[Congressional Record Volume 152, Number 50 (Tuesday, May 2, 2006)]
[Senate]
[Pages S3896-S3898]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CRAIG (for himself and Mr. Graham):
  S. 2694. A bill to amend title 38, United States Code, to remove 
certain limitation on attorney representation of claimants for veterans 
benefits in administrative proceedings before the Department of 
Veterans Affairs, and for other purposes; to the Committee on Veterans' 
Affairs.
  Mr. CRAIG. Mr. President, I have sought recognition today to comment 
on legislation that the distinguished Senator from South Carolina, 
Senator Graham, and I are introducing. This bill will provide veterans 
with the right to hire counsel to represent them in proceedings before 
the Department of Veterans Affairs (VA) and will help ensure that all 
who represent veterans are held to the highest standards of 
professional and ethical conduct.
  As President Abraham Lincoln eloquently expressed nearly 150 years 
ago, this Nation has an obligation ``to care for him who shall have 
borne the battle, and for his widow, and his orphan.'' In keeping with 
that charge, the Federal Government provides a wide array of benefits 
to veterans and their dependents, through an administrative system that 
is intended to be informal, claimant-friendly, and non-adversarial.
  During recent years, however, veterans' organizations, VA, and others 
have observed that this system has become increasingly complex. 
Enhanced legal requirements and layers of procedural steps intended to 
protect the rights of veterans have increased both the complexity of 
the system and how long it takes to process a claim. At the same time, 
with the Nation at war and servicemembers deployed around the world, 
the disability claims filed by returning veterans have become more

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complex. Many of these claims are based on disabilities caused by 
environmental exposures, traumatic brain injuries, psychological 
trauma, severe combat wounds, and other highly complex medical 
conditions, which by their nature may entail complex questions of 
causality or intricate factual or legal analyses.
  Despite the increasing complexity of many cases, all 24 million 
living veterans are prohibited from hiring a lawyer to help them 
navigate the VA system. It is only after a veteran has spent months and 
even years exhausting the extensive VA administrative process that the 
veteran then may retain counsel--a process that often takes 3 or more 
years to complete. As the National Organization of Veterans' Advocates 
(NOVA) testified before the Veterans' Affairs Committee last year, 
``[t]his is too late in the process for counsel to be truly effective'' 
because by that time the evidentiary record ``is effectively closed.'' 
On the other hand, NOVA testified that, if attorneys were retained at 
an earlier stage of the process, they could be helpful in obtaining and 
presenting necessary evidence and in ensuring that VA timely and 
accurately processes claims.
  So, with the potential for lawyers to help veterans successfully 
navigate this increasingly complex system, why does the government 
prohibit veterans from retaining counsel? This restriction, which dates 
back to the Civil War, was born out of concern that unscrupulous 
attorneys would improperly take large portions of veterans' disability 
benefits as compensation for their services. And some will argue that 
this concern is equally warranted today.
  Although I understand this longstanding desire to protect veterans' 
disability compensation, I would ask my colleagues to consider a simple 
question posited in a recent editorial: ``If American soldiers are 
mature and responsible enough to choose to risk their lives for their 
country, shouldn't they be considered competent to hire a lawyer?'' I 
believe the obvious answer to that question is ``yes.''
  Particularly for veterans of to day's All-Volunteer Force--which has 
been described as the ``best-trained, best-equipped, best-led fighting 
force in the history of the world''--this paternalistic restriction is 
simply outdated. These highly trained, highly skilled veterans have the 
ability--and should have the right--to decide whether or not to hire a 
lawyer.
  This is a right that is not denied to individuals seeking other 
earned benefits from the government. In fact, if a veteran were to seek 
Social Security benefits for disabilities suffered during military 
service, the veteran would be permitted to hire an attorney--while the 
same veteran seeking benefits from VA for the same disabilities would 
be prohibited from hiring an attorney based on this remnant of an 
ancient policy.
  The paternalistic restriction that prevents veterans from hiring 
counsel may have been advisable 150 years ago, but--as one veterans' 
organization recently testified before the Veterans' Affairs 
Committee--there is now no logic to it ``except history.'' It has 
endured for far too long and it is now time to embrace Justice Oliver 
Wendell Holmes' admonition that it is ``revolting'' for a law to 
persist ``in blind imitation of the past.'' It is time to repeal this 
archaic law and to allow our Nation's veterans the option of hiring 
counsel.
  Having said all that, I want to be clear that I am not suggesting 
that attorneys should be considered necessary in order to obtain VA 
benefits. Above all, we must ensure that the system continues to serve 
veterans in a claimant-friendly, non-adversarial manner--regardless of 
the presence of an attorney or any other representative--and we must 
strive to reduce the complexities of this vast system. I hope that 
veterans' organizations across the country will join me in pursuing 
those goals.
  I also want to be clear that, although I believe veterans should have 
the option to hire attorneys, they should not be discouraged in any way 
from utilizing the free services now provided by many dedicated 
representatives of veterans' service organizations. Those 
representatives are an important and valuable resource that veterans 
and their families will undoubtedly continue to rely on for many 
generations to come. The availability of this resource, however, is no 
reason to restrict veterans' access to other options. If a veteran 
would rather hire an attorney, we should not stand in the way.
  At the same time, however, we should ensure that anyone who 
represents a veteran is held to the highest standards of professional 
and ethical conduct and that any fee charged to a veteran is patently 
reasonable. To that end, this legislation will allow veterans the right 
to hire an attorney at any time and it will heighten the expectations 
on all individuals who represent veterans.
  Specifically, this legislation will allow VA to ensure that all 
attorneys who practice before VA have adequate training or experience 
in this specialized area of law to competently represent veterans and 
that they conform to specified standards of ethical and professional 
conduct. It would also allow VA to ensure that all veterans' 
representatives are honest, professional, and law abiding; that they 
avoid further delaying or complicating the system by presenting 
frivolous claims or arguments; and that they conduct themselves with 
due regard for the non-adversarial nature of the system.
  For veterans who opt to hire an attorney, this legislation would 
provide the Secretary of Veterans Affairs with authority to reduce any 
attorney fee if it is excessive or unreasonable and with authority to 
set restrictions on the amount of fees that could be charged in any 
case before VA. Finally, in order to avoid any drain on existing VA 
resources, VA would have authority to impose on attorneys a 
registration fee to defray any costs associated with allowing them to 
practice before VA.
  In sum, this legislation will take measures to ensure that the 
interests of veterans will be protected, while allowing them to decide 
for themselves whether they want to hire a lawyer. I ask my colleagues 
to support this groundbreaking legislation.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2694

