“My lawyer is not doing anything to help me!” is one of the most common complaints I hear as a veterans’ disability attorney.
The logic goes something like this: I have a lawyer representing me and my case is taking a long time to resolve. Therefore, my lawyer must not be doing something correctly.
It’s understandable that a veteran whose disability prevents him (or her) from working would be frustrated by how long it takes to resolve an appeal. That makes it easy to blame the lawyer, so I’d like to explain what constitutes an attorney not doing anything to serve his clients, versus unfairly blaming the attorney for something that is out of his control.
In a previous article, I noted that the St. Petersburg Regional Office was found to have 41,000 pieces of mail and more than 1,600 boxes of documents that were being mismanaged. Is it any wonder that it is taking a long time for an appeal to be resolved?
It appears that the VA administrative offices cannot efficiently process paperwork. Therefore, is it realistic to expect the VA to properly and quickly adjudicate your claim?
A recent report by the by the Office of Inspector General highlights weaknesses in the VA’s administrative infrastructure. Simply put, the VA is not organized or prepared to resolve appeals quickly.
What does that mean to you and your claim? If your attorney has developed your case properly, submitted all the necessary evidence, along with argument, then the next step is for the VA to review the materials and make a decision. If your claim is taking too long to resolve, it likely means the VA is at fault, not your attorney.
Think about it this way: If the VA cannot effectively handle 41,000 pieces of mail, any efforts your attorney is making on your behalf are going unnoticed by the VA. Your attorney cannot control or expedite this process.
Usually when I hear veterans complain that their attorney isn’t “doing anything” I reassure them that the delay is likely beyond the attorney’s control.
On the other hand, I have had cases where my clients have had lawyers previously. In most of those cases we eventually win the claim and then there’s a dispute as to the division of fees for the lawyers. When I look through the case file, I discover that some lawyers have done little to gather new evidence or hire medical experts. In reviewing the previous attorney’s notes, I can’t find anything that increased the weight of evidence or would lead to a favorable resolution. This would be an example of an attorney not “doing anything” for the veteran.
Still, there is one caveat: the attorney cannot properly develop forensic medical evidence until he obtains the claims file. Processing claims file requests under the Freedom of Information Act is the VA’s responsibility.
If the VA delays turning over your claims file, then your lawyer cannot begin preparing evidence to build your claim.
Now if your attorney has the file, but chooses to hope that the VA finds in his client’s favor, that, in my opinion, does not represent aggressive representation. Aggressive representation includes using outside experts to develop a strong theory and to refute any negative VA medical opinions.
It is clear to me that there are two areas where attorneys are often blamed. An attorney cannot be blamed for a delay on the part of VA to take action, but he can be blamed if he chooses not to provide expert development of his client’s appeal with strong medical experts and cogent legal arguments.
Unfortunately, the strategy of many high volume disability law firms is to simply babysit the files. They might prepare the occasional form letter in hopes that a certain percentage of these cases will eventually be won without much effort on their part.
While this sometimes works, it is not the kind of aggressive representation that veterans have a right to expect from a law firm claiming to specialize in veterans’ benefits law.
The next time you’re tempted to complain that your lawyer is “not doing anything for you” and his inactivity is delaying your claim’s resolution, please ask yourself if you are waiting for the VA to make a decision or if you are in a situation where stronger medical evidence is needed, and your lawyer has fallen short in collecting this data.
If it’s the latter, then I strongly suggest you sit down with your veterans’ disability lawyer and have a conversation about the merits of the case and whether or not a medical expert is needed. Your lawyer may have very good reasons for not hiring a medical expert, but unless you speak to him about it you will not know.
In some cases, our office delays in obtaining a medical expert until after the VA has a C&P Exam done. This allows the VA to go out on a limb and state their case from a medical perspective, putting us a good position to bring in our own expert to refute the VA’s doctor. Sometimes we do it this way and other times we start with the aggressive approach of providing the first shot of medical evidence.
In either case, be very cautious about blaming your veterans’ disability attorney for the VA’s delays. There really is nothing that the lawyer can do to change VA’s dysfunctional infrastructure. It is also unrealistic to think that your lawyer has inside connections that can somehow bypass the normal procedure and get you special favors.
A lawyer’s primary benefit is his cunning ability to understand the law and develop strategic legal strategies and strong medical evidence to support every element of the claim.