To say she was appalled at how I managed to mess up my application is an understatement. Over the next hour she poured over the medical records I’d managed to copy when I left Ft. Benning, asked me questions about my health, and helped me to understand a little bit about how VA deals with disability claims. I will be eternally grateful to her for help with what seemed to be the most confusing government system I had ever seen — which is saying a lot given that I had been in government service since 1996.
I have practiced veterans law in one capacity or another since 2008, helping to found West & Dunn in 2016. I have also been involved in the veterans nonprofit world since 2011. I regularly talk to, with, and about veterans and their disability claims. Here are some of the comments I most often hear:
My appeal is too complicated. The VA is too frustrating. I don’t understand how the VA system works. I don’t have time to deal with my claim for service connected disability benefits. Why does VA keep changing the rules? I thought the VA system was supposed to be non-adversarial. Why does VA not care about what the Social Security Administration (or Department of Defense) has to say about my disability?
IS THE VA DISABILITY SYSTEM NON-ADVERSARIAL?
By law, the VA disability benefits system is supposed to be non-adversarial in nature. By law, VA has a duty to assist veterans with the development of their claims. Without delving into finger-pointing or blame, the reality is that for many veterans the system is adversarial, and whatever assistance is provided by VA is not sufficient to allow them to successfully obtain their benefits.
WHAT ARE MY OPTIONS IF I WANT HELP?
If you decide to seek help with your VA claim, your options depend on the stage at which your appeal is pending. If you are filing an initial claim, or have already filed a claim but have not yet received a decision, you can ask an accredited representative from a Veterans Service Organization (“VSO”) to help. If you have received an adverse decision from VA, then you can choose whether you would like to retain a VSO, attorney, or claims agent as your advocate.
WHAT IS A VSO?
A VSO is an organization that has received a federal charter allowing it to provide assistance to veterans. There are lots of VSOs, but the ones you most often hear about are commonly called the Big Six: VFW, American Legion, DAV, AMVETS, PVA, and VVA. In addition, VSOs may be tied to state or local government. You can find state sponsored VSOs through your state veterans agency, and county VSOs can be found through the directory maintained by the National Association of County Veterans Service Officers.
VSOs employ accredited representatives, who have received training regarding VA benefits, and are recognized by VA as qualified to assist veterans with their claims. You should never just assume that someone who offers to help you is accredited by VA. You can check someone's accreditation through the VA’s eBenefits website or the online database maintained by VA’s Office of General Counsel. This is important. There are lots of organizations that offer to help veterans with their claims, but are not accredited. Even though accreditation is not a guarantee that the representative will succeed in helping you win your claim, it still provides some measure of quality assurance.
Finally, it is important to note that reputable VSOs and accredited representatives do not charge veterans for their services when filing initial claims. These services are provided to veterans for free under the premise that a veteran should not have to pay someone to obtain benefits from the government to which he or she is entitled. If someone offers to help you file an initial claim in exchange for a fee, this is commonly a tip-off that the individual is not accredited.
WHAT ARE MY OPTIONS ON APPEAL?
Sometimes VA gets it right, and correctly grants or denies an appeal. Sometimes, it completely botches the decision. Still, other times VA makes a correct decision with respect to some portions of a claim, but not with respect to other portions. If you receive a decision that you believe wasn’t decided correctly you have additional options if you would like help appealing the decision.
First, you could decide to continue working with an accredited representative from a VSO. This option is available for all appeals that are pending before VA or the Board of Veterans Appeals.
Alternatively, you could decide to hire an attorney or accredited claims agent. Attorneys and claims agents also need to be accredited; however, they will commonly charge for providing assistance.
HOW MUCH DOES AN ATTORNEY COST?
Unlike other legal matters, federal statute imposes some controls on the amounts that attorneys may charge for assisting a veteran. Attorneys’ must be “reasonable,” but there is some flexibility involved. In most instances, reputable attorneys charge fees on a contingency basis applied to any back-pay award granted. This means that the attorney will only recover fees if your appeal is successful, and the fees will never exceed a percentage of the back-pay awarded.
By statute, a contingency fee of less than 20% will be presumed to be reasonable.
Also by statute, a contingency fee of more than 33% will be presumed to be unreasonable.
Sometimes VA attorneys will choose to cap their fees at 20%. This is because VA will pay them directly if the fee is 20% or less of the back-pay awarded. When the fee is greater than 20%, VA will pay the entire amount to the veteran, and then the veteran will need to pay the attorney.
SHOULD I HIRE AN ATTORNEY?
Whether you should hire an attorney depends upon your individual circumstances. Here are some things to consider when making this decision:
There are good attorneys and bad attorneys, just like there are good accredited VSO representatives and bad ones. If, for any reason, you feel uncomfortable with your attorney or VSO, do not feel obligated to continue that relationship. You are entitled to change your advocate at any time, and should never feel stuck or trapped with an advocate that you don’t feel comfortable with.
Some appeals involve complicated legal questions. Others do not. Some VSOs understand complicated legal questions, others do not. Give some thought to the complexity of your claim, whether you believe that it would be helpful to have an attorney involved, and whether you are comfortable with the cost of retaining an attorney to provide that help.
Some appeals are relatively straightforward, and probably do not require the assistance of someone with formal legal training. However, you need to remember that the choice of who will serve as your advocate is yours and yours alone. When we receive calls from vets who do not have a particularly complicated claim we will often advise them that choosing to work with a VSO rather than an attorney is reasonable. Ultimately, however, the choice of who will serve as your advocate is yours and yours alone. If you prefer to work with a VSO that’s fine. If working with an attorney will provide you with greater peace of mind, that’s fine as well, as long as you acknowledge that attorneys generally charge for services.
The workload managed by many VSOs is astronomical. They are often doing yeoman’s work with limited resources, and in many instances doing a fantastic job of it. However, the volume of cases can sometimes be a limiting factor. Attorney workloads tend to be a bit more mixed. Those who regularly practice veterans law still tend to help lots of veterans, but in many instances, the caseloads are not quite as high as those managed by VSOs. This sometimes provides attorneys with an opportunity to spend more time assessing your claim and any legal issues that come up.
SOME PARTING FOOD FOR THOUGHT
As mentioned above, many veterans do not find the VA disability benefits system to be non-adversarial, and many do not find VA’s efforts at providing assistance to be particularly helpful. If you fit that mold, you are not alone. There are lots of resources available to assist. If you only remember three things from this article, they would be the following:
Always confirm the credentials of your advocate.
Never pay for assistance with an initial claim to VA.
The choice of whether to work with a VSO accredited representative or attorney on appeal is completely up to you, and will depend on your individual circumstances and comfort level.
If you have questions about your appeal pending before VA, or the appeal of a loved one, please feel free to contact us directly.