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38 U.S.C. § 5904 — Recognition of agents and attorneys generally

Federal law — U.S. Code and appendices · legal_authorities

38 U.S.C. § 5904 — Recognition of agents and attorneys generally

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Source location: Title 38, Chapter 59, § 5904; chapter-059-agents-and-attorneys.md

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**(a) Recognition.—** (1) Except as provided in paragraph (4), the Secretary may recognize any individual as an agent or attorney for the preparation, presentation, and prosecution of claims under laws administered by the Secretary. (2) The Secretary shall prescribe in regulations (consistent with the Model Rules of Professional Conduct of the American Bar Association) qualifications and standards of conduct for individuals recognized under this section, including a requirement that, as a condition of being so recognized, an individual must— (A) show that such individual is of good moral character and in good repute, is qualified to render claimants valuable service, and is otherwise competent to assist claimants in presenting claims; (B) have such level of experience or specialized training as the Secretary shall specify; and (C) certify to the Secretary that the individual has satisfied any qualifications and standards prescribed by the Secretary under this section. (3) The Secretary shall prescribe in regulations requirements that each agent or attorney recognized under this section provide annually to the Secretary information about any court, bar, or Federal or State agency to which such agent or attorney is admitted to practice or otherwise authorized to appear, any relevant identification number or numbers, and a certification by such agent or attorney that such agent or attorney is in good standing in every jurisdiction where the agent or attorney is admitted to practice or otherwise authorized to appear. (4) The Secretary may not recognize an individual as an agent or attorney under paragraph (1) if such individual has been suspended or disbarred by any court, bar, or Federal or State agency to which the individual was previously admitted to practice and has not been subsequently reinstated. (5) The Secretary may prescribe in regulations reasonable restrictions on the amount of fees that an agent or attorney may charge a claimant for services rendered in the preparation, presentation, and prosecution of a claim before the Department. A fee that does not exceed 20 percent of the past due amount of benefits awarded on a claim shall be presumed to be reasonable. (6) (A) The Secretary may charge and collect an assessment from an individual recognized as an agent or attorney under this section in any case in which the Secretary pays to the agent or attorney, from past-due benefits owed to a claimant represented by the agent or attorney, an amount as a fee in accordance with a fee arrangement between the claimant and the agent or attorney. (B) The amount of an assessment under subparagraph (A) shall be equal to five percent of the amount of the fee required to be paid to the agent or attorney, except that the amount of such an assessment may not exceed $100. (C) The Secretary may collect an assessment under subparagraph (A) by offsetting the amount of the fee otherwise required to be paid to the agent or attorney from the past-due benefits owed to the claimant represented by the agent or attorney. (D) An agent or attorney who is charged an assessment under subparagraph (A) may not, directly or indirectly, request, receive, or obtain reimbursement for such assessment from the claimant represented by the agent or attorney. (E) Amounts collected under this paragraph shall be deposited in the account available for administrative expenses for veterans’ benefits programs. Amounts so deposited shall be merged with amounts in such account and shall be available for the same purpose, and subject to the same conditions and limitations, as amounts otherwise in such account. **(b) Suspension of Agents and Attorneys.