Representing veterans in connection with Department of Veterans Affairs (VA) claims is an emerging practice area that is becoming an increasingly important component of an elder law practice.
Attorneys who wish to represent VA claimants must be VA accredited, i.e., they must meet the standards established by the VA to ensure that claimants for VA benefits receive “qualified assistance in preparing and presenting their claims.” To receive accreditation, an attorney must submit an application for accreditation, complete continuing education requirements, and comply with annual reporting requirements.
According to federal law, attorneys who do not receive VA accreditation may only provide limited services to veterans, such as providing general information about VA benefits, and are prohibited from assisting claimants in the preparation, presentation, and prosecution of VA claims, regardless of whether or not the attorney charges legal fees for those services.
The VA also regulates the fees accredited attorneys may charge. In general, an attorney cannot charge a VA claimant for assistance in filing an eligibility verification report (EVR). An attorney may charge fees only if the claimant he or she represents received an adverse decision on a VA claim for benefits and filed a notice of disagreement (NOD), or an appeal, with respect to that adverse decision.
Veterans and their families are eligible for many programs, including general health programs and monetary benefit programs through the Veteran’s Benefits Administration branch of the VA. Monetary benefit programs are separated into benefits for (1) service-connected disabilities (primarily compensation benefits”) and (2) nonservice-connected disabilities (primarily pension benefits).
According to the Veteran’s Claims Assistance Act of 2000, the VA has a statutory duty to assist claimants in developing the pertinent evidence comprising a claim for benefits. In reality, the VA often resists providing proper assistance to claimants, despite its statutory obligation, making legal advocacy all the more important for veterans.
For example, because the pension benefit may be available for veterans who served during a period of wartime and whose care expenses exceed their income, understanding VA benefits is an extremely important element of an elder law practice. An understanding of VA benefits allows an attorney to provide veterans and their families with advice on complex areas of law concerning long-term care planning, including VA pension benefits and the related issue of Medicaid benefits.