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law. Permission for a legal intern, law student, or paralegal to prepare and present cases before the Board may be withdrawn by the Chairman or presiding Member at any time if a lack of competence, unprofessional conduct, or interference with the appellate process is demonstrated by that individual. (Authority: 38 U.S.C. 5904, 7105(b)(2)) [57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20450, May 7, 1996; 61 FR 29028, June 7, 1996)
(b) Supervision. Legal interns, law udents and paralegals must be under le direct supervision of a recognized torney-at-law in order to prepare and resent cases before the Board of Vetans' Appeals. (c) Hearings. Legal interns, law stuents and paralegals who desire to parcipate at a hearing before the Board i Washington, DC, must make adance arrangements with the Director, lanagement and Administration (01E) nd submit written authorization from he attorney naming the individual 'ho will be participating in the hearng. In the case of hearings before a Tember or Members of the Board at Department of Veterans field facilities n the field, the attorney-at-law not ess than 10 days prior to the scheduled learing date must inform the office of he Department of Veterans Affairs oficial who gave notice of the Travel Board hearing date and time that the services of a legal intern, law student, or paralegal will be used at the hearing. At the same time, a prehearing conference with the presiding Member of the hearing must be requested. At the conference, the written consent of the appellant for the use of the services of such an individual required by paragraph (a) must be presented and agreement reached as to the individual's role in the hearing. Legal interns, law students or paralegals may not present oral arguments at hearings either in the field or in Washington, DC, unless the recognized attorney-at-law is present. Not more than two such individuals may make presentations at a hearing. The presiding Member at a hearing on appeal may require that not more than one such individual participate in the examination of any one witness or impose other reasonable limitations to ensure orderly conduct of the
$ 20.607 Rule 607. Revocation of a rep
resentative's authority to act. Subject to the provisions of $ 20.1304 of this part, an appellant may revoke a representative's authority to act on his or her behalf at any time, irrespective of whether another representative is concurrently designated. Written notice of the revocation must be given to the agency of original jurisdiction or, if the appellate record has been certified to the Board for review, to the Board of Veterans' Appeals. The revocation is effective when notice of the revocation is received by the agency of original jurisdiction or the Board, as applicable. An appropriate designation of a new representative will automatically revoke any prior designation of representation. If an appellant has limited a designation of representation by an attorney-at-law to a specific claim under the provisions of Rule 603, paragraph (a) ($ 20.603(a) of this part), or has limited a designation of representation by an individual to a specific claim under the provisions of Rule 605, paragraph (c) (820.605(c) of this part), such specific authority constitutes a revocation of an existing representative's authority to act only with respect to, and during the pendency of, that specific claim. Following the final determination of that claim, the existing representative's authority to act will be automatically restored in full, unless otherwise revoked. (Authority: 38 U.S.C. 5901–5904)
(d) Withdrawal of permission for legal interns, law students, and paralegals to assist in the presentation of an appeal. When properly designated, the attorney-at-law is the recognized representative of the appellant and is responsible for ensuring that an appeal is properly presented. Legal interns, law students, and paralegals are permitted to assist in the presentation of an appeal as a courtesy to the attorney-at
$ 20.608 Rule 608. Withdrawal of sery
ices by a representative. (a) Withdrawal of services prior to certification of an appeal. A representative may withdraw services as representative in an appeal at any time prior to certification of the appeal to the Board of Veterans' Appeals by the agency of original jurisdiction. The representa tive must give written notice of such withdrawal to the appellant and to the agency of original jurisdiction. The withdrawal is effective when notice of the withdrawal is received by the agency of original jurisdiction.
(b) Withdrawal of services after certification of an appeal—(1) Applicability. The restrictions on a representative's right to withdraw contained in this paragraph apply only to those cases in which the representative has previously agreed to act as representative in an appeal. In addition to express agreement, orally or in writing, such agreement shall be presumed if the representative makes an appearance in the case by acting on an appellant's behalf before the Board in any way after the appellant has designated the representative as such as provided in $$20.602 through 20.605 of this part. The preceding sentence notwithstanding, an appearance in an appeal solely to notify the Board that a designation of representation has not been accepted will not be presumed to constitute such consent.
