Oklahoma Bar Journal
Accredited Representatives and the Veterans’ Benefits Claim Process
By Doris L. Gruntmeir
The U.S. Department of Veterans Affairs (VA) plays a pivotal role in providing support and services to veterans, ensuring they receive the benefits and care they have earned through their service. Among the various programs administered by the VA, the Accreditation, Discipline and Fees (ADF) program, as outlined in 38 U.S.C. §§5902-5904 and 38 C.F.R. §§14.626-630, stands out as a critical framework designed to regulate the conduct of accredited representatives who assist veterans in navigating the complex landscape of benefits and claims. The overarching goal of the ADF program is to protect veterans from potential exploitation and ensure they receive competent assistance as they pursue benefits for which they may be entitled. Protecting veterans is particularly important, given the complexities of the claims process, which can be overwhelming for any number of veterans.
OVERVIEW
The ADF program is a critical tool through which the VA ensures that individuals and organizations assisting veterans in their pursuit of benefits are not only qualified but also adhere to established standards of conduct. By ensuring that only qualified individuals and organizations are accredited, the VA aims to create a system upon which veterans may rely for representation in their pursuit of benefits. The ADF program also seeks to improve the quality of services provided to veterans. Accredited representatives are expected to stay informed about changes in laws and regulations that affect veterans' benefits in order to provide accurate advice and assistance. This commitment to continuing education and professional development is the foundation of the ADF program, as it directly and positively impacts the support received by veterans.
The ADF program is vital to maintaining the integrity of the claims process and protecting veterans, many of whom are vulnerable to exploitation. Congress deemed this protection sufficiently necessary to codify the ADF program.[1] The statute lays out the criteria for accreditation, including articulating the qualifications accredited representatives need to effectively assist veterans. These qualifications include educational requirements, experience handling veterans' claims and a comprehensive understanding of the VA's policies, procedures and regulations. In addition, the ADF program provides that accredited representatives have certain responsibilities, including providing accurate information, acting in the best interests of the veteran and maintaining certain ethical standards throughout the claims process. The ADF program also incorporates a process for disciplinary actions, including suspension or revocation of accreditation for those failing to comply with the regulations to ensure misconduct is addressed appropriately. This legal framework is essential to upholding the integrity of the ADF program and maintaining a trustworthy means for veterans to seek assistance.
THE ACCREDITATION PROCESS
Title 38 U.S.C. §5902 lays out eligibility criteria designed to ensure only qualified individuals are accredited to represent veterans in their claims for benefits, while the regulatory framework established in 38 C.F.R. §§14.626-630 further elaborates on the accreditation process. The detailed regulations ensure an overall transparent, fair and consistent accreditation process.
The accreditation process itself involves a number of steps that prospective representatives must complete to obtain VA accreditation. Initially, individuals seeking accreditation must submit an application that includes documentation demonstrating their qualifications. The documentation will cover relevant education, training and experience in dealing with veterans' benefits and affiliations with recognized veterans' organizations. It may also include transcripts from educational institutions, training certificates and a resume detailing their professional history. The application form requires applicants to disclose personal information, such as professional affiliations and previous experience working with veterans. In addition, applicants may be asked to provide references who can attest to their qualifications and character. The VA takes the vetting process seriously, as it ensures those who are granted accreditation are committed to serving veterans.
