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CHANGES IN THE VA DISABILITY SYSTEM -- THIRD OF
THREE PARTS -- A special series from Veterans'
Advocate Jim Strickland.
Veterans' Advocate Jim Strickland provides
regular columns for VA Watchdog dot Org.
If you would like to contact Jim about his
columns, you can email him here...
The archive of Jim's articles
is here...
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Change
This is the third installment of a three-part
series. You can find part one here...
http://vawatchdog.org/07/nf07/
nfJUN07/nf062107-1.htm
and part two here...
http://vawatchdog.org/07/nf07/
nfJUN07/nf062507-1.htm
To make change at a system like the Department
of Veterans Affairs (VA) might be compared to teaching an elephant to
dance. It can be done but it isn't going to be easy nor will it happen
when you want it to. The sheer size of VA can be mind boggling. In 2006
there were some 236,000 employees serving 24,000,000 Veterans. Services
ranged from education and home loans to health care and burial benefits.
Except for the first few years of a person's life, VA is as near a birth
to death caretaker as can be found. Once a Veteran, always a
Veteran...and always linked to VA.
As we've discussed earlier, change in the way VA conducts its business
is constantly recommended although sweeping reform never happens. It
seems that even minor improvements to inefficiencies at VA can't be
accomplished. Barriers are plentiful. There's a constant lack of
leadership from the top down. The job of the Secretary isn't to make
change but to keep the lid on the pot so it doesn't boil over on his
watch.
The Secretary is a temp job. Since 1989 we've watched as Edward
Derwinski, Anthony Principi (acting), Jesse Brown, Herschel Gober
(acting), Togo West, Herschel Gober (acting), Anthony Principi and James
Nicholson have wandered in and out of the office. In under 3 decades the
top slot in VA has been filled by half-a-dozen guys, all political
appointees. About 10% of that time the head guy was more than a temp, he
was an acting temp. If a temp has no motive to rock the boat, an acting
temp sure isn't going to initiate major reforms.
Meanwhile, back in the trenches, VA employees forge ahead with the
instructions they were given at the beginning of it all. They're using a
system of physical evaluation developed in 1945. The computers that a
quarter million staff rely on each day are antiques that don't
communicate from one department to another. Your file, that all
important C-File, is pushed around from station to station in a grocery
cart, stacked up with other huge files to a point it appears that a
homeless guy lost his best stuff in a buggy from Kroger and it found its
way to the VARO.
Arcane rulings and instructions float down to rank and file workers. The
Courts have ruled for Veterans. The word comes how to handle that
ruling. A week later, it's said that an appeal has happened. Stop what
you're now doing, do it differently. The Court reverses that and sends
scathing remarks to the Secretary. Now, modify your approach to those
files. No, wait...the Secretary has defied the Court. Do this, don't do
that.
It's business as usual at the agency that controls your destiny.
But...change, positive, favorable change happens. Not often, not as we
want it to but it does happen. The elephant learns to dance one step at
a time.
The rules that the VA abides by are made by the Congress. No employee of
the VA can independently decide that a given regulation no longer makes
any sense and ignore it or apply it as he sees fit. Much like any other
law in America, no matter how old, no matter how patently absurd the law
may seem, it will be enforced by the agency responsible for that. It
doesn't matter if it's a traffic law, violence against others or a VA
disability rule, that's it...end of story. The law is the law.
Federal laws are made and thus must be changed in the Congress. Major
change happened recently after years of false starts and debates. We,
the Veterans, spoke up to our elected officials and told them we wanted
change. Enough of us spoke clearly to them and we informed lawmakers
that we wanted the right to use attorney representation when dealing
with VA disability claims.
As of June 20th 2007 Veterans have the right to use a licensed,
professional, attorney advocate to field their complex cases before VA.
We won. We won big.
Like everything else though, it isn't that simple. You can't look in the
yellow pages today and find a lawyer to take your case and help you from
start to finish. Lawyers aren't able to assist you in the first steps of
applying for benefits. You must first be denied.
