It is a well-publicized fact that the U.S. Department of Veterans Affairs (VA) is struggling with a tremendous backlog of VA compensation claims. Veterans must wait many months for decisions on their initial claims and many years for decisions on their appeals.
There are more than 21 million veterans in the United States and more than 400,000 in Wisconsin alone. More than 700,000 claims for VA benefits are pending, and there are approximately 250,000 active appeals. Behind these numbers are individual veterans who are struggling to maintain their jobs, homes, and families; some even are struggling to stay alive. Although these numbers demonstrate a failure of the bureaucracy, they also indicate an opportunity for attorneys to serve an underserved community while building their practices.
In 2006, Congress passed the Veterans Benefits, Health Care and Technology Improvement Act.1 This law allows veterans, who were previously prohibited from paying for legal representation until their claim reached the Court of Appeals for Veterans Claims, to hire an attorney to represent them as soon as they appeal a denial from a VA Regional Office. The VA very closely regulates the practice of attorneys in its arena. Accreditation by the VA is required, and the VA may review fee agreements for reasonableness.
But despite the red tape, the practice area is rewarding, and it offers a rare opportunity to enter into a largely untapped legal market.
Available Benefits and the Claims Process
The concept of providing compensation for injuries received in battle dates back in the United States to the Pilgrims and has evolved from a promise of colonies’ support for disabled veterans to a federal cabinet-level department providing a schedule of benefits to veterans.
Qualifications for Representing Veterans Before the VA
Must be accredited before representing veterans before the VA.
- Complete VA Form 21a and submit it to VA’s Office of General Counsel.
- Complete three hours of CLE regarding veterans law within one year after achieving accreditation.
- Provide a yearly self-certification of good standing with all courts before which you are admitted to practice.
- Complete three hours of CLE regarding veterans law every two years.
- Cannot charge a fee until after the first denial from the regional office.
- Contingency fee not exceeding 20 percent is presumed reasonable.
- Contingency fee in excess of 33 1/3 percent is presumed unreasonable.
- Fee shifting possible, but only if case is reversed or remanded by the Court of Appeals for Veterans Claims.
Representing Veterans Pro Bono
The National Veterans Legal Services Program (NVLSP) organizes a network of attorneys to provide pro bono representation of veterans. The NVLSP provides training in military and veterans law to attorneys who agree to take a pro-bono case.
Currently, the VA will compensate veterans for physical and mental injuries incurred during active service, whether the injuries are the result of their military duties or not, and for chronic diseases that first manifest during active-duty service or even, in some instances, many years later.
A veteran initiates a claim by filing a form or a letter with the VA Regional Office in his or her home state. If the VA denies any part of the claim or gives a disability rating that the veteran believes is too low, the veteran may hire an attorney to pursue his or her appeal. The appeal goes through an administrative appeals process, which begins at the local VA Regional Office and concludes with a final decision from the Board of Veterans’ Appeals (BVA), presided over by administrative law judges located in Washington, D.C. Until the BVA issues its final decision, the veteran may submit new evidence and argue additional legal theories.
A final decision from the BVA can be appealed to the Court of Appeals for Veterans Claims. At that point, the process becomes adversarial. The VA is represented by an attorney, and no new evidence can be submitted. The Court of Appeals for Veterans Claims, which is based in Washington, D.C., is not part of the VA. It is an article I court with exclusive jurisdiction over decisions from the BVA. Decisions of the Court of Appeals for Veterans Claims can be appealed to the U.S. Court of Appeals for the Federal Circuit and then to the U.S. Supreme Court.
A successful VA claim requires existence of three elements: 1) an in-service injury or event; 2) a current disability; and 3) a link between the in-service event and the current disability, evidence of which usually comes in the form of a medical opinion. Once it is determined that a disability is service connected, the VA uses a rating schedule, codified at 38 C.F.R. §§ 4.1-4.105, to determine the level of disability.
The VA rating schedule is a list of service-connected conditions, to each of which is assigned a percentage of disability based on the severity of symptoms. For example, a veteran with type II diabetes who is controlling his condition with diet and exercise is compensated at the 10 percent rate, while a veteran who must take medication for type II diabetes is compensated at the 20 percent rate. Compensation is in the form of tax-free monthly payments based on the combined percentage of service-connected disabilities. The rate of payment for a single veteran with a service-connected disability or combination of disabilities rated at 10 percent is $130 per month, while the payment rate for a 100 percent evaluation is currently $2,850 per month.