Applications for accreditation are thoroughly reviewed by the VA to determine the applicant’s suitability. In addition, the applicants may undergo background checks to ensure against criminal history or unethical behavior that would disqualify them. Unless the VA receives information to the contrary, bar membership in good standing establishes an attorney’s character and fitness to represent claimants before the VA. To be accredited, the applicant must also pass a test on VA benefits law, which is currently offered online four times per year.[2]
Once representatives are accredited,[3] they are required to adhere to a standard of conduct[4] that emphasizes the importance of ethical behavior, transparency and accountability to ensure they act in the best interests of veterans. Accredited representatives must be honest in their dealings, provide accurate information and avoid misleading claims. They must ensure they protect the confidentiality of veterans’ personal and sensitive information. They must also conduct themselves professionally in a manner that reflects positively on the VA and other accredited representatives. Attorneys who are accredited are also required to adhere to the professional rules of conduct of the jurisdiction in which they are licensed to practice law.[5]
In addition to maintaining a standard of conduct, accredited representatives are required to complete ongoing training to stay abreast of changes in VA regulations and policies. Given the continually evolving landscape of veterans' benefits resulting from legislative changes, new programs and policy revisions, continuing education is critical. Accredited representatives must satisfy an initial three-hour continuing legal education (CLE) requirement within one year of becoming accredited[6] and an additional three hours of CLE every two years thereafter.[7] An accredited representative’s commitment to continuous learning benefits will positively impact the quality of service they are able to provide and the outcomes they receive for veterans. Finally, accredited representatives are required to keep accurate records of their communications with veterans, which supports the accountability and transparency of accredited representatives in the ADF program.
FEES AND COMPENSATION
Another important element of the ADF program relates to the fees that accredited representatives may charge for their services. Accredited representatives are allowed to charge fees for services provided in connection with claims for benefits as long as such fees are reasonable and disclosed to the veteran in advance. Specifically, an accredited representative may only charge claimants a fee after an agency of original jurisdiction (e.g., a VA regional office) has issued an initial decision on a claim and the attorney or claims agent has filed a power of attorney and a fee agreement with the VA.[8] This provision establishes a framework for compensation while also safeguarding veterans from potential exploitation. Two types of fee agreements can be filed with the VA:
- Direct payment: The claimant and the accredited representative agree that the fee is to be paid to the accredited representative by the VA directly from any past-due benefits awarded to the claimant.
- Nondirect payment: The accredited representative is responsible for collecting any fee for representation from the claimant without assistance from the VA.[9]
While the law does not specify the amounts accredited representatives may charge, it does provide that fees may be charged based on a fixed amount, an hourly rate, a percentage of past-due benefits recovered or a combination of such bases, and the fees must be reasonable.[10] A fee that does not exceed 20% of the past-due amount of benefits awarded on a claim shall be presumed to be reasonable,[11] whereas a fee that exceeds 33.33% of the past-due benefits creates a rebuttable presumption that is unreasonable.[12]
Thus, the driving principle in ensuring veterans receive fair treatment when seeking assistance with their claims is the "reasonableness" of the fee being charged. Reasonableness turns, in part, on the complexity of the case and the level of service provided.[13] This flexibility allows fees to be tailored to the unique circumstances of each veteran's case. For example, higher fees may be warranted in those cases involving multiple claims, appeals or the need for expert testimony, given the time and expertise required. However, a straightforward claim may warrant a lower fee.[14] In addition, accredited representatives who offer a higher level of service – such as thorough case evaluations, individual consultations and ongoing support throughout the claims process – may warrant charging higher fees than those who provide more basic assistance.[15]
Accredited representatives must provide a clear breakdown of their fees and services, which further reinforces transparency.[16] This transparency helps foster trust between veterans and their accredited representatives by eliminating unexpected costs or hidden charges. The VA also has the authority to review and approve fee agreements,[17] either on its own motion or on the veteran’s motion, which provides additional oversight of fee agreements and compensation within the ADF program. By reviewing fee agreements, the VA is able to intervene if they identify concerns regarding the reasonableness of the fees being charged and to protect veterans from potential abuses. The concept of reasonable fees, along with VA oversight, helps protect veterans while ensuring that accredited representatives are fairly compensated for their services.
DISCIPLINARY MEASURES AND ENFORCEMENT
To maintain the integrity of the ADF program, 38 U.S.C. §5903 provides the VA with the authority to take disciplinary action against accredited representatives who fail to meet the established standards of conduct or who engage in unethical behavior. More specifically, 38 U.S.C. §5904 and 38 C.F.R. §14.633 give the VA the authority to take disciplinary measures, including suspension and revocation of accreditation, depending on the severity of the violation. The types of violations that may lead to suspension or revocation of accreditation can encompass a wide range of unethical behaviors, including misrepresentation of qualifications, filing fraudulent claims, failure to provide adequate or competent representation, failure to act in the best interests of veterans and conflicts of interest. For example, if an accredited representative knowingly submits false information to the VA on behalf of a veteran, it may harm the veteran's chances of receiving the benefits they deserve and, in turn, undermines the integrity of the ADF program. While serving as a deterrent against misconduct, the statutory framework reinforces the expectation of high ethical standards within the ADF program.