As awkward as that seems at first glance, it makes sense...sort of. The
majority of applications for disability benefits are approved. If you
have decided that you want to apply for disability benefits you may
still fill out the on-line application yourself, you may choose from a
list of Veterans Service Organizations to assist you or you might simply
write a letter to your regional office to tell them you feel that you
deserve compensation.
Any of the above will get a filing date established and initiate a
series of instructions to you as VA carries out its “duty to assist”.
Within a few weeks you'll begin to get letters telling you what else you
should do and when.
Eventually you'll find a letter in your mailbox that will be an award of
benefits, a denial of benefits or both. If you were awarded what you
asked for, great. You're done. If your award is partial, you have to
decide if you wish to pursue those instances that were denied or just
accept it as is. If you were denied, now you may begin a search for a
lawyer who will help you as you appeal.
A lawyer will be paid from the back pay of your appeal if you win. The
attorney fee will be 20% of any retroactive benefit if you win and
nothing if you aren't awarded a benefit. Most lawyers will ask to review
your case before they accept it. Lawyers are discouraged from filing
frivolous cases...cases that are apparent that won't stand a chance of
being won. No matter how passionate you may feel about your case, a good
attorney will be honest with you up front and tell you your chances of
winning are nil.
As you go about choosing a lawyer, you'll want to pick your advocate
carefully. He or she should have a lot of experience in handling
disability cases. Many legal offices today handle only disability and
there lies your best opportunity for a good evaluation of your case and
good representation as you proceed.
I've been fortunate the last few months to have built a friendship with
a disability attorney who is expanding his practice to include Veterans
appeals. I've been picking his brain as we've communicated and I asked a
few questions for the record. My questions and his answers are below...
JIM: Karl, these are exciting times for Veterans as we gain the rights
to have professional representation to our often troubled dealings with
VBA. Please take a moment to tell us about yourself, your firm and your
current practice of law.
KARL: My name is Karl Kazmierczak and I am a partner at the firm
Kazmierczak & Kazmierczak, LLP. We are based out of New Jersey with a
satellite office in New York as well. Currently, our practice focus’
exclusively on disability law, whether it is Social Security Disability,
Long Term Disability, SSI, and Veterans Disability.
Prior to the new law coming into affect for Veterans, we focused on SSD
and SSI. However, when we the announcement came that Veterans were going
to be able to obtain legal representation, we made a major shift in our
focus and began including Veterans disability as well. Since that
decision was made, I have written two articles on Veteran Disability
law, made a website providing free information regarding Veteran
disability law, attended a seminar presented by NOVA (National
Organization of Veterans Advocates) and applied to be accepted into the
United States Court of Appeals for Veterans Claims. It is our intention
to provide Veterans of this great nation the same representation we
would provide to our residents. Simply stated, if a person is disabled,
we try to help.
JIM: Some of my readers have objected to lawyers jumping in to the
system saying that as lawyers have never been allowed to practice VBA
law, they won't be familiar with how it all actually works. Their
feeling is that Vets are better off using a VSO representative because
of their hands on experience. How well do you think your work as a
Social Security (and other) disability attorney will transfer to this
new arena?
KARL: I believe that the cross over from Social Security Disability to
Veterans Disability is the soundest move out there for both the
Veteran’s sake as well as the attorney. Surprisingly, the two practices
are similar yet there are some distinct differences. However, as you
know, it is my job to know those differences and use the law to my
client’s advantage.
Some of the similarities include:
*The crux of each case is acquiring the medical records for the clients
and presenting them properly and incorporating it into my theory of the
case.
*Both agencies are governmental nightmares and
as it happens my staff is extremely experienced with dealing with those
types.
*Both types of cases require in-depth knowledge
of medical conditions. This is critical for the client.
*Both require knowledge of administrative
hearings and federal court work. Yes, they are labeled differently,
however, the procedures are essential the same.
*In both cases, I work for the client. If he or
she doesn’t win, neither do I.
An ancillary advantage to providing both SSDI and VA representation to
claimants enables the client to pursue all the claims for disability
(I.E. SSDI, VA and Long Term Disability) concurrently and with one
attorney.
