Accreditation of Agents and Attorneys; Agent and Attorney Fees, 29852-29880 [E8-10779]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 73, Number 100 (Thursday, May 22, 2008)]
[Rules and Regulations]
[Pages 29852-29880]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-10779]



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Part II





Department of Veterans Affairs





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38 CFR Parts 1, 14, 19 and 20



Accreditation of Agents and Attorneys; Agent and Attorney Fees; Final 
Rule

Federal Register / Vol. 73, No. 100 / Thursday, May 22, 2008 / Rules 
and Regulations

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 1, 14, 19 and 20

RIN 2900-AM62


Accreditation of Agents and Attorneys; Agent and Attorney Fees

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is amending its 
regulations governing the representation of claimants for veterans 
benefits in order to implement provisions of the Veterans Benefits, 
Health Care, and Information Technology Act of 2006, and to reorganize 
and clarify existing regulations. As amended, the regulations establish 
the procedures and rules necessary for VA to facilitate the paid 
representation of claimants by accredited agents and attorneys after a 
Notice of Disagreement has been filed with respect to a case. The 
purpose of these regulations is to fulfill Congress' direction that 
agents and attorneys may be paid for services rendered after a Notice 
of Disagreement is filed with respect to a decision by an agency of 
original jurisdiction while ensuring that claimants for veterans 
benefits have responsible, qualified representation.

DATES: Effective Date: The final rule is effective June 23, 2008. See 
SUPPLEMENTARY INFORMATION for initial compliance dates.
    Applicability Dates: Some amendments in this final rule are for 
prospective application only. For more information concerning the dates 
of applicability, see the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Michael G. Daugherty, Staff Attorney, 
Office of the General Counsel (022G2), Department of Veterans Affairs, 
810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-7699. (This is 
not a toll-free number.)

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on May 7, 2007 (72 FR 25930), VA proposed to amend its 
regulations governing the representation of claimants for veterans 
benefits, accreditation of individuals who may provide representation, 
and limitations on fees charged for representation. The public comment 
period ended on June 6, 2007. VA received 44 comments from interested 
individuals and organizations, including agents, attorneys, law firms, 
pro bono groups, and veterans service organizations (VSO). The comments 
generally concerned VA's proposed attorney accreditation requirements 
and the centralization of attorney accreditation and disciplinary 
proceedings in the Office of the General Counsel (OGC). The comments 
are discussed below. Based on the rationale described in this document 
and in the notice of the proposed rulemaking, VA adopts the proposed 
rule as revised in this document.

Section 14.627--Definitions

    Noting some confusion in the comments concerning accreditation of 
individuals and when those individuals would be considered to be 
providing representation in a proceeding before the Department for 
purposes of charging fees, we modified the definitions in 38 CFR 
14.627(a) and (n) to clarify that ``accreditation'' means authority to 
assist claimants in the preparation, presentation, and prosecution of 
claims for VA benefits, and that ``representation'' means the acts 
associated with representing a claimant in a proceeding before the 
Department pursuant to a properly executed and filed VA Form 21-22 
(appointment of service organization) or VA Form 21-22a (appointment of 
individual).
    In Sec.  14.627(d), we amend the definition of ``attorney'' to mean 
a member in good standing of a State bar who has met the requirements 
prescribed in 38 CFR 14.629(b) for practice before VA. One commenter 
opined that changing the definition of ``attorney'' as proposed in 
Sec.  14.627(d) was unnecessary. Another commenter, without taking a 
position on the appropriateness of the proposed definition, suggested 
VA address the question of whether the Agency Practice Act, 5 U.S.C. 
500(b), prohibits VA from regulating attorney practice before the 
Department. We discuss VA's authority to regulate attorney practice 
before VA below under Sec.  14.629.
    We disagree that a change in the definition of ``attorney'' is 
unnecessary. Prior to the enactment of Public Law 109-461, VA 
accredited attorneys for practice before the Department based solely 
upon being a member in good standing of a State bar. However, Public 
Law 109-461 amended 38 U.S.C. 5904(a) and directed VA to prescribe, in 
regulations, qualifications and standards of conduct for practice 
before the Department. As discussed in greater detail below, the final 
rule does not require attorneys to submit to a character and fitness 
evaluation or pass a written exam to be accredited. Nonetheless, 
attorneys must apply for accreditation, certify their standing 
annually, and complete continuing legal education (CLE) requirements 
established by VA. Because these are requirements beyond bar membership 
we retain the definition of ``attorney'' as proposed.
    Four commenters suggested that VA amend the definition of ``claim'' 
in Sec.  14.627(g). One commenter suggested that we place the 
definition in 38 CFR part 3.
    We agree that clarification is necessary concerning when a fee is 
payable for representation, especially in circumstances where more than 
one representative, agent, or attorney is involved. A number of 
commenters requested that we reconcile the definition of ``claim'' in 
Sec.  14.627(g) with case law, including Carpenter v. Nicholson, 452 
F.3d 1379 (Fed. Cir. 2006). Because the definition of ``claim'' in 
Sec.  14.627(g) is identical to the prior definition we will retain it 
as proposed but will address commenters' concerns and reconcile the 
case law in Sec.  14.636(c), the section pertaining to the 
circumstances under which fees may be charged.
    One commenter recommended that the definition of ``service'' under 
Sec.  14.627(o) include a proof of receipt component. We disagree. The 
commenter makes this suggestion based upon the alleged failure of VA to 
properly deliver correspondence related to benefit claims. However, 
requiring proof of service under part 14 does not address the 
commenter's concerns about benefit claims. Under part 14, claimants and 
attorneys are required to ``serve'' documents related to claimants' or 
the General Counsel's motions for review of fee agreements. Such 
service is not related to the manner in which VA mails or proves 
mailing of documents related to claims. Furthermore, we modeled our 
proposed service rules after the rules of practice and procedure 
generally followed by litigants, practitioners and courts, such as Rule 
5(b) of the Federal Rules of Civil Procedure and Rule 25(c) of the 
Federal Rules of Appellate Procedure, both of which provide that 
service by mail is complete on mailing.

