Vets Fight Over Lawyers

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om Philpott | August 31, 2006
Vets Split Over Need For Paid Attorneys In VA Claims

It's like inviting the wolf into the chicken house," said retired Air Force Lt. Col. Charley Burch, describing the Senate's vote Aug. 3 to allow paid attorneys, for the first time in over a century, to represent veterans in filing disability claims with the Department of Veterans Affairs.

Burch, 74, spent 18 years after he retired from the military helping veterans in Virginia apply for VA disability benefits. As a veterans' claim agent on state salary, Burch's help was free to any Virginia veteran. He says he knew the in-and-outs of filing a successful disability claim, better than any lawyer he knew, and he didn't charge a fee.

Like some of the largest veterans' services organizations, including Disabled American Veterans and Veterans of Foreign War, Burch strongly opposes a bill that he says "helps lawyers, not veterans."

Lawyer groups, particularly legal advocates for veterans, did lobby for the change, along with a few retired appellate court judges and some of the smaller veterans groups. But they did so, they said, because veterans deserve the right to hire a lawyer, from the start of the claims process, to deal with increasingly complex laws and regulations and in recognition that valuable assets - tax-free VA disability benefits - are at stake.

"This thing sounds innocuous," Burch countered. "They're saying, 'We are giving veterans a choice. Choice is always good.' Well, choice isn't always good. What really scares me is this thing is flying below the radar," not drawing much attention even though it soon could become law.

Sen. Larry Craig (R-Idaho), chairman of the Senate Veterans Affairs Committee, first became interested in securing paid attorney representation for veterans filing claims after reading a guest editorial in the Washington Post last January written by James C. McKay, an attorney for a prominent Washington D.C. law firm, said a committee staff member,

McKay's piece, "Who Can Fight for the Soldiers?" argued that veterans mature and responsible enough to defend their country should be seen as competent to hire a lawyer if they want legal advice pursuing VA benefits.

Following the Civil War, Congress first imposed a limit of $5 on fees lawyers could charge to assist veterans with their pensions and bonuses. The cap was raised to $10 a short time later but hasn't been raised since. The practical effect, McKay explained, is to bar lawyers from representing veterans until they exhaust a lengthy administrative process of their claims and get an adverse decision from the Board of Veterans' Appeals.

By that time, McKay wrote, "a case has been lost, often because the veteran did not present the correct claim, or properly present available evidence -- technicalities that could hurt the case on appeal even after a lawyer is involved." He gave examples of injustices suffered by individual veterans for lack of a lawyer's care and knowledge early in the process.

Craig introduced the Veterans' Choice of Representation Act of 2006 (S 2694) on May 2. It attracted only four co-sponsors, all of them lawyers, three fellow Republicans plus an Independent. A hearing on this and four other bills was held June 8. In early August, the Senate passed S. 2694, which by then was robust package of VA benefit changes. It did so by unanimous consent so no individual senator had to record his or her vote.

Craig feels it's "a matter of fairness," said committee spokesman Jeff Schrade. "The chairman feels very strongly that veterans are adults and they can spend their money however they want to spend it."

Asked if wealthier veterans might soon have an advantage in pursuing VA claims, Schrade said that occurs in many life situations.

"Some people use a public defender. Some people hire Johnnie Cochran. That's just life. If the VSOs [Veteran Service Organizations] are doing a good job, veterans won't use attorneys," he said.

Have many veterans complained about the quality of advise received?

"I don't' think anybody came clamoring to us that 'Boy we have to get the legal profession involved here,' " said Schrade. "But when you look at the backlog of claims out there it leads you to wonder whether if you had better legal representation up front it would lessen that backlog."

Rep. Jeff Miller (R-Fla.) introduced a companion bill (HR 5549) in June. It has no co-sponsors. Rep. Steve Buyer (R-Ind.), chairman of House Veterans Affairs Committee, hasn't decided yet whether to support the Senate-passed initiative in September when House-Senate conferees meet in to iron out differences between all VA-related bills, an aide said.

Veterans groups are divided. Testifying in support of Craig's bill were the Vietnam Veterans of America, the National Veterans Legal Services Program and a few former chief judges of the U. S. Court of Appeals for Veterans Claims. Legal counsel at initiation of a claim "would give that claim a legal continuity," said Rick Weidman of VVA. "Legal counsel is the right of all Americans, except veterans. This is an injustice."

But Quentin Kinderman, for the VFW, said Craig's bill is a "windfall opportunity for lawyers to earn significant fees with little effort." They likely would be paid a percentage of "past due" compensation once disability ratings are approved. Sharing in any retroactive pay, Kinderman said, would be an incentive for lawyers to "slow the administrative process as much as possible, both to wear down resistance to granting the benefit but also to maximize the past due amount of benefits payable."

Joseph Violante, DAV's legislative director, said the bill "sends the wrong message to our brave troops fighting in Iraq, Afghanistan and elsewhere -- that they need to hire an attorney to obtain the benefits a grateful nation has provided."

Said Burch: "There are no shortcuts, though that's the assumption. 'Hey, all I need is to get an attorney and I can cut through this.' That's not true. There is one route...and sometimes it takes a lot of time."