02-19330. Board of Veterans' Appeals: Rules of Practice-Attorney Fee Matters; Notice of Disagreement Requirement

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

This document amends the regulations of the Department of Veterans Affairs (VA) relating to attorney fees. We are removing the requirement that, in order for an agent or attorney to charge a fee for services provided in a case, there must have been a notice of disagreement filed in the case on or after November 18, 1988. This change is required by a statute enacted in December 2001.

DATES:

Effective Date: December 27, 2001.

FOR FURTHER INFORMATION CONTACT:

Steven L. Keller, Senior Deputy Vice Chairman, Board of Veterans' Appeals, Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420, [phone].

SUPPLEMENTARY INFORMATION:

The Board of Veterans' Appeals (Board) is an administrative body that decides appeals from denials of claims for veterans' benefits. The Board's Rules of Practice (38 CFR part 20) contain VA's regulations relating to attorney-fee matters.

The issues of whether and how much an agent or attorney may charge for services provided in a case involving a claim for veterans' benefits have always been highly regulated by Congress. From 1864 until 1988, such fees were limited to $10.00. In 1988, Congress passed the “Veterans' Judicial Review Act” (VJRA), Pub. L. No. 100-687, Div. A, 102 Stat. 4105, which permitted agents and attorneys to charge a “reasonable fee” for services provided in a case when the following three conditions were met:

• The Board made its first final decision in the case;
• The Board's first final decision followed a “notice of disagreement” filed with VA on or after the enactment date of the VJRA, i.e., November 18, 1988; and
• The agent or attorney was retained with respect to such case within one year of the date of the Board s first final decision.

38 U.S.C. 5904(c)(1); Pub. L. No. 100-687, Div. A, § 403, 102 Stat. 4105, 4122, reprinted in 38 U.S.C.A. 5904 note (Applicability to Attorneys Fees) (notice of disagreement date).

In § 603(b) of the “Veterans Education and Benefits Expansion Act of 2001”, Pub. L. No. 107-103, 115 Stat. 976, 999 (Dec. 27, 2001), Congress repealed the requirement that, in order for an agent or attorney to charge a fee for services provided in a case, the Board's first final decision must have followed a notice of disagreement filed on or after November 18, 1988. This document implements that change in VA's regulations.

This change does not affect the requirements that, in order for an agent or attorney to charge a fee for services provided in a case, (1) the Board must have made its first final decision in that case, and (2) the agent or attorney must have been retained with respect to such case within one year of the date of the Board's first final decision.

Administrative Procedure Act

Because this rule merely implements a change in the statute, notice and public comment are unnecessary. 5 U.S.C. 553(b)(B). Accordingly, we are publishing this amendment as a final rule.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532) requires that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any given year. This final rule would have no consequential effect on State, local, or tribal governments.

Paperwork Reduction Act

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Regulatory Flexibility Act

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This amendment will not directly affect any small entities. Only individuals could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.

List of Subjects in 38 CFR Part 20

• Administrative practice and procedure
• Claims
• Veterans

Approved: July 3, 2002.

Anthony J. Principi,

Secretary of Veterans Affairs.

For the reasons set out in the preamble, 38 CFR part 20 is amended as set forth below:

PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE

1. The authority citation for part 20 continues to read as follows:

Authority: 38 U.S.C. 501(a) and as noted in specific sections.

2. In § 20.609, paragraph (c) is revised to read as follows:

§ 20.609

Rule 609. Payment of representative's fees in proceedings before Department of Veterans Affairs field personnel and before the Board of Veterans' Appeals.

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(c) Circumstances under which fees may be charged. (1) General. Except as noted in paragraph (d) of this section, attorneys-at-law and agents may charge claimants or appellants for their services only if both of the following conditions have been met:

(i) A final decision has been promulgated by the Board of Veterans' Appeals with respect to the issue, or issues, involved; and

(ii) The attorney-at-law or agent was retained not later than one year following the date that the decision by the Board of Veterans' Appeals with respect to the issue, or issues, involved was promulgated. (This condition will be considered to have been met with respect to all successor attorneys-at-law or agents acting in the continuous prosecution of the same matter if a predecessor was retained within the required time period.)

(2) Clear and unmistakable error cases. For the purposes of this section, in the case of a motion under subpart O of this part (relating to requests for revision of prior Board decisions on the grounds of clear and unmistakable error), the “issue” referred to in this paragraph (c) shall have the same meaning as “issue” in Rule 1401(a) (§ 20.1401(a) of this part).

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