Section 14.629--Requirements for Accreditation of Representatives, 
Agents, and Attorneys

    In 38 CFR 14.629, we proposed to continue administering VA's 
accreditation program in OGC and to clarify that the Assistant General 
Counsel has primary responsibility for the program. We received 
numerous comments regarding the requirements for accreditation. Several 
commenters suggested that it was a conflict of interest and a violation 
of due process

[[Page 29853]]

for OGC to administer the accreditation program because the General 
Counsel is the Secretary's legal advisor and represents the Secretary 
in benefits matters that are appealed to the U.S. Court of Appeals for 
Veterans Claims. These commenters asserted that OGC might use the 
accreditation program to screen out opposing counsel or to retaliate 
against parties in benefits litigation.
    We agree that individuals seeking accreditation have the right to a 
timely decision based solely on the merits of their application by an 
impartial and unbiased decision maker. However, the argument that VA's 
accreditation program, as clarified by the amendments in 38 CFR 14.629, 
creates a conflict of interest and violates due process is not 
supported in law or in fact.
    The VA General Counsel or his designee may lawfully determine 
whether an applicant satisfies the requirements for accreditation. In 
38 U.S.C. 5904, Congress granted the Secretary of Veterans Affairs the 
authority to accredit agents and attorneys for practice before VA. See 
also 38 U.S.C. 5901 (``[N]o individual may act as an agent or attorney 
in the preparation, presentation, or prosecution of any claim under 
laws administered by the Secretary unless such individual has been 
recognized for such purposes by the Secretary.''). Congress has also 
authorized the Secretary to delegate authority to act and to render 
decisions under the laws administered by VA as he deems necessary. See 
38 U.S.C. 512. The Secretary, then the Administrator of Veterans 
Affairs, first delegated the authority for the accreditation program to 
the General Counsel in 1954 in a new 38 CFR part 14.19 FR 5556, Aug. 
31, 1954. The United States Supreme Court has held that such 
delegations, involving the combination of functions in a single 
decision maker, do not violate due process. See Withrow v. Larkin, 421 
U.S. 35 (1975). Further, general allegations of conflict are not 
sufficient to rebut the strong presumption ``that public officers 
perform their duties correctly, fairly, in good faith, and in 
accordance with law and governing regulations.'' Haley v. Department of 
the Treasury, 977 F.2d 553, 558 (Fed. Cir. 1992) (quoting Parsons v. 
United States, 670 F.2d 164, 166 (Ct. Cl. 1982)), cert. denied, 508 
U.S. 950 (1993). See also Assoc. of Nat'l Advertisers v. FTC, 627 F.2d 
1151, 1170 (D.C. Cir. 1979) (agency decision-maker ``should be 
disqualified [for a conflict of interest] only when there has been a 
clear and convincing showing that the agency member has an unalterably 
closed mind on matters critical to the disposition of the 
proceeding'').
    In a case in which a corporation regulated by a Federal agency 
asserted that an agency decision maker participating in an 
investigation of a regulatory violation had prejudged its claim 
resulting in a violation of procedural due process, the U.S. Court of 
Appeals for the Federal Circuit held that the corporation could prevail 
on its claim ``only if it can establish that the decision maker is not 
`capable of judging a particular controversy fairly on the basis of its 
own circumstances.' '' NEC Corp. v. United States, 151 F.3d 1361, 1373 
(1998) (quoting United States v. Morgan, 313 U.S. 409, 421 (1941)). See 
also Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass'n, 426 
U.S. 482, 493 (1976). ``This standard is met when the challenger 
demonstrates, for example, that the decision maker's mind is 
`irrevocably closed' on a disputed issue.'' NEC Corp., 151 F.3d at 1373 
(other citations omitted).
    The commenters have not alleged any facts indicating an actual 
conflict of interest in OGC's administration of the accreditation 
program. The comments also suggest a misunderstanding of VA's 
organizational structure and the scope of VA's authority under 38 
U.S.C. Chapter 59. Claims for VA benefits are adjudicated by agencies 
of original jurisdiction within one of the Department's administrations 
(Veterans Benefits Administration, Veterans Health Administration, or 
National Cemetery Administration) and those decisions are generally 
subject to review by the Board of Veterans' Appeals (Board), which 
makes the final agency decision on benefit claims. Although the Board 
is obligated by law to follow precedent opinions of the General 
Counsel, the Chairman of the Board is appointed by the President and is 
directly responsible to the Secretary, not the General Counsel. 38 
U.S.C. 7101(a), 7104(c). Staff attorneys assist Board members in 
rendering decisions on benefit claims, but these attorneys are 
employees of the Board, not OGC. Also, VA's authority is to regulate 
agents' and attorneys' practice before the agencies of original 
jurisdiction and the Board, not practice before Federal appellate 
courts. See 38 U.S.C. 5904 (authorizing suspension or exclusion from 
``practice before the Department''). Although OGC attorneys represent 
the Department before the Court of Appeals for Veterans Claims, they 
are not involved in the adjudication of claims before VA's agencies of 
original jurisdiction or the Board, the two forums in the Department 
where the accreditation provisions in 38 CFR part 14 are applicable. 
Under its limited accreditation authority, OGC cannot control or 
otherwise limit attorney admission to practice before the courts. In 
our view, continuing administration of the accreditation program in OGC 
is necessary to avoid conflicts that might arise from involvement of VA 
officers with claim adjudication responsibility and to ensure that only 
individuals with the appropriate legal expertise are involved in 
accreditation determinations.
    We received four comments regarding the process for appealing an 
adverse initial accreditation decision of the Assistant General Counsel 
to the General Counsel. One commenter stated that although a final 
decision of the General Counsel may not be appealable within VA, ``it 
is clearly appealable under the Administrative Procedure Act [(APA)] 
and the Department should revise proposed Sec.  14.629 to so state.'' 
We agree. A decision to deny accreditation under 38 U.S.C. 5904(a) is 
based solely upon a determination of whether an applicant has satisfied 
the requirements prescribed in regulations for accreditation. VA did 
not propose to deny judicial review of these decisions, only to clarify 
that review is in the U.S. District Court under the Administrative 
Procedure Act (5 U.S.C. 701-706) rather than in the administrative 
review system that Congress designed for adjudicating veterans benefit 
claims.
    Although the Court of Appeals for the Federal Circuit held in Bates 
v. Nicholson, 398 F.3d 1355 (Fed. Cir. 2005), that section 5904 is a 
law that affects the provision of veterans benefits for purposes of the 
Board's jurisdiction, the court did not address the distinction between 
decisions denying accreditation under section 5904(a) and decisions 
cancelling accreditation under section 5904(b). Whereas a decision to 
cancel or suspend accreditation may indirectly affect the provision of 
benefits because it may result in withdrawal of representation and 
delay in adjudication, a decision to deny accreditation has no affect 
on pending adjudications. An unsuccessful accreditation applicant has 
had no lawful contact with VA's benefits system as a representative, 
agent, or attorney. Moreover, we do not interpret section 5904(a) as 
expressing congressional intent to extend VA's informal and 
nonadversarial adjudication process to individuals seeking admission to 
practice before VA. As such, an initial decision to deny accreditation 
to practice before VA under 38 CFR 14.629 is separate and

