One of my paralegals had an interesting experience recently that highlighted an apparent tension between veterans disability lawyers and veterans service officers. I say “apparent” because when you analyze the issue carefully, there really is no conflict. Here’s what happened. My paralegal is involved in a local veterans’ outreach program that is affiliated with the Wounded Warriors Project. Through this program, she has had the occasion to interact with various State and county veterans service officers. Her interactions have been tense at times because of the perception by some of the veterans service officers that lawyers that represent disabled veterans are not needed–or worse, are simply taking the veteran’s money for representation that is unnecessary.
Her experience reminded me of the need to clarify what a veterans disability lawyer does and why hiring one to represent you is important in certain—but not all—situations.
History of Lawyer and VSO Involvement in Veterans Claims
Historically, the federal government has discouraged attorneys from representing veterans on VA claims. As far back as 1862, Congress limited attorney fees to just $5. This limitation was raised to $10 in 1864. Congress wanted to keep the VA claims process from becoming adversarial, and they didn’t think attorney representation was necessary. This bias against attorney involvement has persisted.
This limitation on attorney fees remained in effect for more than 120 years. It effectively prevented any attorney from being able to afford to represent a veteran.
In the late 1980s, Congress changed the law to allow for attorneys to represent veterans—and charge reasonable fees—under certain circumstances. The law allowed for paid attorneys to get involved in the following situations:
- Within 1 year after the denial by the Board of Veterans Appeals (called “BVA”) to file a re-opened claim with the Regional Office for the same benefit that the BVA denied.
- To file a reconsideration motion with the BVA.
- To file a motion with the BVA to revise a decision based on Clear and Unmistakable Error (called CUE).
- To file an appeal with the U.S. Court of Appeals for Veterans Claims.
The law further changed in 2006 to provide veterans with easier access to the services of paid attorneys. The change allowed for a veteran to hire a paid attorney so long as his Notice of Disagreement was filed after June 19, 2007. Thus, if a veteran filed a claim that was denied and he filed a Notice of Disagreement on or after June 20, 2007, he could hire a paid attorney who could charge a reasonable fee.
Although this is largely inapplicable today, given that it has been more than a decade since the law change, under the old law, a veteran whose Notice of Disagreement was filed before June 20, 2007, could not hire a paid attorney until after a final BVA decision to file a reopened claim with the Regional Office for the claim that the BVA denied, or to file a reconsideration or clear and unmistakable error motion with the BVA. These are insider terms that are widely known by those familiar with the VA benefits system. Suffice it to say, the law provided limited circumstances where a veteran could hire a paid lawyer.
Therefore, the bottom line is that if a veteran’s Notice of Disagreement was filed after June 19, 2007, he could hire a paid attorney to represent him at the Regional Office or the BVA.
The issue of attorneys charging legal fees again saw slight modification after the Appeals Modernization Act (“AMA”) took effect in February 2019. Under the AMA, a veteran has three appeal options after an initial VA denial of his claim. He can file a Notice of Disagreement directly with the BVA, he can file a Higher Level Review appeal, or he can file a Supplemental Claim. Under the pre-AMA rules, veterans had a well-defined appeal track to follow. There was little strategic discretion as to how to handle a VA denial.
Under the current AMA, significant strategic thinking must occur after an initial VA denial. This means that the need for the advice and consultation of a skilled lawyer is more relevant than before. As such, most practitioners agree that veterans can hire a paid lawyer after the initial VA adjudication in current AMA cases.
The VSO Role in the VA Claims Ecosphere
First, under VA regulations, paid veterans benefits lawyers cannot get involved to assist a veteran–and charge a fee–until the VA has issued an initial decision. In other words, only after the VA issues a denial can a paid attorney represent you in your VA appeal. Under this scenario, a veterans’ service organization representing a disabled veteran has ample opportunity to win the claim for the veteran at the initial stage. There’s no conflict with attorneys here. Those of us that represent disabled veterans exclusively applaud the service officers for serving veterans in this capacity. Meaning, the VSO can present a solid claim with the initial filing of the claim and win the claim at the outset. In many cases, this can be accomplished. The attorneys are here for the difficult cases on appeal; those that the VSO’s cannot win at the initial stages.
The veterans’ service officers and the veterans’ service organizations serve a useful purpose in helping veterans file their initial claims and assisting them through the process. They also serve a useful purpose with simple appeals where the veteran already has the winning evidence—such as Supplemental Claim appeals where the veteran obtains his own nexus letter. Generally, if there is solid evidence of an in-service occurrence, a diagnosis of a current disability, and strong evidence of a nexus, a VSO can help a veteran win a claim—without incurring the cost of legal fees. Phrased differently, an attorney's involvement is unnecessary in easy, straightforward cases. The VSOs should continue to handle these cases.
Most lawyers and law firms in the veterans benefits arena want you to believe that you should hire an attorney in every case. We do not subscribe to this belief. Far too many veterans need help, and law firms simply cannot help everyone. There will always be a quilt-like patchwork of VSOs and lawyers that, together, meet the needs of veterans. Neither a VSO nor an attorney is right for every case and situation.