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Veterans' Choice of 
     Representation Act of 2006''.

     SEC. 2. ATTORNEY REPRESENTATION IN VETERANS BENEFITS CLAIMS 
                   CASES BEFORE THE DEPARTMENT OF VETERANS 
                   AFFAIRS.

       (a) Qualifications and Standards of Conduct for Individuals 
     Recognized as Agents or Attorneys.--
       (1) Additional qualifications and standards for agents and 
     attorneys generally.--Subsection (a) of section 5904 of title 
     38, United States Code, is amended--
       (A) by inserting ``(1)'' after ``(a)'';
       (B) by striking the second sentence; and
       (C) by adding at the end the following new paragraphs:
       ``(2) The Secretary may prescribe in regulations 
     qualifications and standards of conduct for individuals 
     recognized under this section, including the following:
       ``(A) A requirement that, before being recognized, an 
     individual--
       ``(i) show that such individual is of good moral character 
     and in good repute, is qualified to render claimants valuable 
     service, and is otherwise competent to assist claimants in 
     presenting claims; and
       ``(ii) has such level of experience and specialized 
     training as the Secretary shall specify.
       ``(B) A requirement that the individual follow such 
     standards of conduct as the Secretary shall specify.
       ``(3) The Secretary may prescribe in regulations 
     restrictions on the amount of fees that an agent or attorney 
     may charge a claimant for services rendered in the 
     preparation, presentation, and prosecution of a claim before 
     the Department.
       ``(4)(A) The Secretary may, on a periodic basis, collect 
     from individuals recognized as agents or attorneys under this 
     section a registration fee.
       ``(B) The Secretary shall prescribe the amount and 
     frequency of collection of such fees. The amount of such fees 
     may include an amount, as specified by the Secretary, 
     necessary to defray the costs of the Department in 
     recognizing individuals under this section, in administering 
     the collection of such fees, in administering the payment of 
     fees under subsection (d), and in conducting oversight of 
     agents or attorneys.
       ``(C) Amounts so collected shall be deposited in the 
     account from which amounts for such costs were derived, 
     merged with amounts in such account, and available for

