Veterans given new, but limited, attorney rights
Christian Avard
Published:
Friday December 15, 2006
Newly passed legislation would change existing law to allow many servicemen and women facing physical or mental ailments to hire an attorney if necessary to obtain benefits, RAW STORY has learned.
Many veterans have previously been legally prevented from hiring an attorney upon returning home from military service. However, the Veterans Benefit Improvement Act of 2006 (S.3421), which passed both houses by a voice vote on December 8, removed the limitations on attorney representation of veterans in administrative proceedings before the Department of Veterans' Affairs (VA). The changes will take effect next June, 180 days after the passage of the legislation.
Most servicemen and women know they can get help from a Veterans' Service Organization (VSO), such as the Disabled American Veterans, the Veterans of Foreign Wars, or Am Vets. But supporters of the new legislation had argued that VSO representatives are not specifically trained to handle disabilities law, stating that they believe that lawyers are more equipped to help veterans acquire the benefits they've earned.
Before this legislation passed, a relic of the Civil War prohibited veterans from hiring legal representation unless the attorney charged no more than $20.00 to represent them in proceedings before the Department of Veterans Affairs. Only after all appeals were exhausted and the agency rendered a final decision could an attorney could be hired to appeal to the Court of Veterans' Appeals and legally receive a fee. Supporters of the bill had asserted that if a veteran did not have an attorney before this late stage, their case would be so undeveloped that there would be no reasonable chance of winning.
An issue of fairness
Some veterans' organizations actually opposed the change, noting that the VA administrative claims process is designed to be open, informal and helpful to all veterans. But Craig Kabatchnick, a Durham N.C. lawyer who has provided pro bono representation to veterans, states he saw just the opposite when he served as a senior appellate attorney in the office of the General Counsel, United States Department of Veterans Affairs.
"I spent five years there from 1990 to 1995," said Kabatchnick, "and I defended the VA."
"I left because I did not like the way veterans were being treated by the Veterans Health Administration (VHA), the Veterans Benefits Administration (VBA), and the VA. It's very adversarial," he explained. "The burden of proof is on the veterans."
But the VSOs believe the issue is not one of fairness.
"They say it's an issue of fairness," says David Autry, Communications Director for the Disabled American Veterans. "But from our standpoint, money that veterans get from the disability compensation should not be going into the pockets of lawyers."
"Why should they have to pay for an attorney," he asks, "to get for them what they have a right to in law? It's clear these benefits are earned benefits. They're not welfare. The government owes it to them and why should any portion of that go into a lawyer's pocket?"
But Kabatchnick maintains the law mandates lawyers only receive 20%. "If a lawyer represents a vet, by statute, a lawyer can only get no more than 20% of any past due benefits. And if there's a big battle then, that means the veteran gets 80% and the lawyer gets 20%. It's all set forth by federal statute already. It's not all going into lawyer's pockets."
An incomplete package
The legislation, which was championed by Senator Larry Craig (R-ID) and Congressman Steve Buyer (R-IN) and will also include $3.2 billion in funding, enhances veterans' benefits and health care, improves the ability of the Department of Veterans Affairs (VA) to secure sensitive personal information, and authorizes VA health care facility construction at sites nationwide.
However, the Act did not pass Congress in its original form. As written, the package would have allowed veterans to hire attorneys at any stage of the VA claims process and would have included the initial filing of a claim. In the end, the final draft allows veterans to hire an attorney only after the initial claim is denied by the VA. An attorney can then be hired to file a notice of disagreement and take the claim to the Board of Veterans' Appeals.
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