JIM: Could you please explain a contingency fee agreement? An argument
against allowing lawyers into the mix has been that a lawyer will demand
more and more money from a Vet and that in the end a Veteran may suffer
massive losses of benefits money to an attorney who does little to earn
it. How will a Vet pay you for your efforts?
KARL: In most cases lawyers will get paid on a contingency basis. The
Department of Veterans Affairs has already stated that attorney’s fees
must be reasonable. What is believed to be considered reasonable is 20%
of past due benefits. The lawyer only gets paid in a contingency
agreement if he wins the case. In this type of agreement the lawyer’s
interest and the client’s interest are the same to win the case and
getting as much past due benefits as the veteran is entitled to. The
other obvious advantage to the veteran is that he or she does not have
to put out any money to get help and does not have to worry that if they
lose their case they will owe money to a lawyer.
JIM: When a Veteran makes the decision to retain a lawyer, how should
the Vet choose his advocate? I know your firm is prepared to assist a
Veteran who contacts you from almost anywhere but if a Vet seeks a local
lawyer, should he just go to the yellow pages and hope for the best?
KARL: Presently, there are very few attorneys who actually practice VA
law so it will be difficult for Veterans to go to the yellow pages and
just look one up. Thankfully, for the veterans Veterans Disability law
is governed by Federal Law and while that sounds technical it simply
means that an attorney who is in New Jersey could just as easily
represent the veteran in Oklahoma as he or she could represent someone
in New Jersey. If someone however feels more comfortable with a local
attorney there is an organization of veterans lawyers which I am a
member called NOVA and one can find a listing of lawyers by state on
their site or I can help by contacting one of the members near them.
Regarding how to choose an attorney, it is always my advice to go with
the attorney who explains things to you and does not act like you are a
burden on his or her time. Keep in mind when consulting an attorney – he
or she works for you. You should not fear your attorney however, do give
him or her deference when it comes to the law. The attorneys are
educated in the subject and will do his or her best to represent you.
JIM: I'm aware of complex applications that have been circling back and
forth for years. These seem caught up in an endless loop it and never
reach a point of advancing to the Board of Veterans Appeals. The amount
of paperwork and documentation is enormous. How will an attorney cope
with even just a few of these time consuming cases landing on their
desk?
KARL: I believe one of the reasons this happens is because the case may
not be handled properly from early on in the process. I believe lawyers
will help to make sure this does not happen as often by making sure the
case is ready at each stage of the process. That being said when dealing
with a bureaucracy like the VA there is sure to be problems such as
this. I know from my years of experience dealing with the Social
Security Administration that the key is to have a system in place that
constantly checks to make sure all the cases are timely acted on. In my
office we use state of the art computer programs that alert us to make
sure timelines are met. Most lawyers and especially lawyers who have
handled many Social Security cases have a lot of experience with large
complex files and have developed office practices to handle this. Most
importantly it takes a lot of hard work by the attorney and staff. I as
most attorneys work long hours but it is a very rewarding job because I
am able to help so many people who need it.
JIM: Thanks for your time Karl and thank you for sharing some valuable
information with our Veteran readers. If a Vet reading this column
believes he or she would benefit from contacting you, would that be OK
and how would they go about reaching you?
KARL: Certainly Jim...I'll be happy to hear from Veterans and I'll do
all I can to help. I can be contacted at 1-877-527-5529 or through the
Internet by visiting my web sites at
http://www.kazmierczaklaw.com
and
http://www.veteransdisabilitylawyersite.com.
The Department of Veterans Affairs must change. Our VA has to be kept
current with our modern world to care for the ever-increasing number of
Veterans who are returning from war. The VA can't be allowed to continue
giving anything less tha first class treatment to our latest Veterans.
You and your Brothers and Sisters in arms are the only ones who will
make it happen. We've won a battle and now we're allowed to hire an
attorney for assistance. With your support by contacting your elected
officials to make your voice be heard, we'll keep winning! Keep it
up...no slack!
This is the third installment of a three-part
series. You can find part one here...
http://vawatchdog.org/07/nf07/
nfJUN07/nf062107-1.htm
and part two here...
http://vawatchdog.org/07/nf07/
nfJUN07/nf062507-1.htm
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Larry Scott --
