Why Professional Advocacy Is A Veteran’s Best Option*
A Historical Perspective
As early as the Revolutionary War, the U.S. government has been committed to providing pension and disability benefits to those who have served in the armed services. The concept of a veterans’ administration, or what is now know as the Department of Veterans Affairs (the VA), did not become a reality until after World War I. The statutory scheme created by Congress was intended to be non-adversarial, pro-claimant and veteran friendly.
Unfortunately, the adjudication of veterans’ claims for benefits has evolved into a bureaucratic abyss-like process that is inconsistent with the mandates of Congress. Oftentimes, veterans now face an aggressive and adversarial appeals process. As a consequence, veterans are finding it necessary to enlist veterans’ law practitioners to represent them in their appeals for VA benefits.
Delays in Issuing Decisions on Claims for VA Benefits
As of 2007, a veteran must wait some six months before receiving a decision from a VA Regional Office (“VARO”) regarding a claim for service-connected compensation. Then, if the veteran’s claim is denied, the appeals process at the local VARO level can take another six months to two years before it is finally forwarded to the next level of the appeals process, the Board of Veterans’ Appeals (“BVA”) in Washington, DC. Once there, a veteran must wait approximately two years for a decision from the BVA. Similarly, the delay at the U.S. Court of Appeals for Veterans Claims (“CAVC” or “the Veterans Court”) on average is also two years. All said, if his or her claim for VA benefits is denied, a veteran can spend ten years or more waiting for the VA to make the right decision.
Hiring a Professional Veterans’ Law Practitioner For A Fee
A recent change in a VA law now allows a veteran to retain and compensate an attorney or qualified agent once the VA appeals process has been initiated; that is, once a veteran has filed a Notice of Disagreement (NOD) at the local VARO. But the change in law (see 38 U.S.C.S. § 5904) only applies to claimants who filed their NODF on or after June 20, 2007. If the veteran filed the NOD prior to June 20, 2007, then he or she must wait until the BVA issues a final decision before hiring an attorney or agent for a fee.
The National Association of Veteran Advocates ("NOVA") has always been a staunch supporter of the change in this law for the simple reason that it gives veterans the right to choose who they want to assist them in their appeal for VA benefits and compensation. Some veteran service organizations (VSOs) have mischaracterized the change in law as forcing veterans to pay for appellate advocacy. This description is completely false. Before the change in law, a veteran was limited to appealing the VA’s denial of benefits solo or with the help of a VSO, to who there is virtually no legal recourse for missed deadlines (resulting in lost retroactive benefits) or inadequate or incomplete appellate assistance. But, since June 20, 2007, veterans can now hire a professional veterans’ law practitioner to fight for the benefits and compensation the VA has heretofore denied – if he or she chooses to do so.
As a result of the change in the law, some newly-trained and inexperienced advocates are promoting free, or pro bono, representation for veterans before the VA. This is different from veterans advocates who represent veterans for free only in front of the Veterans Court. Like any individual seeking legal assistance, veterans need to protect themselves from incompetent or incomplete representation. Important questions to consider at the outset are whether these pro bono representatives intend to continue learning and studying VA law and whether they intend to continue with the veteran’s claim until the veteran receives the highest possible rating with the earliest possible effective date. Incompetent representation or representation for an artificially short time is no gift to the veteran and can actually result in harm.
The Value of Professional Representation
Lawyers and non-lawyer practitioners who attend NOVA’s semi-annual seminars receive at least 24 hours of training each year in the latest developments in veterans’ benefits law in addition to their initial training. NOVA members are trained to assess a veteran’s case thoroughly and argue the facts and law relevant to the veteran’s case at every stage of the VA appellate process, such as the VARO, the BVA, the Veterans Court, and sometimes before the U.S. Court of Appeals for the Federal Circuit. Also, NOVA members have the support and advice of the NOVA organization and its fellow members who are available to consult on strategies and the proper interpretation of ever-changing VA law.
Professional representation means your attorney or non-attorney practitioner advocates zealously on your behalf, answers your claim-related questions in a timely manner, and helps you understand (and obtain) the evidence needed to support your claim for VA benefits. Professional representation means your advocate is not simply passing along the claims you want to raise to the VA. Rather, your professional veterans’ law advocate analyzes your entire VA claim history and assesses the best and most efficient path to getting you all the benefits you deserve – both those you know about and those you don’t. In addition, professional representation means having an experienced advocate assist you in providing sworn testimony at a hearing at the local VARO level or before a BVA Board Member.
Veterans who pursue their appeals for VA benefits without professional representation are at a severe disadvantage because VA laws and regulations are complex, convoluted, and constantly changing. Representation by a NOVA member is not a guarantee that you will prevail. But, professional appellate advocacy by a well-trained and experienced NOVA member ensures that you will have an advocate who not only knows veterans’ benefits law, but who will hold the VA accountable and make sure the VA applies its laws and regulations relevant to your case correctly.
Congress intended the VA to be a veteran-friendly benefits system. Unfortunately, the VA has often subverted that intent. Veterans (and their beneficiaries) with VA appeals need and deserve an experienced and well-trained professional advocate to navigate the VA’s broken bureaucracy. Hiring a professional veterans law practitioner is definitely a veteran’s best option for obtaining the benefits he or she earned while serving and defending their country.
[*copyright 2008 by NOVA]