“What’s The History of Attorney Representation of Veterans?”
Historically, the federal government has discouraged attorneys from representing veterans on VA claims. As far back as 1862 Congress limited attorney fees to just $5. This limitation was raised to $10 in 1864. Congress wanted to keep the VA claims process from becoming adversarial and they didn’t think attorney representation was really necessary. A $10 fee may have been reasonable in 1864 considering that the VA claims process was simpler and the cost of living was much lower than today.
However, this limitation on attorney fees remained in effect for more than 120 years. Because $10 would not even cover the cost of a FedEx package, the limitation on attorney fees basically prevented any attorney from being able to afford to represent a veteran.
In the late 1980’s Congress changed the law to allow for attorneys to represent veterans–and charge reasonable fees–under certain circumstances. The law allowed for paid attorneys to get involved:
- Within 1 year after the denial by the Board of Veterans Appeals (called “BVA”) to file a re-opened claim with the Regional Office for the same benefit that the BVA denied.
- To file a reconsideration motion with the BVA.
- To file a motion with the BVA to revise a decision based on Clear and Unmistakable Error (called CUE).
- To file an appeal with the U.S. Court of Appeals for Veterans Claims
The law again changed in 2006 to provide veterans with easier access to the services of paid attorneys. The current law allows for a veteran to hire a paid attorney so long as his Notice of Disagreement was filed after June 19, 2007. So, if a veteran filed a claim that was denied and he files a Notice of Disagreement on or after June 20, 2007 he can hire a paid attorney who can charge a reasonable fee.
If the BVA denies a veteran’s claim where the Notice of Disagreement was filed before June 20, 2007, then a paid attorney can get involved in the case after a final BVA decision to file a reopened claim with the Regional Office for the claim that the BVA denied, or to file a reconsideration or clear and unmistakable error motion with the BVA.
As of the date that this article was published, the majority of claims appearing before the BVA for the first time probably involve a Notice of Disagreement that was filed after June 19, 2007.
So, the bottom line is that if a veteran’s Notice of Disagreement was filed after June 19, 2007 he can hire a paid attorney to represent him at the Regional Office or the BVA.
“What About Attorney Fees for Representation at the U.S. Court of Appeals for Veterans Claims? Can I Really Get an Attorney for Free?”
Congress enacted the Equal Access to Justice Act in 1980. The attorneys often refer to this law simply as the EAJA. This law applies to cases before the U.S. Court of Appeals for Veteran’s claims. This law levels the playing field and gives ordinary citizens easier access to the courts when fighting the federal government. The idea is that it is normally very expensive to fight a legal case against the U.S. government and the average person would not be able to afford the legal fees to undertake such a litigation. However, the EAJA allows the winning party to have his attorney’s fees paid by the government.
In the case of a veteran, this means that if he prevails at the U.S. Court of Appeals for Veterans Claims, his attorney can apply to have the VA pay the legal fee. To prevail, the attorney would have to get the claim remanded or reversed. The payment of attorney fees under the EAJA works like a contingency fee–that is, the attorney can collect a fee only if he prevails in the appeal at the U.S. Court of Appeals for Veterans Claims. So, there is no risk of owing an out-of-pocket attorney fee when a veteran hires a lawyer to represent him at the U.S. Court of Appeals for Veterans Claims. There is no cost to the veteran.
Also, if an attorney represents a veteran at the Board or Regional Office level as well, and attorney fees were collected under the EAJA, then there is usually an offset of the amount already paid by the EAJA. Here’s an example: The attorney gets paid $5,000 by the EAJA for winning the appeal at the U.S. Court of Appeals for Veterans Claims. The attorney then gets the case sent back to the Board where he wins the claim. The veteran eventually receives $100,000 in past due benefits. Normally, a 20 percent contingency fee would equal $20,000, but the previous $5,000 payment under the EAJA would be deducted or “offset”. In our example, this would mean that the attorney fee for representation at the Board and Regional Office level would be only $15,000. ($20,000 minus $5,000 = $15,000).
A veteran must remember that the EAJA applies only to the part of the case at the U.S. Court of Appeals for Veterans Claims. All the talk about 20 or 30 percent of back pay only applies to representation at the Board or Regional Office level. So, you can hire an attorney just to represent you at the Court and there would be no charge to you–win or lose. And the money paid to the attorney under the EAJA would not affect your potential back pay. If you then hired the attorney after the U.S. Court of Appeals for Veterans Claims returned (or remanded) the case to the Board, then the attorney could charge a percentage of back pay as a contingency fee.
