Attorneys Representing Veterans: Opportunities and Challenges

Vol. 23 No. 3

By

David Godfrey is a senior attorney to the ABA Commission on Law and Aging. He offers special thanks to Kenneth Goldsmith, legislative counsel and state legislative counsel for the ABA Governmental Affairs Office, for his help in editing this article.

Six years ago, options for attorneys to assist veterans seeking benefits were greatly expanded, and that created both opportunities and challenges for lawyers. Prior to that time, lawyers had been involved in helping veterans seek benefits, largely on a pro bono basis. The changes to the Code of Federal Regulations in 2008 established a system for authorizing advocates to represent veterans in appeals, and it changed the point in the appeals process at which an attorney can start charging a fee. See 38 C.F.R. §§ 14.629–.631 (2008) (authorizing accreditation of attorneys). There is still a prohibition on charging for helping with the initial claims form and eligibility verification. See Accreditation Frequently Asked Questions, Off. Gen. Counsel www.va.gov/ogc/accred_faqs.asp (last updated Oct. 10, 2013) (“Representation” topic).

The 2008 amendments modified the procedural point at which a veteran could pay a lawyer for representation. Previously, lawyers could be paid starting at the appeal to the Court of Appeals for Veterans Claims, and everything before that had to be essentially pro bono. Now attorneys may be paid for conducting a first-level appeal to the Board of Veterans’ Appeals. One of the goals of this change was to expand the options for a veteran unsatisfied with the original determination by the Department of Veterans Affairs (VA). As a result, more attorneys can afford to undertake appeals for veterans unsatisfied with the original VA determination.

The 2008 amendments also created a new system of accreditation for attorneys and other advocates wishing to represent veterans, with or without charging fees. The goal of this change was to ensure that advocates representing veterans meet minimum standards and are accountable to the VA. For lawyers, the news is good—the VA determined that being a lawyer in good standing satisfies the initial certification requirement. Those seeking to represent veterans must file to be accredited by the VA. This is very much like being admitted to a federal court.

Accreditation is not complicated, and yet every year I hear from attorneys who thought that being admitted to the state and federal courts would be sufficient, only to be refused recognition by the VA as qualified to represent a veteran. To become accredited, attorneys must file an application with the VA Office of General Counsel demonstrating that they are in good standing with the highest court of one or more jurisdictions; detailing their disciplinary history, if any; and answering some general character and fitness questions. See Accreditation, Off. Gen. Counsel, www.va.gov/ogc/accreditation.asp (last updated Oct. 11, 2013).

Once the application is received and reviewed by the VA, the attorney receives a letter of accreditation. The attorney then has up to one year to complete a mandatory continuing legal education (CLE) course covering the basics of VA benefits, practice, and procedure. The fact that the initial letter of accreditation has to be issued before the basic CLE program is taken trips up a lot of attorneys. Once a year, VA-accredited attorneys must send a letter to the VA recertifying bar membership, reporting any changes, and reporting completion of VA-related CLE. Once the initial CLE requirement is met, three additional hours of VA-focused CLE are required every other year.

Lawyers are the relative newcomers to VA claims, and this brings with it challenges. For decades, the primary source of help with veteran benefits had been veterans service organizations (VSOs). These voluntary membership organizations have full-time claims representatives who assist veterans with their claims. Going back to the Civil War, in the days before the bar was organized, attorneys were viewed with a degree of skepticism by other advocates for veterans. Attorneys are still establishing credibility in helping veterans. We will build our credibility by doing what lawyers do best—putting the best interest of the client first, being zealous advocates for our clients, and learning the details of this complex area of practice. I encourage lawyers to develop a connection with a VSO. Information about VSOs can be found at www.va.gov/ogc/apps/accreditation/index.asp. VSOs have a great depth of knowledge of the VA benefits systems, are trusted, and are well connected with veterans.

The VA provides a spectrum of programs and benefits that can be a real challenge to understand. See www.va.gov/landing2_vetsrv.htm for a partial list of VA benefits and programs. There are multiple program options for income, health care, education, and other benefits, many of which have multiple ways to qualify. In many ways, the VA is the most flexible federal benefits system. The rules are a mixture of hard-and-fast eligibility rules and flexible guidelines that give the VA amazing discretion in assisting veterans in need. Attorneys will be challenged by learning the spectrum of benefits and programs and by adjusting to the mixture of firm rules and flexible guidelines.

One of the greatest flexibilities of veterans benefits also creates a challenge for lawyers. Some VA programs are “needs based” (the applicant must demonstrate an economic need), and the VA has no asset restructuring or transfer rules. An example of a needs-based VA program is the Aid and Attendance benefit that provides financial assistance to a veteran or a veteran’s spouse for home-based or nursing home care. Unlike with Medicaid, recent gifts will not disqualify an otherwise qualified veteran from this program. At first blush this looks like an opportunity—but it is an opportunity laced with challenges. The primary challenge lies in the interaction between VA benefits and Medicaid. While VA benefits can be generous, long-term care can easily exceed available VA benefits, leading to the need to apply for Medicaid while receiving VA benefits.

Great care must be taken in restructuring assets for the VA so as to avoid unintentionally disqualifying a veteran from Medicaid benefits based on gifts and uncompensated transfers. A secondary challenge of aggressive asset restructuring or divestment is the potential for political consequences. Congress has already held hearings on these practices, and at least one bill has been filed in Congress to impose transfer and gifting penalties similar to those of the Medicaid rules but different enough to cause additional complications.

The VA is a system in the midst of change and modernization. Until recently, the VA was an entirely paper-based system, and the transition to an electronic system has been challenging both to those inside and outside of this sprawling agency. The VA has distinct program silos, and there are challenges in communicating across them. Attorneys are surprised that a notice of representation to one VA program is not a part of the file in the next VA program, or that a change of address with one part of the VA will not become part of the record in another part of the VA.

Veterans benefits laws and regulations are complex, but probably no more so than the Internal Revenue Code or the immigration system. To master the VA system in order to help veterans obtain and retain VA benefits requires mastery of a new and complicated area of practice—but it is also a wonderful opportunity to help veterans who have served our country.

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