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September 4, 2006
Don’t Deny Veterans Legal Representation
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.
In a recent interview in the Greensboro, NC News-Record,
Kabatchnick said of his tenure at the VA, “I did not like the way
veterans were treated, so I left.” Kabatchnick believes the system is
rigged against veterans because all the attorneys are on the VA’s side.
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.
Why are the VFW and DAV fighting this legislation? It’s a turf war,
plain and simple. Service Officers have held sway for decades and their
power is being threatened. The VSOs use their Service Officers as
recruiters to gain badly-needed new members and see declining membership
rolls if veterans have the choice to use an attorney.
While Service Officers do their job with great dedication, many are
part-time volunteers who do not, or cannot, keep up with the reams of VA
regulations and the latest legal decisions handed down by the CAVC. As
the VA claims process becomes more contentious and legally complex, the
best choice to “run the gauntlet” of this adversarial process is an
attorney who knows the law because they live it every day.
The adversarial nature of the VA claims process is a fact of life. Every
veteran knows the saying “Delay and Deny and Hope that I Die” and will
tell you it is the VA motto. And, not surprisingly, the VA is the most
vocal opponent of this legislation. The VA argues that its relationship
with veterans is that of a caring provider and describes the claims
process in these benign terms: “All a claimant need do is file a claim,
and VA will notify the claimant of the information and evidence
necessary to substantiate the claim, assist the claimant in obtaining
relevant Government and private records, provide a medical examination
or obtain a medical opinion when necessary to decide a compensation
claim…” I doubt any veteran who has fought the VA for years to receive a
small amount of disability compensation would agree with that
description of the process.
The VA also argues that it would have to create a new bureaucracy to
perform attorney accreditation, oversight and review fee agreements.
And? If the VA is truly on the side of veterans in the claims process
they should have no qualms about performing this service. It is
important to note that veterans have no vehicle for oversight of the VA
attorneys who now routinely fight their claims.
Now, more than ever, veterans need attorneys at every level of the VA
claims process, especially at the CAVC. An attorney who represents
veterans in the claims process recently told me, “It's important to
remember that, at the Court [CAVC] , we are no longer dealing with a
‘veteran friendly’ requirement…It is litigation, with the VA being
‘against’ the veteran…” Another veterans’ advocate and attorney put it
this way: “We end up at the CAVC, many times, with a claim that has been
butchered by those who either don’t know or don’t care. If we were
involved at the beginning, the process would be faster and fewer claims
would end up before the CAVC.” Not all attorneys are so harsh in their
criticism of Service Officers, but most with whom I’ve spoken agree that
the point is valid.
Is there a definitive answer to the question of whether attorneys should
represent veterans in the VA claims process? Yes! And it comes from the
former Chief Judge of the CAVC. Frank Q. Nebeker was the first Chief
Judge of the CAVC and retired in 2000. Nebeker puts this entire issue
into perspective in a letter written to the House Committee on Veterans
Affairs. Nebeker wrote, "...I can state with certainty that vast numbers
of benefits claims could be resolved much sooner if a claimant were able
to exercise a choice to seek legal counsel in the beginning of the
process." Nebeker added, “In my view, something must be done to help
veterans to avoid this ingrained delay in processing claims, especially
for today’s claims which involve increasingly intricate legal and
evidentiary issues.”
The Judge has spoken. Be sure to contact your representative in the U.S.
House and urge them to support the Veterans’ Choice of Representation
Act of 2006.
© 2006 Larry Scott / VA Watchdog dot Org
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Larry Scott
