Reprinted with permission from GPSolo magazine, January/February 2018 (35:1), at 12-15. ©2018 by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Welcome to the most rewarding yet simultaneously frustrating and challenging area of law you will ever practice. Granted, that’s a pretty bold claim, but after representing veterans and their family members for more than 20 years and comparing notes with countless lawyer colleagues, I’ve confirmed it. I am aware of no other area of law where an attorney is able to provide lifelong financial stability after years (if not decades) of scrimping by our country’s most deserving population: military veterans. The purpose of this article is to provide useful information and tips about this area to sole practitioners and attorneys in small-sized law firms.
Key Concepts of Claims and Appeals
Understanding how the agency that decides your client’s claim or appeal actually works is important. Why? Because if a client has hired you, something went wrong in the adjudication of his or her claim and the client wants answers. You can’t explain what went wrong if you don’t know how the process is supposed to work in the first place. More importantly, you won’t be able to advocate effectively for your client if you don’t know whom to contact when serious due process errors occur or timely assistance is needed (e.g., when a client’s cancer prognosis is “terminal”).
The Department of Veterans Affairs (VA) is the second-largest federal agency in the U.S. government. Within the VA, there are three main administrations: the Veterans Health Administration (VHA), the Veterans Benefits Administration (VBA), and the National Cemetery Administration. The VBA is the part of the VA that handles all claims and appeals for service-connected compensation and pension. Since March 2015, claims must be filed by submitting the proper VA form(s). Claims are still submitted to one of the VA’s 57 regional offices (known as VAROs; all states have at least one VARO except for North and South Dakota, which share one, and Wyoming, which has none). However, since the recent inception of the VA’s “national work queue,” any adjudicator in any VARO can render a decision on that claim. If the veteran’s or family member’s (typically surviving spouse’s) claim is denied at the initial VARO level, the appeal will eventually make its way to the Board of Veterans’ Appeals (BVA, or “the Board”), located in Washington, D.C. It is the highest level of the appeals process within the agency. The VA is currently juggling (or trying to) some 400,000-plus appeals pending review and re-adjudication; hence, the years-long delay in righting an erroneous VA decision. (The Veterans Appeals Improvement and Modernization Act of 2017 was signed into law in August 2017. As best this author can surmise at printing time, the VA will eventually succeed in making appeals-related decisions faster. However, faster is not synonymous with correct, accurate, or competent decision making.)
Many veterans (and many advocates) do not realize or understand the actual purpose behind VA disability compensation: to compensate veterans for currently diagnosed disabling medical conditions that prevent or preclude them from being able to work or function. In other words, VA compensation is not a form of settlement or apology to veterans who were injured during military service but have no current residuals of said injury. That said, rightly or wrongly decided, an adverse VA decision has serious unwritten implications. Many veterans interpret a denial as “you’re lying,” “you’re making it all up,” or “whatever you are claiming now can’t be that bad or disabling.” I’ve lost count of the veterans who filed at the behest of a VA doctor, friend, or family member, were wrongly denied, and appealed (successfully) not for the money but to see justice and righteousness prevail. They fought for the VA to acknowledge either the validity of their current disability or the validity of their claim that their current disability is related to their military service—or both.
Unique Challenges of the Claims Process
As a practical matter, the most important tip for solos and small firm practitioners about representing clients in this VA claims process is to manage your time wisely. Your time is your most valuable commodity. Because most attorneys work on a contingency fee basis when representing claimants at the agency level, there are no billable hours. (In contrast, attorneys who successfully represent appellants at the U.S. Court of Appeals for Veterans Claims (CAVC) are compensated for their time through the Equal Access to Justice Act.) Whether intentionally or not, the VA can make you waste your time on issues that aren’t valuable to you or your client. A mentor once told me, “pick your battles”—advice that has served me well through the years.