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distinct from a decision to suspend or cancel accreditation under 38 
CFR 14.633, which may be appealed to the Board under Bates. We will 
amend the introduction to Sec.  14.629 to clarify that the General 
Counsel's decision denying accreditation is a final agency action for 
purposes of 5 U.S.C. 702.
    Another commenter recommended that VA adopt a procedure for appeal 
of initial accreditation decisions similar to that provided in 38 CFR 
14.633 for suspension or cancellation of accreditation because a denial 
of accreditation would impact a VSO representative's ability to remain 
employed. We disagree and will not make any changes based on this 
comment.
    A service organization representative may not represent claimants 
before VA without VA accreditation under Sec.  14.629(a); therefore, 
any employment by a VSO of an individual for purposes of providing 
representation before VA must be conditional. Procedural due process 
requires that an individual receive notice and an opportunity to 
respond before being deprived of a protected property or liberty 
interest. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 
(1985). However, an applicant does not have a protected liberty or 
property interest sufficient to warrant notice and opportunity for a 
hearing prior to VA making a decision on an accreditation application. 
See White v. Office of Pers. Mgmt., 787 F.2d 660, 663-64 (D.C. Cir. 
1986) (``before the right to a hearing attaches, a deprivation greater 
than the denial of a particular job application must be involved'').
    To the extent the commenter suggests that a decision of the General 
Counsel to deny accreditation warrants some procedural due process, the 
process provided in the introduction to Sec.  14.629 provides both 
notice and an opportunity to respond adequate to the nature of the 
interest involved. In the event the Assistant General Counsel denies an 
application for accreditation, the Assistant General Counsel will 
notify the applicant of the reasons for disapproval and provide the 
applicant with an opportunity to submit additional information. If the 
Assistant General Counsel continues to deny the application, the 
applicant may appeal the decision, in writing, to the General Counsel 
for a final decision. For the reasons discussed above, the appropriate 
forum for review of the General Counsel's decision denying initial 
accreditation is the U.S. District Court under the provisions of the 
APA.
    One commenter expressed concern with the provision in the 
introduction to Sec.  14.629 restricting the General Counsel's review 
of a determination to deny accreditation to the evidence of record 
before the Assistant General Counsel at the time the decision was made. 
The commenter suggested that this requirement would deny the 
appellant's right to due process because the rationale underlying the 
decision may not be apparent until the applicant receives notice of the 
decision.
    It is not our intent to prevent individuals from submitting 
additional evidence necessary to satisfy the accreditation requirements 
or to limit the General Counsel's review of a decision denying 
accreditation to the initial application for accreditation. Under the 
introduction to Sec.  14.629, the Assistant General Counsel will notify 
the unsuccessful applicant of the decision and provide the applicant an 
opportunity to submit additional information for the purpose of 
correcting any deficiencies or omissions. If, after receiving and 
considering the additional information, the Assistant General Counsel 
continues the denial of accreditation and the applicant appeals the 
decision to the General Counsel, the record forwarded to the General 
Counsel for review will include the additional information submitted by 
the applicant in response to the initial denial. Timely decisions on 
accreditation are important to both applicants and the Department; 
consequently, this provision is designed to encourage applicants to 
provide information in a timely manner to facilitate final resolution 
of the matter by the General Counsel.
    We received many comments regarding the proposed requirement in 
Sec.  14.629(b) that attorneys achieve a score of 75 percent or higher 
on a written examination as a condition of accreditation. We received 
eight comments in favor of testing, and 27 comments opposed to testing.
    Among those commenters generally favoring testing, four stated that 
testing alone was insufficient to ensure continued competency to 
represent veterans before VA and recommended that VA require some form 
of CLE to ensure continued competency. Three commenters, while 
acknowledging the value of testing as a means to ensure competency, 
expressed concern that such a requirement would discourage pro bono 
representation of indigent veterans. Similarly, the two most prevalent 
reasons provided for opposition to testing was that CLE was necessary 
to maintain competency and that testing would discourage pro bono 
representation of indigent claimants. The majority of the remaining 
comments expressing opposition to testing as a requirement for attorney 
accreditation fell into one of four general categories: (1) The 
proposed rule failed to consider other alternatives to testing; (2) 
testing is contrary to Congressional intent; (3) testing is contrary to 
5 U.S.C. 500, the Agency Practice Act; and (4) a testing requirement is 
redundant because attorneys have already demonstrated competency by 
passing a bar examination.
    In drafting the accreditation provisions in the proposed rule, VA 
was required to reconcile the competing interests reflected in section 
101 of Public Law 109-461. In section 5904(c), Congress directed that 
veterans were to be provided the option of retaining paid 
representation earlier in the administrative appeals process, after a 
Notice of Disagreement was filed with respect to a case. However, in 
section 5904(a), Congress introduced a new requirement that VA 
establish in regulations qualifications for practice before VA to 
ensure that agents and attorneys have specialized training or 
experience where VA had previously only required membership in good 
standing with a State bar as a requirement for attorney accreditation. 
Sections 5904(a) and (c) require VA to develop a program of agent and 
attorney accreditation that ensures competent representation while 
facilitating choice of representation.
    In section 5904(a)(2), Congress gave VA the choice of prescribing 
in regulations a requirement that, as a condition of accreditation as 
an agent or attorney, an individual must have either a specific level 
of experience or specialized training. In drafting the proposed rule, 
we considered alternative means including practical experience through 
which applicants for accreditation could demonstrate either experience 
or training and concluded that testing provided balance between 
ensuring competence and providing choice of representation. After 
weighing all the options and considering the comments, we decided, with 
respect to attorneys, that a law degree, bar membership in good 
standing, and CLE in veterans benefits law and procedure is the best 
method to fulfill congressional intent as expressed in section 101 of 
Public Law 109-461. Although VA has authority under section 5904(a)(2) 
to ensure attorney competence through testing, we considered the formal 
education and testing already required of licensed attorneys, the 
potential chilling effect of further testing on pro bono representation 
of indigent veterans, and the absence of complaints concerning

