LEGAL REPRESENTATION OF OUR VETERANS
STATE BAR OF MICHIGAN
SOCIAL SECURITY NEWSLETTER – SPRING 2007
by
James G. Fausone
Michael R. Viterna
Two hundred years ago, the U.S. Congress wanted to protect Civil War Veterans from attorneys. A law was enacted to shield veterans from unscrupulous lawyers who were charging exorbitant fees to assist veterans in obtaining their pensions, which essentially required completing a simple form. Congress only allowed $5.00 to be charged. It increased the allowable fee to $10.00 which remained in place until is was removed in 1988, when Congress modified the limitation to prohibit veterans from paying a lawyer until after the Board of Veterans Appeals rendered a final decision.
In the final hours of the last Congress, it passed S. 3421 and sent it to the President who signed it. That statute allowed veterans to retain legal counsel of their choosing after they have filed a Notice of Disagreement (NOD) with the Veterans Administration. This change allows a veteran to hire legal counsel much earlier in the process, although not at the commencement of a claim.
In its infinite wisdom, Congress also directed the Veterans Administration to promulgate regulations that implement the new law by May 2007. The Veterans Administration (VA) is to provide a report to Congress for review of the new provisions operations in 42 months. As of this writing, there is still some movement to appeal S. 3421 in Congress before it becomes effective on June 22, 2007.
What does all this mean for the general practitioner or social security lawyer? Is this a new opportunity or a challenge?
It should be noted that not all of the Veterans Service Organizations (VSOs) have been supportive of this change. VSOs are federally chartered and funded. A primary mission of the VSOs is to assist veterans in their initial claims with the VA. This activity is seen as fundamental to their core mission and it will not be simply turned over to the private bar. In fact, the statute does not allow attorneys to be hired to help with all stages of filing a disability claim as one must wait until after an NOD. This timing of legal representation recognizes the VSOs unique role. Two VSOs, the Disabled American Veterans (DAV) and the Veterans for Foreign Wars (VFW), in particular were opposed to the legislation for reasons which, on their face, made sense. A veteran should not have to engage and pay for a lawyer to simply obtain the benefits to which he is entitled. The VA disability benefit process is to be veteran centric and non-adversarial. A number of the VSOs have been concerned that the nature of the process will change with allowing lawyers in at an earlier stage. Some VSOs, such as the Paralyzed Veterans of America (PVA), were supportive of the legislative change. In a PVA position paper, it noted:
“We are aware of no other government benefits program where claimants are prohibited from hiring a lawyer to assist them in obtaining benefits. There is no indication that lawyers will ever replace the VSOs or assume the important role that the VSOs played in this area for many years. We are not afraid of competition and believe that allowing claimants to hire a lawyer, if they choose to do so, will ultimately result in VSOs and the VA in proving their respective capabilities and thereby provide better service to veterans.”
After the effective date, there will be very little change in the initial processing of claims. A veteran or his/her representative will file a claim with the Regional Office. If that claim is granted, no further action will be necessary. However, if the claim is denied by the Regional Office, or the rating (percent of disability) is disputed and appealed, it will be considered by the Board of Veterans Appeal (BVA). If the veteran loses at the BVA, that decision can be appealed to the U.S. Court of Appeals for Veterans Claims (CAVC). Historically, the veteran could engage counsel after a denial at BVA.
To determine if the “Veterans Choice of Representation Act” presents an opportunity, one must look at the numbers. The veteran will now be able to engage counsel after an administrative denial (NOD) but before the formal appeal to the BVA. The Board of Veteran Appeals (BVA) in 2005 issued 34,175 decisions, with 37,539 left pending at year’s end. Unfortunately, VA data as collected is disseminated in a fashion that makes it difficult to determine how many claimants constitute the universe of available clients for lawyers at this new stage. A veteran may have multiple claims pending at various stages of the process.