—** The Secretary, after notice and opportunity for a hearing, may suspend or exclude from further practice before the Department any agent or attorney recognized under this section if the Secretary finds that such agent or attorney— (1) has engaged in any unlawful, unprofessional, or dishonest practice; (2) has been guilty of disreputable conduct; (3) is incompetent; (4) has violated or refused to comply with any of the laws administered by the Secretary, or with any of the regulations or instructions governing practice before the Department; (5) has in any manner deceived, misled, or threatened any actual or prospective claimant; (6) has presented to the Secretary a frivolous claim, issue, or argument, involving conduct inconsistent with ethical standards for the practice of law; (7) has been suspended or disbarred by any court or bar to which such agent or attorney was previously admitted to practice, or has been disqualified from participating in or appearing before any Federal agency, and has not been subsequently reinstated; (8) has charged excessive or unreasonable fees, as determined by the Secretary in accordance with subsection (c)(3)(A); or (9) has failed to comply with any other condition specified in regulations prescribed by the Secretary for purposes of this subsection. **(c)** (1) Except as provided in paragraph (4), in connection with a proceeding before the Department with respect to benefits under laws administered by the Secretary, a fee may not be charged, allowed, or paid for services of agents and attorneys with respect to services provided before the date on which a claimant is provided notice of the agency of original jurisdiction’s initial decision under [section 5104 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title38-section5104&num=0&edition=prelim) with respect to the case. The limitation in the preceding sentence does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. (2) A person who, acting as agent or attorney in a case referred to in paragraph (1) of this subsection, represents a person before the Department or the Board of Veterans’ Appeals after a claimant is provided notice of the agency of original jurisdiction’s initial decision under [section 5104 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title38-section5104&num=0&edition=prelim) with respect to the case shall file a copy of any fee agreement between them with the Secretary pursuant to regulations prescribed by the Secretary. (3) (A) The Secretary may, upon the Secretary’s own motion or at the request of the claimant, review a fee agreement filed pursuant to paragraph (2) and may order a reduction in the fee called for in the agreement if the Secretary finds that the fee is excessive or unreasonable. (B) A finding or order of the Secretary under subparagraph (A) may be reviewed by the Board of Veterans’ Appeals under [section 7104 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title38-section7104&num=0&edition=prelim). (C) If the Secretary under subsection (b) suspends or excludes from further practice before the Department any agent or attorney who collects or receives a fee in excess of the amount authorized under this section, the suspension shall continue until the agent or attorney makes full restitution to each claimant from whom the agent or attorney collected or received an excessive fee. If the agent or attorney makes such restitution, the Secretary may reinstate such agent or attorney under such rules as the Secretary may prescribe. (4) A reasonable fee may be charged or paid in connection with any proceeding before the Department in a case arising out of a loan made, guaranteed, or insured under chapter 37 of this title. A person who charges a fee under this paragraph shall enter into a written agreement with the person represented and shall file a copy of the fee agreement with the Secretary at such time, and in such manner, as may be specified by the Secretary. **(d) Payment of Fees Out of Past-Due Benefits.—** (1) When a claimant and an agent or attorney have entered into a fee agreement described in paragraph (2), the total fee payable to the agent or attorney may not exceed 20 percent of the total amount of any past-due benefits awarded on the basis of the claim. (2) (A) A fee agreement referred to in paragraph (1) is one under which the total amount of the fee payable to the agent or attorney— (i) is to be paid to the agent or attorney by the Secretary directly from any past-due benefits awarded on the basis of the claim; and (ii) is contingent on whether or not the matter is resolved in a manner favorable to the claimant. (B) For purposes of subparagraph (A), a claim shall be considered to have been resolved in a manner favorable to the claimant if all or any part of the relief sought is granted. (3) To the extent that past-due benefits are awarded in any proceeding before the Secretary, the Board of Veterans’ Appeals, or the United States Court of Appeals for Veterans Claims, the Secretary may direct that payment of any fee to an agent or attorney under a fee arrangement described in paragraph (1) be made out of such past-due benefits. In no event may the Secretary withhold for the purpose of such payment any portion of benefits payable for a period after the date of the final decision of the Secretary, the Board of Veterans’ Appeals, or Court of Appeals for Veterans Claims making (or ordering the making of) the award.