“How Much Do Attorneys Charge?”
As noted above, for representation at the U.S. Court of Appeals for Veterans Claims, there is no risk of owing an attorney fee. If a veteran hires the lawyer to represent him at the BVA or Regional Office level, there is no EAJA to pay the fee. The EAJA exists only at the U.S. Court of Appeals for Veterans Claims. So, at the BVA or Regional Office level, most attorneys charge a contingency fee. This means that there is no fee unless money is recovered for the veteran. But the VA regulations provide that an attorney fee can be based on a flat fee, hourly rate, a percentage of past due benefits, or some combination of these types of fees. The main issue is that the fee must be reasonable.
As I mentioned, at the BVA or Regional Office level, the most common type of fee arrangement between veterans and their attorneys is the contingency fee. A contingency fee is where the attorney charges a percentage of any past due benefits (sometimes called the “back pay”) contingent upon winning past due benefits. This means that the attorney will not charge an up-front fee, but will get paid a percentage of the back pay only if he wins. So, if the attorney does not win back pay for the veteran, there is no fee owed. In other words, there is no money owed unless the attorney wins.
But what is considered a “reasonable fee”? Generally, the rules provide that a contingency fee of 20 percent is considered reasonable. And a contingency fee of more than 33 1/3 percent is considered unreasonable. So fees ranging from more than 20 percent to less than 33 1/3 percent could be considered reasonable. In practice, most attorneys charge from 20 to 30 percent as a contingency fee. In other cases, the VA determines “reasonableness” of an attorney fee by several factors, such as:
- Rates charged by other attorneys
- Whether the fee is contingent upon the results achieved
- The complexity of the case
- The level of skill required
- The amount of time spent
- The results achieved
The VA will split a past-due-benefits check between the veteran and his attorney so long as the fee is no more than 20 percent. If the agreement between the veteran and his attorney charges a fee of more than 20 percent, then the VA will not split the check and the veteran will pay his attorney directly himself. Usually, this means that once the veteran receives his back-pay check, he will then write a check to his attorney for the contingency fee plus any expenses.
At this point let me say a word about expenses. In most cases, for an attorney to work on a case there are certain expenses that he is required to pay. This could be the expense of hiring a medical expert or paying to reproduce medical records. Usually, the attorney will advance the cost of the expenses and the veteran will pay him back once he receives his past-due-benefits check. The attorney cannot charge “normal office overhead” as an expense, but anything paid to directly develop a veteran’s case is considered an appropriate expense and the veteran will re-pay the attorney. In most cases, the primary expense would be to pay for the services of a medical expert or travel costs to go to a hearing before the BVA or Regional Office. So, even if the VA splits the past-due-benefits check, the veteran will have to send the attorney a separate check to reimburse him for the expenses incurred in developing the veteran’s case. The method of how expenses will be reimbursed is determined by the agreement between the attorney and his client. The VA will not withhold expense money and pay it to the attorney. The veteran will always have to pay the attorney separately for expenses.
What is “reasonable” in terms of expenses? Again, there are several factors that determine what is reasonable. For example:
- The complexity of the case
- Whether the expenses are consistent with what other representatives charge
- The potential size of any past-due-benefits check
“How Do I Know What Lawyer is Right for My Case?”
Frequently, a veteran struggles with his case with little or no significant help for many years. Then he files an appeal with the U.S. Court of Appeals for Veterans Claims and he is suddenly overwhelmed by offers from attorneys and law firms from all over the country. A veteran often wonders why he did not know about the availability of legal representation sooner.
Veterans are frequently confused over which lawyer to pick. So there are some important criteria to consider when making a selection. Here’s the reality: most of the attorneys that specialize all or at least most of their practices in representing disabled veterans are highly competent. A veteran would be well-served and in good hands with most of them. I know many of my colleagues and they are competent and effective advocates. If I were disabled and had a claim, I would feel confident in recommending many of my colleagues. So, a veteran must understand that the selection of an attorney is not whether one law firm knows the law and the others don’t. The selection is more personal and comes down to who a veteran feels comfortable working with. Remember, in some situations a veteran will be working with this lawyer or law firm for a long time and the person he’s working with must be someone he likes and someone he feels comfortable with.
