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:
Allen Gumpenberger, Independently Accredited VA Claims Agent
Gumpslegal Veterans Service, LLC
888 854 8677 Ext 110
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.
Feel free to delete this question/observation: Al Giordano, no longer a leader of a certain large VSO, had been not only doing whatever he was doing prior to his ouster, but was also a VSO representative, according to the VA. What a guy!! I wonder how many vets he personally helped with their claims out of his NYC office?
If you become really good at just doing BVA work it would be worth 20% plus incurred expense. I would much prefer a claim at the BVA than at the CAVC since I am still smarting from my loss at the CAVC. At the BVA a vet still has benefit of doubt as you know. When you get to CAVC it is war and you get hit with a barrage of brickbats. So if you win(at the CAVC) you can get EAJA fees. The Court has now changed this (2019) such that you can also get 20-33 1/3% if you have a fee agreement in place. What if you and the vet lose at the BVA and you flew from your home state to the vet’s RO for the hearing? Would you charge for airfare? Most representatives do. I had a BVA Travel Board hearing and I was represented by a lawyer. The “hearing” took all of 20 minutes. The judge just looked over my claim and talked to me and my lawyer for a few minutes and that was it until decision was made a few weeks later. My lawyer did a very detailed brief that resembled a PH.D. dissertation. I think you will earn your money with this effort. If you can win at the RO that is the best of all possible worlds. IMO the longer the thing goes the worse it gets. If a vet can’t win on the evidence then winning with an argument is a lot harder. Would you be helping the vet develop his/her claim strategy such as in your book where you lay out what the vet needs to do on their own to get the claim ready to go forward and win? This is what many lawyers and VSO’s do not do but rather just take assembled facts and run with them. This is usually not enough because no mention of IME’s and all the other things a vet must do to win the first time. I think you should write another self-help guide so that if a vet wants and needs an agent his claim will be in a posture for a guy like to bring it along through the system without making major gaffs that set it back ten years.
You bring up many good points. I had Bob Walsh come out here from Michigan for my Board hearing with VLJ Vito Clemente. He charged me for airfare R/T and the hotel. I considered it paying the freight. I won on both counts (100% for Porphyria and the $150 K greenhouse. Since there was no “win” financially, he didn’t collect any 20% but he did on the Extraordinary Writ ($14 K) so he was paid in a round about way. I have no desire to play house at the CAVC. If I had my druthers, I’d prefer to keep it local but I get calls and widows from across the US so what do you do? After I’m certified, I’ll be forced to move about the country. With a jetgun at a hearing, you can make a few heads turn. I just got another so we have two now. I’m exploring the “Predetermination hearing” idea where you ask for a hearing before your rater BEFORE they make the initial decisions. Not a DRO unless he is sitting as a VSR or RVSR. It’s legal but no one does it. You can win by controlling everything and screaming 3.103(c)(2)> Bryant v. Shinseki F 3d. What do I need to win that you don’t have yet? We’re going to go places no VSO ever heard of, John. Read 38 CFR and use their regs against them.
We too honor your efforts. Even as a green thumb (pre-memorization of the CFR) you knew more than 99.9% ~
We are forever thankful we stood on the same side of the white picket fence as you.. Any Veteran would be lucky to have you on their side. Why? Because you care, and quite frankly, because you give a damn.
Would you get paid for this service? When I talked to NOVA some years ago they wanted me to install a fax line and incur other expenses with no compensation. I declined. I asked them for help about a year ago and they turned me down so I am not so sure about any of these guys unless you pay them. In our capitalist system you get what you pay for sometimes. I honor your efforts, AskNod, to help out any how.
John, a VA agent is identical to a VA attorney. Yes, you do charge a fee. Most charge no more than 20% plus any incurred expenses. If the Agent prevails at the CAVC level, s/he is entitled to EAJA fees which must be deducted from the 20%. The only major difference is that most agents cannot represent Vets above the BVA (at the CAVC). While I am pursuing this to be legal, I will be charging if the Vet is not homeless or destitute. (as a P.S. I got my acceptance to practice at the CAVC 26 November 2017.)
Seems they prefer the untrained to represent us, huh