In this regard, there are times when a veteran should use an attorney instead of a VSO. There comes a time when the claim gets denied despite your best arguments. The service officers have put forth their best case, and you have still come up short. Do you hire an attorney and pay a 20 or 30 percent contingency fee? It all depends on how much you want to win your claim. Veterans’ disability lawyers will help you get evidence to win your claim. They will also find subtle and technical legal arguments that only someone with legal training would know about.
The area of acquiring evidence is perhaps one of the most crucial distinctions between lawyers and VSOs. The veterans service officer will submit whatever evidence you give him, but what if you need a high-powered medical expert and you don’t have one, and can neither find nor afford one? Is the VSO going to get a medical opinion for you? In most cases, the answer is “no.” The VSO will not front the cost of a medical expert to acquire the medical nexus evidence you need to win your claim. This means you must pay out of your own pocket.
But what if you cannot afford it? Or you don’t know where to find the right medical expert? This is where the experience and resources of a law firm come in. When you hire the right veterans’ disability law firm to represent you, you can leverage their resources and connections in the world of forensic medical experts. The law firm will front the cost of the experts for you, helping you win your claim. Then, out of the money the lawyer obtains for you, you would simply pay the law firm back for the money it spent to help you win your claim. I am not aware of any VSO’s that operate this way. So, if you need a medical expert to win your claim, the law firm is the way to go.
In addition, what happens if the Board of Veterans Appeals denied your claim? The next step in the process is an appeal to the U.S. Court of Appeals for Veterans Claims. It’s an independent federal court where the U.S. government is represented by experienced lawyers from the Office of General Counsel. The VSO cannot represent you since he is not a lawyer. If he could, would you want a non-lawyer going up against an experienced lawyer for the government? Would you want to represent yourself against government lawyers? I think the answer to these questions is no.
I have won many cases over the years that VSO’s have said are unwinnable. I remember a case I won for a client–17 years back pay at 100 percent. The VSO told him to give up because he would never win the case.
Summary of When to Use a VSO
Initial Claims. VSOs should almost always handle these cases.
Easy Appeals. These involve situations where, after the initial denial, you obtain the evidence that satisfies the reason for VA’s denial. With the help of a VSO, you can file a quick and easy Supplemental Claim appeal.
Summary of When to Use a Veterans Benefits Lawyer
Complex Denials. When VA denies your claim even though you gave them your best evidence and argument.
Cases Where You Need an Expert. When the main thing standing between you and your VA benefits is an expert, you need a lawyer to help you obtain the right evidence and expert. Law firms can leverage their resources to help you obtain the right evidence. VSOs are not able to provide this service.
Board (BVA) Denials. Any time the BVA denies your claim, you should consult an attorney. If the BVA denies your appeal, you must consider an appeal to the U.S. Court of Appeals for Veterans Claims. This is a separate federal court; your VSO cannot practice law and appear before this Court.
When You Have Been Denied Repeatedly. If The VA has denied you multiple times on the same case, it's a good sign that whatever you're doing is not working. If your claim is complicated, involves many years on appeal, and involves complicated legal issues, it would be advisable for you to opt for representation by an attorney as opposed to a VSO.
When the Stakes Are High. If you have an appeal that has been pending for many years and the possible retroactive pay is sizable, and the stakes are very high, going it alone or with a VSO is not wise. The amount of money that you pay the law firm to help you is well worth the security of knowing that an expert is handling your case.
What Should the Relationship Between VSO's and Attorneys Be?
The extremes on both ends of the debate between VSO's and attorneys is not productive. On the one extreme, you have VSO's claim lawyers are never needed and want sole control over the veteran’s case in every situation. On the other extreme, you have lawyers who think they should represent veterans in every case. The reality is that there are types of cases that are best suited for each of these groups. As explained above, a VSO is best used for filing initial claims and handling simple appeals where you already have the evidence you need. Attorneys are best in complex cases that have been denied and are on appeal or have been on appeal for a long time. In addition, lawyers should be the exclusive choice for cases involving a denial by the Board and any appeal to the U.S. Court of Appeals for Veteran Claims.
VSO's and lawyers should view themselves as part of a relay team. Many of you have watched the Olympics to observe the track and field relay races. Four members of a track team each carrier a baton a lap around the track. In this analogy, VSO's start with the baton and run the first lap. If they can win the claim after the first lap, they do so at no charge to the veteran, and a lawyer is not necessary. But if something keeps going wrong and the claim continues to be denied and layers of complexity are involved, then the baton should be handed to the lawyer to run the final leg of the race at the upper echelons of the appeal process.
Every VSO should have a relationship with a law firm specializing in veterans benefits law. They can add real value to their service to the veterans by introducing veterans to lawyers that they work with. This way, the transition between the VSO and the lawyer can be seamless, and the more complex aspects of appellate practice before the Board and the U.S. Court of Appeals can be handled by the lawyer.
Indeed, the veterans’ service organizations serve a useful purpose in helping veterans file their claims and process straightforward appeals. But in complex cases on appeal where medical experts are needed and where the likelihood of an appeal to the BVA and to the U.S. Court of Appeals is possible, there is no substitute for the experience and expertise of a lawyer, with a finely-tuned legal mind, and aggressive advocacy skills. If the RO or BVA has denied your claim and you would like to explore attorney or lawyer representation for your VA claim, then I invite you to contact our office at (888) 878-9350 or [hidden email].