America’s unsurpassed volunteer soldiers are old and wise enough to choose risking that last full measure of devotion on behalf of the nation in Iraq, Afghanistan, Somalia, or elsewhere. Yet some in Congress would treat them as children when it comes to seeking veterans’ benefits for injuries inflicted in combat. They are coiled to repeal an option embraced by the 109th Congress for veterans to retain a lawyer to present often medically complicated claims to the Department of Veterans Affairs.
Contrary to the assertions of detractors, no veteran would be required to hire an attorney, and no veteran without an attorney would be compromised or handicapped in presenting a claim.
In our society, people have long had the right to choose to have a lawyer represent them in almost any matter, whether they are seeking benefits from the Social Security Administration, filing a lawsuit against a corporation or defending a parking ticket. Veterans were uniquely denied the option until last year. In historic legislation signed by President Bush on Dec. 22, 2006, Congress repealed an anachronistic 19th century prohibition.
After the Civil War, Congress limited attorneys’ fees in veterans’ benefits proceedings. The $10 ceiling addressed attorneys gouging veterans needing assistance with filing for their pensions. Over time with an escalation in prices, the ceiling effectively prohibited veterans from retaining counsel.
In 1988, when the U.S. Court of Appeals for Veterans Claims was created, the prohibition was lifted in part: Veterans had to go through the complete VA claims and appeals process before they could retain counsel in court proceedings. One might question whether it made sense to confine the option to retain counsel after the agency’s proceedings were complete, but at that time, it was a breakthrough.
Under the new statute enacted by the 109th Congress, which will take effect in May, veterans may retain counsel after the initial denial of a benefit claim by the Department of Veterans Affairs.
VA receives nearly a million claims each year, and few are granted upon initial application. It can take years for a claim to go through the entire VA process. By permitting a veteran to retain counsel at the early stages of administrative review, there will be great opportunity for the veteran’s counsel to submit evidence that accelerate the recognition of valid claims, and prevent a Dickensian-like tragedy of death before a claim is adjudicated.
Congress and President Bush are to be commended for taking this step. For those concerned that the attorneys may still be scoundrels, the law contains safeguards. It requires that VA have standards for permitting attorneys to practice before the agency. The law also permits VA to define what fees are reasonable for attorneys to charge, and it is likely VA will confine payments to 20 percent of any past-due benefits awarded to the veteran, so no veteran pays out of pocket.
Unfortunately, however, the battle over benefits representation has not ended. VA must announce in regulations how it will implement the statute, and Congress requires a report in 42 months.
Further, there was significant opposition from one major veterans group — although there was support from others — and this group actively seeks repeal of the new law in the 110th Congress, spearheaded by a Democrat senator. An army of adjectives might be employed to describe this ill-conceived effort to return to treating injured veterans as children as more casualties are risked in Iraq, but none would be flattering.
The new statute will reform but not revolutionize the VA system. The VA is structured so its decisions are made without regard to who represents a veteran, and the new statute does nothing to change the VA’s obligation to run its benefits adjudication in a nonadversarial manner.
For veterans, there will be more choices and competition. Veterans’ service organizations will continue to offer free representation. Attorneys will have no incentive to prolong proceedings, as they can only be paid if their client prevails. They will focus on helping the VA find evidence to substantiate their client’s claims. Everyone will benefit if veterans’ claims are more efficiently processed.
Claimants for every other kind of government benefit have long been permitted to choose to retain counsel. Veterans are joining their ranks. Now is no time for Congress or the president to retreat.
Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.