(2) Procedures. After the agency of original jurisdiction has certified an appeal to the Board of Veterans' Appeals, a representative may not withdraw services as representative in the appeal unless good cause is shown on motion. Good cause for such purposes is the extended illness or incapacitation of an agent admitted to practice before the Department of Veterans Affairs, an attorney-at-law, or other individual representative; failure of the appellant to cooperate with proper preparation and presentation of the appeal; or other factors which make the continuation of representation impossible, impractical, or unethical. Such motions must be in writing and must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), the applicable Department of Veterans Affairs file number, and the reason why withdrawal should be permitted. Such motions should not contain information which would violate privileged commu
nications or which would otherwise bi unethical to reveal. Such motions mus be filed at the following address: Offic of the Senior Deputy Vice Chairmai (012), Board of Veterans' Appeals, 811 Vermont Avenue, NW., Washington, DC 20420. The representative must mail : copy of the motion to the appellant with a return receipt requested. The re ceipt, which must bear the signature o the appellant, must then be filed witi the Board at the same address as proo: of service of the motion. The appellant may file a response to the motion with the Board at the same address not later than 30 days following receipt of the copy of the motion. The appellant must mail a copy of any such response to the representative, with a return receipt requested. The receipt, which must bear the signature of the representa. tive or an employee of the representative, must then be filed with the Board at the same address as proof of service of the response. (Authority: 38 U.S.C. 5901-5904, 7105(a)) (Approved by the Office of Management and Budget under control number 2900–0085) (57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20450, May 7, 1996) 8 20.609 Rule 609. Payment of rep
resentative's fees in proceedings before Department of Veterans Affairs field personnel and before the Board of Veterans' Appeals. (a) Applicability of rule. The provisions of this section apply to the services of representatives with respect benefits under laws administered by the Department of Veterans Affairs in all proceedings before Department of Veterans Affairs field personnel or before the Board of Veterans' Appeals regardless of whether an appeal has been initiated.
(b) Who may charge fees for representation. Only agents and attorneys-at-law may receive fees from claimants or appellants for their services. Recognized organizations (including their accredited representatives when acting as such) and individuals recognized pursuant to Rule 605 (820.605 of this part) are not permitted to receive fees. An attorney-at-law or agent who may also be an accredited representative of a recognized organization may not receive such fees unless he or she has been
properly designated as representative n accordance with Rule 603(a) or Rule 04(a) ($20.603(a) or $20.604(a) of this jart) in his or her individual capacity.
(c) Circumstances under which fees may e charged. Except as noted in pararaph (d) of this section, attorneys-ataw and agents may charge claimants r appellants for their services only if ill of the following conditions have jeen met:
(1) A final decision has been promulated by the Board of Veterans' Apeals with respect to the issue, or ssues, involved;
(2) The Notice of Disagreement which receded the Board of Veterans' Apveals decision with respect to the issue, r issues, involved was received by the gency of original jurisdiction on or fter November 18, 1988; and (3) The attorney-at-law or agent was etained not later than one year folowing the date that the decision by he Board of Veterans' Appeals with repect to the issue, or issues, involved ras promulgated. (This condition will e considered to have been met with repect to all successor attorneys-at-law r agents acting in the continuous rosecution of the same matter if a redecessor was retained within the reaired time period.) (4) For the purposes of this section, I the case of a motion under subpart 0 this part (relating to requests for resion of prior Board decisions on the 'ounds of clear and unmistakable Tor), the “issue" referred to in this tragraph (c) shall have the same eaning as “issue" in Rule 1401(a) 20.1401(a) of this part). (d) Exceptions—(1) Chapter 37 loans. ith respect to services of agents and torneys provided after October 9, 92, a reasonable fee may be charged
paid in connection with any proeding in a case arising out of a loan ade, guaranteed, or insured under apter 37, United States Code, even ough the conditions set forth in ragraph (c) of this section are not t. 2) Payment of fee by disinterested third rty. (i) An attorney-at-law or agent y receive a fee or salary from an ornization, governmental entity, or ier disinterested third party for repentation of a claimant or appellant
even though the conditions set forth in paragraph (c) of this section have not been met. In no such case may the attorney or agent charge a fee which is contingent, in whole or in part, on whether the matter is resolved in a manner favorable to the claimant or appellant.
