(A version of this article appeared in the Summer 2009 South Carolina Young Lawyers magazine)
On Tuesday, March 24, the YLD teamed up with the University of Detroit Mercy School of Law’s Project SALUTE program to host a CLE on veterans’ benefits law. In exchange for agreeing to accept a pro bono case, attorneys were trained to help disabled military veterans navigate an often complex and almost always long process toward a disability award and monthly benefits. Monthly benefits offer many veterans the lifeline they need during difficult times and for a single veteran without dependent children can range from $115 to $2,471 based on the severity of the disability as determined by a schedule of injuries.
Most of us are aware of hospitals run by the Department of Veteran Affairs, but the VA also has a Veteran Benefits Administration. Most veterans that can show a current disability connected to time in the military can receive disability benefits. Surprisingly, the requirement of a current disability does not need to be something as dramatic as resulting from a combat wound. Instead, it can be anything from arthritis caused by a broken ankle sustained in the service to a chronic disease, such as hypertension, that first manifested itself during the veteran’s time in the service. The requirement is merely that the injury or condition has to have started during service or been caused by an injury during service.
One of the major issues in establishing a disability rating is demonstrating a medical nexus between the injury and the veteran’s time in the service. Taking our example of arthritis from a broken ankle, a veteran could show that the arthritis was linked to the broken ankle by obtaining a statement from a physician that the arthritis was caused by the broken ankle. Importantly, the standard for physician testimony is not the familiar “reasonable degree of medical certainty” but a less onerous “more likely as not” standard. However, obtaining this medical nexus statement from a physician is frequently a hurdle for a veteran who does not have the funds to seek out a private physician because VA physicians might not include such a statement in their examination report. For instance, when a veteran seeks disability for Post-Traumatic Stress Disorder (PTSD), the VA physician will frequently refuse to diagnose with PTSD and instead find non-specific anxiety.
Another difficulty for the veteran is that the process is non-adversarial and attorneys can not be paid by the veteran to help until later stages in the process. The result is that many veterans are unrepresented and do not “adequately” prove their claim to VA agency tribunal that some view as hostile to many veteran claims.
A veteran starts the process by making a claim of disability to the VA. Interestingly, there is no time bar or equivalent to a statute of limitation. After a claim as been made, the VA has a duty to assist the veteran in developing his claim by doing such things as requesting past medical records and ordering a compensation and pension medical examination which is conducted by VA physicians. A VA regional office (VARO) employee will make an initial decision and award or deny a disability rating. A veteran who is dissatisfied with this decision may appeal to the Board of Veteran Appeals (BVA) which is still an agency tribunal. It is at this time the veteran may first have paid counsel who will appear with the veteran at an informal hearing. The VA requires attorneys to be accredited. This is free and done by completing a relatively simple VA form 21a.[1] I should note that despite the prohibition on payment, many attorneys do work on a pro bono basis before this point and can significantly improve a veteran’s chance of being awarded a disability rating.
After the BVA makes its decision, the veteran may for the first time appeal to a non-agency tribunal, the Court of Appeals for Veteran Claims (CAVC). Cases before the CAVC are similar to other appellate courts in that they are decided on a record produced below and on briefs written by the parties. From 1995 to 2007, 75.8% of the cases before the CAVC were reversed or remanded in favor of the veteran.[2] Appeals from the CAVC are heard by the Court of Appeals for the Federal Circuit and then the U.S. Supreme Court.
Beginning at the CAVC level, attorneys for prevailing veterans can receive substantial hourly rates under the Equal Access to Justice Act (EAJA). The rate is fixed by a formula and varies but is approximately $165 an hour at present. Otherwise, paid attorneys who become involved to develop and present the claim before the BVA typically receive 20% of any past due benefits. For instance, a veteran claiming a disability who files in March 2009 and is granted a rating in April 2011 will have over 2 years of past due benefits owed to them by the VA. An attorney charging 20% of the past due benefits can receive a check directly from the VA for those amounts. An attorney can charge more than 20% as long as it is “reasonable”; however, if charging more, they will not be paid directly by the VA.
The lesson from the CLE was that an attorney can achieve results that seem amazing to oftentimes frustrated veterans. Along the way, the attorney might also find joy in helping the forgotten and needy.
The above is merely intended as an introduction to veterans’ benefits law. If you want more information, the following links are helpful:
http://www.vetapp.uscourts.gov/
[2] Stichman, Barton F. and Ronald B. Abrams, Eds., Veteran Benefits Manual 5 (2008).
[3] http://www.govoepp.state.sc.us/va/mission.html (checked