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Federal law — U.S. Code and appendices · legal_authorities

38 U.S.C. § 7251 — Status

There is hereby established, under Article I of the Constitution of the United States, a court of record to be known as the United States Court of Appeals for Veterans Claims.

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Federal law — U.S. Code and appendices · legal_authorities

38 U.S.C. § 7291 — Date when Court decision becomes final

**(a)** A decision of the United States Court of Appeals for Veterans Claims shall become final upon the expiration of the time allowed for filing, under [section 7292 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title38-section7292&num=0&edition=prelim), a notice of appeal from such decision, if no such notice is duly filed within such time. If such a notice is filed within such time, such a decision shall become final— (1) upon the expiration of the time allowed for filing a petition for certiorari with the Supreme Court of the United States, if the decision of the Court of Appeals for Veterans Claims is affirmed or the appeal is dismissed by the United States Court of Appeals for the Federal Circuit and no petition for certiorari is duly filed; (2) upon the denial of a petition for certiorari, if the decision of the Court of Appeals for Veterans Claims is affirmed or the appeal is dismissed by the United States Court of Appeals for the Federal Circuit; or (3) upon the expiration of 30 days from the date of issuance of the mandate of the Supreme Court, if that Court directs that the decision of the Court of Appeals for Veterans Claims be affirmed or the appeal dismissed. **(b)** (1) If the Supreme Court directs that the decision of the Court of Appeals for Veterans Claims be modified or reversed, the decision of the Court of Appeals for Veterans Claims rendered in accordance with the mandate of the Supreme Court shall become final upon the expiration of 30 days from the time it was rendered, unless within such 30 days either the Secretary or the petitioner has instituted proceedings to have such decision corrected to accord with the mandate, in which event the decision of the Court of Appeals for Veterans Claims shall become final w

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Federal law — U.S. Code and appendices · legal_authorities

38 U.S.C. § 101 — Definitions

For the purposes of this title— (1) The terms “Secretary” and “Department” mean the Secretary of Veterans Affairs and the Department of Veterans Affairs, respectively. (2) The term “veteran” means a person who served in the active military, naval, air, or space service, and who was discharged or released therefrom under conditions other than dishonorable. (3) The term “surviving spouse” means (except for purposes of chapter 19 of this title) a person who was the spouse of a veteran at the time of the veteran’s death, and who lived with the veteran continuously from the date of marriage to the date of the veteran’s death (except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse) and who has not remarried. (4) (A) The term “child” means (except for purposes of chapter 19 of this title (other than with respect to a child who is an insurable dependent under subparagraph (B) or (C) of section 1965(10) of such chapter) and [section 8502(b) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title38-section8502/b&num=0&edition=prelim)) a person who is unmarried and— (i) who is under the age of eighteen years; (ii) who, before attaining the age of eighteen years, became permanently incapable of self-support; or (iii) who, after attaining the age of eighteen years and until completion of education or training (but not after attaining the age of twenty-three years), is pursuing a course of instruction at an approved educational institution; and who is a legitimate child, a legally adopted child, a stepchild who is a member of a veteran’s household or was a member at the time of the veteran’s death, or an illegitimate child but, as to the alleged father, onl

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Federal law — U.S. Code and appendices · legal_authorities

38 U.S.C. § 7104 — Jurisdiction of the Board; decisions; notice

**(a)** All questions in a matter which under [section 511(a) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title38-section511/a&num=0&edition=prelim) is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board. Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation. **(b)** Except as provided in [section 5108 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title38-section5108&num=0&edition=prelim), when a claim is disallowed by the Board, the claim may not thereafter be readjudicated and allowed and a claim based upon the same factual basis may not be considered. **(c)** The Board shall be bound in its decisions by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department. **(d)** Each decision of the Board shall include— (1) a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record; (2) a general statement— (A) reflecting whether evidence was not considered in making the decision because the evidence was received at a time when not permitted under [section 7113 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title38-section7113&num=0&edition=prelim); and (B) noting such options as may be available for having the evidence considered by the Department; and (3) an order granting appropriate relief or denying relief. **(e)** After reaching a deci

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Federal law — U.S. Code and appendices · legal_authorities