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attorney competence in representation before the Department under 
former law, and concluded that completion of CLE requirements is a 
better choice for veterans, their attorneys, and VA. Accordingly, we 
will take a measured approach in regulating the practice of attorneys 
before the Department and will amend the rule to remove the testing 
requirement and instead require the completion of State-bar-approved 
CLE credits to maintain accreditation. We will evaluate this method of 
ensuring competent attorney representation and may revisit the issue of 
testing at a later date.
    After drafting the proposed rule, we learned that several State bar 
associations have offered, currently offer, or will offer CLE courses 
in veterans benefits law and procedure, some of which are available in 
formats capable of supporting distance learning for persons outside the 
jurisdiction. Other organizations offer veterans benefits law and 
procedure training that has been approved for CLE credit by some 
States. Accordingly, we will amend Sec.  14.629(b) to provide that an 
initial 3 hours of State-bar-approved CLE in veterans benefits law and 
procedure is required for agents and attorneys. Additionally, to 
maintain accreditation, agents and attorneys would be required to 
periodically complete 3 hours of State-bar-approved CLE in veterans 
benefits law and procedure. VA will review available training as 
necessary to ensure sufficiency. Agents and attorneys applying for 
accreditation must satisfy the initial CLE requirement during the first 
year of accreditation and must satisfy the follow-on CLE requirement 
every 2 years thereafter. Upon completion of the initial and follow-on 
CLE requirements, agents and attorneys must certify in writing to OGC 
that they have completed qualifying CLE, such certification to include 
the date and time of the CLE and identification of the CLE provider. VA 
intends that agents and attorneys will include information concerning 
their compliance with the CLE requirements in the annual certification 
required by Sec.  14.629(b)(4).
    Even though we will not require testing for accreditation of 
attorneys under Sec.  14.629(b), the question remains whether any 
additional requirements for attorney accreditation, such as the CLE 
requirement, are contrary to the Agency Practice Act, 5 U.S.C. 500, as 
some commenters asserted. Until Congress enacted Public Law 109-461, 
VA's attorney accreditation requirements were limited to those 
prescribed in the Agency Practice Act, bar membership in good standing 
and a written declaration of representation. However, in amended 
section 5904(a), Congress expressly directed VA to prescribe in 
regulations additional requirements for practice before the Department. 
In amending section 5904(a), Congress is presumed to have been aware of 
the Agency Practice Act, and, as a result, section 5904(a) as 
implemented by VA in Sec.  14.629(b) should not be read as being in 
conflict with that act or the intent of Congress. See 2A Norman J. 
Singer, Statutes & Statutory Construction Sec.  45.12 (6th ed. 2000) 
(In construing legislation, we must presume that Congress was aware of 
existing law and the rules of statutory construction.).
    One commenter noted that, in amending 38 U.S.C. chapter 59, 
Congress did not remove provisions regarding the Agency Practice Act 
from 38 U.S.C. 5901. Section 5901 provides, ``[e]xcept as provided by 
section 500 of title 5, no individual may act as an agent or attorney 
in the preparation, presentation, or prosecution of any claim under 
laws administered by the Secretary unless such individual has been 
recognized for such purposes by the Secretary.'' The commenter went on 
to suggest that because Congress did not amend section 5901, it did not 
authorize VA to exceed the requirements in 5 U.S.C. 500, specifically 
bar membership in good standing and a written declaration of 
representation.
    Congress did not remove the reference to 5 U.S.C. 500 in section 
5901; however, to give effect to the commenter's suggestion would be to 
ignore Congress' amendment to section 5904(a) requiring VA to establish 
as a condition of accreditation a specific level of experience or 
specialized training, either of which goes beyond section 500's 
requirements for attorney practice before Federal agencies. The 
commenter incorrectly reads section 5901 in isolation from section 5904 
and does not account for an applicable rule of construction. The 
provisions of chapter 59 must be read as a whole to give effect to 
amended section 5904. See Splane v. West, 216 F.3d 1058, 1068 (Fed. 
Cir. 2000) (``We must construe a statute, if at all possible, to give 
effect and meaning to all its terms.'') (citing Lowe v. Securities & 
Exch. Comm'n, 472 U.S. 181, 207-08 n.53 (1985)); see also Gonzales v. 
Oregon, 546 U.S. 243, 273 (2006) (statutes ``should not be read as a 
series of unrelated and isolated provisions'') (citation omitted); 
Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989) (``It is 
a fundamental canon of statutory construction that the words of a 
statute must be read in their context and with a view to their place in 
the overall statutory scheme.'').
    As discussed above, 5 U.S.C. 500 is a statute of general 
applicability, enacted in 1965 and binding on nearly all Federal 
agencies. In 1969, Congress amended former 38 U.S.C. 3401, now section 
5901, to incorporate a reference to section 500. Public Law 91-21, 
Sec.  12(a), 83 Stat. 34 (1969). Section 5904 is applicable only to VA 
and was amended in 2006. See Food and Drug Admin. v. Brown & Williamson 
Tobacco Corp., 529 U.S. 120, 133 (2000). (``The meaning of one statute 
may be affected by other acts, particularly where Congress has spoken 
subsequently and more specifically to the topic at hand.''); see also 
Pioneer Hi-Bred Int'l, Inc. v. J.E.M. AG Supply, Inc., 200 F.3d 1374, 
1376-77 (Fed. Cir. 2000) (It is a basic principle of statutory 
construction that ``a general statute must give way to a specific 
one.''). Because provisions incorporating section 500 were added to 
section 5901 over 37 years before the last amendment to section 
5904(a), and because Congress expressly directed VA in section 5904(a) 
to establish attorney accreditation requirements that exceed those in 
section 500, a reasonable harmonization of sections 5901 and 5904 is 
that the reference to section 500 in section 5901 is for the purpose of 
establishing attorney practice requirements for VA to the extent 
Congress has not specifically provided otherwise in chapter 59.
    One commenter stated that the proposed testing requirement for 
attorney accreditation was inconsistent with the requirement in section 
5904(a)(2) that VA prescribe in regulations qualifications and 
standards of conduct consistent with the American Bar Association's 
Model Rules of Professional Conduct (Model Rules). The commenter noted 
that the comment to Model Rule 1.1 states, ``a lawyer need not 
necessarily have special training or prior experience to handle legal 
problems of a type with which the lawyer is unfamiliar.'' Although we 
have decided to remove testing as a requirement for attorney 
accreditation, we do not agree that VA's authority to prescribe 
qualifications standards for agents and attorneys is limited by the 
comment to Model Rule 1.1.
    The comment fails to distinguish between the general provision in 
section 5904(a)(2) and subsequent specific provisions modifying the 
general provision. In section 5904(a)(2), Congress directed VA to 
prescribe in regulations qualifications for accreditation consistent 
with the Model Rules. In section 5904(a)(2)(B), Congress further 
directed VA to establish as a condition of accreditation, a

