VA NEWS
FLASH from Larry Scott at VA
Watchdog dot Org -- 06-08-2006 #8
DAV SAYS "NO" TO ATTORNEYS REPRESENTING VETERANS IN CLAIMS PROCESS -- And, an attorney says "NO" to the DAV.
Background here... http://www.vawatchdog.org/senatecvanews/senatecvanews06-08-06.htm and here... http://www.vawatchdog.org/housecvademsnews/housecvademsnews03-09-06.htm First we have a statement from the DAV about veterans using attorneys in the claims process. Then, comments from an attorney who thinks the DAV is off base...with some interesting documentation. DAV statement here... http://capwiz.com/dav/issues/alert/?alertid=8819571&type=CO DAV statement below: ---------------
--------------- Now, from the attorney. ---------------
Larry, as you well know, veterans and their service organizations have
been trying, without success, to "ensure the [VA] process performs in the
manner for which it was designed" since the establishment of VA. Both
political parties and their Presidents have had the opportunity to make VA
"perform" as it should for over 70 years now, but have made no serious
attempt to do so. There is no reason to believe that any serious attempt
to do so will be made by either party in the future.
Also, ex parte is defined by the American Heritage Dictionary of the
English Language as "from or on one side only, with the other side absent
or unrepresented," and by Merriam-Webster's Dictionary of Law as "on
behalf of or involving only one party to a legal matter and in the absence
of and usually without notice to the other party." That, in essence, is
the problem with the VA claims process at the RO and Board of Veterans'
Appeals stages now! Ask veterans who have been unsuccessfully represented
by the service organizations at the RO and Board stages (as you know,
current law does not allow an attorney to represent a veteran until a
decision is issued by the Board) and then successfully represented by an
attorney after those stages, how they feel about attorney representation,
as opposed to service representation, at the RO and Board stages.
As a veterans attorney and a member of NOVA I can assure you that 99.9% of all veterans who have had successful representation by an attorney had unsuccessful representation by a veterans service representative at the RO and Board stages. I was employed as an attorney by the Board for 6 years, and therefore reviewed over one thousand claims files during that time, each one of which contained the documentation and arguments submitted by the veteran's service organization representative when the veteran was represented. Based on that "hands on" experience I can tell you that the arguments submitted by the service representatives clearly showed that they did not know veterans law, and in most cases, showed that they had not reviewed the veteran's claims file(s) in its entirety, as attorneys do in every case. Attorneys are required by the ethics rules of their profession and their state Bars to refrain from taking cases in legal fields in which they are not qualified. Attorneys could lose their licenses for violation of these rules. There are no such rules for veterans service organizations.
Veterans service organizations play a vital role for veterans, but
quite frankly, their representation of veterans in the claims process has
cost many a veteran and/or their dependents benefits to which they are
entitled. And in the end, that is what truly matters - obtaining every
benefit for the veteran and/or their dependents to which they are entitled.
In that regard, attorneys are head and shoulders above veterans service
representatives.
