Representing Veterans: How the VA May Be Liable for Your Attorney Fees

Vol. 23 No. 3

By

P. Andrew Riley, of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, focuses on intellectual property litigation and counseling, and particularly on patent litigation before U.S. district courts and the U.S. International Trade Commission, as well as USPTO proceedings.

Ronald L. Smith is pro bono counsel for Finnegan’s veterans program. Prior to joining Finnegan, where he specializes in Federal Circuit and CAVC appeals, Mr. Smith was the DAV (Disabled American Veterans) deputy general counsel for veterans claims. He has also served in the VA’s Office of Inspector General. Mr. Smith is editor of the recently published Veterans Appeals Guidebook, reviewed in this issue.

Just after the Civil War, Congress by statute prohibited lawyers from representing military veterans in their claims for benefits from the United States while charging a fee for the lawyer’s services. A modified form of that prohibition continues today. 38 U.S.C. § 5904(c). A lawyer may not charge a veteran, or other claimant such as a surviving spouse or child, a fee for services related to an initial claim for benefits from the Department of Veterans Affairs (VA). Id. Under the current law, however, legal fees may be charged for representing a veteran after the VA first decides the claim. Fees may also be available for representing a claimant in an appeal to a court from a final administrative decision. In some circumstances, the VA is liable for the veteran’s legal fees. The purposes of this article are to describe when and under what circumstances the VA must pay fees to the appellant’s lawyer for an appeal to a court; explain how, when, and where a claim for fees may be filed; and, hopefully, encourage senior lawyers and others to help meet the legal needs of veterans, their dependents, and survivors.

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