To illustrate this differently, assume you moved to a new town and needed a dentist. And let’s assume that you needed your teeth cleaned. There are 7 dentists in your new town and you visit a few and ultimately pick the person who you like and want to have a long-term relationship with. All of the dentists in town would have cleaned your teeth in a similarly competent and satisfactory fashion. But ultimately, you have to go with someone you like–the person with whom you feel comfortable. The right lawyer for one person may not be right for someone else. The selection process is highly personal.
“What Criteria Should I Look for in an Attorney?”
The first thing to consider is whether the attorney you are considering concentrates all or most of his practice in veterans disability law. If a lawyer does primarily veterans disability law–and he’s been doing it for a number of years–he is most likely going to be competent to get the job done. He (or she) will have the required knowledge and skill to assist a veteran. So, a veteran can determine competency by whether veterans law is the majority of what a lawyer does. You should be cautious about hiring a lawyer who merely dabbles in a few veterans cases on rare occasions. You want to find someone who primarily represents veterans all the time.
Second, although it’s not a test of competency, I recommend considering a lawyer who is a member of the National Organization of Veterans Advocates or NOVA. The NOVA organization is like a trade organization and attorneys who support this organization with their membership have demonstrated a commitment to representing disabled veterans.
Third, you should consider experience. Although many brand new attorneys can handle cases with competency and effectiveness, it is recommended that you consider someone who has been practicing law for a reasonable number of years and has a diverse legal background. I’m not suggesting an exact number of years of experience, but I am suggesting that experience is one of several factors to consider. I don’t recommend hiring a lawyer to represent you unless he has litigated at least 200 cases at the U.S. Court of Appeals for Veterans Claims.
Fourth, a veteran should consider someone who has demonstrated a commitment to veterans’ issues. Is he or she active in leading or contributing to organizations or causes that benefit disabled veterans. In other words, a veteran should consider whether the attorney or law firm has a sincere concern for disabled veterans. There are many personal injury or negligence attorneys who have decided to add veterans disability law to their menu of services. The problem is that these attorneys may be looking at disabled veterans simply as another revenue source and are not otherwise committed to veterans. A veteran should consider whether the attorney he is considering is a member of not only NOVA, but of other veterans sections of bar associations and whether he or she is involved in any nonprofit organizations dedicated to assisting disabled veterans.
“Can I Just Hire an Attorney Who Has Military Experience?”
There is a difference between military law and veterans law. An attorney who specializes in military law does not necessarily know much about veterans law. Similarly, a veterans disability attorney may not know much about military law. Just because an attorney served as a military attorney does not mean that he also practices veterans disability law before the VA and the U.S. Court of Appeals for Veterans Claims.
“What About My Social Security Lawyer?”
A veteran may have had a Social Security Disability case and a lawyer to help him with that case. Many Social Security lawyers also practice veterans law. But if the lawyer’s practice is mostly Social Security and he only rarely handles a VA case, then this is a factor you want to consider. Having said that, there are many Social Security lawyers that represent lots of veterans and have a high degree of competency in veterans law and you would be well-served.
“Does My Lawyer Need to Be in Washington, D.C.?”
No. Representation at the Regional Offices, the BVA, and the U.S. Court of Appeals for Veterans Claims can all be done through the mail, over the telephone, by fax, and by internet and email. Distance is no problem. The Court of Appeals for Veterans Claims (CAVC) is national. It handles cases from Alaska to Puerto Rico... from Maine to Hawaii.
“Do I Need to Meet My Attorney in Person? Or Live Near My Attorney’s Office?”
No. The practice of veterans law does not require a veteran to live near his attorney’s office. In fact, most veterans would never have a need to go to an attorney’s office. Again, everything can be done over the telephone, by mail, fax, or over the internet.
“What Else Should I Consider?”
Finally, there are highly subjective factors that you want to consider. The significance of these factors is different for each person.
What kind of access will I have to my attorney? Does the lawyer seem like someone I can confide in, trust, and feel comfortable with? Does he explain things in ways I can understand?
“What About Lawyers That Used to Work For VA?”
