After the Battles: The Veterans' Battle with the VA

Vol. 35 No. 2

By

Professor Craig Kabatchnick is the director and supervising attorney of the North Carolina Central University School of Law Veterans Law Program.

Imagine if our legal system were set up so that plaintiffs were forced to assemble, file, and argue their own lawsuits, and that attorneys could only be paid for their assistance after the initial case was lost (which, predictably, most would be). This unbelievable situation in reality is the state of veterans law today. Last year Congress granted the veterans half a loaf of relief by amending the original cap for attorney fees, which was $10. Due to this $10 limitation, few, if any, attorneys were registered with the North Carolina Bar Association’s Lawyer Referral Service to handle veterans claims. During my years in private practice, and prior to my accepting a faculty position at North Carolina Central University School of Law, I participated in handling veterans claims as a public service because of the specialized knowledge and experience I had acquired in handling veterans claims while serving as a senior appellate attorney and associate special assistant in the Appellate Litigation Staff Group, Office of the General Counsel, U.S. Department of Veterans Affairs (VA), in which I personally represented the VA Office of the General Counsel in dozens of cases resulting in the denial of hundreds of veterans claims from 1990 to 1995.

The Expanding War on Terror

With the expanding War on Terror and its vast and extended military commitments abroad, many veterans returning from the Iraq and Afghanistan conflicts will have service-connected disability claims and many will need help in the initial filing of their claims.

It is anticipated that many Reserve, National Guard, and active duty personnel who have served in Iraq and Afghanistan on an extended basis will suffer from such disorders as post-traumatic stress disorder (PTSD) due to several factors: (1) the urban nature of the combat; (2) exposure to traumatic events in combat; (3) civilian casualties; and (4) exposure to the devastating effects of road-side bombs, commonly known as IEDs. Reserve and National Guard personnel who have served in Iraq and Afghanistan are especially vulnerable to the effects of the urban combat because their overall training and experience is usually less extensive than that provided to experienced soldiers already serving on active duty military service.

A massive number of American military personnel who are active in operations in Iraq and Afghanistan are returning home suffering from disabilities for which they deserve compensation. Claims can be of many types, including but are not limited to, (1) compensation and rating determinations; (2) reductions in VA benefits; (3) medical and mental health care, and the lack thereof; (4) vast reductions in benefits and medical support for victims of PTSD; (5) medical malpractice and negligence at VA medical centers; (6) delays in claims adjudication at the VA rating board level at all the VA Regional Offices (VAROs) nationwide, as well as the provision of VA benefits and care on a timely basis at the claims adjudication level, up to and including the Board of Veterans Appeals (BVA); (7) home loan guarantees; (8) widows’ benefits; (9) hospital care/nursing home care; and (10) eligibility for vocational rehabilitation. However, because of limitations on fees for attorneys helping with veterans claims—limitations that date back to the Civil War—veterans are still finding great difficulty in obtaining the assistance of trained legal counsel in filing their initial VA claims.

The Act

The Veterans’ Choice of Representation and Benefits Enhancement Act of 2006, (the Act), 38 U.S.C. §§ 5902-5905, effective June 20, 2007), allows attorneys to charge for services after the VA rating board at the VARO level has denied a veteran’s initial or reopened claim for VA disability benefits. Prior to this, an attorney could only receive compensation after a BVA decision, which often occurs long after the filing of the veteran’s initial claim for compensation and pension, during which time the veteran has often continued to suffer physically and economically. The BVA, which renders this decision, is staffed entirely by experienced attorneys, is appellate in nature and its scope of review, and oftentimes denials are based on defects in the processing of the initial VA claim at the VARO level. The Act only allows attorneys to charge for services after a notice of disagreement (NOD) has been filed with the VARO subsequent to a VA rating decision denying a veteran’s initial or reopened claim for VA disability benefits. The NOD is a document filed by a veteran after there has been an adverse ruling by the VA rating board at the VARO level on his or her initial claim for compensation and pension benefits, indicating the veteran’s disagreement with the original rating decision.

