Obtaining maximum allowed disability benefits is key to ensuring that veterans and their dependents get what they are entitled. Too often the Department of Veterans Affairs (VA) denies a claim, in part or in total, without adequately assisting with the development of the evidence, or deciding claims based on the existing law. After years of frustration dealing with the VA, some veterans may simply give up without understanding that there are qualified attorneys able to offer representation.
Below is a list of some of the most common misunderstandings:
When initially filing a claim, or seeking a higher rating, the majority of veterans are initially represented by national service officers from veterans service organizations, such as the Disabled American Veterans, American Legion, or Veterans of Foreign Wars. Many veterans believe that if they have a service organization representative, they are not allowed to hire an attorney during an appeal, or to handle particular claim(s) while the service officer handles another claim(s).
There is no law that requires you to be represented on all claims by the same representative or organization. So, all veterans are allowed to be represented by an attorney and a service officer on different claims. There is also no law that says you must keep the same representative. So, you are allowed to switch from a service officer to an attorney. Some service organizations have a policy that unless they can represent a veteran on all of claims, they are not willing to represent a veteran at all. While this may be an organization’s own policy, there is no law that requires this to be done. Therefore, a veteran is allowed to have more than one representative, as long as they are for different claims.
The important factor for a veteran to keep in mind is that if he/she is dissatisfied with his/her current representative, whether it is a service officer or an attorney, a veteran may always switch representatives.
Attorneys representing at the VA level, which includes the Regional Office and the Board of Veterans’ Appeals, by and large work on a contingency basis. That means the attorney will not get paid for any representation unless the veteran gets awarded disability compensation, i.e., retroactive benefits. In other words, an attorney will not get paid unless the case is won and compensation is awarded to the veteran. The attorney will only get a percentage of the retroactive amount that VA awards.
The U.S. Court of Appeals for Veterans Claims is not part of the VA, and lawyers who represent veterans there do not require a veteran to pay any out-of-pocket fees. Generally, if the attorney is successful in prevailing at the Veteran’s Court, and a case is sent back to the VA to be redone, the attorney can ask for fees and expenses through a government program called the Equal Access to Justice Act (or EAJA). These funds do not come out of a veterans benefits.
Other rules require an attorney who is paid for representing a veteran at the VA to offset any fees owed by the EAJA fees paid for the same work at the Court.
With the passage of a law a number of years ago, which allowed veterans to hire and pay attorneys at an earlier stage in the claims process, more attorneys are advertising that they can handle veteran’s benefits issues. While there are attorneys who do advertise and practice veterans benefits law, not all who say they represent veterans actually provide the representation or fully understand the complexities of current VA laws and regulations, changes made to the law, or the details of the claims process system.
Anyone considering hiring a lawyer should take care to ask the attorney about their experience in veteran’s benefits law to make sure that they can explain how VA “thinks” and go over what steps are needed to have the best chance to win a case and have it addressed in a timely manner.
This article was also posted on the Maryland State Bar Association Bar Bulletin. Follow the link to read it.
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