Veteran Disability Claims: Lawyers' Call to Action

Article published in The Houston Lawyer, Volume 46 Number 2, September-October 2008, at 16 and reprinted by permission.

Veteran Disability Claims: Lawyers' Call to Action

By Robert B. Goss

According to the Department of Veterans Affairs, there are approximately 23.8 million living veterans in the United States and approximately 37 million dependents of living veterans and survivors of deceased veterans. Combined, these groups represent 20 percent of the country's total population.1 Many of those veterans have service-connected disabilities, claims for which are handled by the U.S. Department of Veterans Affairs ("VA").

How the VA Gets the Veteran's Case

The military bureaucracy is difficult to navigate for an injured soldier, sailor, marine or airman who is subsequently determined to be unfit for duty. Once a member is classified as medically unfit for duty, the military separates or medically retires that military member. The discharged veteran suffers traumatic life changes and faces new challenges to understand and come to terms with his/her disability, unemployment and perhaps, homelessness.

The military services and disabled veterans rely on the VA to take care of the wounded veteran after military discharge, through an administrative process for handling disability claims. Remarkably, until recently, veterans were not allowed to retain attorneys to represent them in the disability proceedings.

In 2007, after over a 140-year prohibition that prevented veterans from hiring attorneys, Congress passed the Veterans Benefits Health Care and Information Technology Act, which allows veterans to retain counsel for VA proceedings when the VA either issues a rating decision that the veteran disagrees with or denies the claim entirely.

Historical Background

During World War II, all Americans suffered and endured the horrors of war. Everyone from the President to the average American played a part in winning the war, from rationing to serving in combat. At that time, all Americans understood the sacrifice made by veterans and supported re-training and rehabilitating wounded veterans.

It was widely accepted by the government and population that disabled veterans sacrificed and paid for their disability benefits. The VA supported veterans through numerous programs, enabling disabled and able-bodied veterans and their families to use benefits earned through military service to live rewarding lives following military discharge.

Judicial Oversight Comes to the VA

Over a period of decades, the VA operated with little judicial review or supervision. Critics claimed that reform was needed, because orders denying VA benefits were seldom overturned.

In 1988, Congress passed and President Ronald Reagan signed the Veterans' Judicial Review Act ("VJRA"), which introduced judicial oversight to VA proceedings for the first time. The VJRA legislation created the U.S. Court of Appeals for Veterans Claims ("CAVC") and authorized veterans to hire attorneys to represent them before the CAVC within one year of receiving a denial of their claims from the Board of Veterans Appeal.

Twenty years after the passage of the VJRA, the number of VA claims still soars. Even before the influx of Iraq and Afghanistan war veterans into the VA system, veterans waited many months or more to get a decision on their rating claims. Lawyers are needed to lead the fight to protect veterans' rights and claims, and to help the VA claims process work more effectively and efficiently.

Veterans Claim Assistance Act (VCAA)

In 2000, Congress passed the Veterans Claim Assistance Act ("VCAA"), which requires the VA to provide a reasonable effort in assisting a veteran to establish evidence with a claim. Many denial letters contain language that "the veteran failed to" do or provide something for consideration by the VA, which shows that overworked VA rating specialists were unable to assist veterans in obtaining evidence to support their claim. Thus, even after passage of the VCAA and VJRA, a denial of a claim may eliminate a case from the VA backlog, but it may leave the veteran with no benefits from a legitimate claim.

The VA System

The two major VA monetary benefit programs are Compensation and Pension ("C&P"). To put the challenge of veterans claims in perspective, the Houston VA Regional Office ("VARO") has approximately 27,745 C&P claims pending. In comparison, the New York City VARO has about 10,667 C&P cases pending. These are only the pending claims in two of the 57 VAROs nationwide. Moreover, the Houston VARO has 5,075 veterans rating cases that have been pending for over 180 days.

The VA Claims Process

Once an appeal is filed at the VARO, the veteran needs an attorney to prepare and present the legal arguments and to assemble relevant documentation proving entitlement to compensation, benefits or pension. During the VA claim process, the first requirement to receive a service-connected disability rating is to prove that the claimant is a veteran, using Department of Defense Form 214. Next, the veteran must prove that he or she has suffered a disease, injury, event, or aggravated a pre-existing condition during the dates of service. The resulting service disability must have a nexus to a current existing medical disability. There are myriad examples of disabilities considered by the VA, including gunshot wounds, lost limbs, losing an eye due to an accident or war, or asthma being aggravated by work conditions.

