Maryland Bar Bulletin
Publications : Bar Bulletin : May 2007

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 Bar Bulletin Focus

Veterans Law   

Lining Pockets with Veterans’ Benefits

On December 22, 2006, the 109th Congress overwhelmingly passed the “Veterans’ Choice of Representation Act”, and with very little opposition. While, at first glance, allowing veterans to hire lawyers to represent them in their efforts to obtain federal benefits from the U.S. Department of Veterans Affairs (VA) may seem reasonable, this legislation has the potential of destroying the current non-adversarial and pro-claimant VA system, which Congress has nurtured for decades.

Prior restrictions on attorney representation have their origin in the Civil War. At that time, Congress limited the fee charged by an attorney to $10 for assisting a veteran to complete and submit a claim to the Pension Bureau for a war pension. This statute was passed to protect veterans from “unscrupulous lawyers” whose aim was to steal the veterans’ pensions.

These restrictions continued until the passage of the Veterans Judicial Review Act (VJRA) in 1988, when Congress loosened the prohibition against a veteran’s right to hire an attorney. The VJRA created the Court of Appeals for Veterans Claims (CAVC), giving veterans the right for the first time to appeal an adverse decision of the Board of Veterans’ Appeals (BVA) to a federal court of review. And, with the right to judicial review, Congress also allowed veterans the limited right to hire an attorney to represent them before the CAVC, as well as before VA in cases returned by the CAVC to BVA for readjudication. However, the VJRA left in place the prohibition against veterans hiring an attorney for representation before a VA Regional Office (RO) or BVA.

The “Veterans’ Choice of Representation Act” eliminates the current prohibition on the charging of fees for services of an attorney provided before BVA makes its first final decision in a case. It also authorizes VA to restrict the amount of fees attorneys may charge and subjects fee agreements between attorneys and claimants to review by the Secretary of VA.
Although it is true that the original prohibition against allowing attorneys to charge a fee for helping veterans with their disability claims was intended to protect veterans from “unscrupulous lawyers,” it is important to note that, unfortunately, there are still many “unscrupulous lawyers” today. Furthermore, VA is not equipped to handle the introduction of more attorneys and the mounds of paperwork that will inevitably follow.

Filing a claim with VA is a relatively simple and straightforward process which does not require the assistance of an attorney. All a claimant need do is file a claim and the RO will notify the claimant of the information and evidence necessary to substantiate the claim, assist the claimant in obtaining relevant records, provide a medical examination or obtain a medical opinion when necessary to decide a compensation claim, and make an initial decision on the claim. If a claim is denied, a claimant may initiate an appeal to BVA merely by writing the RO expressing disagreement with the decision. The RO will then review the claim once more in an attempt to resolve the disagreement before forwarding the case to BVA. The RO assumes primary responsibility for leading a claimant through the administrative claims process, making the expenditure of a claimant’s limited financial resources on an attorney unnecessary.

Proponents of the “Veterans’ Choice of Representation Act” argue that bringing attorneys into the adjudication process in the earlier stages would ensure more correct decisions and decrease the current backlog in VA’s claims adjudication process. These arguments, while noble, are not grounded in reality. This new legislation will result in the unnecessary retention of attorneys by VA claimants resulting in attorney fees which will consume significant amounts of payments under programs meant to benefit veterans. The VA system, by its very nature, is non-adversarial and pro-claimant. Many claims are granted immediately based on VA presumptions and only 10 percent of RO decisions are appealed to BVA, suggesting a high level of satisfaction with RO adjudication. Also, for those veterans requiring assistance, there are multiple veterans’ service organizations (VSOs) which are well-versed in veterans’ benefits law and are available at no charge to guide claimants through all stages of the claims process. While veterans are given the opportunity to hire a private attorney to represent them before the CAVC, it is important to note that the same percentage of claims are granted at the CAVC regardless of whether the veteran is represented by a VSO or by a private attorney.

Contrary to its intent, the only individuals benefiting from this act are the attorneys and not the veterans whom they serve. Therefore, please contact your Congressman and tell them that you oppose lining attorney pockets with veterans’ benefits and request that they repeal this ill-conceived piece of legislation.

April Maddox is Counsel for Publications, Directives and Records Management, Board of Veterans’ Appeals, for the Department of Veterans Affairs.

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Publications : Bar Bulletin: May  2007