on possible requests for reasonableness review maximizes the potential that in cases where a claimant’s motion is deficient in some respect, OGC will be able to reach out to the claimant for corrective action before the expiration of the 120-day filing deadline.

f. RO Process for Referrals for Reasonableness Review

The table below shows the stages in RO referrals to OGC for reasonableness reviews. .

Stage	Description
1	The AOJ writes the claimant and informs him/her that the AOJ is forwarding his/her statement to OGC for evaluation of whether it meet the requirements for a request for reasonableness review. Important: Send the OGC Fact Sheet “How to Challenge a Fee” with the notification.
2	The AOJ provides information to OGC. During this stage the AAFC emails the OGC contact for reasonableness challenges at [e-mail] explaining that either the AOJ has received a written communication from the claimant that is possibly a request for reasonableness review, or two or more attorneys /agents have been found eligible for payment of fees, and includes with the email the written communication from the claimant interpreted as a reasonableness review, and a copy of the attorney or agent fee eligibility decision(s). Notes: The AAFC is expected to ensure that the email is clear on whether the dispute involves one attorney/agent or multiple attorneys/agents., and upload a copy of the email to OGC into VBMS. The AAFC is also expected to check VBMS to confirm that the following fee-related documents are labeled so that they can be identified by OGC the fee agreement(s) all VA POA forms (VA Form 21-22a and VA Form 21-22) for individuals and organizations that provided representation during the course of the claim, and the benefits decision that resulted in the award of fees. Retain the claims folder at this stage of the process. OGC may pull other documents needed for its review from VBMS.
3	Upon receipt of the claimant’s information from the AOJ, OGC reviews the information provided, and (if necessary) informs the claimant in writing of the requirements in 38 CFR 14.636(i) for requesting OGC review of the fee agreement for reasonableness.
4	OGC may request the claims folder from the AOJ after OGC has received the claimant’s request for review (or NOD that the AOJ has interpreted as a request for review) the attorney or agent’s response, and the claimant’s reply, or the time for filing such items has expired. Note: Do not send the claims folder unless OGC requests it.
5	OGC issues a decision in the matter, and retains the claims folder until the time for filing an NOD with OGC under 38 U.S.C. 7105A (contested claims) has expired.
6	If an NOD is not received before the expiration of the time for filing an NOD, OGC will return the claims folder to the AOJ.