In Michigan, it is estimated there are approximately 800,000 veterans. A majority of Michigan’s veterans are World War II era vets who are unfortunately dying off at a rapid rate. Recent statistics from the VA Office of Performance, Analysis and Integrity indicates that there are approximately 65,000 veterans receiving service connected disability in the State of Michigan. About 8% of the veterans in this State have some service connected disability. It should be noted that 48,000 or so veterans receive less than a 50% rating for their disability. As of December 2006, there are approximately 13,000 claims pending in the Detroit Regional Office.
You might ask how this compares to the Social Security universe. There are approximately 10,100,000 residents in this State. Based on Census Bureau statistics, 15% of the population in the State is disabled. That creates a pool of approximately 1,500,000 plus potential claimants under Social Security. In comparison, the VA disability population is approximately 5% the size of the statewide disability population.
In considering the business opportunity created by this change in the law, one would have to consider certain unique features of a veterans disability practice. For example, the disability generally needs to be service connected, and therefore the claimant’s military service is critical. Therefore, one must gather service records from the Department of Defense and sift through the myriad of stories about the type of service in which the particular veteran was engaged. It turns out a lot of people do not recall accurately what they did or even where they were sent years ago.
Naturally, the VA grants benefits for the most obvious disabilities and injuries related to service, such as shrapnel, amputation and well medically documented injuries. It is more difficult to obtain VA disability benefits for the softer injuries, such as psychological, PTSD, TBI, or exposures to Agent Orange, radiation, chemicals and toxics. Generally, the veterans claims relate back to a period of time before computerization and the records kept in-country were poor at best. However, since the veteran often attends examinations at the VA without representation, and may be even years before even filing a claim, one finds that those records are replete with damaging statements.
Another difference in the VA system is that upon awarding service connection, the claims can be rated between 10% and 100%. As noted above, in Michigan 74% of the veterans receiving service connection are rated below 50% disability. Some injuries have marginal ratings that can never be exceeded regulatorily or statutorily. For example, tinnitus is capped at 10%. A bad knee is difficult to get beyond a 40% rating. As a result, a veteran may receive only $115.00 a month in compensation for a 10% disability. If the veteran has a 100% disability rating, then his monthly compensation is $2,471.00. A 50% rating results in a $712.00 monthly check. As you can see from these statistics, it is difficult for lawyers to represent veterans with limited disability claims as there simply is a limited return on the investment of time and effort.
It is also worth considering the universe of claims before the Court of Appeals for Veterans Claims. The CAVCs 2006 Annual Report indicates that there were 3,729 new cases filed last year. At the time of filing, 63% of those cases were unrepresented by counsel. The Court reports that only 24% of the cases are unrepresented by lawyers at the closure. The court acknowledges that it takes at least 351 days for its cases to be decided in a dispositive fashion. Practitioners in the field would tell you that number is much closer to 500 days. The discrepancy is that the Court only decides approximately 60% of its docket. The other cases are dismissed for procedural reasons. Unfortunately, the CAVC has turned into a remand machine, known as the “hamster wheel”. It only decides in the affirmative 21% of the time. Notwithstanding these formidable challenges, there are 14 Michigan attorneys admitted to practice before CAVC. In most instances, they have some prior military experience which explains their tilting at these windmills.
The practice area of veterans disability law is small and collegial. A number of specialty organizations or bar associations exist, such as the National Organization of Veteran Advocates, Inc. (NOVA). It is much smaller than, but comparable in purpose, to the National Organization of Social Security Claimants’ Representatives (NOSSCR). Those of us who practice in the area encourage others to assist veterans in obtaining their deserved benefits. We are always available to take a phone call to discuss the validity of a claim and how one should proceed.
Mr. Fausone and Mr. Viterna practice with Fausone Bohn, LLP. Mr. Viterna heads the veteran’s practice at the firm which can be reached at www.legalhelpforveterans.com. Mr. Viterna has over 30 years of military service.
