VA Judicial Review flaws leading to an increase in Attorneys dealing with VA Appeals

What are the many reasons that Veterans need legal access?

By law, the decision of the Veterans
Administration to grant or deny benefits
supposedly gives VETERANS the benefit
of the doubt (pun intended). Because of
that and the agency’s mandate to
advocacy of its constituency – America’s
Veterans, the system has been presumed fair, and I highlight presumed. If the VA system were fair, and if it was not traditionally designed to discourage Veterans from seeking claims, appeal or redress, not one Veterans Service Organization would have nor need a Veterans Service Officer.
However, the status quo of older VSOs that ensured Veterans are generally barred from seeking any professional legal review of denials outside the VA agency, and appeals in courts have been specifically precluded has not only been recently challenged by younger Veterans groups and the legal profession, but even a few of the older veterans groups that once opposed any significant influx of professional lawyers to compliment let alone replace their National Service Officers is slowly CHANGING.

Robert L. Hanafin
Major, U.S. Air Force-Retired
VT Staff Writer
Editorial Board Member

      A century ago Congress, to keep non-government controlled lawyers from gouging the unwary, passed a measure saying veterans pressing their claims within the agency were forbidden to pay lawyers more than $10 in fees. That ceiling, enforceable by criminal action against lawyers who violate it, has traditionally deprived most veterans of legal representation before the V.A. Only lawyers willing to work without pay or lawyers paid by third parties may appear before the agency’s panels.

I believe that on average an initial legal consult with any lawyer today can run from a low of $50 bucks or and high of $100. It’s obvious that this $10 fee ceiling was conceived sometime in the far distant past like the Great Depression when most of America’s Veterans could ill afford a $10 attorney fee much less 50 bucks.

Significantly, efforts in Congress since the end of the Vietnam War (mid-1970’s) to alter this system have been resisted by the V.A. and most of the major national veterans’ organizations, because it has not been in their self-interest to do so. That debate raged most recently at the beginning of the Global War on Terror as our youngest generation of Veterans began to overwhelm the VA system and not join older VSOs in record numbers.
Most VSOs have close ties with the VA system or they would not be able to display their logos in the lobby of almost every VAMC. In fact those veterans and military family groups that work harder to end wars and challenge the status quo of VSOs will never be allowed to display their logos that question the status quo. But political correctness HAS NOT and IS NOT the motivation behind older VSO’s passionately opposing Veteran access to legal council outside the VA system.
It has never been in the self-interest of VSOs to allow or encourage Veterans access to VA Claims or Appeals assistance outside of the VSO network. Most every VSO with close ties to the VA system have Veterans Service Officers and National Service Officers that well serve that purpose without a legal degree or education. If you don’t know who they are next time you get access to a VA Hospital note the logos somewhere in the lobby.
In a nutshell, come the 21st century, America’s Veterans have access to quite a few decent NSOs and VSOs, but that access is not enough nor has it ever been as qualified as some law firms have always been or a great number are becoming. I intend providing a national listing of those attorneys in part three of this three part post.
Despite VSO opponents claims that lawyers will jump on VA Appeal process like ambulance chasers, as the listing in part three of this Special Report will show – those lawyers schooled or specializing in VA Claims and Appeals are few in number, but that number is growing to meet the needs of younger Veterans these attorneys foresee overwhelming the VA system and encouraging the system to become more restrictive in the name of cost savings.
Note that those who choose to run this gauntlet as I have that you most likely will find no lawyer close to your hometown unless you reside near a VA Regional Office. However, most VA appeal or federal court cases end up in the city where your VA Regional Office is located not where your VA Hospital or Clinic is located, so it behooves us to get legal council from a lawyer close to the Regional Office or where ever your court battle takes you including Washington, DC.