[[Page 29856]]

requirement that an individual must have ``such level of experience or 
specialized training as the Secretary shall specify.'' Section 
5904(a)(2)(B), as a specific provision, must be given effect as against 
the general provision provided in section 5902(a)(2). Thus, to the 
extent testing, or CLE, or any or any other accreditation requirement 
related to level of experience or specialized training may be 
inconsistent with the comment to Model Rule 1.1, it is consistent with 
the specific provision in section 5904(a)(2)(B).
    Several commenters stated that testing of attorneys would be 
unnecessary and redundant because attorneys, as a condition of 
licensing, have already established a minimum level of competency by 
completing formal legal training and passing a State bar examination. 
One commenter questioned why VA would require the same testing for 
attorneys as is required for agents who have not completed similar 
legal education or passed a State-bar administered examination. To the 
extent the comments are limited to the proposed testing requirement, VA 
agrees that it is appropriate at this time to limit the regulation of 
attorney practice before the Department to membership in good standing 
with a State bar and subsequent completion of CLE requirements.
    Although Congress did not distinguish between agents and attorneys 
in amending chapter 59 and directing VA to establish standards of 
conduct and qualifications as conditions for accreditation, formal 
legal education and State bar membership requirements for attorneys 
clearly distinguish them from agents. As discussed above, Congress 
intended that the legislation would increase standards for all 
individuals who provide paid representation before VA. Consequently, to 
ensure that claimants receive the same level of competence regardless 
of whether they are represented by an agent or an attorney, VA will 
continue to test agents as a condition of initial accreditation to 
verify their competence to represent claimants and will require both 
agents and attorneys to complete veterans benefits law and procedure 
CLE as a condition of maintaining accreditation. We will amend the 
final rule to incorporate these changes.
    One commenter remarked that VA should consider a system for 
accreditation similar to that used by the Social Security 
Administration in its pilot program. The commenter suggested that VA 
should accept bar membership in good standing as sufficient for 
attorney accreditation and should test non-attorney representatives and 
require that they possess liability insurance as a condition of 
accreditation. VA's representation regulations, like those of Social 
Security, are limited by the authorizing statutes unique to each 
agency. As discussed earlier, the statute governing VA's accreditation 
of agents and attorneys requires a specific level of experience or 
specialized training in addition to membership in good standing in a 
State bar, as qualification requirements for accreditation. The pilot 
program to which the commenter refers is authorized by a specific 
statutory directive to the Commissioner of Social Security enacted in 
section 303 of Public Law 108-203. Clearly, if Congress had wanted VA 
to adopt a pilot program similar to that used by the Social Security 
Administration, it could have enacted similar authorizing legislation. 
Because VA's authority to regulate representation is limited to that 
provided in chapter 59, we will make no changes to the final rule based 
on the comment.
    We received two comments stating that it is not necessary to 
evaluate the character of attorneys who are members in good standing of 
a State bar because they have already met the State's character and 
fitness requirements. VA agrees that a State bar's comprehensive 
character and fitness determination, which is a prerequisite to 
licensure, is generally sufficient for practice before VA. To fairly 
recognize the comprehensive nature of a State bar character and fitness 
evaluation, VA will generally accept an attorney's certification of 
membership in good standing with a State bar under Sec.  
14.629(c)(1)(B) as satisfactory proof of fitness to practice. Absent 
information to the contrary, VA will presume an attorney's continued 
fitness to practice upon the receipt of a completed VA Form 21a and 
self-certification of membership in good standing in those 
jurisdictions in which he or she is licensed under Sec.  14.629(b). 
Accordingly, we will amend the final rule to reflect these changes.
    Additionally, in regard to character and fitness, VA finds it 
necessary to differentiate between agents and attorneys. Because agents 
have not completed a background investigation comparable in scope to a 
State bar character and fitness evaluation, VA will conduct an expanded 
inquiry consisting of additional personal history questions on the VA 
Form 21a to provide a more complete basis for the Department's 
determination of good character and reputation. VA's experience with 
agent applications supports this decision, as several applications have 
omitted mention of circumstances that required further inquiry before 
we had enough information necessary to make a decision regarding 
accreditation. Agents, unlike representatives, work without the 
oversight and monitoring required of recognized organizations under 
Sec.  14.628(d)(1). Additionally, without such an expanded inquiry, OGC 
simply cannot verify that an agent is who he or she claims to be.
    One commenter requested that we clarify whether Sec.  14.629(b)(4) 
permits self-certification of the State bars, courts, and agencies 
before which an attorney is authorized to practice. The commenter also 
asked us to clarify whether certification is an annual requirement.
    Pursuant to 38 U.S.C. 5904(a)(3), VA must prescribe regulations 
requiring that ``each agent or attorney * * * provide annually * * * 
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 * * * and a certification by such agent or 
attorney'' that they are in good standing. We interpret the phrase ``by 
such agent or attorney'' to mean that self-certification is 
appropriate. Requiring certified statements from every bar, court, or 
agency to which an agent or attorney is admitted might be onerous, and 
some agencies and courts might not routinely provide such 
certification. We believe self-certification is sufficient, provided 
that the certification advises VA of any change in status. VA may 
verify such information as necessary, and false certification of good 
standing would be grounds for initiating disciplinary proceedings under 
38 CFR 14.633. Concerning the requirements for periodic 
recertification, the plain language of section 5904(a)(3) is clear that 
Congress intended to require annual re-certification. We will amend 
Sec.  14.629(b)(4) to clarify these certification requirements. 
Finally, we amended the regulation to clarify that an agent or attorney 
must notify VA within 30 days of any change in status in any 
jurisdiction in which he or she is admitted to practice. This is 
necessary because 38 U.S.C. 5904(a)(4) prohibits VA from recognizing an 
agent or attorney who has been suspended or disbarred and VA may not 
otherwise become aware of the suspension or disbarment until many 
months after the fact.
    One commenter expressed concern that Sec.  14.629(b)(5), which 
provides that VA will not accredit an agent or attorney ``if the 
individual has been suspended by any court, bar, or Federal

[[Page 29857]]