(ii) For purposes of this part, a person shall be presumed not to be disinterested if that person is the spouse, child, or parent of the claimant or appellant, or if that person resides with the claimant or appellant. This presumption may be rebutted by clear and convincing evidence that the person in question has no financial interest in the success of the claim.
(iii) The provisions of paragraph (8) of this section (relating to fee agreements) shall apply to all payments or agreements to pay involving disinterested third parties. In addition, the agreement shall include or be accompanied by the following statement, signed by the attorney or agent: “I certify that no agreement, oral or otherwise, exists under which the claimant or appellant will provide ything of value to the third-party payer in this case in return for payment of my fee or salary, including, but not limited to, reimbursement of any fees paid.”.
(e) Fees permitted. Fees permitted for services of an attorney-at-law or agent admitted to practice before the Department of Veterans Affairs must be reasonable. They may be based on a fixed fee, hourly rate, a percentage of benefits recovered, or a combination of such bases. Factors considered in determining whether fees are reasonable include:
(1) The extent and type of services the representative performed;
(2) The complexity of the case;
(3) The level of skill and competence required of the representative in giving the services;
(4) The amount of time the representative spent on the case;
(5) The results the representative achieved, including the amount of any benefits recovered;
(6) The level of review to which the claim was taken and the level of the review at which the representative was retained;
(7) Rates charged by other represent atives for similar services; and
(8) Whether, and to what extent, the payment of fees is contingent upon the results achieved.
(f) Presumption of reasonableness. Fees which total no more than 20 percent of any past-due benefits awarded, as defined in Rule 20.3(n) (820.31n) of this part), will be presumed to be reasonable.
(g) Fee agreements. All agreements for the payment of fees for services of attorneys-at-law and agents (including agreements involving fees or salary paid by an organization, governmental entity or other disinterested third party) must be in writing and signed by both the claimant or appellant and the attorney-at-law or agent. The agreement must include the name of the veteran, the name of the claimant or appellant if other than the veteran, the name of each disinterested third-party payer (see paragraph (d)(2) of this section), the applicable Department of Veterans Affairs file number, and the specific terms under which the amount to be paid for the services of the attorney-at-law or agent will be determined. A copy of the agreement must be filed with the Board of Veterans' Appeals within 30 days of its execution by mailing the copy to the following address: Office of the Senior Deputy Vice Chairman (012), Board of Veterans' Appeals, 810 Vermont Avenue, NW, Washington, DC 20420.
(h) Payment of fees by Department of Veterans Affairs directly to an attorneyat-law from past-due benefits. (1) Subject to the requirements of the other paragraphs of this section, including para graphs (c) and (e), the claimant or appellant and an attorney-at-law may enter into a fee agreement providing that payment for the services of the attorney-at-law will be made directly to the attorney-at-law by the Department of Veterans Affairs out of any past-due benefits awarded as a result of a successful appeal to the Board of Veterans' Appeals or an appellate court or as a result of a reopened claim before the Department following a prior denial of such benefits by the Board of Veterans Appeals or an appellate court. Such an agreement will be hon
ored by the Department only if the following conditions are met:
(i) The total fee payable (excluding expenses) does not exceed 20 percent of the total amount of the past-due benefits awarded,
(ii) The amount of the fee is contingent on whether or not the claim is resolved in a manner favorable to the claimant or appellant, and
(iii) The award of past-due benefits results in a cash payment to a claimant or an appellant from which the fee may be deducted. (An award of pastdue benefits will not always result in a cash payment to a claimant or an appellant. For example, no cash payment will be made to military retirees unless there is a corresponding waiver of retirement pay. (See 38 U.S.C. 5304(a) and $3.750 et seq. of this chapter.))