VA regulations require that attorneys representing veterans be accredited. To become accredited, an attorney must complete VA Form 21a and provide to the VA Office of General Counsel evidence of membership in good standing with a state bar or admission to practice before a state or federal court.2 Attorneys must also complete three hours of continuing legal education on veterans’ benefits law within one year of accreditation and three credits every two years thereafter.3
Attorneys may charge a fee for their representation, as long as the fee is “reasonable.” The VA considers reasonable any fee that does not exceed 20 percent of past-due benefits, in the absence of evidence to the contrary, and the VA can pay the fee directly out of the claimant’s past-due benefits.4 The past-due benefits are calculated from the date the veteran filed the claim until the date the benefits actually are paid.
The VA considers arrangements for fees in excess of 20 percent on a case-by-case basis; they are subject to a reasonableness determination by the VA, and the VA will not pay them directly from the client’s past-due benefits. Instead, the VA will issue the entire payment to the veteran, and the attorney must collect the fee from the client. Fees in excess of 33 1/3 percent are considered unreasonable.
There are no fee-shifting statutes that apply until the BVA has issued a final decision. The veteran can then appeal to the Court of Appeals for Veterans Claims; if the court finds that the VA’s position was not substantially justified and reverses or remands the case, then the attorney may apply to have the government pay the fee from Equal Access to Justice Act (EAJA) funds.
Hypothetical Veteran’s Experience
Practicing in this area requires a great deal of patience. During the administrative phase of the process, there are no deadlines for the VA to meet, and there are no repercussions to the VA if it pursues completely unsupportable positions. Throughout this process, there is almost no means of communicating with decision makers. A claimant cannot call the local regional office and speak with the person handling the claim. A claimant can write to the office, but the VA generally will not respond to correspondence except through its decisions. There is a limited opportunity to have a hearing with a decision maker, but the wait times can be long and the hearing is informal. No neutral party is in attendance, and so there is no means to require the VA (or the veteran) to correctly apply the law or the facts.
com Shanadunn veteransclaimlaw Shana M. Dunn, Marquette 2009, operates Dunn Law Office, Waunakee, where she represents military veterans seeking service-connected benefits.
The best way to understand the process and the frustrations both veterans and attorneys face while navigating the system is through a hypothetical. “Jim” is a 65-year-old veteran who served during the Vietnam conflict. While in the Army, he was sexually assaulted by a group of fellow service members. He did not report this assault at the time. However, his records show that after the date the assault allegedly occurred, he began to abuse alcohol and drugs. His performance deteriorated. He was seen by mental health professionals in the military who diagnosed him with a personality disorder. Ultimately he was discharged under honorable conditions because of his failure to meet performance standards.
After discharge, the assault has continued to haunt Jim. He is unable to hold a job for more than a few months at a time. He has been hospitalized on numerous occasions for suicidal thoughts. Many years after discharge, he finally admits to his psychologist that he was the victim of a sexual assault. He then learns that VA benefits may be available to him, and he files a claim.
The VA responds to Jim’s claim with a letter asking him to provide the date of the assault; the names and units of the men who assaulted him; documentation that he reported the assault; statements from witnesses; and names of people he knew at the time who might be able to corroborate that the assault occurred. The letter is 10 pages long and includes information that seems completely irrelevant to his claim. Jim does not really understand the letter, and he does not have any of the information the VA is asking for, so he doesn’t respond.
VA regulations do not require actual proof of an in-service assault; they only require “markers.” Markers are things that occur after the assault (such as drug and alcohol use, deteriorating performance, reports from friends and family members that the veteran’s behavior has changed, STD or pregnancy testing regardless of the result, and so on), that would be indicative of the assault having occurred. Jim’s records clearly include some of these markers, but the VA nevertheless denies his claim, stating that his service records were reviewed, and there are no entries concerning any sexual assault. The decision does not mention the many markers contained in Jim’s records.
Jim’s first claim takes one year to process. He then appeals the denial. He does not have an attorney, so he is not aware of and thus does not point out the fact that the VA is not applying the correct legal standard. Three years later, his appeal is denied, based on the same flawed reasoning. His claim goes to the Board of Veterans’ Appeal, where it is again denied on the same basis. This process takes another two years.
Jim then hires an attorney, who appeals Jim’s case to the Court of Appeals for Veterans Claims. On appeal, the attorney points out that this case is being decided based on the incorrect legal standard, and the court agrees. However, because the lower venues have never applied the correct legal standard, the Court of Appeals for Veterans Claims cannot reverse the decisions but must remand them. The case goes back to the BVA, which remands it to the local regional office, which finally grants the benefits, nine years after Jim first filed his application. The court finds that the VA’s position was not substantially justifiable, and the VA is required, under the EAJA, to pay the attorney’s fee.
Unfortunately for Jim, although his benefits have finally been granted, he is assigned a 30 percent evaluation ($400 per month), which does not even come close to compensating for the symptoms of his post-traumatic stress disorder (PTSD), which have rendered him unemployable. But because benefits were granted, his appeal is closed out, and Jim must start a new appeal if he wants to obtain a higher level of benefits.
