Veteran Law and Changes to Hiring an Accredited Attorney for a VA Claim

State Bar of Texas Annual Meeting, Military Law Section

By Bob Goss, J.D., LL.M.

June 26, 2009

Overview:

The presentation was developed and presented to State Bar of Texas attorneys for 1 hour of CLE credit. The discussion covered an introduction to representing clients with VA claims with an explanation of PTSD issues facing veterans.

The historical prohibitions dating back to the Civil War and the gradual changes in the law regarding legal representation during the VA disability process were discussed.

The U.S. Legislation which has been enacted and the resulting effects shaping veteran law were discussed. The legislation discussed included:

• Veterans Judicial Review Act passed in 1988;
• Veterans Claim Assistance Act passed in 2000; and
• The Veterans Benefit & Health Care & Information Technology Act of 2006 (Public Law 109-461).

Pub. 109-461, 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:

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

VA Benefits available to veterans were discussed and included:

1. service-connected disabilities
2. pensions;
3. vocational rehabilitation and training;
4. FTCA and §1151 benefits; and
5. family member benefits
1. Dependency and Indemnity Compensation --- DIC;
2. death benefits based upon service-connected conditions;
3. aid and attendance --- permanent housebound;
4. education assistance for spouses and children

Service-connected disabilities requirements were discussed and included:

1. be a veteran;
2. disease, injury, event or a pre-existing condition which was aggravated by service conditions;
3. current disability;
4. nexus or connection of elements 1 and 2.

The VA Claims process was discussed and included a discussion of the steps available and the requirements for the attorney at the VARO, BVA, and CAVC.

The three types of BVA hearings were discussed and included:

1. hearing in Washington DC;
2. hearing in front of a Board member at a local VARO; and
3. a video conference hearing.

Other technical issues were presented such as the time to appeal from the BVA to the U.S. Court of Appeals for Veterans’ Claims.

The importance and definition of the effective date were discussed.

PTSD and the specific guidelines for what the VA qualifies as posttraumatic stress disorder were included. These stressors include military experiences which were terrifying, life-threatening, or stressful and included the different categories of the stressors the veteran will be evaluated.

Symptoms of PTSD were also discussed.

The time lines for obtaining a C-file, and the expectation of when a lawyer may be able to devote their full focus to VA law were provided.

The attorneys were provided with suggested procedures for how to use medical professionals to support Veterans claims.

The final segment included some of the most common errors by veterans when they are trying to obtain their VA benefits.

The presentation was well attended with over 50 section members present. Comments from other attorneys were very positive and gratefully accepted.