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

12. Exhibit 5: Direct-Pay Fee Decision Notice – Direct-Pay Fee Agreement Filed by More Than One Attorney/Agent

Introduction

This topic contains a sample notice to send the attorney or agent and claimant when more than one attorney/agent has filed a direct-pay fee agreement.

Change Date

February 29, 2012

a. Fee Decision Notice –More Than One Attorney/Agent Filed a Direct-Pay Fee Agreement

Below is page 1 of the sample notice to send the attorney or agent and claimant when more than one attorney/agent has filed a direct-pay fee agreement. Note: Send a copy of the direct-pay fee decision shown below to each attorney or agent and to the claimant.

[Attorney/Agent’s OR Claimant’s Name] [Attorney/Agent’s OR Claimant’s Address] Re: [Veteran’s claim number and claimant’s name] Dear [attorney/agent’s OR claimant’s name]: Summary of the Case A valid direct-pay fee agreement signed by the Veteran on [date], with Attorney/Agent 1, was filed with the regional office on [date], and a valid direct-pay fee agreement signed by the Veteran on [date], with Attorney/Agent 2, was filed at the regional office on [date] in connection with the above-cited case. Twenty percent [or less depending on terms of fee agreements] of past due benefits through the date of the [date], rating decision has been withheld for possible payment of fees. The amount withheld for possible payment of fees is [amount]. Note that an assessment of $100.00 will be withheld from this amount, resulting in a net amount of [amount]. There was a [date of NOD here] notice of disagreement (NOD) filed in this case. Requirements for Direct Payment of Fees Per 38 U.S.C. 5904, fees may not be charged, allowed or paid with respect to services of agents and attorneys before the date on which a notice of disagreement (NOD) is filed with respect to the case. In addition to the requirement that services must be performed after the filing of a NOD, VA’s regulation, 38 CFR 14.636(h), provides that if a fee agreement specifies that fees are to be paid directly by VA to an agent or attorney from past due benefits, the following requirements must be met for direct payment of fees: The total fee payable cannot exceed 20 percent of past-due benefits The fee must be contingent on a favorable outcome, and The award of past due benefits must result in a cash payment to the claimant.

b. Fee Decision Notice – More Than One Attorney/Agent Filed a Direct-Pay Fee Agreement – Page 2

Below is page 2 of the sample notice to send the attorney or agent and claimant when more than one attorney/agent has filed a direct-pay fee agreement.

For NODs filed on or after June 20, 2007, if the above conditions are met, fees may be paid directly to the agent or attorney. In addition to the above requirements, section 14.636(c)(2) provides that for NODs filed on or before June 19, 2007, agents and attorneys may charge only for services provided after both of the following additional conditions have been met: A final decision was promulgated by the Board of Veterans’ Appeals (BVA) with respect to the issue, or issues, involved in the appeal, and The attorney or agent was retained not later than one year following the date that the BVA decision was promulgated. This condition will be met with respect to all successor attorneys or agents acting in the continuous prosecution of the same matter if the predecessor was hired within the required timeframe. This limitation does not apply if the agent or attorney was retained while the case was pending before a court. What We Decided and Why [Use the following paragraph if each attorney/agent is entitled to the entire 20% (or less) fee:] In this case, the NOD was filed on [date] and all of the requirements for direct payment of fees have been met by both [attorney/agent 1] and by [attorney/agent 2]. Since each attorney/agent meets the legal criteria for payment of the entire 20 percent of past due benefits, the case will be immediately referred to the Office of General Counsel for a reasonableness determination (prior to expiration of the appeal period) and fees will not be distributed until OGC determines the amount, if any, that is reasonably payable to each attorney from the 20 percent. [Use the following paragraph if only one attorney/agent is legally entitled to fees, but not the other.] In this case, the NOD was filed on [date] and all of the requirements for direct payment of fees have been met by [attorney/agent 1] but not by [attorney/agent 2]. The following criteria have not been met by [attorney/agent 2]: [List criteria that were not met] As a result, if no appeal is received in accordance with the attached notice, VA will pay [attorney or agent 1] a fee in the amount of [amount after assessment deducted]. Per the provisions of 38 U.S.C. 5904(a)(6), an assessment in the amount of [amount] has been deducted from the fees.

c. Fee Decision Notice – More Than One Attorney/Agent Filed a Direct-Pay Fee Agreement – Page 3

Below is page 3 of the sample notice to send the attorney or agent and claimant when more than one attorney/agent has filed a direct-pay fee agreement.