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     the same purpose, and subject to the same conditions and 
     limitations, as amounts in such account.''.
       (2) Applicability to representatives of veterans service 
     organizations.--Section 5902(b) of such title is amended--
       (A) by redesignating paragraphs (1) and (2) as 
     subparagraphs (A) and (B), respectively;
       (B) by inserting ``(1)'' after ``(b)''; and
       (C) by adding at the end the following new paragraph:
       ``(2) An individual recognized under this section shall be 
     subject to suspension under section 5904(b) of this title on 
     the same basis as an individual recognized under section 
     5904(a) of this title.''.
       (3) Applicability to individuals recognized for particular 
     claims.--Section 5903 of such title is amended--
       (A) by inserting ``(a) In General.--'' before ``The 
     Secretary''; and
       (B) by adding at the end the following new subsection:
       ``(b) Suspension.--An individual recognized under this 
     section shall be subject to suspension under section 5904(b) 
     of this title on the same basis as an individual recognized 
     under section 5904(a) of this title.''.
       (b) Additional Bases for Suspension of Individuals.--
     Subsection (b) of section 5904 of such title is amended--
       (1) by inserting ``and sections 5902 and 5903 of this 
     title'' after ``under this section'';
       (2) in paragraph (4), by striking ``or'' at the end;
       (3) in paragraph (5), by striking the period and inserting 
     a semicolon; and
       (4) by adding at the end the following new paragraphs:
       ``(6) has failed to conduct himself or herself with due 
     regard for the non-adversarial nature of any proceeding 
     before the Department;
       ``(7) has presented frivolous claims, issues, or arguments 
     to the Department; or
       ``(8) has failed to comply with any other condition 
     specified by the Secretary in regulations prescribed by the 
     Secretary for purposes of this subsection.''.
       (c) Repeal of Limitation on Hiring Agents or Attorneys.--
     Subsection (c) of section 5904 of such title is amended by 
     striking paragraph (1).
       (d) Modification of Requirements to File Attorney Fee 
     Agreements.--Such subsection is further amended--
       (1) by redesignating paragraph (2) as paragraph (1); and
       (2) in that paragraph, as so redesignated--
       (A) by striking ``in a case referred to in paragraph (1) of 
     this subsection'';
       (B) by striking ``after the Board first makes a final 
     decision in the case'';
       (C) by striking ``with the Board at such time as may be 
     specified by the Board'' and inserting ``with the Secretary 
     pursuant to regulations prescribed by the Secretary''; and
       (D) by striking the second and third sentences.
       (e) Attorney Fees.--Such subsection is further amended by 
     inserting after paragraph (1), as redesignated by subsection 
     (d)(1) of this section, the following new paragraph (2):
       ``(2)(A) The Secretary, upon the Secretary's own motion or 
     at the request of the claimant, may review a fee agreement 
     filed pursuant to paragraph (1) and may order a reduction in 
     the fee called for in the agreement if the Secretary finds 
     that the fee is excessive or unreasonable.
       ``(B) A finding or order of the Secretary under 
     subparagraph (A) may be reviewed by the Board of Veterans' 
     Appeals under section 7104 of this title.''.
       (f) Repeal of Penalty for Certain Acts.--Section 5905 of 
     such title is amended by striking ``(1)'' and all that 
     follows through ``(2)''.
       (g) Effective Date.--
       (1) In general.--The amendments made by this section shall 
     take effect six months after the date of the enactment of 
     this Act.
       (2) Regulations.--The Secretary shall prescribe the 
     regulations, if any, to be prescribed under the amendments 
     made by subsection (a) not later than the date specified in 
     paragraph (1).
       (3) Claims.--The amendments made by subsections (b), (c), 
     (d), and (e) shall apply to claims submitted on or after the 
     date specified in paragraph (1).
                                 ______