or State agency in which the individual was previously admitted and not 
subsequently reinstated,'' is overbroad in that lack of reinstatement 
in one jurisdiction following suspension and reinstatement in another 
jurisdiction may simply reflect an attorney's decision not to practice 
in a given jurisdiction. The commenter recommended that VA should 
accredit individuals as long as they are licensed to practice in one 
state.
    The plain language of section 5904(a)(4) prohibits VA from 
recognizing an individual as an agent or attorney 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. The statute contemplates a 
situation in which an attorney has not been reinstated after suspension 
or disbarment because he or she has been deemed ineligible for 
reinstatement by the admitting authority. The situation described by 
the commenter presents a slightly different situation in that 
suspension in one jurisdiction may be purely derivative of the action 
taken by another jurisdiction. The suspended attorney has subsequently 
demonstrated fitness to practice in one jurisdiction and has been 
reinstated in that jurisdiction, and the attorney voluntarily chooses 
not to seek reinstatement in the other jurisdiction. We do not 
interpret section 5904(a)(4) as precluding accreditation in these 
derivative suspension or disbarment situations. Accordingly, we will 
amend the rule to distinguish between an independent suspension or 
disbarment proceeding and a derivative disbarment proceeding for 
purposes of VA accreditation. In a situation where an attorney is 
suspended or disbarred in jurisdiction B solely based upon suspension 
or disbarment in jurisdiction A and the attorney is reinstated in 
jurisdiction A, the General Counsel may accredit such individual based 
on an evaluation of the particular facts and circumstances of the 
situation. However, in situations where an attorney is suspended or 
disbarred in jurisdictions A and B, and neither action is derivative of 
the other, reinstatement in both jurisdictions is a prerequisite to VA 
accreditation.
    One commenter objected to VA asking an agent or attorney seeking 
accreditation for information relevant to whether the applicant has any 
physical limitation that would interfere with the completion of the 
written accreditation exam without further explanation of the purpose 
and relevancy of this information. This is not a new requirement as it 
applies to agents. Prior Sec.  14.629(b)(viii) required individuals to 
submit relevant information concerning physical limitations as part of 
the application process for claims agents. VA uses this information to 
determine whether appropriate accommodations are necessary for 
administering the accreditation exam to individuals with disabilities 
who seek accreditation as a claims agent.
    We proposed to revise Sec.  14.629(c)(3) to clarify the nature of 
consent required by the claimant to permit a legal intern, law student, 
or paralegal to assist an attorney in representing the claimant. 
Several commenters expressed concern that requiring a claimant to 
provide written consent specifically identifying the names of the legal 
interns, law students, or paralegals assisting in the case would be 
overly burdensome. One commenter objected to the provision claiming it 
violated equal protection because the requirement does not apply to a 
VSO's support staff. A final commenter recommended that we exempt 
accredited legal interns, law students, and paralegals from this 
requirement.
    We disagree that requiring a claimant to specifically identify any 
legal intern, law student, or paralegal assisting in the claim is 
overly burdensome. The purpose of this requirement is to ensure that a 
claimant affirmatively acknowledges that a specific individual will be 
working in a representative capacity on his or her claim and will have 
access to the claimant's private information. Section 14.629(c)(3) 
authorizes legal interns, law students, or paralegals to assist in the 
preparation, presentation, or prosecution of a claim under a duly 
appointed attorney. This authority allows legal interns, law students, 
and paralegals, under the direct supervision of an attorney, to 
directly engage claimants, review files, and appear on a claimant's 
behalf at any hearing. Current law, 38 U.S.C. 5701(a), makes files, 
records, reports, and other papers related to a claim confidential and 
privileged except when disclosure is authorized. Section 5701(b)(1) 
authorizes disclosure to a ``duly authorized agent or representative of 
a claimant.'' Given that legal interns, law students, and paralegals 
are authorized to represent a claimant in a limited capacity when 
supervised by an accredited attorney, we believe it is appropriate to 
require the claimant to identify by name any legal intern, law student, 
or paralegal authorized to represent the claimant.
    We note that Rule 606 of the Board's Rules of Practice, 38 CFR 
20.606, requires written consent by a claimant specifically 
identifying, by name, any legal intern, law student, or paralegal 
assisting in their claim. Thus, Sec.  14.629(c)(3) merely applies 
current rules for practice before the Board to practice before VA's 
agencies of original jurisdiction. For the foregoing reason, we also 
decline to exempt any legal intern, law student, or paralegal, who is 
separately accredited by VA, from this requirement.
    We also disagree that requiring a claimant to specifically identify 
a legal intern, law student, or paralegal assisting an accredited 
attorney violates the Due Process Clause of the Fifth Amendment, and in 
particular its equal protection component. The comment is based upon 
the commenter's mistaken belief that VSO support personnel may assist 
in the representation of a claimant without the claimant's consent and 
are thus similarly situated but treated differently. Under Sec.  
14.629(c)(3), legal interns, law students, and certified paralegals may 
assist in the preparation, presentation, and prosecution of a claim 
under the direct supervision of an attorney of record, provided that 
the attorney obtains the claimant's consent on a VA Form 21-22a. These 
individuals are deemed qualified to represent claimants under an 
attorney's supervision as a result of their specialized legal training. 
VSO support personnel, unlike legal interns, law students, and 
paralegals assisting accredited attorneys, are not authorized to assist 
in preparing, presenting, and prosecuting claims. Accordingly, the 
commenter's equal protection concern, that we require claimants' 
consent for legal interns, law students, or paralegals assisting 
accredited attorneys in providing representation but do not require 
claimants' consent for VSO administrative personnel assisting 
accredited VSO representatives, is unfounded.
    One commenter opposed to testing stated that the quality of the 
examination would be dependent on the competency of VA Regional Counsel 
administering the examination and would introduce inconsistency in 
accreditation. Another commenter expressed concern about the format of 
the examination, the manner in which it would be developed, and the 
manner in which it would be graded. Although we have amended the rule 
to remove the testing requirement for attorneys, we will address these 
comments to the extent that they can be construed as relating to the 
testing of agents.
    The role of Regional Counsel is limited to administering the 
examination to prospective agents. To ensure nationwide access to the

[[Page 29858]]

examination, it will be offered at the Regional Counsel of jurisdiction 
upon receipt of a complete application at the VA Central Office. To 
ensure uniformity, the Regional Counsel will administer the examination 
according to OGC's standard procedures. To ensure objectivity, the 
examination will be offered in a multiple-choice format and be graded 
by OGC personnel at VA's Central Office.
    The sole purpose of VA's accreditation examination is to 
objectively determine whether an agent has the qualifications necessary 
to provide competent representation before the Department. To that end, 
VA's accreditation examination has been developed to fairly assess the 
minimum level of competence required for practice before the 
Department. Examination questions have been centrally developed by 
OGC's subject matter experts before incorporating them into the 
examination.
    We received one comment regarding the term ``agency of original 
jurisdiction'' as it is used in Sec.  14.629. The introduction to Sec.  
14.629 provides that upon a determination that an individual meets the 
requirements for accreditation in paragraph (a) or (b) of this section, 
VA will provide notification of accreditation authorizing the 
preparation, presentation, and prosecution of claims before ``an agency 
of original jurisdiction and the Board of Veterans' Appeals.'' One 
commenter, a VSO, expressed concern that language in the introduction 
to Sec.  14.629 was not sufficiently broad to authorize practice before 
the Veterans Benefits Administration's Appeals Management Center and 
Resource Centers where claims may be forwarded for disposition. The 
commenter misunderstands VA's intent.
    In drafting the introduction to Sec.  14.629, VA's intent was to 
clarify that representation of claimants, and the rules governing such 
representation, were not limited to claims before the Board. VA's 
current policy is that authorization to provide representation on a 
claim decided by an agency of original jurisdiction includes the 
inherent authority to provide representation before other VA facilities 
to which the claim may be forwarded for disposition, including, but not 
limited to the Appeals Management Center and Resource Centers. We will 
amend the final rule for greater clarification.