V.A. POWERS FACE CHALLENGE AT A CONGRESSIONAL HEARING (Circa 1987) http://www.nytimes.com/1987/03/15/us/va-powers-face-challenge-at-a-congressional-hearing.html

Without going into detail, I now have both a complaint filed with the VA Inspector General that kicked off a cover their butt investigation, plus a response from Secretary Shinseki’s office that throws me into the slow moving DENY-DELAY-DENY-UNTIL WE DIE bureaucratic morass that has been designed to discourage most Veterans from dealing with it. I’ve decided to take on the VA system win or lose. Simply put, although not a learning curve for me, I’ve worked for the VA, regardless it’s already been an eye opening and learning experience that I passionately desire to share with you as a Retired Military Officer, because when it comes to the VA Appeals process quagmire, we Veterans are treated more equal than at any other time during our military careers be they short or long. It also is an experience any reporter let alone editor of any mainstream media outlet would well almost die for (No pun intended). Fortunately, VT is not THAT mainstream, but we are working on it.
I seriously hope others in the same boat or unfamiliar with just how complex and discouraging the VA disability process can be will benefit (pun intended) from what I’m learning the hard way, because if this is what career military officers would and do have to go through and no I do not resent being treated just like my fellow Veterans, because if you are thrown into the VA appeal process – misery enjoys company! To comtemplate what the rest of you will go through makes me sick, but now I’ll really be able to relate!!!
Let’s start at the beginning with a little background, and since my complaint has opened a case file with the VA Inspector General that has initiated an investigation like the wolf guarding the hen house, I’m not at liberty to discuss my particular case. Suffice it to say that I’m already 100% service-connected; I already receive full VA compensation. My complaint to the VA/IG is about a "the Veteran is out to scam the VA system attitude," some have heard the official political phrase used by the Obama administration to get into office as – Veteran unfriendly attitude that overwhelms the VA system almost more than the number of Iraq and Afghanistan Veterans being dumped into or onto it. An attitude that Secretary Shinseki has promised to fix, because as we all shall see – via management changes.
My request for reimbursement is for out of pocket expense I paid for surgical care that no one offered me at the VA. In fact, I was officially informed that although no one informed me of the surgical alternatives available at the VA, I was expected to ask the Doctor for his/her professional opinion, and since I was ignorant of what the alternative were, the medical and dental care was actually offered by the VA, so my request for reimbursement could not be adjudicated. Hell, I didn’t even get a denial but a form letter from the VA Hospital Director informing me that it wasn’t even worth denying.
I don’t know how it works at your VA Medical Center, but how come every correspondence I get from our Hospital Director is NEVER signed by him/her? That in itself is insulting and questionable. However, that’s another story and view I’ll share with the VA Inspector General and General Shinseki’s office. What you need to know is just how complicated and long drawn out the VA Appeal process is and that alone tells me or any intelligent person who was in the military and could THINK for themselves that this bureaucratic crapola not only needs but requires a legal professional to hold our hands who ideally has no ties to a VSO, or VA system, or Justice Department for that matter. Just before the 2004 elections I attended a Veterans Protest in Washington, DC in line with a law suit filed against the Department of Defense that indirectly involved the VA. In fact, Senator John McCain was a guest speaker. Postcards were being handed out by a few short tour Veterans that us retired military officers tended to frown at and take well tongue in cheek. These post cards read, "The VA Claims Processing and Appeal Process – DENY-DELAY-APPEAL-DENY-DELAY-DIE."
Those post cards had a photo of Arlington National Cemetery and a human bugler not the recorded tape player most of us will get. The jest was that the VA Claims and Appeal process was designed to deny, run Veterans through a prolonged appeal process, then to the courts controlled by the VA, hoping that the Veteran would either give up or die of whatever they were appealing. Back in 2003 or so, I thought this was maybe overreacting a little, but hell I had my 100%.
Once I got a gander at just how complex and long term the VA Appeal process could and in most cases does get, I learned that the DENY-DELAY-APPEAL-DENY UNTIL WE DIE postcards are still not far from the truth even though a Democrat director is now in charge. And, if you are going to try convincing me there’s nothing political about the VA system, I’ve got a Google of information to confirm you are dreaming. Hell, having a House and Senate Veterans Affairs Committee and shifting VA management system based on partisan political appointments alone makes the VA one of the most politicized departments in the executive branch bar none.

The VA Appeal Process – the long and winding road designed by WWII Vets intended to lead to discouragement and death.
The VA Appeal Process designed after WWII has been around with little change since the Vietnam War when the Veterans Administration was run by former leaders of the American Legion and/or VFW and their cronies. It was thus a process designed by the WWII generation that then controlled the VA system and to a large extend via their organizations today still do. However, along came the Vietnam generation who to a degree broke that stranglehold that is until too many Vietnam Vets or more appropriately Vietnam Era Vets begin collaborating with or worse yet joining their WWII fathers and grand fathers in designing a Veteran is the enemy attitude at the VA that would be surly used by non-Veteran politicians. Beginning with the arguments laid down by the far right of center in Stolen Valor, most right-wing Veterans, regardless if they served in combat or not, view the VA as a welfare system and that normal and successful Veterans have no need VA compensation, and certainly have not earned it. Once VA pensions became exclusively needs based, and the process of a needs based system to was used to exclude Veterans was in place the social welfare institutionalization of the VA was complete.

