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A turf battle is under way over who should represent former military personnel in claims for injuries suffered when they were in uniform. Should it be lawyers, who are now frozen out of business they would like to have, or nonlawyer veterans who want to keep the work in the “family”? Veterans are not allowed to pay an attorney to request benefits until a case reaches the Court of Appeals for Veterans Claims. By then the claim has already been denied twice — at the regional level and by the Board of Veterans’ Appeals. By contrast, anyone with legal problems involving such programs as Social Security Disability or workers’ compensation can hire lawyers whenever they want. Only veterans, their spouses and dependents are denied the right to representation at an administrative level — where the record gets made — and only at the Department of Veterans Affairs (VA). Lawyers say that if they were allowed to do the work for pay, they could make the system fairer to veterans. (Attorneys may work free at these early stages of the process, but few do.) Opposing the lawyers is Disabled American Veterans (DAV), an organization that represents about one-third of all claimants for free. DAV is a true believer in the VA’s mission to protect its own. Its officials said they are not blind to problems with the VA’s adjudication of claims, but they don’t want to see lawyers take advantage of veterans and complicate an already flawed system. Ken Carpenter, a founder of the National Organization of Veterans’ Advocates, a lawyers’ group, suggests that DAV’s motives may not be quite so noble: Its “concern is that we’ll leave them to represent nickels and dimes,” he said. “For them it’s a turf war — the Alamo. If lawyers are allowed in, they’ll lose their reason for being.” Veterans have 393,000 cases pending at the VA’s 58 regional offices, and 21,000 at the board, according to a VA spokesman. They seek compensation for service-connected injuries (even if they don’t turn up for decades), as well as medical treatment, pensions, education benefits under various GI bills, life insurance, burial plots and other benefits. Veterans must prove entitlement. The VA was established soon after World War I. Its regional officers have a duty to assist veterans in perfecting their claims. Carpenter asserts that in reality the process is not familial, but “antagonistic and adversarial.” “The way the law is written — it’s a wonderful system,” said Carpenter, a solo practitioner in Topeka, Kan., who is handling more than 1,000 veterans’ cases. “The way it’s administered is a national tragedy.” He said the process is often drawn out, full of remands due to incomplete records, mistaken regional hearing officers and spurious board decisions. Moreover, the veteran may die before benefits are paid. In such a situation, if the case were in the court of appeals, it would be summarily dismissed. The spouse or other dependent would then have to start over by filing a survivor’s claim at the regional level, where a lawyer would again be forbidden to charge a fee. And a survivor is entitled to only two years of past-due benefits, even if the veteran had been entitled to 20. Carpenter’s advocacy organization “is attempting to educate members of Congress, particularly the veterans affairs committees, regarding the limitations of the current law,” says Glenda Herl, its executive director. Despite success with some groups, she says, the DAV remains unconvinced. No bill on the issue is currently before Congress, and a spokesman for New Jersey Republican Chris Smith, chairman of the House Committee on Veterans’ Affairs, says the issue “is not presently on the Congressman’s radar.” Rep. Lane Evans, D-Ill., the ranking minority member of the House Veterans Affairs Committee, has weighed into the debate cautiously. “Veterans’ service organizations do a good job in representing our nation’s veterans,” he said. “However, I support allowing veterans the opportunity to have a choice to hire an attorney when they are appealing a regional office decision.” That’s not far enough for David Addlestone, a co-executive director of the Washington-based National Veterans Legal Services Program, a veterans’ advocacy and educational organization and a nonprofit law firm. “We would like to see the law abolished entirely to give vets a free choice,” he said. The law, 38 U.S.C. 5905, bars anyone from charging fees at the administrative level under threat of fine or up to a year in jail, or both. The Maryland-based Vietnam Veterans of America also wants that law done away with. THE COST OF LAWYERS Joe Violante, DAV’s national legislative director and a lawyer, argues that the choice would not be free. The cost to veterans would be at least 20 percent of their past-due benefits, he said. “Basically our bottom-line position is that a vet should not have to pay to receive the benefits to which he or she is entitled,” said Violante. “And, frankly, our concern is that if you ask vets to choose between a lawyer or one of our highly trained national service officers, they might be misled and assume that a lawyer knows more than we do. There are only a handful of lawyers out there with our experience.” Board of Veterans’ Appeals data appear to support Violante’s position. Veterans represented by lawyers and veterans’ groups have almost identical success rates before the board, where they appeal regional-office denials of claims. The VA does not keep statistics on outcomes by representation