The attorney fee restrictions date back to an 1862 law that limited fees to $5 for handling veterans claims. Congress raised the cap to $10 total fees for which an attorney could be paid in 1924, and there it stood until the limit was repealed in 1988, when new legislation allowed attorneys to charge fees but only after the BVA made a final decision. This cap created a vast void in legal representation in the initial fact-finding stages of the VA claims adjudication process—representation that was greatly needed for the claim to become ripe for administrative and judicial review by the BVA and the U.S. Court of Appeals for Veterans Claims (CAVC). In order to process and develop these initial claims in such a way that would grant relief at the initial stages of the VA claims adjudication process, this newly enacted legislation needs to be amended, in order to grant thorough and fitting relief and allow veterans the freedom to hire attorneys at the initial stages of the VA claims adjudication process, within the spirit and letter of the legislation as originally drafted. It is self-evident that many denials of veterans claims are often based on defects in the processing and development of the veteran’s initial VA claim, either at the fact-finding stage by a rating board located at the VARO or subsequently at the appellate level by the BVA.

The Loophole

As originally drafted, the Act would have allowed all veterans to hire attorneys at any stage of the VA claims adjudication process, especially the initial filing stage. At this stage, a veteran has the rights to present arguments supported by case law and applicable statutes and regulations. However as it is currently drawn, the Act allows veterans to hire attorneys only after their initial claims are denied by the VA, thus deterring attorneys from getting involved in the initial stages. Because of opposition from several major veterans service organizations (VSOs), the new legislation did not pass in its original form. The amended version created a huge loophole in favor of the VA and against the best interests of veterans. At the initial filing stage a veteran has the right to present arguments supported by case law and applicable statutes and regulations. It is at the time of the initial filing of the claim that all the fact-finding occurs in support and development of the veteran’s original claim for compensation and pension disability benefits. This includes the presentation of such evidence as: (1) statements from doctors who have provided treatment for the disability at issue over a prolonged period of time; (2) submission reports from board-certified medical doctors who specifically specialize in the field of medicine for which the claimed disability is at issue; and (3) articles and citations from recognized medical treatises, buddy statements, morning reports, evidence of citations, or other proof to help the veteran develop his or her claim for disability compensation or pension. Furthermore, the veteran has a right to appear at a hearing at the VARO.

It is also of utmost importance to note at this juncture in the VA claims adjudication process that the effective date is established from which any award of benefits will be made payable.

Any new evidence presented by the veteran at either level of appellate review in favor of the veteran’s original claim for disability benefits is considered new and material. Thus, if the claim is remanded and considered by the VARO de novo based on newly discovered evidence, it will require a reopening of the case and a review of the new evidence in the context of all evidence of record in order to determine whether a grant of service-connected benefits is appropriate. The crucial problem is that once a claim is reopened based solely on the submission of new and material evidence, the date that the reopened claim is filed with the VARO is considered the new effective date. This wipes out any past-due benefits the veteran might have received.

The amendment to Section 5904, eliminating the current prohibition on the charging of attorney fees after there has been a final VA rating decision at the initial stages of the claims adjudication process, provided a NOD has been filed, in fact created the loophole.

One contention raised by several VSOs in opposition to the original legislation was that providing incentives for attorneys to become involved in the initial stages would make the VA claims adjudication process adversarial rather than nonadversarial, as intended. In opposing the legislation, the VSOs argued that their local veterans service representatives were equally as capable as trained legal counsel to represent veterans at this initial claims stage and that utilizing trained legal counsel at the initial stages of the claims adjudication process would turn an alleged nonadversarial process into a adversarial one. My experience has proven just the opposite. The VA claims adjudication process is adversarial in nature, not only at the VARO level but also before the BVA and the CAVC. The burden of proof is always on the veteran to somehow prove that his or her claim for service-connected benefits is meritorious and worthy of a grant of service-connected benefits.

