A Veteran’s Right To Choose His Own Advocate

All told, there are relatively few lawyers who practice veterans benefits law. This is particularly true in comparison with the number of legal advocates who are involved in similar administrative programs, such as Social Security. One of the primary reasons there are so few lawyers involved with veterans disability benefits claims process is that for more than a century Congress limited attorneys to charging no more than $10 for assisting a veteran with his or her claim. Although this amount was considered to be fair following the Civil War, as inflation increased over time the $10-rule eventually became a bar that prevented veterans from hiring lawyers to assist them with their claims. A brief look at U.S. history helps provide an understanding of the reasons for the implementation of this restriction and why it was ultimately changed.

In 1636, the Plymouth Colony enacted a law providing pensions to disabled veterans. In doing so, it began a long history of providing disability benefits to those that have fought for colonial, and then later American interests. The number of veterans receiving benefits remained relatively small until the Civil War. The VA estimates that prior to the outbreak of the conflict the US government administered benefits to approximately 80,000 veterans. By 1865 that number jumped to 1.9 million – which only included those who served the Union, as veterans of the Confederacy were not awarded benefits until 1958.

The boom in veterans came with a commensurate boom in benefits provided to them. In addition to pension and disability benefits, the nation increased the medical care it provided to its veterans, began to build veterans homes, and offered Aid and Attendance benefits for the first time to veterans who required in-home assistance. Congress also authorized national cemetery burial for all veterans, which led to the creation of more than 70 national veteran’s cemeteries.

With so much money flowing into these federal programs, congress sought to impose safeguards to ensure that monies were used to benefit veterans rather than, as paraphrased by the VA, to line the pockets of “unscrupulous claims agents and attorneys.”[1] In an effort to protect the system from abuse, in 1862 congress imposed a $10.00 cap on the fees that an attorney could charge for providing assistance to a veteran with his claim. This cap arguably balanced the right of veterans to seek the assistance of an attorney or claims agent with the perceived need to protect unwary veterans from “mercenary claim-agent leeches [that might attempt to] sap the blood of any financial benefit from the Government . . .”[2].

Notwithstanding this paternalistic intent, approximately one hundred and twenty years later congress realized that a problem had arisen from this approach. Among other things, over the course of the preceding century, the veterans’ benefits system had become increasingly complex, making it difficult in some cases for unrepresented veterans and non-attorney veterans’ advocates to navigate. Additionally, the cap – which was never adjusted to keep pace with inflation – effectively discouraged attorneys from becoming regularly involved in veterans cases. Although an attorney might occasionally assist a veteran or two on a pro bono basis, it was impossible to assist veterans on a regular basis while earning enough money to pay the rent, staff salaries, and other expenses associated with staying in business because a reasonable fee could not be charged. This, in turn, frustrated veterans that desired to retain counsel to assist them. As they argued unsuccessfully to the Supreme Court in the matter of Walters v. National Association of Radiation Survivors, the cap effectively and unconstitutionally denied veterans and their survivors the opportunity to retain counsel of their own choice.

Although the Supreme Court ultimately upheld the 1862 law on a six to three vote, in 1988 congress recognized the problem and enacted the Veterans Judicial Review Act. Among other reforms, this new law repealed the $10.00-fee limitation. This Act, as later amended in 2006, now permits attorneys to charge a reasonable fee for services. Still concerned about abuse, however, congress statutorily provided that all attorney fee agreements are subject to review and scrutiny by the VA’s Office of General Counsel. Additionally, in a move that only increased the need for lawyers trained in veterans law, congress also created the Court of Appeals for Veterans Claims to provide judicial review over decisions made by the VA.

The current system, even if unintentionally, appears to give credence to Supreme Court Justice John Paul Steven’s 1985 observation that the veterans’ claims process has changed substantially from 1862, and in many instances no longer requires a veteran simply to fill out the appropriate form. Although some claims are still processed in a relatively straightforward manner, many claims now involve the submission of expert medical evidence and the analysis of complex legal concepts. Moreover, the VA itself has struggled to adapt to the dual requirements of processing substantially more claims as a result of the wars in Afghanistan and Iraq, while at the same time ensuring that it complies with the legal requirements that are now policed and enforced by the courts. Veterans that find themselves dealing with the aforementioned issues frequently benefit from the re-introduction of attorneys into the system as a result of the statutory changes over the past few decades.

[1]              Effects of Representation by Attorneys in Cases before the VA: The “New Paternalism”, Steven Reiss and Matthew Tenner, Veterans Law Review, Vol. 1 – 2009, p 7.

[2]              56 Cong. Rec. 56, 1, 5222 (1918).

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