Lawyers May Soon Fight VA For War Veterans

To veterans who wouldn't mind hiring someone to deal with the VA bureaucracy: The lawyers are coming.
by Cory Reiss

WASHINGTON – Harold Youmans earned a law degree during a pause in his 28-year Army career, making him better armed than most veterans to battle the Department of Veterans Affairs for disability benefits.

Still, Youmans, who retired as a colonel, spent five years in a notoriously frustrating claims process. His case required three trips up and down the bureaucracy in the 1990s to get his 80 percent service-connected rating after a training accident and his retirement.

Youmans, who lives in Riverview, near Tampa, was lucky to have his degree because policies dating to the Civil War era prevent veterans from hiring lawyers during the administrative stages of the benefits process, where many veterans come to feel cheated in a paperwork purgatory.

The average GI Joe slogs through the long, inconsistent and backlogged benefits process alone or with help from volunteers of varying competence, sometimes for much longer than Youmans…

If they reach the U.S. Court of Appeals for Veterans Claims, a special court where paid lawyers may enter the picture, most cases are riddled with errors, lawyers said.

"A lawyer familiar with the process would raise all claims early enough that they could be considered adequately," said Youmans, who put his personal experience to work representing veterans before the court.

To veterans who wouldn't mind hiring someone to deal with the VA bureaucracy: The lawyers are coming.

Whether they will ride to the rescue or muck up things is the question that divides veterans organizations and lawmakers.

(About 62,000 military veterans live in Polk County, according to local veterans' service officials.)

This is a rare corner of society that lawyers have been kept from entering.

Strong feelings about a new law effective June 20 that lets them in reflects society's love-hate relationship with a profession seen as champion of the little guy but teeming with soulless sharks. Shakespeare's Dick the Butcher highlighted their central yet aggravating role when he famously cracked to fellow rebel plotters in Henry VI: "The first thing we do, let's kill all the lawyers."

But this is no lawyer joke.

The benefits system has a backlog of some 400,000 disability claims, with filings expected to rise because of Iraq, Afghanistan and aging veterans at home.

The backlog has long vexed the VA, veterans and lawmakers.

Last year, Congress lifted restrictions that began with a $10 cap on fees after the Civil War to discourage unscrupulous lawyers.

The VA proposed rules last week to admit paid lawyers and other "agents" to early administrative appeals.

Even Youmans has mixed feelings about the change. He said lawyers could be worth the price for many vets, but their argumentative ways could cost the system, too.

"It slows everything down," he said.

'YOU ARE ELITE'

Some veterans groups say lawyers would improve a flawed process.

"It will help dramatically," said Rick Weidman, legislative director for Vietnam Veterans of America.

"An illegal alien or an enemy combatant has a right to an attorney, but a veteran doesn't."

Others, like the Veterans of Foreign Wars and Disabled American Veterans, argue the system will harden as lawyers bring their maneuvers to bear.

Critics also worry about lawyers charging to file paperwork in simple cases that aren't worth the fees, such as claims by Vietnam veterans for certain illnesses that the VA automatically links to combat.

"What I fear here is … I'm going to be up late at night," said Gerald Manar, deputy director for the national veterans service at the VFW, "and I'm going to start seeing ads on TV saying, 'If you're a Vietnam veteran and have diabetes, come to us.'"

Sen. Kent Conrad, D-N.D., blocked a broad veterans bill last year because of the lawyer provision in it.

"People shouldn't have to go hire a lawyer to get the benefits that were promised," Conrad said last week.

He eventually allowed the bill to proceed, he said, after Sen. Larry Craig of Idaho, then Republican chairman of the Veterans Affairs Committee, agreed to repeal that provision this year.

Craig said there was a misunderstanding and doesn't expect repeal, which some veterans groups are pushing.

The proposed rules would require lawyers or claims agents, who are not lawyers but also could represent veterans, to pass a test, adhere to ethical standards and charge reasonable fees subject to review by the department.

The standard fee at the appeals court is 20 percent of back benefits, but flat or hourly fees may apply at lower levels.

The VA opposed the bill.

"As you get more attorneys involved, there might be more filings and arguments," said Richard Hipolit, assistant general counsel.

Veterans still could not hire a lawyer or claims agent initially.A claim must be denied first and an administrative appeal filed before lawyers or claims agents can enter the picture. Vietnam Veterans of America opposes even that limitation.

"Every other American, both private and public, has the right to use an attorney," Craig said.

"Since the Civil War, we have told our veterans 'You are elite. You won't get an attorney, we'll do it for you.'"

SEMPER FEE

The VFW and Disabled American Veterans maintain large networks, mostly of volunteers, to assist veterans with claims. Some lawyers also volunteer their time.

All sides agree those advocates are of great service, although critics of the VFW and DAV positions say turf is a factor in opposition to paid experts.

Critics also say there aren't nearly enough volunteers, their abilities vary and accountability is lacking.

Foes of the new law agree the system is flawed but don't want it turned into a cutthroat arena like the courts.

Some fear hiring help will start as an option but evolve into a must as hard-nosed lawyers force the department to bristle at all comers.

"It's going to become more adversarial, especially for those veterans who are not represented at all," said Joe Violante, legislative director for DAV.

"VA is going to drag their feet whether intentionally or because of the increased volume of work that's going to be generated."

Some lawyers before the court of appeals – a sparsely populated legal niche – say two factors may keep the number of lawyers from getting out of hand. There isn't much money in it, and the work is case-specific and detailed.

"I don't see a flood of attorneys going into this," Youmans said. "Their eyes are going to glaze over and they're going to say, 'Twenty percent of what?'"

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