The process can seem like running on a hamster wheel. In many cases, appeals must be remanded to the lower levels by the Court of Appeals for Veterans Claims several times before a final decision is reached.
Common Legal Errors the VA Makes
The hypothetical above points out one common legal error: holding the veteran to a higher evidentiary standard than is legally required. But there are many others.
When a veteran has presented some evidence that there was an in-service injury and some evidence of a current disability, the VA is required to provide him or her with a medical examination. These exams may be used to support a rating decision only if they demonstrate that the examiner reviewed and considered all relevant evidence in reaching an opinion. Examiners typically include a statement that they reviewed the evidence, but the examination will often fail to discuss relevant evidence or even misstate facts, making it clear that the examiner did not, in fact, review all relevant evidence. The VA often fails to spot these insufficient examinations and uses them as a basis for its decisions.
Another common error is failing to consider lay testimony. A veteran usually provides a description of the in-service injury, the course of the disability since service, and his or her current condition. The veteran may also submit testimony from friends or family members. The VA frequently fails to consider this testimony, despite the fact that its regulations state that veterans and other lay people are competent to testify about anything that can be seen, felt, or heard by a lay person.
Consider the example of a veteran who injured his knee while on active duty. He submits testimony that his knee has bothered him ever since, but he self-treated with over-the-counter medications, rest, and ice and did not consult a physician. The VA examiner determines that there is no relationship between the veteran’s current knee condition and the in-service injury because there are no medical records documenting treatment of the knee between the date of discharge from the military and the date of filing of the claim. The VA denies the claim based on this doctor’s opinion. Both errors above have been committed here. The doctor has not demonstrated a review of all evidence in the file, and the VA has failed to consider the veteran’s testimony that he has had knee pain since the injury in service.
The laws and regulations that apply to any given VA claim are numerous and complex. On top of that, veterans often have mountains of medical evidence and testimony, some relevant, some not, that they submit in support of their claim. The possibility is high that legal standards will be incorrectly applied and evidence will be missed completely, particularly in this climate of media scrutiny, when these decision makers are being forced to make more and more decisions each day.
The Need for Representation
The involvement of lawyers in veterans’ claims has been controversial since the Civil War era. The VA and most veterans service organizations (VSOs) have argued against attorneys being involved in the process, citing fears that unscrupulous attorneys will prey on veterans. The process is supposed to be nonadversarial; the VA is required to assist veterans in identifying and obtaining evidence to support their claims and is required to interpret claims liberally in favor of veterans. In addition, VSOs offer free representation before the VA, and therefore the VA and the VSOs argue that access to an attorney is unnecessary.
The massive claims backlog and high error rate demonstrate the fallacy of these arguments. Although the intent of the regulations might be to create a process that is nonadversarial and friendly to veterans, veterans often are denied benefits to which they are legally entitled. Currently, 46 percent of cases that go to the BVA are remanded to the regional office due to error, and the Court of Appeals for Veterans Claims remands to the BVA approximately 70 percent of the cases it sees. Those numbers demonstrate that error, both legal and factual, is endemic in the system.
A competent representative capable of spotting these errors early, while the opportunity to submit new evidence and make new legal arguments still exists, could significantly cut the time needed to prosecute a claim for individual veterans and could help improve the claims process as a whole by weeding out claims without merit and efficiently providing the necessary evidence to support meritorious claims.
Veterans service officers can represent veterans before the VA at no charge, and some are very good at what they do. But most represent so many veterans that it is impossible for them to zealously advocate for each individual claimant. Also, veterans have no recourse against veterans service officers who make mistakes. A missed deadline could mean a veteran loses out on many years’ worth of back pay and has to start the process all over again. The stakes are high for these veterans, and there is no national standard by which to evaluate the quality of a veterans service officer.
Attorneys, in contrast, have extensive education, must be licensed and evaluated on the basis of their character and fitness, and are required by ethics rules to represent their clients competently. If a mistake is made, there is a grievance process, and attorneys must carry insurance to compensate their clients in the event of malpractice.
There is much that attorneys can offer to veterans and to the veterans’ benefits system. In turn, the practice of veterans’ benefits law offers rewarding work and a large group of underserved potential clients. Attorneys should become involved, learn the nuances of the law, and advocate for veterans in a way that has been denied to them for too long.
1 Veterans Benefits, Health Care and Technology Improvement Act of 2006, Pub. L. No. 109-461.
2 38 U.S.C. §§ 5901-5902, 5904.
3 38 C.F.R. § 14.629.
4 38 U.S.C. § 5904(a)(5).