Who’s Responsible When Your VA Benefits Appeal Isn’t Going Anywhere?

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It’s understandable that a veteran who suffers from severe disabling conditions and who lacking the ability to work would be frustrated by how long it take VA to resolve his appeal.  One of the complaints I hear from veterans is that their lawyer isn’t doing anything to move their case along which is why it is taking so long to get resolved. The logic goes something like this, “I have a lawyer representing me and my case is taking along time to resolve. Therefore, my lawyer is doing something incorrectly or isn’t doing anything at all.” There are things about a VA appeal that an attorney has control over and other things they don’t. In this article, I will clarify what constitutes an attorney not doing anything versus unfairly blaming the attorney for something that is out of his control.

As I noted in a previous article, the Office of Inspector General found that the St. Petersburg VA Regional Office had 41,000 pieces of unopened mail in 1,600 boxes that weren’t cataloged properly. With this kind of outrageous backlog, is it any wonder that it’s taking a long time for your appeal to be timely resolved?   The  findings of the Office of Inspector General highlight the weakness in the VA’s administrative infrastructure.  VA simply does not have the infrastructure and supervisory capacity is just not in place to process appeals in anything close to a timely manner.  Once your attorney has developed your case properly, submitted all the necessary evidence along with argument, the next step is for the VA to make a decision.  Your attorney cannot control VA’s ability to process mail and materials in a timely fashion at its scanning facility.  These items are completely outside the control of the lawyer.  Your attorney can write letters to the VA every day, but if these letters are just piling up with the other 41,000 pieces of unopened mail, then all of his action is doing nothing.  

I have also had clients who previously had a lawyer.  and there is now a dispute over the division of lawyers fees.  Sometimes I see that the previous lawyer did virtually nothing to  gather new evidence or hire medical experts to support the case.  There is nothing in the file to show that the lawyer did anything to add value to the case in terms of increasing the weight of evidence to increase the chances of a favorable resolution.  However, it’s important to keep in mind that an attorney cannot develop forensic medical evidence until he gets the claims file.  Processing claims file requests under the Freedom of Information Act is something that the VA bureaucracy has to do.  So, if the VA has been delaying turning over your claims file, your lawyer cannot be blamed for the lack of evidence in your case.  

If a lawyer has the claims file but chooses to rely on the hopes that a VA doctor will write something in favor of the claim, then that does not represent the aggressive representation.  Aggressive representation involves bringing in outside experts to develop a strong theory and refute any negative VA medical opinions.  An attorney cannot be blamed for a delay on the part of VA to take action. But a lawyer can be blamed if he chooses not to provide expert development of his appeal with strong medical experts and cogent legal arguments.

The strategy of many high volume disability law firms that represent thousands of VA and Social Security disability clients is to simply babysit the files, file a few form letters here and there, and hope that a certain percentage of these cases will eventually be won without much effort on their part.  While this may work as a model for some large disability law firms, this is not the type of aggressive representation one should expect from a law firm that specializes in veterans’ benefits law.    

If you’re tempted to complain that your lawyer is not doing anything and this is why VA hasn’t made a decision, please ask yourself this: Are you simply waiting for VA to make a decision or are you at a point where stronger medical evidence would help support your case and your lawyer isn’t doing anything to get that evidence?  If it’s the latter situation, I strongly suggest you sit down with your veterans’ disability lawyer and have a conversation about your case and whether or not a medical expert is needed.  Your lawyer may have very good reasons for not hiring a medical expert. For example, there are times when a lawyer wait to get a medical expert until after VA has done a C&P Exam.  Lawyers do this because in the C&P exam VA has to state their case from a medical perspective. Once the lawyer sees what’s in their report,  it puts them in a good position to have the last word on the case when  their own expert refutes the VA doctor.  Sometimes it makes sense to wait  and other times it makes sense to  start with an aggressive approach with  the first shot of medical evidence.

In either case, be cautious about blaming your veterans’ disability attorney for 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.  Most lawyers are not politicians with connections that can pull strings inside the VA. So if you are expecting your lawyer to do this, then you may be expecting something that is unrealistic. A lawyer’s primary benefit is his ability to understand the law, develop strategic legal strategies, and develop strong medical evidence to support every element of the claim.  

If you think your VA benefits appeal is languishing because your lawyer isn’t doing anything to develop your case, contact our law office today for a free consultation.

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Eric Gang

Eric A. Gang, Esq. is a veterans’ disability attorney who represents disabled veterans nationwide in their appeals for VA disability benefits. He has litigated over 500 appeals at the U.S. Court of Appeals for Veterans Claims and has recovered millions of dollars in retroactive benefits for disabled veterans. His work has been mentioned in media outlets across the country. He publishes and lectures widely in the area of veterans benefits. You can reach him at (888) 878-9350 or www.veteransdisabilityinfo.com.



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