Section 14.630--Authorization for a Particular Claim

    A number of commenters recommended revising Sec.  14.630 to 
authorize any individual to represent an unlimited number of claimants. 
These commenters seemed to interpret Sec.  14.630 as a pro bono 
attorney representation provision. Two commenters recommended that we 
amend Sec.  14.630 to authorize any unaccredited individual to 
represent an unlimited number of individuals so long as a fee is not 
charged. We will not make any changes to the rule based on these 
comments.
    VA has long interpreted 38 U.S.C. 5903, the statutory authority for 
Sec.  14.630, as a provision under which ``any individual'' may 
represent a claimant on a one-time-only basis on a ``particular claim'' 
for benefits. The individual must generally seek accreditation under 38 
U.S.C. 5902 (service organization representatives) or 5904 (agents and 
attorneys) to provide representation for a claimant on any other claim. 
VA does not have authority under section 5903 to permit individuals to 
represent an unlimited number of claimants without VA accreditation as 
the commenters suggest. See 38 U.S.C. 5901 (``no individual may act as 
an agent or attorney in the preparation, presentation, or prosecution 
of any claim * * * unless such individual has been recognized for such 
purposes by the Secretary'') and 5903 (authorizing VA to permit 
representation on a ``particular claim'' only). We addressed the issue 
of attorney representation of claimants on a pro bono basis above 
regarding Sec.  14.629.
    Section 14.630(a) requires a person authorized to provide 
representation on one claim to file a VA Form 21-22a ``with the agency 
of original jurisdiction where the claim is presented.'' One commenter 
requested that we clarify the filing requirement because the case may 
be pending at a Resource Center, the Appeals Management Center, or the 
Board when the claimant seeks representation. The commenter recommended 
that the form be filed with the VA facility in possession of the claim.
    We decline to change Sec.  14.630(a) to require a claimant to file 
a representation form with the VA facility in possession of the claim. 
When a claimant files a claim with their local VA regional office they 
presumably know where they filed the claim and may have established 
contacts with VA personnel. We recognize that there will be instances 
in which the claim has been temporarily moved to another VA facility. 
However, it will be easier for the claimant if he or she files the 
representation form with the agency of original jurisdiction where the 
claim was presented. We understand that slight delay may result because 
of processing and forwarding. This section in no way prohibits a 
claimant from also forwarding a copy of the form to the VA facility 
that is handling the claim. A final situation may arise where a 
claimant moves from the jurisdiction of one regional office to the 
jurisdiction of another regional office. In that instance, the claim 
and case file will be transferred to the new regional office of 
jurisdiction, and the claimant should treat the new regional office as 
the ``agency of original jurisdiction where the claim is presented.''

Section 14.631--Powers of Attorney; Disclosure of Claimant Information

    We received five comments regarding proposed Sec.  14.631. One 
commenter expressed concern that under Sec.  14.629(b), claimants 
currently represented by attorneys would have their representation 
revoked on the effective date of the new regulations unless and until a 
VA Form 21-22a is completed by the claimant. The commenter, while 
recognizing VA had good reasons to have a standardized consent form, 
stated that requiring the form to allow representation is a different 
matter because the claimants have a contract, on file with VA, 
indicating appointment of an attorney as their representative. The 
commenter recommended that we amend the rule to eliminate the 
requirement that a VA Form 21-22a be submitted as a requirement for 
representation, particularly for claimants represented by attorneys as 
of the effective date of the rule. We will not make any changes to the 
rule based on this comment.
    Section 14.631(a) requires that claimants use a standard form, VA 
Form 21-22a, to appoint individuals providing representation on a 
particular claim under Sec.  14.630, representatives, agents, and 
attorneys, and to authorize the disclosure of claimant information. We 
have authority under the amendments to 38 U.S.C. Chapter 59 in Public 
Law 109-461 to regulate agent and attorney practice before the 
Department, and we interpret this authority as permitting us to exceed 
the limitations in 5 U.S.C. 500 by, among other things, requiring the 
use of a standard form to indicate appointment. See 38 U.S.C. 
5904(a)(2) (``[t]he Secretary shall prescribe in regulations * * * 
qualifications and standards of conduct for individuals recognized 
under this section''). We also interpret current law as requiring a 
claimant's written authorization before VA can release information 
protected by the Privacy Act, and 38 U.S.C. 5701 and

[[Page 29859]]