at the regional level. Only Vietnam Veterans of America has a substantially higher success rate before the appeals board than others, but it represents only 1.3 percent of claimants. Richard Weidman, its director of government relations, explained: “We are so small and underfunded that we have to practice triage. If the vet is capable as a partner, and can help gather supporting material but they don’t want to do it, we tend to direct them somewhere else. Without DAV there would be tens of thousands of vets who would not be represented at all.” Veterans who dare to represent themselves are the least likely to win. But everyone need fear to tread — the overall success rate is 27.7 percent. In 1988, Congress, recognizing that judicial scrutiny of the VA was sometimes necessary, established the specialized Court of Appeals for Veterans Claims. The veteran gets a de novo review of the legal standards upon which the board based its decision, but the court may reverse on factual grounds only if it finds a ruling was “clearly erroneous.” When cases reach this level, lawyers may charge fees. If a lawyer charges no more than a 20 percent contingency fee, the VA will withhold it from the award and pay the attorney directly. The VA will not withhold any fees if an attorney charges more than 20 percent or has any other type of fee agreement. The Social Security Administration, by comparison, allows 25 percent. DAV uses attorneys at this level of the process, but it still charges no fee. If a case is remanded to the board, as is most often the case, the attorney may continue on the case and still have the fee withheld. That’s also true if the board then remands the case to the regional office where it started. Five-year-old cases are not uncommon in this nonadversarial system, where there is no government lawyer opposing the veteran’s claim. In the last fiscal year, 58 percent of 2,150 appellants were not represented in initial filings in the Court of Appeals, according to Norman Herring, chief executive officer and clerk of the court. By the time the appeals were heard, half of those without lawyers had gotten representation. Attorneys from the National Organization of Veterans’ Advocates, who charge a 20 percent contingency fee, and the Veterans Consortium Pro Bono Program, were largely responsible for halving the number of those not represented. PLAGUED BY REMANDS The Court of Appeals throws out about a third of its cases for lack of jurisdiction, and remands many of the rest. Remands occur because the record is not complete. Carpenter insists that if lawyers represented claimants from the start, it wouldn’t happen. He serves his 1,000-plus clients from his Topeka, Kansas, office, Carpenter Chartered, with a staff of 15 and charges a 30 percent contingency fee. “In general, [veterans' service organizations] rely too much on the VA’s duty to assist,” said Bart Stichman, a joint executive director of the National Veterans Legal Services Program. “Although many of them are trained very well.” Stichman, lead counsel in the ongoing Agent Orange litigation against the Veterans Administration, has 75 cases in the Court of Appeal. Some veterans’ service organizations have been “chartered” by Congress and given office space and telephones by the government. Each has its own training program. DAV’s includes college courses and 16 months of on-the-job training. “Our national service officers are all disabled veterans themselves — we’ve been through the process for our own claims,” said Kevin Gregory, DAV’s Washington regional supervising officer. “And our training never ends.” Then why doesn’t DAV’s do much better than other advocates? For one, it takes every case it is asked to, including those with little or no merit. But there is, perhaps, another reason. Veterans’ service organizations “are often good, and DAV’s is the biggest, but still they don’t have the time per case a good lawyer has for obtaining evidence,” said Stichman. If Carpenter’s mostly appellate caseload of 1,000-plus seems daunting, DAV’s is staggering. In Los Angeles, nine officers and four support staff handle about 9,000 cases. In St. Petersburg, Fla., 18,000 claims are being handled by 14 service officers and six support staff. Disability cases are often complex. Proof of an injury’s connection to military service and the date the symptoms became debilitating are just two of many hurdles. A veteran with a medical malpractice claim against a VA physician or hospital will likely be represented by a nonlawyer generalist. If a claimant doesn’t start out totally disabled, the VA’s system of calculation makes it nearly impossible to reach a 100 percent disability. Despite that, persuasive advocacy can overcome the agency’s finding and get a veteran adjudged totally disabled, both lawyers and nonlawyers have said. And that makes a big difference. A married veteran who is 90 percent disabled receives $1,429 a month; a married totally disabled veteran, $2,318. Vietnam Veterans of America’s Weidman said the system needs lawyers, not just veterans’ groups. “Part of DAV’s position is based on the fact that VA, under its duty to assist, is supposed to do the work,” he said. “It’s a great theory, but it’s nirvana, and it will never come.” He thinks attorneys, other advocates and all adjudicators should have to pass a tough competency test every three years, and take yearly continuing education. “Right now, people have lost faith in the system,” Weidman said.

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