VA System broken since the 1980s echoes today with little change.

Way back during the Reagan Administration (1988) the House Government Operations Committee filed a report with Congress that leveled some of the harshest criticism ever leveled at the VA. This was of course politically motivated by Democrats on the committee, but nine of the committee’s 15 Republican members filed a dissenting statement, in which they supported the Reagan Administration’s opposition to judicial review for
veterans.
They acknowledged that there were problems at the VA but said all that is required is management changes. This is the same refrain WE are now hearing from the Obama administration, out of Secretary Shinseki’s office, and most VSOs. What are the lessons for our younger generation to learn from these political mistakes because being a Democrat or Republican really has nothing to do with it – why not, because it’s traditionally been a bipartisan problem that is and always will be systemic in origin. Attacking the bipartisan political problems or VA management is part of the problem NOT the solution. The VSOs have traditionally been part of the problem NOT the solution, because younger Veterans are almost, and I highlight almost, forced to join their father’s or grandfather’s VSO not only in order to access the claims system but especially if that system takes you into the long, drawn out by delays, appeal system. Is it any wonder why some die hard VSOs including the DAV continue to oppose judicial review and professional legal access for America’s Veterans? They fear losing the political clout they’ve had since WWII. They acknowledged that there were problems at the V.A. but said all that is required is

The 1988 report accused the Board of Veterans Appeals of favoritism in granting veterans’ claims requested by influential members of Congress and in sometimes failing to weigh all medical evidence of applicant’s disability.

Veterans’ Groups Named and Criticized in the 1988 Report

The report focused unusual criticism on the three largest national veterans’ service organizations, particularly the Disabled American Veterans. The D.A.V., the Veterans of Foreign Wars and the American Legion were named in the report as contributing money sought by Gerald P. Moore, a former VA director of the compensation and pension service, who resigned after he was accused of violating conflict of interest regulations. The committee said the veterans’ groups provided funds that allowed Mr. Moore to ”host receptions” at Washington hotels for their leaders and the agency’s claims adjudication officials. Question for us younger veterans is this a practice that still goes on while our troops are fighting and dying in Iraq and Afghanistan in order to come home and fight another war with the VA?

Congress Criticizes the VA and VSOs
http://www.nytimes.com/1988/08/21/us/veterans-administration-criticized-for-errors.html

Part Two of this Three Part Report will focus on the VA Disability Process.

Robert L. Hanafin

Readers are more than welcome to use the articles I’ve posted on Veterans Today, I’ve had to take a break from VT as Veterans Issues and Peace Activism Editor and staff writer due to personal medical reasons in our military family that take away too much time needed to properly express future stories or respond to readers in a timely manner.

My association with VT since its founding in 2004 has been a very rewarding experience for me.

Retired from both the Air Force and Civil Service. Went in the regular Army at 17 during Vietnam (1968), stayed in the Army Reserve to complete my eight year commitment in 1976. Served in Air Defense Artillery, and a Mechanized Infantry Division (4MID) at Fort Carson, Co. Used the GI Bill to go to college, worked full time at the VA, and non-scholarship Air Force 2-Year ROTC program for prior service military. Commissioned in the Air Force in 1977. Served as a Military Intelligence Officer from 1977 to 1994. Upon retirement I entered retail drugstore management training with Safeway Drugs Stores in California. Retail Sales Management was not my cup of tea, so I applied my former U.S. Civil Service status with the VA to get my foot in the door at the Justice Department, and later Department of the Navy retiring with disability from the Civil Service in 2000.

I’ve been with Veterans Today since the site originated. I’m now on the Editorial Board. I was also on the Editorial Board of Our Troops News Ladder another progressive leaning Veterans and Military Family news clearing house.

I remain married for over 45 years. I am both a Vietnam Era and Gulf War Veteran. I served on Okinawa and Fort Carson, Colorado during Vietnam and in the Office of the Air Force Inspector General at Norton AFB, CA during Desert Storm. I retired from the Air Force in 1994 having worked on the Air Staff and Defense Intelligence Agency at the Pentagon.