7332, and we have determined that VA Form 21-22a is legally sufficient 
to authorize release of such information. This is reflected in VA's 
current policy of releasing claimant information to attorneys only upon 
receipt of a VA Form 21-22a signed by the represented claimant.
    We understand the need to ensure continuity of representation, and 
it is not our intent to revoke representation on the effective date of 
this rule if we do not have a VA Form 21-22a signed by the agent or 
attorney on file. Rather, the requirement pertains to claimants' 
designation of agents and attorneys occurring on or after the effective 
date of this rule. Accordingly, for all representation before the 
Department initiated on or after the effective date of this regulation, 
June 23, 2008, VA will not recognize the designation of an agent or 
attorney for purposes of representation or disclose claimant 
information to the agent or attorney without a properly executed VA 
Form 21-22a on file. As to representation initiated before the 
effective date of the regulation, because Federal law prohibits release 
of claimant information without claimants' written authorization, VA 
will not disclose such information to a claimant's attorney unless the 
claimant has authorized the disclosure on a Form 21-22a.
    We also disagree with the suggestion that VA should accept non-
standard authorizations for the release of claimant information and 
will not make any changes based upon the comment. VA has previously 
accepted non-standard authorizations for the release of claimant 
information from attorneys, but found many of these to be legally 
insufficient requiring additional review and communication with 
attorneys delaying both the processing of the claim and the release of 
information to attorneys.
    One commenter approved of the requirement in Sec.  14.631(a) that a 
person providing representation under Sec.  14.630, or an accredited 
representative, agent, or attorney must sign the VA Form 21-22a to 
indicate acceptance of appointment for purposes of representation. The 
commenter stated that this provision would help to ensure that 
claimants contact VSOs in a timely manner if they need assistance.
    We received a comment concerning the circumstances under which an 
attorney may terminate representation. The commenter requested that we 
add language similar to that provided in Model Rule 1.6 requiring an 
attorney to withdraw from representation when ``representation will 
result in a `violation of the rules of professional conduct or other 
law.' '' We note that under State bar rules attorneys will generally 
have duties in addition to those prescribed by VA and that these rules 
typically contain the Model Rule 1.6 provision. Section 14.632(d) 
prohibits attorneys, in representing claimants before VA, from 
violating the rules of professional conduct of the jurisdictions in 
which they are licensed to practice law. Accordingly, we do not agree 
that it is necessary to add the model language and will not make any 
changes to the rule based on the comment.
    One commenter disagreed with the requirements in Sec.  14.632(c) to 
notify the agency of original jurisdiction of withdrawal from 
representation and to surrender of documents provided by VA in the 
course of the representation. Concerning the requirement to notify the 
agency of original jurisdiction in the event of withdrawal from 
representation, the commenter stated, among other things, that the 
provision does not account for the fact that the claim or appeal could 
be at a facility other than the agency of original jurisdiction. The 
commenter's experience also indicates that the agency of original 
jurisdiction ``does not notify other VA facilities or update the 
necessary databases in a timely manner.'' The commenter suggested that 
VA amend the final rule to require the individual or organization 
desiring to withdraw from representation to notify the VA facility in 
possession of the claim or appeal in addition to the agency of original 
jurisdiction and the claimant. VA agrees that additional notification 
upon withdrawal from representation would be helpful. Accordingly, we 
will amend the final rule to incorporate the suggestion.
    Concerning the requirement for surrender of documents provided by 
VA upon withdrawal of representation, the commenter expressed support 
for the requirement in the proposed rule and suggested that it be 
extended to all documentation belonging to the claimant. The commenter 
also suggested that VA provide guidelines for situations in which an 
individual providing representation under Sec.  14.630, representative, 
agent, or attorney loses contact with a clamant, and how long the 
documentation should be maintained for the protection of the claimant 
and the representative. Another commenter suggested it might not be 
appropriate to require that individuals withdrawing from representation 
return all documents to the claimant because several provisions in 38 
CFR part 1 proscribe disclosing information to claimants if it would 
affect their physical or mental health. We agree that VA's withdrawal 
provisions should not conflict with other provisions intended to 
protect claimants from harmful information. Accordingly, we will amend 
Sec.  14.630 to provide that upon withdrawal from representation, all 
documents provided by VA must be returned to the agency of original 
jurisdiction or pursuant to the claimant's request, provided to the 
organization or individual taking over the representation. See Model 
Rules of Prof'l Conduct R. 1.16(d) (steps to take upon termination of 
representation). However, we do not agree with the commenter's 
suggestion that we expand the rule to require individuals to provide 
all documents, including those obtained from the claimant and other 
sources, to the agency of original jurisdiction. We intend that 
individuals providing representation will maintain or dispose of these 
documents according to State law.
    Two commenters stated that Sec.  14.631(c) and (d) fails to 
``address VA's role once a power of attorney has been withdrawn or 
revoked.'' The commenters suggested that the final rule should address 
whether VA intends to provide timely notice to all concerned parties in 
such situations and, if so, describe how VA would provide such notice. 
Commenters further stated that without timely notice by VA, claimants 
may be confused as to who represents them on a particular claim and 
seek advice from a party who is no longer their representative.
    When a power of attorney is withdrawn or revoked, VA's role is to 
ensure that that communications regarding an affected claim or claims 
are provided only to the appropriate representative of record. It is 
the responsibility of the claimant and the organization, individual 
providing representation on a particular claim under Sec.  14.630, 
representative, agent, or attorney to ensure that the claimant fully 
understands the scope of representation, particularly when an agent or 
attorney is providing limited representation on a particular claim 
under Sec.  14.631(f)(2). Moreover, a claimant and his or her 
organization, individual providing representation on a particular claim 
under Sec.  14.630, representative, agent, or attorney are in a better 
position than VA to understand who represents whom on a given claim. 
Therefore, VA will not provide additional notification of withdrawal or 
revocation to claimants or representatives. Additionally, the rule is 
not intended to preclude withdrawal from representation until a 
claimant obtains alternative representation. After

[[Page 29860]]

an organization, individual providing representation on a particular 
claim under Sec.  14.630, representative, agent, or attorney complies 
with Sec.  14.631(c), in part by providing time for the claimant to 
obtain alternative representation or proceed pro se, the organization 
or individual may withdraw from representation.
    The commenters also expressed concern about Sec.  14.631(f)(1) and 
(f)(2), under which agents and attorneys may limit the scope of their 
representation to a particular claim. They suggested that the final 
rule address VA's provision of timely notice to all individuals that a 
new power of attorney is limited to a particular claim and that the new 
power of attorney does not pertain to the veteran's other claims. VA 
disagrees with the premise that the responsibility for notifying 
claimants and other interested parties of arrangements to provide 
limited representation rests with VA and will not make any changes 
based on the comments. In enacting the amendments to 38 U.S.C. chapter 
59, Congress provided claimants for VA benefits choice in 
representation. It is the claimant who designates the source and scope 
of representation on VA Form 21-22a and enters into fee agreements, not 
VA. Moreover, Sec.  14.631 clearly identifies the effect of withdrawal 
from representation and the effect of a revocation of a power of 
attorney, a concept that organizations and accredited individuals are 
obligated to follow.
    Under Sec.  14.631(f)(1), receipt of a new power of attorney by VA, 
without limitation, revokes existing powers of attorney. Generally, 
there can be only one power of attorney. As a result, the organization 
or individual is appointed for representation on any and all claims the 
claimant has before the Department. Under Sec.  14.631(f)(2), however, 
an agent or attorney may limit the scope of his or her representation 
to a particular claim by describing the limitation on VA Form 21-22a. 
Under this section, organizations or individuals with an unlimited 
power of attorney retain representation for all claims before VA with 
the exception of the particular claim indicated on the VA Form 21-22a. 
Agents and attorneys advising claimants concerning limited 
representation are obligated to exercise care in ensuring that 
claimants understand the precise scope of the representation to be 
provided by the agent or attorney, and that which will be provided by 
other individuals or organizations, if any. In such cases, the agent or 
attorney should inquire whether the claimant has an existing power of 
attorney appointing a VSO as his or her representative, and, when 
necessary, communicate with the other individuals or organizations 
representing the claimant before the Department. In the event that an 
agent or attorney withdraws from representation on a particular claim 
and the claimant has an existing power of attorney in favor of a VSO, 
representation on the particular claim defaults to the VSO, and, as a 
result, VA would send future information on the particular claim to the 
VSO. It is the shared obligation of the claimant and the organization, 
representative, agent, or attorney, to fully communicate concerning any 
modification to the scope of representation.
    Commenters also expressed concern that VA lacked the capacity to 
distinguish between a claimant represented by an agent or attorney for 
all purposes and one represented by an agent or attorney only on one 
particular claim. Because such inability could r