To understand an attorney’s role in this arena, one must understand the history of lawyers representing veterans. In the Civil War era, stories of unscrupulous lawyers led Congress to pass a law making it a crime for any attorney to charge more than $10 (yes, ten dollars!) to assist a veteran with an appeal for VA service-connected disability compensation. This law remained intact and unchanged until June 2007, when Congress amended the law. Since then, lawyers have been lawfully able to represent veterans for a reasonable fee at the local VARO level once three criteria are met:
- the veteran has filed a claim;
- the VA has made a decision on this claim; and
- the appeal period pertaining to this VA decision is still open.
To be clear, lawyers are permitted to assist veterans with filing a claim, but they may not charge a fee for doing so.
Even though lawyers have been able to represent veterans since the initial VA denial for ten years now, VA rating veterans service representatives (known as RVSRs) and adjudicators still do not recognize or respect the attorney-client relationship. They will call and speak with your client without your knowledge or consent—even when specifically requested not to do so. Unlike in other areas of legal representation, when representing an appellant in the VA system, the attorney does not replace the veteran as recipient of VA correspondence; instead, the VA is required by law to send the veteran’s attorney a copy. Unfortunately, for lots of inexcusable reasons, the VA often fails to provide copies, including correspondence or decisions with a response deadline. Adding to the frustration is the fact that the VA’s system is structured to send copies so the VA is afforded the “presumption of regularity” that is very difficult to overcome. A better strategy (in my opinion) is to communicate with your clients often and remind them to notify you when the VA calls them and/or sends correspondence. The added benefit of this strategy is that your client will appreciate hearing from you and relay your personal attentiveness to other veterans seeking legal assistance.
Another challenging aspect of this practice area is the conflicting concepts of the VA’s pro-claimant, non-adversarial claims and appeals system with the fact that your job is to zealously advocate for your client. If you’re like me, you approach most cases thinking that once you are able to talk to the VA adjudicator assigned to your client’s appeal, surely the adjudicator will see it in the same righteous light you do. Unfortunately, this happens far too rarely. More often than not, even the administrative tasks such as obtaining status updates regarding your client’s appeal can be a monumental undertaking. This is because, for myriad reasons, most VA adjudicators do not view the attorney’s role as one that is crucial or helpful in resolving the issues in veterans’ cases. Thus, if you plan to make a career out of representing veterans in the VA appeals process, use each case as a way to improve the agency’s perception of the legal profession.
Basic Criteria for Service- Connected Compensation
Compensation is the single most common VA benefit. This benefit is awarded when the VA determines that a claimant’s injury, disease, or condition was incurred or aggravated as a result of military service. Compensation is, therefore, based on a current medical condition that results from service (i.e., is “service connected”). There are three distinct criteria that a veteran must meet in order to receive service-connected compensation from the VA:
- A claimant must have a current disability that has been diagnosed by a medical professional. A veteran must be currently suffering from a medical condition to receive compensation. This is not to say that you must wait to file a claim if a veteran does not yet have the medical documentation (i.e., diagnosis) of a condition or disability. The medical evidence supporting a claim can be submitted later or the claimant may get a VA examination.
- There must be evidence of precipitating disease, injury, or event in service. Veterans are compensated for current medical conditions that result from or began during military service or conditions existing on entry to service that were aggravated by service. Although the veteran’s statements regarding in-service incidents can be considered (as “lay evidence”), along with statements from fellow service members (“buddy statements”), the VA generally requires some documentary evidence of service events. Typical sources are service records (service “jackets”), service medical records, unit records, or similar records. Obtaining legible copies of relevant documents can sometimes be a difficult and frustrating part of representation.
- There must be a nexus, or link, between the current disability and disease, injury, or event in service. A key point is that nexus must be established by medical evidence, usually an opinion by a medical professional. The veteran, therefore, must have medical evidence that the current disability and the in-service precipitating disease, injury, or event are related. Statements by the veteran, family members, and other service members cannot establish nexus. The standard of proof by which a veteran must show that his current medical condition is related to his military service is a medical opinion that “it is as likely as not.” This means the opining medical profession need only state that there is a 50-50 likelihood of a nexus. This is a much lower standard than generally encountered, and one of which non-VA physicians may not be aware. The VA, however, will reject medical opinions as having little to no probative value if the opinion is “mere speculation” (i.e., lacking any reference to medical treatise to support the opinion). The VA will also reject medical opinions that do not reflect a comprehensive review of the veteran’s medical records.