----- I should add to my message concerning the DAV e-mail that the VA claims process is, by law, a non adversarial process. That will not change if attorneys are allowed to represent veterans and/or their dependents at the RO and Board stages. I would also add that VA claims process employees currently violate the "non adversarial process" standard on a daily basis. You write every day in your website about how VA treats veterans as far as medical treatment is concerned and in many other ways. Does anyone really believe that treatment of veterans in the claims process is any different? I am currently involved in obtaining disability benefits for a Vietnam veteran that are over 37 years overdue! His claims had been denied since 1969, and I have been able to obtain retroactive benefits back to the date of his original claims in 1968! This veteran was also unsuccessfully represented by a veterans service organization at both the RO and Board stages throughout that entire period! And now that his claims have been granted the Salt Lake City RO is dragging its feet in paying him the full amount of his retroactive benefits. I don't think I need to tell you how this veteran feels about the difference between being represented by a veterans service organization and by an attorney! (LETTER FROM ATTORNEY TO VA RO PRINTED BELOW)
June 6, 2006
Douglas B. Wadsworth or
His Successor Re: [Redacted] Dear Mr. Wadsworth: This is in regard to the veteran and my client, [Redacted], claims file number [Redacted], and an April 20, 2006, Decision Review Officer Decision. First, however, I would like to provide you with the background of this case. The veteran served on active duty in the U. S. Army from July 1966 to July 1968, and served a tour of duty in the Republic of Vietnam. Despite having service medical records showing right knee and skin conditions, and immediate post-service medical records showing those same conditions, a Department of Veterans Affairs (VA) Regional Office (RO) in January 1969 issued a Rating Decision in which the veteran’s claims for service connection for right knee and skin conditions were denied. Despite having documents showing that the veteran timely appealed that decision, the Salt Lake City RO, in August 1999, determined that appellant had not filed a timely substantive appeal as to the January 1969 decision. The veteran appealed that determination and the Board of Veterans’ Appeals (Board), in February 2003, upheld that decision. After a remand from the U.S. Court of Appeals for Veterans Claims, however, the Board, in a March 2004 decision, found that the veteran indeed had submitted a timely substantive appeal of the January 1969 Salt Lake City RO decision, and remanded appellant’s claims to the Salt Lake City RO for a merits determination of service connection. In a November 2004 decision the Salt Lake City RO, despite a March 2004 letter from the undersigned, which not only discussed the service and post-service medical records but also contained attached copies of those records, again denied service connection for right knee and skin conditions, again denying the existence of the service and post-service medical evidence noted above, which had been in the veteran’s claims file since 1969. Finally, after many letters and telephone calls from the undersigned, and almost two years after the March 2004 Board decision, the Salt Lake City RO, in a December 2005 decision, granted service connection for right knee and skin disabilities. Since the ratings assigned and the effective dates for service connection and for those ratings were obviously in error, the veteran submitted a notice of disagreement with those determinations. In an April 2006 statement of the case (SOC) the Salt Lake City RO denied increased ratings and earlier effective dates for the veteran’s claims. The SOC clearly showed that the Decision Review Officer had not reviewed the veteran’s claims file because it contained findings denying the existence of evidence which had been in the veteran’s claims file since 1969, and which was discussed by the Board in its March 2004 decision. After the undersigned spoke with the Decision Review Officer who had prepared the April 2006 SOC, and over two years after the March 2004 Board decision, the Salt Lake City RO, in an April 2006 decision, granted the proper ratings and effective dates for the veteran’s disabilities. While speaking with the various employees of the Salt Lake City RO in April 2006 the undersigned was informed that the position of the employee who handles payments to veterans and their dependents after grants of monetary benefits was vacant. In May 2006, over one month after the April 2006 Decision Review Office Decision, the veteran still had not received his retroactive benefits payment. The undersigned unsuccessfully called the Salt Lake City RO on several occasions attempting to reach a person in the department who handles payments to veterans and their dependents after grants of monetary benefits. The Salt Lake City RO employees to whom the undersigned spoke confirmed that the position continues to be vacant. On May 31, 2006, [Redacted] and [Redacted] of the Salt Lake City RO informed the undersigned that the documents authorizing the payment of retroactive benefits to the veteran had been signed and the payment would “go out in the next cycle.” Yesterday, June 5, 2006, the veteran, still not having received this payment, called the Salt Lake City RO and was informed that VACOLS showed that these documents had not been signed, and that his payment has not been authorized. Thus, VA has arbitrarily and capriciously withheld benefits from this veteran for over thirty-seven years, and continues to do so! Therefore, this letter is to inform you that if the veteran’s payment is not immediately authorized and sent that the undersigned will forward this letter to R. James Nicholson, Secretary of Veterans Affairs, for appropriate action. The veteran has already contacted his Congressman, [Redacted], regarding this delay, and will contact his U.S. Senator if necessary. I’m also sure, given the history of the veteran’s claims, that the Salt Lake Tribune and the Deseret Morning News would be very interested in this story. I hope that these actions will not have to be taken, but that will depend on the actions of the Salt Lake City RO. Your assistance and cooperation in this matter would be greatly appreciated by the veteran. Sincerely, [Redacted] Attorney for the Veteran cc: [Redacted] ---------------
(go back to VA Watchdog dot Org Home Page)
Cups, Hats, Shirts and more Click here to order and support the site
Comments on this VA NEWS FLASH?
Email Larry
|
|
key available on
request