[Use one of the following three paragraphs for a denial of the direct payment of fees:] There was no NOD filed at any time in connection with the award in this case. As a result, direct payment of fees is denied. [OR] The NOD in this case was filed on [date]. Based upon the law in effect at the time the NOD was filed, direct payment of fees is denied. Direct payment of fees is denied because neither representative has met the following requirement or requirements: [List requirements that have not been met by each attorney/agent.] [OR] No direct-pay fee agreement was filed with the agency of original jurisdiction within 30 days of its execution as required by 38 CFR 14.636(h)(4). If You Think We Are Wrong If you disagree with this determination, you may file a notice of disagreement with this decision. For more information on filing an appeal, see the enclosed VA Form 4107c, Your Rights to Appeal Our Decision – Contested Claims. Sincerely, Veterans Service Center Manager OR Pension Management Center Manager Enclosure: VA Form 4107c

13. Exhibit 6: Fee Recoupment Procedures – Final Notice

Introduction

This topic contains a sample of the final notice to the claimant advising him/her an overpayment was created for recoupment of fees.

Change Date

February 29, 2012

a. Final Notice to Claimant – Overpayment Created – Page 1

Below is page 1 of the final notice to the claimant advising him/her of the overpayment created to recoup fees that VA failed to withhold.

Claimant’s Name] Claimant’s Address] Re: [Veteran’s claim number and claimant’s name] Dear [claimant’s name]: In our letter of [date of proposal letter], we explained that VA mistakenly overlooked the filing of the direct-pay fee agreement and did not withhold any amount for fees from the [date of rating decision] award. This action by VA resulted in an overpayment to you. After our failure to withhold, your attorney/agent was found to be entitled to a fee in the amount of [amount], and VA has paid this amount to your attorney/agent. In our [date of letter] letter, we explained that we would recoup this amount if we did not hear back from you within 60 days. [Select one of the following, either A or B, as appropriate and place at the end of this paragraph.] [A] We did not receive a response to our letter. We have determined that you owe a debt to VA and have created an overpayment in the amount of [amount]. [B] We received the following information from you. [List information.] After reviewing this information, we have determined that you owe a debt to VA and have created an overpayment in the amount of [amount]. What You Owe Because VA did not withhold the attorney’s fee from your [date of rating decision] award, you have been paid too much. The amount of the overpayment is [amount]. In a letter from VA’s Debt Management Center, we will tell you how you can repay this debt. You may submit the evidence outlined in our letter of [date of proposal letter] at any time, and we will reevaluate the amount of your overpayment.

b. Final Notice to Claimant – Overpayment Created – Page 2

Below is page 2 of the final notice to the claimant advising him/her of the overpayment created to recoup fees that VA failed to withhold.

What You Should Do If You Disagree With Our Decision If you do not agree with our decision, you should write and tell us why. You have one year from the date of this letter to appeal the decision. The enclosed VA Form 4107, Your Rights to Appeal Our Decision, explains the appeals process. If You Have Questions or Need Assistance If you have any questions, you may contact us by telephone, e-mail, or letter. If you telephone, call us at 1-800-827-1000 (Note: If you use a Telecommunications Device for the Deaf (TDD), the number is 1-800-829-4833.) use the Internet, send electronic inquiries through the Internet at https://iris.va.gov, or write put your full name and VA file number on the letter, and send all correspondence to the address at the top of this letter. In all cases, be sure to refer to your VA file number [claim number]. If you are looking for general information about benefits and eligibility, you should visit our website at https://www.va.gov, or search the Frequently Asked Questions (FAQs) at https://iris.va.gov. Sincerely, Veterans Service Center Manager OR Pension Management Center Manager