(2) For purposes of this paragraph, a claim will be considered to have been resolved in a manner favorable to the claimant or appellant if all or any part of the relief sought is granted.
(3) For purposes of this paragraph, "past-due benefits" means a nonrecurring payment resulting from a benefit, or benefits, granted on appeal or awarded on the basis of a claim reopened after a denial by the Board of Veterans' Appeals or the lump sum payment which represents the total amount of recurring cash payments which accrued between the effective date of the award, as determined by applicable laws and regulations, and the date of the grant of the benefit by the agency of original jurisdiction, the Board of Veterans' Appeals, or an appellate court.
(i) When the benefit granted on appeal, or as the result of the reopened claim, is service connection for a disability, the “past-due benefits" will be based on the initial disability rating assigned by the agency of original jurisdiction following the award of service connection. The sum will equal the payments accruing from the effective date of the award to the date of the initial disability rating decision. If an increased evaluation is subsequently granted as the result of an appeal of the disability evaluation initially assigned by the agency of original jurisdiction, and if the attorney-at-law represents the claimant or appellant in
that phase of the claim, the attorneyat-law will be paid a supplemental payment based upon the increase granted on appeal, to the extent that the increased amount of disability is found to have existed between the initial effective date of the award following the grant of service connection and the date of the rating action implementing the appellate decision granting the increase.
(ii) Unless otherwise provided in the fee agreement between the claimant or appellant and the attorney-at-law, the attorney-at-law's fees will be determined on the basis of the total amount of the past-due benefits even though a portion of those benefits may have been apportioned to the claimant's or appellant's dependents.
(iii) If an award is made as the result of favorable action with respect to seyeral issues, the past-due benefits will be calculated only on the basis of that portion of the award which results from action taken on issues concerning which the criteria in paragraph (c) of this section have been met.
(4) In addition to filing a copy of the fee agreement with the Board of Veterans' Appeals as required by paragraph (g) of this section, the attorneyat-law must notify the agency of original jurisdiction within 30 days of the date of execution of the agreement of the existence of an agreement providing for the direct payment of fees out of any benefits subsequently determined to be past due and provide that agency with a copy of the fee agreement.
(i) Motion for review of fee agreement. The Board of Veterans' Appeals may review a fee agreement between a claimant or appellant and an attorneyat-law or agent upon its own motion or upon the motion of any party to the agreement and may order a reduction in the fee called for in the agreement if it finds that the fee is excessive or un reasonable in light of the standards set forth in paragraph (e) of this section. Such motions must be in writing and must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), and the ap
plicable Department of Veterans Affairs file number. Such motions must set forth the reason, or reasons, why the fee called for in the agreement is excessive or unreasonable. Such motions (other than motions by the Board) must be filed at the following address: Office of the Senior Deputy Vice Chairman (012), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. They should be accompanied by all such evidence as the moving party desires to submit. The moving party must mail a copy of the motion and accompanying evidence to all other parties to the agreement, with return receipts requested. The receipts, which must bear the signatures of the other parties, must then be filed with the Board at the same address as proof of service of the motion. The other parties may file a response to the motion, with any accompanying evidence, with the Board at the same address not later than 30 days following the date of receipt of the copy of the motion. A copy of any such response and any accompanying evidence must be mailed to the moving party, with a return receipt requested. The receipt, which must bear the signature of the moving party, must then be filed with the Board at the same address as proof of service of the response. Once there has been a ruling on the motion, an order shall issue which will constitute the final decision of the Board with respect to the motion. If a reduction in the fee is ordered, the attorney or agent must credit the account of the claimant or appellant with the amount of the reduction and refund any excess payment on account to the claimant or appellant not later than the expiration of the time within which the ruling may be appealed to the United States Court of Appeals for Veterans Claims. Failure to do so may result in proceedings under $14.633 of this chapter to terminate the attorney's or agent's right to practice before the Department of Veterans Affairs and the Board of Veterans' Appeals and/or prosecution under the provisions of 38 U.S.C. 5905.
(j) In addition to whatever other penalties may be prescribed by law or regulation, failure to comply with the requirements of this section may result