The regulatory framework outlines the procedures for investigating allegations of misconduct and the rights of accredited representatives facing disciplinary action.[18] The disciplinary procedures are designed to be fair and provide accredited representatives the opportunity to respond to allegations prior to the VA making a decision. When a complaint is filed, the VA conducts an investigation to gather evidence and assess the validity of the allegations. Prior to taking an action to suspend or revoke an accredited representative’s accreditation, the VA is required to provide an explanation of the charges against them, and the accredited representative is entitled to a hearing to defend themselves. The process also includes the opportunity for the accredited representative to appeal any decisions made regarding their accreditation status.[19] These due process elements help protect an accredited representative’s rights and the interests of veterans, thus reinforcing the integrity of the ADF program.
Upon a finding of clear and convincing evidence of a violation of or refusal to comply with VA laws or regulations or a number of other violations, the penalties the VA may impose range from temporary suspension to permanent revocation of accreditation.[20] In cases where a representative's accreditation is suspended or revoked, the VA may also impose additional penalties, such as fines,[21] restrictions on future accreditation applications[22] and, for attorneys, notification to all agencies, courts and bars to which the agent or attorney is admitted to practice.[23] The imposition of discipline impacts not only the accredited representative but also the organizations they represent and the veterans they serve. A loss of accreditation can diminish public trust in the organization and may lead to a decrease in the number of veterans seeking assistance from accredited representatives. This regulatory framework serves as a deterrent against misconduct and ensures that there is a transparent and structured process for addressing misconduct that helps maintain the integrity and effectiveness of the ADF program.
If the VA receives complaints of unauthorized practice before the VA – i.e., individuals not accredited by the VA charging improper fees to a claimant for the preparation, presentation or prosecution of a VA benefits claim – the VA does not have direct authority to pursue injunctive or disciplinary action. In those cases, the VA will notify the individual or organization to cease the unlawful practice and recommend the complaint be submitted directly to the Federal Trade Commission’s complaint assistant.[24] Currently, Title 38 U.S.C. §5905 only authorizes penalties for wrongfully withholding from a claimant or beneficiary any part of a benefit due to the claimant or beneficiary. Whereas, prior to 2006, Section 5905 imposed punishment on a much broader range of conduct related to fees and compensation with respect to providing representation on claims for VA benefits, including criminal penalties.[25] In the absence of its own enforcement authority, the VA must work with state and federal entities to pursue enforcement action in these situations. Fortunately, the VA has had multiple successes working with state attorneys general offices, the U.S. Department of Justice and the Consumer Financial Protection Bureau (CFPB) in pursuing actions against those who attempt to take advantage of veterans related to their VA benefits claims. The VA’s referral to these entities often results in settlement or consent decrees in which the unaccredited individual agrees to cease providing unauthorized services to veterans. To overcome this statutory limitation and further its efforts to protect veterans, the VA has, since fiscal year 2018 and every year thereafter, proposed legislation that would reinstate the penalties for directly or indirectly charging or receiving any fee or compensation with respect to the preparation, presentation and prosecution of claims for VA benefits except as provided by law.[26]
IMPACT ON VETERANS
Access to timely and qualified assistance is crucial for many veterans seeking benefits that can directly impact their quality of life. Delays in the claims process or inadequate or incompetent support in submitting their claims can lead or contribute to a veteran’s financial instability, mental health issues and sense of isolation, particularly for those who are from marginalized communities. The ADF program helps level the playing field of the complex world of veterans' benefits. The combination of accredited representation, protective measures and transparent fees culminates in a significant empowerment of veterans in their pursuit of benefits. When veterans have confidence in their accredited representative and understand the costs involved, they are more likely to actively engage in the process to pursue benefits to which they are entitled. Active participation by veterans leads to better communication with their accredited representatives, which, in turn, helps ensure all relevant information is shared and included in their claim submissions. Moreover, veterans who feel empowered are more likely to advocate for themselves and other veterans. As a result, veterans are able to work effectively with their accredited representatives to develop comprehensive claims packages and strategies that address their specific needs and circumstances, ultimately leading to improved outcomes in their claims for benefits.
