Wowser. My fingers are getting laryngitis. One of the primary reasons for Cupcake’s and my expedition to the NOVA conference was Alan Gumpenburger’s presentation on the VA Agent’s examination for accreditation as a non-attorney practitioner. While it might not seem as daunting as, say, scaling the Eiffel tower, reading over the questions seems like a scenario I witnessed as a child.
In 1962, during dove season. my father was adamant that I begin learning the art of deflection shooting. Towards that end, he would show up at St. Mary’s (Catholic) and remove me from Fifth grade shortly before lunchtime to practice the 20 gauge art of birding. Somewhere in the last 50 years that term headed south and has taken on a completely different meaning. The Audubon Society has perverted it to convey “observing” birds.
On one foray, we had to stop by the Goldsboro, N.C. Police Department and get the gate keys to a promising cornfield recently harvested. The Chief ( who owned the property) invited us in and an old black man was standing in front of him. He had come for permission to vote that fall and, like all blacks in rural North Carolina at the time, had to pass a ‘literacy test’ to qualify. The Sheriff withdrew an old faded copy of a Japanese newspaper from his top desk drawer and held it up.
” How ’bout you tell me what this says, Lenny.” he asked.
“It say I h’aint gonna be voting this year agin, suh.” Lenny remarked.
“That’s right, Lenny. Now you run on home and get back to work. I reckon I’ll see you next year, hear? Give my best to the missus.” was the Sheriff’s parting remark.
Now you can imagine how I felt when I saw Alan Gumpenburger’s epistle of questions. I felt like Perry Mason being told he was going to have to memorize patent law with a side of international tax law in order to practice in LA County. Seriously. Alan tells me that prospective agents who have taken this send back some of the zingers they encountered (below). I was prepared for some highly technical how-to’s on SMC or perhaps suspense dates for various motions. Chew on a few of these actual questions.
6. Is it true that Active Duty for Training includes duty performed as a temporary member of the Coast Guard Reserve?
9. A claimant’s net worth is a factor in determining eligibility for Improved Pension and for continuing eligibility to Section 306 Pension, but is not a factor in determining whether to continue entitlement to Old Law Pension.
43. What is the deadline to request a waiver of a debt owed to the VA?
a. 180 days
b. 90 days
c. 30 days
d. 100 days
57. According to 38 CFR 1.911, when a veteran challenges the amount owed from an individual participating in a VA benefit or Home Loan program, and the VA determines that an overpayment amount was proper and renders a decision indicating the amount owed and specific reasons for the debt, does the veteran have 1 year to appeal this decision?
a. Yes, paragraph (c)(3) provides…”In accordance with parts 19 and 20 of this title, the debtor may appeal the decision underlying the debt.”
b. No, the appeal must be submitted within 180 days as provided under section 1.963 and 1.964.
79. The Vietnam veteran has been service connected for diabetes type I since 1999. Initially, the VA regional office granted service connection as a presumptive condition under 3.309(e) as due to herbicide exposure (Agent Orange). The VA regional office determined that service connection was not in order, since presumptive only extends to Type II diabetes and has determined that service connection should be severed. Can the VA sever service connection? Explain the basis for your answer.
The last one here is a piece of cake but it illustrates that there may or can be written answers as opposed to strictly multiple choice answers.
Mr. Gumpenberger teaches classes on this subject and can be reached at:
I’m gonna go out on the little branches here and just guess that Alan’s not related to Forrest but I bet he gets a lot of ribbing. The Las Vegas presenter informed us that the Office of General Counsel’s (OGC) test now consists of just 19 questions and you have to answer 75% correctly within 90 minutes-or 14.25 questions. Rounding up means 15 answered correctly.
However, here’s an update. I sat for the test July 18th, 2016 and it was 27 questions. 21 would be the required 75% to pass in this instance.
Of note, I would have expected the conference to draw a large number who would be seeking accreditation. I doubt there were more than 15 of us in the room. Keep in mind even VSOs have to have a couple of these guys salted around the country to nominally be in charge of a Veteran’s claims. A gomer representative in East Bumfork, NY can still work under the auspices and accreditation of the poohbah in Syracuse or Albany. Unlike them, every VA agent like me has to pass it. Legally, I can have no one working under me on VA claims whatsoever. I do plan on hiring Cupcake as a typist though.
After reading half of 38 CFR, I now understand why only 15% of of us win our claims. First, no one in the ratings biz down at Fort Fumble or even up at the Puzzle Palace at 810 Yellow Brick Rd NW knows as much as an attorney or an agent. No one at a VSO, with the possible exception of a few who have passed the test, are even remotely educated enough on the subject to do more than fill out a 526EZ. Thus you cannot depend on the little people (or pray) for much more than their ability to spell correctly. Since VSOs owe their allegiance to those who pay their rent and provide them their electricity/heat/ phones/desks, you cannot rely on them to represent your best interests. Being beholden to someone else and professing to be free quality legal help is a non sequitur. Well, actually I never heard a service officer blurt out or imply he was “quality”-or qualified for that matter.
Considering I have heard nothing but pure hatred and vitriol towards attorneys from the VSOs for the last decade, I find it almost risible that DAV Grand Poohbah Roy Spicer confided in me that Chisholm, Chisholm and Kilpatrick now are the go-to law firm for all DAV appeals to the Court. Roy even actively solicits them (Veterans repped by DAV at the BVA) for CCK. He tells me the Vietnam Veterans of America (VVA) now use Bergmann and Moore exclusively as well. Seems I remember a buddy who went to them recently only to discover they require a tithe of 33 1/3% instead of 20%. That’s legal if the matter is of some complexity but will require some tall talking through the top of your hat when you submit your fee agreement to the OGC. You almost have to be God’s gift to jurisprudence to justify 33 1/3.
And speaking of God’s gift to Veterans jurisprudence, I had the good fortune to meet and talk to none other than Kenneth Carpenter, that mellifluous, golden-tongued legal orator about taking my EAJA fee dispute up to the Dead Circus if I get the bum’s rush from my request for a panel at the CAVC. I promised I would never badmouth any Veterans Charity ever again if he’d let me take a picture of us. Et voilà! He believed me!
One day soon I hope to be street legal and continue this marvelous tradition of helping Veterans navigate their way through the maze, onto and off the hamster wheel and up to the BVA if necessary. Having made the trip three times now all the way to the CAVC, I almost have the train schedule to DC memorized. I’m still working on memorizing 38 CFR.
P.S. Street Legal August 4th, 2016. Accepted to the CAVC to practice, November 22nd, 2017.