Proving a Service-Connected Disability

Medical records and expert medical testimony are the best ways to prove disability claims, and the best places to start are the veteran's service and medical records. For example, if the veteran's service records prove the veteran received a Combat Infantry Badge, this proves he or she is a combat veteran. Coupling evidence from service records with the veteran's service medical records is one means to show a current disability is linked to a service-connected disability.

There are different types of evidence that the Board and the Court will accept. The best evidence, in most instances, is a medical report or testimony from a medical professional/expert stating both that a veteran received an injury or aggravated a pre-existing condition while serving in the service and that the veteran's current disability is linked to the service disability. However, as only a medical professional may make a medical diagnosis or opinion, it is important that a medical professional make this claim in order for the report or testimony to be accepted as evidence. Yet, some disabilities do not require a medical opinion. For example, a clean bullet wound may have left a scar entering and exiting. The scar will not require a medical professional's opinion, but any claim of a resulting muscle disability to the veteran requires testimony from a medical professional.

The New Law

The Veterans Benefits & Health Care & Information Technology Act of 2006 allows VA claimants to hire and pay an attorney to represent them before the VA prior to a final Board of Veterans' Appeal if:

the regional office has denied the claim;
the claimant has filed a notice of disagreement ("NOD");
the NOD was filed on or after June 23, 2007; and
the representation for which the claimant is paying is on the claim(s) that were subject to the NOD.

Only attorneys and agents accredited by the VA General Counsel can represent veterans. The VA has guidance on what fees an attorney may charge for services. Under 38 CFR S 14.636(f), attorney's fees are presumed reasonable if they are 20 percent or less of the veteran's benefit.

What Lawyers Can Do

The recent changes regarding legal representation could not have come at a better time for the thousands of veterans who are in need. Lawyers must establish precedent by using the law to guide VA rating specialists and proving veterans are entitled to their benefits.

The VA benefits claim system places the burden of proof on the veteran, thereby creating an environment lawyers readily understand. However, the VA should have a procedure in place under which veterans provide their DD-214 forms, proving honorable discharge from the military, and then submit their service medical records containing proof of injury during their military service. With this proof, the VA should make rating decisions based on the substantial evidence in the veterans' service and medical records.

Attorneys can start to eliminate the backlog in the VA disability rating system by ensuring well-supported claims are developed and forwarded for the VARO appeal. Further, the new law allows the attorney to begin representing the veteran and preparing the case as soon as the veteran has filed the NOD.

Lawyers can help veterans with legal service from the initial VARO appeal to both the Board of Veteran Appeals ("BVA") & U.S. Court of Appeals for Veterans Claims.5

Problems for the Attorney

Attorneys who represent veterans face many obstacles in their representation of the veteran. Many veterans have "toughed it out" and waited years to file a claim. Others do not realize their statements fail to prove the medical disabilities they currently suffer. For instance, these types of veterans can tell you the exact day and hour the ammo depot blew up in Vietnam 100 yards from their position and that they have suffered tinnitus (ringing in the ears) since that explosion. However, after returning to the states, some of these veterans have never filed a VA claim; they may have just wanted out of the military. Now 30 to 40 years later, the veteran is looking for help to prove they have a service-connected disability.

As with other types of cases, veterans and their counsel may have to confront "an intervening event" defense, or an argument that the veteran had a preexisting condition, either of which would lead to a denial of benefits. What makes VA disputes unusual and challenging for attorneys is that claims that would be barred by statutes of limitations under common law are still valid in the VA system, but the evidence is often hard to obtain because it is years or decades old.

Conclusion

As attorneys, we must not fail to appreciate the sacrifices of those who have served our nation. We can do our part by helping veterans take advantage of new legislation that allows them to obtain representation in the VA disability system. In the end, attorney involvement will lead to a decrease in the backlog of VA cases, and will help veterans receive fair and timely decisions on their claims.

Bob Goss, of the Law Office of Robert B. Goss, P.C., is one of only a small number of veterans' law attorneys practicing in the U.S. He is accredited by the Department of Veteran Affairs General Counsel as an attorney qualified to represent veterans. Bob is a retired USAF Officer having served almost 21-years, until an injury led to his retirement. He has earned a Doctor of Jurisprudence (J.D.) and two Master of Laws (LL.M.) degrees. In addition to veterans' law, he practices in health, consumer, and intellectual property law.

Endnotes

1. United States Department of Veterans Affairs. Fact Sheets. Obtained at: www.va.gov. 2.Id. 3.Id. 4. Office of Performance Analysis & Integrity, July 26, 2008. 5. These appellate processes are legal proceedings governed by Title 38 of the U.S. Code and the Code of Federal Regulations Title 38 that directs the Department of Veteran Affairs.