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Frivolous Claims

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Title: Frivolous Claims


1
Frivolous Claims
2
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
  • Final Reg. published 5/22/08 and effective
    6/23/08. It amends 38 CFR Parts 1, 14, 19, and
    20.

3
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.

4
The New Regulation
  • 38 CFR 14.632(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

5
The New Regulation
  • 38 CFR 14.633(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.

6
Frivolous Claims
  • 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.

7
Frivolous Claims
  • The 2008 regulation then defines a frivolous
    claim as
  • A claim, issue or argument is frivolous if the
    individual providing representation under 14.630,
    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.

8
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 14.633(c)(4)

9
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.

10
Comments Objections
  • VA response vets 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.

11
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
    VAs 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)

12
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.

13
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 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.

14
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.

15
Frivolous Claims
  • VA interprets good faith as honesty of
    purpose and freedom of intention to defraud.
    Blacks 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.

16
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.

17
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

18
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
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