It's time for veterans to be allowed to use attorneys in the VA claims process
by Larry Scott
Craig Kabatchnick worked for the Department of Veterans' Affairs (VA) from 1990 to 1995. He frankly states that his job was to keep veterans from getting VA benefits. Kabatchnick was a VA attorney.
This situation can only get worse as shrinking budget projections have caused the VA re-examine all areas of veterans' disability claims. Recent and ongoing reviews have looked at veterans with post-traumatic stress disorder (PTSD), those who are unemployable and those who receive Social Security Disability Insurance (SSDI). The VA's army of attorneys stands ready to fight every claim and they do so with great zeal.
Now, the playing field could be leveled a little, giving disabled veterans a better chance of receiving VA benefits. Earlier this year, Sen. Larry Craig (R-ID), Chairman of the Senate Committee on Veterans' Affairs, pushed S. 2694 through the Senate. The bill is titled the Veterans' Choice of Representation Act of 2006. That legislation now sits in the House. Chances for passage are good, although Rep. Steve Buyer (R-IN), Chairman of the House Committee on Veterans' Affairs, has given no indication if he will support the measure.
At stake is a fundamental American right: The right to legal representation. Currently, a Civil War-era law virtually denies veterans the right to use attorneys in the first two levels of the three-tiered VA claims process. That law limits legal fees to $10. It's difficult to get an attorney for $10 these days.
So, for the initial claims process and any appeals to the Board of Veterans' Appeals (BVA), veterans are on their own or must use a veterans' Service Officer. Service Officers are provided free-of-charge by many veterans' service organizations (VSOs) and some counties or states. At the third level, the U.S. Court of Appeals for Veterans' Claims (CAVC), veterans are allowed to retain an attorney to help with a claim for VA compensation.
But, even at the CAVC level, former VA attorneys like Kabatchnick say the deck is stacked against veterans. Kabatchnick tells about the VA's legal teams whose only goal is the complete denial of a claim. "That's not the way it should be," Kabatchnick said, "But that's the way it is. We [VA attorneys] used to celebrate [our CAVC] victories."
Who supports the legislation and who opposes it? It's a strange mix. Ramona Joyce, spokeswoman for the American Legion, the nation's largest veterans' service organization, says the Legion is not opposed to veterans using attorneys in the claims process. However, the Veterans of Foreign Wars (VFW) and the Disabled American Veterans (DAV) are vehemently opposed.
The VFW states, "The current administrative process, despite its shortcomings in execution, is designed to be a non-adversarial process..." Yet, this flies in the face of statements made by former VA attorney Kabatchnick and others who feel the VA claims process is adversarial from top to bottom.
Bradley S. Barton, an attorney and the newly-elected national commander of the DAV, states, "The VA is required to assist veterans in completing and filing the relatively informal application for benefits and then takes the initiative to advance the claim through the appropriate steps." While the VA is required to assist veterans in filing claims, realistically, this doesn't happen and Barton's argument has fallen on the deaf ears of veterans who have had to fight the VA for years to win approval of the most obvious service-connected disability claims.
The VFW and DAV have offered their arguments and they don't hold water. Others paint a picture of unscrupulous attorneys taking advantage of veterans. But, remember, the legislation is about choice. The veteran can chose a Service Officer or an attorney. And, the issue of fees has caused some concern. But, the legislation has built-in safeguards to protect veterans from exorbitant legal fees.
(It should be noted that currently some attorneys represent veterans at the first two levels of the VA claims process by using a "gift agreement" to get around the $10 fee limit. The standard "gift" is just 20 per cent of retroactive compensation with a $5,000 cap. There is no "gift" if the claim is not awarded.)
So, statements such as, "It's like inviting the wolf into the chicken house," just don't make any sense. That statement came from retired Air Force Lt. Col. Charley Burch and was quoted in a recent article by syndicated columnist Tom Philpott. Burch, who served as a state Service Officer after retiring from the Air Force, doesn't believe in choice for veterans. Burch said, "Choice isn't always a good thing." With all respect to Lt. Col. Burch, that is absurd and demeans veterans by indicating they aren't intelligent enough to make a choice.
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