History has further shown, in strong numbers, that there is an unacceptable delay and backlog in the adjudication of VA claims, that many claims have been denied despite the existence of positive medical evidence in the veterans’ claims folder, and there are failures on the part of the VARO rating boards to comply with the VA’s statutorily mandated duty to assist.

The VA is statutorily bound by its affirmative duty to assist the veteran in developing his claim, as set forth in the Veterans Claims Assistance Act of 2000, 38 U.S.C. §§ 5103A(b), 5103A(a)(g), 5103 A(a)(1)(2), 5103A(b), 5103A(b)(2), 5103A(d), and subsequent supporting case law. Under this duty to assist, the VA must address all issues presented by the veteran and even issues not specifically raised by the veteran that have come to light during the course of the adjudication of the initial claim and attempt to obtain any and all military service records, military medical records, public or private medical records, buddy statements, unit reports, and morning reports. In essence, the VA must assist the veteran in obtaining the pertinent evidence that will enable the veteran to prove his or her claim. It also must notify the veteran of what evidence is needed to help the veteran substantiate his or her initial claim for compensation and pension.

The affirmative duty to assist issue is also prevalent at the BVA, which is totally staffed by experienced VA lawyers. The issues stated above pertaining to the failures on the part of the VA to comply with its affirmative statutorily mandated duty issues alone, often result in the veteran having to appeal to the CAVC for relief. Therefore, this is further proof that this major flaw and loophole in the Act need to be amended to allow attorneys to be hired at the initial fact-finding stages of the VA claims adjudication process.

The argument behind the opposition by the VSOs to the law as it was originally enacted was to allegedly protect veterans from losing a chunk of their benefits to attorney fees. In reality, the Act had the effect of removing any incentive for skilled legal assistance at the most critical initial stage, which causes significant hardship for veterans who are forced to file pro se and then are condemned to the significant delays that then follow. Veterans have a saying about the way the VA handles veterans claims: “Delay, deny, and wait until they die.” And dying they are, without benefits, due to lack of effective counsel in establishing their claims correctly from the beginning. Routinely, the VA fails to appropriately apply the benefit of the doubt standard in a fair and equitable fashion by rarely applying it in compliance with its abiding moral sanctions and obligations as set forth in statutes, regulations, and case law. The VA is obligated to consider all claims for compensation for pension utilizing a preponderance of the evidence standard. In reality, however, initial claims for compensation or pension brought by veterans acting pro se or with the assistance of veterans service officer who is not legally trained invariably are unjustly rejected by the VA. The VA often utilizes a standard not in compliance with the clear obligations set forth in the benefit of the doubt doctrine.

Legally, the claimant is not required to demonstrate that he or she should be granted benefits by even a preponderance of the evidence. Rather, the VA can deny the claim only if the preponderance of the evidence is against the claim. If there is an “approximate balance of positive and negative evidence regarding any issue material to the determination of a matter,” the claimant wins and the claim is granted. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). This case construes the requirement in 38 U.S.C. § 5107(b) that where “there is an ‘approximate balance of positive and negative evidence [regarding the merits of an issue material to the determination of the matter], the [claimant] prevails.” In other words, the veteran is given the benefit of the doubt. That is the law. However, despite the obligation on the VA to consider all claims for compensation for pension utilizing a preponderance of the evidence standard, in reality, the VA utilizes a standard not in compliance with the clear obligations set forth in the benefit of the doubt doctrine at both the VARO and BVA levels.

Conclusion

Every aspect involved in the filing of the initial claim for compensation and pension involves interpreting statutes, regulations, and case law. It is best for lawyers to develop this evidence and present the arguments in support of those initial claims. The intent behind laws restricting or barring attorney fees has always been to protect veterans from lawyers claiming a chunk of their benefits. But instead, the laws have had the opposite effect by re-moving any incentive for skilled legal help to become involved with the cases at the most critical stage in the process.

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