Some lawyers received their initial training and experience in veterans law by working for the VA. Whether the lawyers have always worked for veterans or whether they have spent some time with VA, they are competent and professional. Good lawyers can argue both sides of a case. I would not hesitate to recommend any of my colleagues that used to work for VA. Some lawyers get involved in veterans disability law by having worked for the government, and other lawyers get involved from the claimant’s side–having represented disabled or injured clients. Either way, if the attorney concentrates most of his practice in representing disabled veterans, he will be competent and you will be well served.
“Considering An Attorney’s Commitment”
A good attorney knows that an educated client is a better client. A veteran should consider whether the attorney has demonstrated a willingness to educate veterans and share his knowledge. Some attorneys won’t give out any information unless they think they can get paid. But consider whether the attorney takes the time to share his knowledge generously–either through written publications or public engagements.
“What About Testimonials?”
One of the most rewarding aspects of representing veterans is the numerous unsolicited testimonials that we often receive. Keep in mind that past performance is no guarantee of future results and results vary depending on facts and legal circumstances. However, it is nice to see that an attorney has achieved excellent results for other clients. But the existence of testimonials by itself cannot predict what will happen in a particular case.
“What Happens if My Attorney Cannot Find a Viable Argument?”
There are no guarantees. Poet Robert Burns said, “the best laid schemes of mice and men often go awry”. And this applies to any type of legal case. Despite good evidence and noble intentions, sometimes things don’t turn out as expected. As attorneys we are bound by rules of ethics. This means that the VA and the Courts expect that we will not put forward “frivolous” arguments. This means arguments that have no merit and are simply an attempt to throw mud against a wall in hopes that something will stick. In the rare situation where an attorney cannot find any evidence or legal argument to support a veteran’s case, he will usually have no choice but to withdraw from the representation. If an attorney has to withdraw from a case, it does not mean that he has “sold you out”. It means that the rules of ethics require him to withdraw so as to avoid violating the Court’s rules against frivolous arguments. It’s an indication that despite the review of a professional, your claim probably lacks merit.
It’s important to remember that often an attorney will take a case with an expectation that certain evidence will be there to support an argument. Sometimes, the evidence is not in the file as expected, and the attorney’s initial expectation for the case changes. In other words, after the review of a BVA decision, the attorney may suspect an error and be willing to represent a veteran. After a complete review of the file the attorney will have a better idea about the case–for better or for worse. Sometimes veterans may be upset if an attorney is forced to withdraw, but a veteran should understand that the attorney could not predict the outcome with certainty when he initially agreed to represent the veteran.
“What happens if the attorney wins an initial award and then increases the rating?”
Under these circumstances, the attorney will be paid an initial fee as a percentage of the initial award and then if the attorney appeals and later wins an increase, he will be paid a supplemental payment for a percentage of the additional amount received.
“What are my chances for getting a remand?”
No one can predict with certainty what will happen in your case. However, we know from the CAVC Annual Reports that over the past decade the Court has remanded or reversed about 60 percent of the cases that it decided on the merits.
It can be misleading for an attorney to publish a “success rate” for his cases. Published success rates can be misleading because most lawyers will not take on extremely difficult cases. This distorts the estimates. A lawyer who takes on any case, and doesn’t choose carefully, will have a lower batting average. A lawyer who is very picky, will have a higher success rate.
On the other hand, the VA is horribly overworked and has historically made a lot of simple mistakes in presenting their cases. This increases the chances of you getting a remand.
“How does a lawyer get paid? Why do they all say it won’t cost me anything to hire them?”
Not everyone can afford a lawyer. But it is important to have one. That’s why Congress passed the federal law called the Equal Access to Justice Act (EAJA). This law allows the government to pay your lawyer’s fees and expenses.
What’s more, the money the government pays to your lawyer does not reduce or affect any money that you receive from the VA. This money is not part of your VA benefits.
Best of all, the lawyer will not get paid unless he wins a remand or reversal at the court level. If the lawyer does not get a remand or reversal he will not get paid. This gives your lawyer a strong incentive to win a remand or reversal – because your lawyer gets paid only if he wins.
IMPORTANT NOTE: A remand means you get to reopen your case at the VA level and get another chance to win the case – with new evidence, and new doctors’ reports. It does not mean you have won your case. Instead, it means that you have won the right to present your case again. In a case like this, your lawyer may get his legal fees paid under the Equal Access to Justice Act before you win benefits from the VA.
