Frivolous Claims

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Frivolous Claims
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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.

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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.

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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

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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.

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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.

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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.

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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)

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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.

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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.

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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)

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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.

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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.

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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.

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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.

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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.

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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

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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