VA Claims Agent Sample Test
Case Study #3 (13)
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Case Study #3:
For this question, refer to 38 CFR § 14.636 Payment of fees for representation by agents and attorneys in proceedings before Agencies of Original Jurisdiction and before the Board of Veterans' Appeals.
Margaret is an accredited claims agent. She is also one of the founders of a charitable nonprofit corporation that assists veterans with claims. Margaret receives a salary from the nonprofit. Some of the income for her nonprofit organization comes from donations from other organizations and from public and private grants. The greater part of the income for the organization comes from donations from the families of the veterans or survivors she is assisting. Margaret believes that she is following the fee payment exceptions by a disinterested third-party under paragraph (d) above. Her nonprofit is the disinterested third-party that has hired her to assist with claims.
Margaret is careful not to solicit contributions from the claimants as that would represent an indirect fee payment channeled through the organization. Instead, she has the family members of the claimant's sign a statement along with their donations that they have no financial interest in the success of the claim. Margaret believes this signed statement meets the rebuttal of clear and convincing evidence that the family members are disinterested and therefore the contributions represent a disinterested donation instead of a disguised fee. Margaret also includes in this signed statement, the certification required in (iii) above. She believes all of this represents a legitimate disinterested third-party fee arrangement.
Margaret and her staff stress to claimants that they could not work for free and they would not be able to provide the assistance without the children or spouses of the claimants chipping in money. Margaret suggests to all of the contributors they donate a will percentage of the back payments paid from the effective date through the date of approval on successful claims. She will not take more than 20% of the retroactive amount and will return any excess beyond that.
There is a written agreement requiring donations to the nonprofit by family members although to make sure there is no "pay to play" coercion, no specified amount or percentage is required, but a base minimum payment of $300 is mandatory. In order to ensure payment, family members sign a promissory note agreeing to use the money from the back payments to donate to the corporation. This is done to meet the requirement of the citation above; namely, "a fee which is contingent, in whole or in part, on whether the matter is resolved in a mam1er favorable to the claimant or appellant." In other words, no money is due until a decision is made. If the benefit is not approved, family members do not have to make the donations. The agreement includes all of the information required in paragraph (g) above. Margaret does not submit the donation agreements as she believes they are merely promissory notes and do not represent actual fees.
She retains the agreements in her files in case VA should ever want to see them.
THE NEXT THREE QUESTIONS ARE BASED ON CASE STUDY #3.