“What happens after I get a remand? Will I get more free help from my lawyer?”
Yes and no. Your lawyer may or may not be able to help you beyond getting a remand. Once you get a remand, your case goes back to the VA level. At this point, you want to add new evidence and plug holes in the case so that the Board will not deny your claim again.
Since this is not at the Court level, your lawyer will not get paid under the Equal Access to Justice Act (EAJA).
However, some lawyers will work with you at this level. They will help you get stronger medical evidence and present a stronger case. They will show you how to talk to the VA... in the best way possible, so you get your disability claim approved.
Lawyers who do this usually ask for part of your back pay, usually 20% to 30%.
For example, let’s say you were disabled several years ago, and you’ve been fighting this claim for many years. Let’s say the VA owes you $15,000 in back pay. If your lawyer helps you get your claim approved, he could ask for a fee of $3,000 (20%) or perhaps $4,500 (30%).
“The Importance of Having a Lawyer”
It’s no exaggeration to say that you should have a lawyer represent you. Why? Because the VA has highly skilled, experienced lawyers working against you. If you try to handle your case by yourself, there may be a higher chance of losing. After all, you lost your initial claim with the VA. So it stands to reason you could lose your appeal – unless you increase your chances by hiring a skilled veterans disability lawyer to work for you.
Is a lawyer required? No, but according to a December 15, 2003 article in The Wall Street Journal, “Lawyers can help you determine what your rights are. Lawyers can also help you avoid the hassle of figuring out what federal or state laws apply. ‘A lot of people do not go to a lawyer and live to regret it.’”
Now that you’ve read this article, you know that the process can take a long time. So ask yourself: Who are you comfortable working with over the next several months...over even years?
Big disability law firms usually have hundreds of cases on their desk. Sole practitioners (the lawyer who has his own office) may also be quite busy because they’re a one-man law firm.
I suggest you call and speak with me – or another lawyer in my office. We will make time to talk with you. You are our highest priority.
After you speak with various veterans disability lawyers, then choose the lawyer you feel most comfortable working with. Frankly, most of the lawyers that concentrate their practice exclusively in veterans’ law are highly competent. You’d be in good hands with any of them. Pick the one you feel comfortable with.
"How do you choose which cases to accept?"
For a number of reasons, we don’t accept every veteran’s case. Some cases have no viable basis and those should not, in good faith, be pursued. The cases we do accept vary, but they share some things in common.
You and your situation are the most important thing. We base a lot of our decision to accept your case based on you and your situation. Until we review your matter, there is no way of knowing whether we can help.
We prioritize veterans who are unable to work due to the service-related disabilities. We generally receive far more calls for representation that we can possibly handle. As such, we have to prioritize who we can help. Veterans unable to work are usually in the most severe financial situations and so we will look very carefully at a veteran’s case where he or she is unable to work as a result of his or her service-related disability.
We don’t take cases if it will spread us too thin. Your law firm should be available to you. Taking too many cases means we can’t provide existing clients–or your case–with the attention necessary.
We handle cases where we can make a difference.
We take cases with a special emphasis on mental disabilities. The reason is that mental disabilities have a greater chance of rendering someone totally unemployable.
We take cases where we have a good faith basis for winning. We consider it unethical to advance arguments when we know that legally there is no sound basis in the law or facts. We strive to adhere to the highest ethical standards.
The only way to know whether or not we can help you is for you to call us.
5 Steps to Hiring a Qualified Veterans Disability Lawyer
STEP #1: Review any materials from the lawyer. Look for testimonials, case histories and recommendations. Look for a detailed description of the veterans disability system. Look for answers to your questions. Look for detailed information about the lawyer’s background and experience.
STEP #2: Call and discuss your case with the lawyer over the telephone.
STEP #3: Find out what the lawyer thinks of your case.
STEP #4: After you receive the lawyer’s retainer agreement, ask the lawyer to go over his contract line by line and explain anything you don’t understand.
STEP #5: If you’re satisfied with the lawyer– and if you feel comfortable with the lawyer – then sign and return the agreement so the lawyer can start working on your case.
Call Toll Free at 1-888-878-9350 for a free, honest evaluation of your claim, at no cost or obligation.