Some medical conditions are designated as “presumptively” service-connected by law. For example, if a veteran was exposed to herbicides such as Agent Orange in Vietnam and later developed specific types of cancer or diabetes mellitus, the VA will presume that there is a nexus or relationship between the designated condition and the veteran’s in-service exposure. Presumptions also exist for veterans who can prove exposure to ionizing radiation while serving in the various locales during World War II (and in the decade thereafter), for veterans who served in the Gulf War and suffer from medically unexplained chronic multisystem illnesses, and other specific categories of presumptions.
Basic Criteria for VA Pension
VA pension is a needs-based program designed to supplement the income of veterans who are unable to support themselves financially after becoming disabled. To be eligible for VA pension benefits, a veteran must have wartime service, low income, and a total and permanent disability. Note, however, that the veteran’s total and permanent disability need not be related or connected to his or her military service. Veterans aged 65 years or older may also qualify for VA pension benefits.
Note also that a veteran cannot receive VA compensation and pension benefits simultaneously. In situations where a veteran is entitled to both, the VA will pay the veteran the higher of the two amounts, unless the veteran expressly requests otherwise. In addition, a veteran cannot receive VA pension and Supplemental Security Income (SSI) concurrently. Typically, VA pension payments are higher than SSI, so the veteran will opt for VA pension payments. However, a veteran can receive VA service-connected payments and SSDI (Social Security Disability Insurance) concurrently without one payment being offset by the other.
Evaluating Cases for Possible Representation
Veterans and other VA claimants seek representation at all stages of their cases. Some contact an attorney before they have filed a claim, and some, unfortunately, wait until after the VA’s adverse decision has become final. Many of them are understandably confused by the VA’s complex and convoluted appeals process and would be happy to turn their problems over to an attorney instantly. It is important at this stage to control the relationship. Make it clear to the potential client that an attorney-client relationship cannot be established until you, the attorney, are able to determine what is happening in the case. Establishing a relationship before that can be perilous for the attorney.
The peril lies in the possibility that an appeal deadline will elapse while the attorney is identified as the claimant’s representative but has not yet reviewed the claimant’s VA record. This can be malpractice. To avoid the passage of a critical deadline without the attorney’s knowledge, it is incumbent upon the attorney to find out the status of the veteran’s claim(s). Here are the suggested steps for evaluating a potential case:
- Ask the veteran to provide a copy of the most recent decision received from the VA. This might be called the “triage method.” The downside is that VA claimants may not be able to tell the difference between a VA decision and a VA notice. They may produce only the pages they think are important. [Note: VA deadlines are usually established by the date on the cover letter accompanying a VA adjudication document—and it is not unusual for the cover letter to bear a different date than the adjudication document. So, when you ask for the most recent VA decision, demand that it come intact—along with VA’s notification letter that transmitted it.]
- Have the veteran sign a “claims file waiver” that contains specific language explaining that the purpose of the waiver is not to establish an attorney-client relationship but simply to permit the attorney to review the veteran’s VA file.
- Review the VA claims file. Determine which VA decision(s) are still appealable and which ones are not. This initial review of the claims file, if done well and properly documented, will be the key to all your future dealings with your potential client—and with the VA if representation is established. It will spotlight the issues for which an urgent response is necessary as well as the issues that may not merit further attention.
Sometimes it’s possible to determine the merit of an appeal from just the initial interview with the VA claimant and the initial review of his or her decisional documents. And, often, looming deadlines make it impossible to obtain and review the claimant’s entire VA file before deciding to accept the case. Either way, the next step is to discuss with the veteran what is entailed when an attorney is retained for representation. Be realistic and cautious in discussing the case. Be sure to remind the veteran that retaining counsel does not automatically quicken the appeals process and will not intimidate the VA into granting the appeal. But when veterans hire a competent attorney, they can be assured that their advocate will be fighting zealously for them while ensuring that the VA correctly applies all proper laws, regulations, and policies to the facts of their case.
Published in GPSolo eReport, Volume 9, Number 3, October 2019. © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.