Opportunities for JDs and EJDs in Administrative Litigation: Veterans Benefits Appeals

Introduction

Another growing area within administrative litigation in which both JD and EJD graduates may be eligible to practice is Veterans Benefits Appeals. (For an introduction to the opportunities in administrative litigation for lawyers and non-lawyers, see the post "Opportunities for JDs and EJDs in Administrative Litigation: An Overview."

For 150 years, legal representation of veterans who were denied benefits by the Veterans Administration and its successor, the Department of Veterans Affairs, was virtually non-existent, due to a Civil War era cap of $10 on attorneys' fees per case. Congress repealed the fee cap in 2007, transforming what was a dormant paid practice area into a flourishing one that may be around for a long time to come.

The Numbers

Several facts and recent developments may enhance opportunities in this area of practice:

• The U.S. government spends more than $65 billion a year on veterans' benefits.

• Nobel economics laureate Joseph Stiglitz predicts that the long-term veterans' benefit costs of just the Iraq War alone will be $3 trillion.

• In addition to 2.6 million Iraq and Afghanistan war veterans and 8 million Vietnam era veterans, there are 15 million additional veterans.

• Almost 10 million veterans are over age 65.

• The vast majority of veterans' appeals are claims for disability benefits. Veterans can also appeal the denial of other benefits, such as GI Bill education benefits denials and veterans home loan guarantee denials.

• More than 50% of Iraq and Afghanistan war veterans are applying for disability benefits.

• Hundreds of thousands of vets are being diagnosed with post-traumatic stress disorder (PTSD) resulting from military service. PTSD is so widespread among combat veterans that the Department of Veterans Affairs has established a National Center for PTSD. This has had the effect of encouraging even more benefit claims, resulting in more work for attorneys.

• The claims processing backlog is approaching 300,000. The Board of Veterans Appeals (BVA), the Department of Veterans Affairs unit that hears veterans' appeals, is severely stressed.

• BVA employs more than 300 attorneys (including 56 Veterans Law Judges) and has traditionally had rather high turnover, primarily because BVA attorneys must, after a break-in period, meet productivity requirements in terms of the number of cases resolved.

• In some cases, veterans' dependents also have standing to appeal. This adds more than 15 million potential claimants to the client pool.

The Veterans Claims Process

The initial claims process is administrative, followed by a judicial appeal, if necessary. Cases begin with the veteran filing a claim with the local VA office (there is at least one in each state) or alternatively, by filing online. Help in filing an initial claim is sometimes available from one of the veterans' service organizations, such as the Disabled American Veterans or the Paralyzed Veterans Association, or from a VA-recognized agent.

If the claim is denied, the veteran can file a Notice of Disagreement (NOD) with the local VA office within one year of the date the original decision was mailed. The NOD is a request that the claimant's file be reviewed by a Decision Review Officer (DRO) from the local VA office. This is the stage in the claims process where the possibility of private legal representation kicks in.

The DRO reviews the entire case file and may hold a hearing with the claimant and the claimant's representative. If the denial is upheld, the local office prepares a Statement of the Case (SOC), a detailed explanation of evidence, as well as the laws and regulations used by the VA to decide the claim. The SOC is then mailed to the claimant along with an Appeal Form.

If the claimant wants to appeal, s/he must file the Appeal Form with the local VA office within 60 days of the mailing of SOC or within 1 year of the mailing of the original decision, whichever is later.

The hearing can take place either at BVA headquarters in Washington, D.C., via videoconference at the local VA office, or at the local VA office with a BVA member present. Opting for videoconference is the quickest way to get a hearing.

The hearing is informal, non-adversarial, and permits the claimant to add evidence in addition to what has already been submitted. The hearing transcript then goes to BVA headquarters along with the appeal.

BVA will either allow or deny the claim or remand the case to the local VA office for reconsideration. If denied, the claimant can either: (1) go back to the local VA office and try to reopen the claim, (2) file a motion for reconsideration by BVA or for a new review, (3) file an appeal to the U.S. Court of Appeals for Veterans Claims in Washington, D.C., or (4) do nothing.

Becoming a Veterans' Claims Practitioner

Veterans' claims representation is largely the preserve of sole practitioners and small law firms-although non-attorneys may also represent claimants. Attorneys and others who wish to represent veterans before BVA must submit an "Application for Accreditation as a Claims Agent or Attorney." The application asks for both personal and employment data, and also includes an extensive series of "character" questions. Once an affirmative determination of character and fitness for practice before BVA is made, Claims Agent applicants must achieve a score of at least 75% on a written examination as a prerequisite to accreditation. Attorney applicants do not have to take the examination, but must be in good standing with a state bar.

If denied initial eligibility for accreditation, there is no appeal. However, a rejected applicant may reapply.

One also does not have to be an attorney to represent veterans before the U.S. Court of Appeals for Veterans Claims. However, the representative must either be: (1) under the direct supervision (which includes presence at any oral argument) of an attorney admitted to the bar of the Court, or (2) employed by an organization chartered by Congress and recognized by the Secretary of Veterans Affairs for claims representation

The Veterans Benefits, Health Care, and Information Technology Act of 2006, Pub. L. 109-461 authorizes the Department of Veterans Affairs to regulate attorney qualifications and standards of conduct and to review fee agreements between attorneys or Claims Agents and claimants. Generally, a fee not exceeding 20% of the past due amount of benefits awarded is presumed reasonable.

Other Veterans Administrative Representation Venues

Every state also has its own veterans' benefit programs. Many state programs supplement federal benefits and conduct hearings that roughly mirror those of BVA.

Each military service also maintains a number of administrative boards that hear appeals from military personnel and veterans regarding several different matters. The principal boards include:

• Army Board for Correction of Military Records

• Army Discharge Review Board

• Army Clemency and Parole Board

• Air Force Board for Correction of Military Records

• Air Force Discharge Review Board

• Board for Correction of Naval Records

• Naval Clemency and Parole Board

• Naval Discharge Review Board

• Coast Guard Board for Correction of Military Records

While some of these boards do most of their business via document review only, there is always a need for expert assistance with the preparation of documents to be submitted.

Synergies With Related Practice Areas

There is a "content" affinity between Social Security Disability Income (SSDI) claims and veterans' disability claims, both being at the nexus of law and medicine. Any attorney or Claims Representative or Claims Agent should seriously consider practicing before both the Social Security Administration and BVA.