CONCLUSION
The ADF program is an essential component of the VA's efforts to protect and serve veterans by combatting predatory practices that target veterans, particularly through offers of assistance in applying for VA benefits claims. By establishing rigorous standards for accreditation and ensuring accredited representatives adhere to a standard of conduct and are held accountable when failing to do so, the ADF program plays a crucial role in safeguarding veterans’ interests. As veterans navigate the challenging and often complex landscape of VA benefits claims, the ADF program serves to support them by ensuring they receive the competent and ethical assistance they deserve, which enhances their experience and increases their chances of receiving the benefits they have earned. The VA’s oversight and the disciplinary measures available through the ADF program serve as a safeguard for veterans. These measures act as a deterrent to fraudulent practices and unethical behavior and provide veterans with the peace of mind of knowing there are processes in place to protect them.
Similar to the Oklahoma Bar Association’s goal to protect the public by licensing, investigating complaints against and prosecuting lawyers who have committed ethical violations, the ADF program seeks to protect veterans. Through its administration of the ADF program, the VA not only upholds the integrity of the claims process but also upholds its commitment to the well-being of veterans and their families.
INFORMATION ON THE ACCREDITATION, DISCIPLINE AND FEES (ADF) PROGRAM: www.va.gov/ogc/accreditation.asp
VERIFYING ACCREDITATION: The VA maintains a public-facing website, which can be used to search for individuals who are currently accredited by the VA to provide representation or to search for VA-recognized Veterans Service Organizations. www.va.gov/ogc/apps/accreditation/index.asp
ABOUT THE AUTHOR
Doris L. Gruntmeir is a senior executive with the U.S. Department of Veterans Affairs Office of General Counsel in Washington, D.C., where she serves as the chief counsel for personnel law. She received her J.D. from the OU College of Law in 2000.
ENDNOTES
[1] 38 U.S.C. §§5902-5904.
[2] The next three examination dates will be Jan. 28, 2025; May 20, 2025; and Sept. 23, 2025.
[3] As of April 19, 2023, the VA had 91 VA-recognized Veterans Service Organizations (VSOs) with 8,142 accredited VSO representatives, 5,445 accredited attorneys and 482 accredited claims agents. Testimony of David Barrans, https://bit.ly/3PoDpwi.
[4] 38 C.F.R. §14.632.
[5] 38 C.F.R. §14.632(d).
[6] 38 C.F.R. §14.629(b)(1)(iii).
[7] 38 C.F.R. §14.629(b)(1)(iv).
[8] 38 U.S.C. §5904(c)(1); 38 C.F.R. §14.636(c) and (g).
[9] Id.
[10] 38 C.F.R. §14.636(e).
[11] 38 U.S.C. §5904 (a)(5).
[12] 38 C.F.R. §14.636(f)(1).
[13] 38 C.F.R. §14.636(e)(1) and (2).
[14] 38 C.F.R. §14.636(e)(2).
[15] 38 C.F.R. §14.636(e)(1), (4) and (6).
[16] 38 C.F.R. §14.636(g) and (h).
[17] 38 C.F.R. §14.636.
[18] 38 C.F.R. §14.633.
[19] 38 C.F.R. §14.633(h).
[20] 38 C.F.R. §14.633(c).
[21] 38 U.S.C. §5905.
[22] 38 C.F.R. §14.633(g).
[23] 38 C.F.R. §14.633(i).
[24] ReportFraud.ftc.gov.
[25] 38 U.S.C. §5905(1) (2005); removed from the statute by Pub. L. No. 109-461, §101(g), 120 Stat. 3408.
[26] S.740 GUARD Act; Testimony of David Barrans, https://bit.ly/3PoDpwi.
Originally published in the Oklahoma Bar Journal – OBJ 96 No. 2 (February 2025)
Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.