38 U.S.C. § 5104 — Decisions and notices of decisions

**(a)** In the case of a decision by the Secretary under [section 511 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title38-section511&num=0&edition=prelim) affecting the provision of benefits to a claimant, the Secretary shall, on a timely basis, provide to the claimant (and to the claimant’s representative) notice of such decision. The notice shall include an explanation of the procedure for obtaining review of the decision. **(b)** Each notice provided under subsection (a) shall also include all of the following: (1) Identification of the issues adjudicated. (2) A summary of the evidence considered by the Secretary. (3) A summary of the applicable laws and regulations. (4) Identification of findings favorable to the claimant. (5) In the case of a denial, identification of elements not satisfied leading to the denial. (6) An explanation of how to obtain or access evidence used in making the decision. (7) If applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation. **(c)** The Secretary may provide notice under subsection (a) electronically if a claimant (or the claimant’s representative) elects to receive such notice electronically. A claimant (or the claimant’s representative) may revoke such an election at any time, by means prescribed by the Secretary. **(d)** The Secretary shall annually— (1) solicit recommendations from stakeholders on how to improve notice under this section; and (2) publish such recommendations on a publicly available website of the Department.

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Federal law — U.S. Code and appendices · legal_authorities

28 U.S.C. § 2412 — Costs and fees

**(a)** (1) Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in [section 1920 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section1920&num=0&edition=prelim), but not including the fees and expenses of attorneys, may be awarded to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. A judgment for costs when taxed against the United States shall, in an amount established by statute, court rule, or order, be limited to reimbursing in whole or in part the prevailing party for the costs incurred by such party in the litigation. (2) A judgment for costs, when awarded in favor of the United States in an action brought by the United States, may include an amount equal to the filing fee prescribed under [section 1914(a) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section1914/a&num=0&edition=prelim). The preceding sentence shall not be construed as requiring the United States to pay any filing fee. **(b)** Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides f

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Federal law — U.S. Code and appendices · legal_authorities

38 U.S.C. § 5904 — Recognition of agents and attorneys gen-

Page 1101 TITLE 38—VETERANS’ BENEFITS § 5904 (2) as subpars. (A) and (B), respectively, of par. (1), and added par. (2). 1996—Subsecs. (c), (d). Pub. L. 104–275 added subsec. (c) and redesignated former subsec. (c) as (d). 1991—Pub. L. 102–40 renumbered section 3402 of this title as this section. Subsec. (a)(1). Pub. L. 102–83, § 4(b)(1), (2)(E), sub- stituted ‘‘Secretary’’ for ‘‘Administrator’’ in two places. Pub. L. 102–83, § 4(a)(1), substituted ‘‘administered by the Secretary’’ for ‘‘administered by the Veterans’ Ad- ministration’’. Subsecs. (a)(2), (b). Pub. L. 102–83, § 4(b)(1), (2)(E), sub- stituted ‘‘Secretary’’ for ‘‘Administrator’’ wherever ap- pearing. 1983—Subsec. (a)(1). Pub. L. 98–160, § 703(5)(A), sub- stituted ‘‘the Administrator’’ for ‘‘he’’. Subsec. (a)(2). Pub. L. 98–160, § 703(5)(B), substituted ‘‘the discretion of the Administrator’’ for ‘‘his discre- tion’’. Subsec. (b)(1). Pub. L. 98–160, § 703(5)(C), substituted ‘‘the individual’’ for ‘‘he’’. Subsec. (c). Pub. L. 98–160, § 703(5)(D), substituted ‘‘member’’ for ‘‘man’’. 1969—Subsec. (c). Pub. L. 91–24 substituted ‘‘sections 203, 205, 206 or 207 of title 18’’ for ‘‘section 281 or 283 of title 18, or a violation of section 99 of title 5’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Pub. L. 104–275, title V, § 508(b), Oct. 9, 1996, 110 Stat. 3344, provided that: ‘‘The amendments made by this section [amending this section] apply to any power of attorney filed with the Department of Veterans Affairs, regardless of the date of its execution.’’ § 5903. Recognition with respect to particular claims (a) IN GENERAL.—The Secretary may recognize any individual for the preparation, presentation, and prosecution of any particular claim for ben- efits

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