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April 01, 2008

Introduction: Serving the Veterans Who Have Served Us

by Daniel K. Akaka

Veterans law is complicated. The statutory and regulatory framework governing veterans benefits has matured over many years and can be confusing to the uninitiated. In 1988, the Veterans Judicial Review Act, Pub. L. No. 100-687, resulted in the creation of the U.S. Court of Appeals for Veterans Claims, which added yet another element to a complex process.

In December 2006, the U.S. Congress enacted legislation that afforded any veteran the right to hire an attorney to appeal a ruling on a claim for veterans benefits. This proposal was not without controversy. The bill passed after eleventh hour negotiations removed a roadblock to final passage and the president’s signature.

Until passage of the Veterans Benefits, Health Care, and Information Technology Act of 2006, Pub. L. No. 109-461, an attorney could not charge a fee for assisting a veteran with a claim until the Board of Veterans Appeals, the body that reviews claims determinations made by local Department of Veterans Affairs (VA) offices, had made a final decision in the veteran’s case. With passage of that law, a veteran now is permitted to hire an attorney after noticing his disagreement with a local VA office’s decision. This change allows veterans to acquire legal assistance during the entire appellate process.

An attorney’s training and experience can be valuable in navigating the difficult statutes, regulations, and court decisions that make up veterans law. A veteran also may seek assistance from a recognized representative of a veterans service organization.

Many in the veterans community believed that by allowing attorney representation, veterans and the claims process would be harmed. Some were concerned that attorneys would not be able to understand the intricate VA disability compensation system and that veterans would receive faulty assistance. I firmly believe that veterans should be given the right to hire attorneys. Some veterans, weighing all options, will decide to seek free assistance from a veterans service organization. Others will choose to engage the support of attorneys. It is a right that they must have.

An example of where an attorney’s assistance might be helpful is deciphering the VA’s Schedule for Rating Disabilities. Compensation is based on a disability rating that the VA assigns to service-connected conditions. The VA uses its rating schedule to determine which rating to assign to a veteran’s particular condition.

Under current law, challenges to the VA rating schedule are permitted only for constitutional questions. To allow veterans to challenge the rating schedule for compliance with relevant statutory provisions, I introduced S. 2737, which would permit veterans to bring a VA rating challenge to the U.S. Court of Appeals for Veterans Claims. Without an attorney’s assistance, a veteran might never know that the VA is not complying with Congress’s direction.

Among the many challenges facing the nation as a consequence of the current conflicts in Afghanistan and Iraq is the increased number of veterans who have suffered traumatic brain injuries from improvised explosive devices and other weapons. When veterans apply for service-connected benefits in connection with these injuries, they may face barriers to receiving VA compensation. Some veterans who received a Purple Heart or other combat medal for injuries sustained may already have proof of service connection. Veterans who are not awarded such medals, however, may face daunting challenges in proving that they served in combat.

To ease the burden placed on veterans who serve in combat, I introduced S. 2309 to provide for relaxed evidentiary requirements for veterans who received extra pay for duty in a combat zone while in service. Under this approach, a veteran who served in Iraq and who alleges injuries as the result of exposure to an improvised explosive device, for example, could receive benefits without the requirement that the veteran provide official military documents verifying that exposure. Again, this is an area where the assistance of an experienced attorney could be helpful to the claimant.

This issue of Human Rights investigates and explicates these and other important legal and policy concerns affecting veterans of the U.S. armed services, with a particular emphasis on those veterans returning from the wars in Iraq and Afghanistan. Articles discuss such matters as the long delays in processing veterans claims for compensation, the complications in receiving veterans medical care in rural America, the inequities that gay and lesbian veterans experience in the veterans compensation system, the problems encountered by National Guard and Reservist service members who return from deployment only to find that their jobs are no longer available to them, and even how military deployment may affect decisions as personal and profound as the granting of custody and child visitation rights. We owe those who have “borne the battle” no less than full and prompt consideration of these issues.

Daniel K. Akaka

Daniel K. Akaka (D-HI) has served on the Senate Committee on Veterans’ Affairs since becoming a U.S. senator in 1990 and has chaired the committee since 2006.