VA Fee Agreements for Accredited Agents and Attorneys (38 CFR 14.636)

The short answer: under 38 C.F.R. § 14.636, an accredited agent or attorney may charge a VA claimant only for work done after VA issues notice of the initial decision on the claim, only under a written agreement signed by both, and only a reasonable fee. A direct-pay agreement, where VA pays the fee out of past-due benefits, is limited to 20 percent of those benefits, must be contingent on a favorable result, and must be filed with the agency of original jurisdiction within 30 days.

This is a working summary of the regulation for representatives. It is not legal advice, and the regulation's own text controls.

Who may charge at all

Only accredited agents and attorneys may receive fees from claimants (§ 14.636(b)). Recognized organizations and their accredited representatives, acting as such, may not. An agent or attorney who is also accredited through an organization can charge only when appointed in an individual capacity as agent or attorney, on VA Form 21-22a.

When a fee may attach

For decisions under the current review system, fees may be charged for representation provided after the agency of original jurisdiction issues notice of an initial decision on the claim, with the power of attorney and a compliant fee agreement in place (§ 14.636(c)(1)(i)).

• An initial decision includes an initial decision on a claim for increase, on a request to revise a decision for clear and unmistakable error, and on a supplemental claim filed after the earlier claim became final.
• A supplemental claim filed while the earlier claim is continuously pursued (within a year of an agency, Board, or Court decision, as the regulation lists) is treated as part of the earlier claim, not as a new one.
• Work before the initial decision notice, such as preparing and filing an original claim, is not billable to the claimant under this rule. The exception is a fee paid by a genuinely disinterested third party (§ 14.636(d)(2)), which may not be contingent on the outcome.

Older rules apply to decisions issued before the review system changed and to notices of disagreement filed before June 20, 2007 (§ 14.636(c)(2) and (c)(3)).

What the agreement must contain

Every fee agreement must be in writing and signed by both the claimant and the agent or attorney (§ 14.636(g)). To be valid it must include:

1. 1The name of the veteran.
2. 2The name of the claimant, if other than the veteran.
3. 3The name of any disinterested third-party payer and that payer's relationship to the veteran or claimant.
4. 4The applicable VA file number.
5. 5The specific terms under which the amount of the fee will be determined.

It must also clearly say whether VA is to pay you directly out of past-due benefits (§ 14.636(g)(2)). An agreement that does not say so clearly, or that sets a fee above 20 percent of past-due benefits, is treated as one where you collect from the claimant yourself.

Where and when to file it

VA may accept a late agreement on a showing of sufficient cause (§ 14.636(g)(3)). Only non-direct-pay agreements and fee or expense review documents go to the General Counsel; evidence and argument on the claim itself go to the agency of original jurisdiction or the Board.

Direct pay: the conditions

VA honors a direct-pay agreement only if all of these are met (§ 14.636(h)(1)):

• The total fee, excluding expenses, does not exceed 20 percent of the past-due benefits awarded.
• The fee is contingent on the claim being resolved favorably. A claim counts as favorably resolved if all or any part of the relief sought is granted (§ 14.636(h)(2)).
• You are accredited on the date of VA's fee allocation notice.
• The award produces a cash payment from which the fee can be withheld. Not every award does: for example, military retirees receive no cash payment without a corresponding waiver of retired pay.

VA charges an assessment of 5 percent of the fee paid directly, which the regulation caps at $100, and takes it out of the fee.

How past-due benefits are counted

Past-due benefits are the lump sum of recurring payments that accrued between the effective date of the award and the date of the grant (§ 14.636(h)(3)).

• When the benefit is service connection, past-due benefits are based on the initial rating assigned by the agency of original jurisdiction, from the effective date to the date of that initial rating decision.
• If you then win a higher initial rating on appeal and represented the claimant in that phase, a supplemental fee is paid on the increase, for the period from the original effective date to the rating action implementing the appellate decision.

Reasonableness

Every fee must be reasonable (§ 14.636(e)). It may be a fixed fee, an hourly rate, a percentage of benefits recovered, or a combination. The factors include the work done, complexity, skill required, time spent, results achieved, the level of review at which you were retained, rates charged by others, whether the fee is contingent, and, where relevant, why you were discharged or withdrew and another representative's entitlement.

Two presumptions (§ 14.636(f)(1)), both rebuttable by clear and convincing evidence:

• A fee of 20 percent or less of past-due benefits is presumed reasonable if your representation continued through the date of the decision awarding benefits.
• A fee above 33 1/3 percent is presumed unreasonable.

If you are discharged or withdraw before the award under a contingent agreement, a reasonable fee is one that fairly reflects your contribution to and responsibility for the benefits awarded (§ 14.636(f)(2)).

Common problems that cost fees

• Charging for work done before the initial decision notice.
• An agreement missing the VA file number or the claimant's name, or unsigned by one side.
• A direct-pay agreement that does not clearly request direct payment, or that sets the fee above 20 percent.
• Filing a direct-pay agreement with the General Counsel instead of the agency of original jurisdiction, or missing the 30-day window.
• Accreditation lapsing before the fee allocation notice date.
• An award that produces no cash payment, such as a retiree without a waiver.

Frequently asked questions

What must a VA fee agreement include?

The veteran's name, the claimant's name if different, any disinterested third-party payer and that payer's relationship to the veteran or claimant, the VA file number, and the specific terms for determining the fee. It must be signed by both parties and state clearly whether VA is to pay the fee directly (38 C.F.R. § 14.636(g)).

When can an accredited agent charge a fee on a VA claim?

For work done after VA issues notice of the initial decision on the claim, with a power of attorney and a compliant fee agreement in place (§ 14.636(c)).

What is the maximum fee VA will pay directly?

Twenty percent of past-due benefits, contingent on a favorable result, and only where the award produces a cash payment. VA deducts an assessment of 5 percent of the fee, capped at $100 by the regulation.

Where do you file a VA fee agreement?

A direct-pay agreement goes to the agency of original jurisdiction within 30 days of execution. Any other fee agreement goes to VA's Office of the General Counsel within 30 days.

Can a VSO representative charge a fee?

No. Recognized organizations and their accredited representatives, acting as such, may not receive fees from claimants (§ 14.636(b)).