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Who Can Fight for the Soldiers?
Veterans Need the Right to Hire a Lawyer

By James C. McKay

Sunday, January 22, 2006; Page B02
http://www.washingtonpost.com/wp-dyn/content/article/2006/01/21/AR2006012100100.html

If American soldiers are mature and responsible enough to choose to risk their lives for their country, shouldn't they be considered competent to hire a lawyer? No, not if that lawyer is going to pursue their veterans' benefits claims before the Department of Veterans Affairs. That's the flabbergasting answer from Congress and the Supreme Court.

During the Civil War, a statute was enacted imposing a $5 limit on the fees paid to lawyers or agents assisting veterans applying for pensions, reenlistment bounty or other military allowances. Two years later, the cap was raised to $10 -- and remained at that level for 124 years. In those days, filing a claim involved simply filling out a one-page form; a $10 fee was reasonable for the claimants who needed assistance. But as time passed, the fee became so trivial that its practical effect was to bar veterans from employing lawyers.

In 1985, the Supreme Court upheld the limit, rejecting the contention that it effectively deprived veterans of their Fifth Amendment right to due process or their First Amendment right to petition for the redress of grievances. And in 1988, while Congress eliminated that $10 ceiling and created a Court of Appeals for Veterans Claims, it also said that a veteran could hire a lawyer only after completing a complex administrative process that culminates at the Board of Veterans' Appeals (BVA). By that time, however, a case has been lost, often because the veteran did not present the correct claim, or properly present available evidence -- technicalities that could hurt the case on appeal even after a lawyer is involved.

As a result, many veterans' benefits disappear down the rabbit hole. Take the case of Dana Myers, who joined the Marine Corps as a teenager and who received an honorable medical discharge on Dec. 20, 1957, because of back problems. The next year, he was denied disability payments. In April 1959, he sent a letter to the regional Veterans' Affairs office taking issue with that ruling. But later the Board of Veterans' Appeals said that Myers didn't use the precise words that are required for what is known as a "notice of disagreement" (or NOD). Without that, the board rejected his appeal.

If Myers had hired a lawyer, he would likely have followed the correct procedure back in 1959. Instead, Myers is still fighting his case. In 1994, he won a 40 percent disability payment, but it wasn't paid retroactively because of his procedural errors back in 1959. I began representing him on a pro bono basis in July 1998, the first time he ever had a lawyer, and we won retroactive payments. Now the Veterans Administration (VA) is refusing to give him back payments based on anything more than a

10 percent disability for most of that time. Another appeal is pending.

Consider the plight of Terry Ledford, who developed schizophrenia while serving in the Air Force. He lived on 100 percent disability benefits from his medical discharge in 1976 until 1981, when his benefit level was suddenly reduced under provisions of new rules in a VA circular. A non-lawyer veterans' service organization representative was assigned to help Ledford. But it took 17 years for the case to make its way through VA administrative processes and court hearings. And in the end, a federal court threw out the claim because Ledford failed at the outset of his case to challenge the legality of the circular -- a strategy a lawyer might have pursued but not an untrained vet, let alone one suffering psychiatric problems.

This issue of legal assistance for vets has been scrutinized by those in the best position to know whether an attorney would help or hinder the process, or whether an attorney could expedite and clarify the process. Judge Frank Nebeker, the first chief judge of the Veterans' Appellate Court, said in a January 1999 concurring opinion that the court continued "to see many appeals where, if counsel were realistically permitted to represent a claimant during the adjudication process before a final BVA decision, an appeal would be unnecessary or seen as futile by the applicant. Effectively limiting lawyer representation until after a BVA final decision is, quite arguably, unnecessarily paternalistic."

Generally speaking, the Constitution frowns on government paternalism -- the idea that mature adults are incapable of charting their own destinies.

For example, in 1977, the Supreme Court held in Bates v State Bar of Arizona that because of the First Amendment, advertising by lawyers could not be prohibited in order to protect consumers from making what the government believed would be ill-advised choices. Justice Harry Blackmun explained that the purported justification "assumes that the public is not sophisticated enough to realize the limitations of advertising, and that the public is better kept in complete ignorance than trusted with correct but incomplete information."

Yet both Congress and the Supreme Court have taken a paternalistic approach toward veterans seeking benefits by denying them an opportunity to hire a lawyer. Although grudgingly recognizing that a lawyer might be helpful in a complex case, a plurality of Supreme Court justices in 1985 declared that in most instances unscrupulous lawyers were likely to overcharge veterans, sow confusion, cause delays and obscure the truth. In any event, according to the justices, lawyers were superfluous in the vast majority of cases because only a tiny fraction of the cases were complex. Besides, added the four justices in the same ruling that upheld the $10 fee, non-lawyer representatives of numerous veterans service organizations were available to assist veterans free of charge.

Whatever the merits of excluding lawyers in the past, the reasons no longer exist. Since the creation of the veterans' appellate court, cases have become far more complex. Today, many veterans' cases are as complicated as medical malpractice claims, which are prosecuted on behalf of clients by highly specialized lawyers. They often require experienced advocates to analyze, evaluate and develop evidence relating to a vast number of mental and physical disabilities.

Although representatives from some veterans' service organizations are trained to develop claims, many other reps lack such skills. In any event, they are not lawyers, who are better suited to perform those tasks. Moreover, each service representative typically handles scores of veterans, minimizing personal contact. All this makes it unlikely that service representatives will persuade the board to sustain the veterans' claims and, when claims are denied, leave the case in the best possible position for an appeal to the veterans' appellate court.

The exclusion of lawyers has also been a cause for the huge delays throughout the benefits system. It is common for a VA proceeding to last more than a decade. Many claims are recycled over and over. Whereas ethical rules prohibit lawyers from filing frivolous claims, there are no such rules constraining service representatives. Many veterans have died of old age before their claims were resolved. Their claims die with them, since widows and orphans by statute have no right to pursue the claims.

In a 2004 interview, another chief judge of the Veterans' Appellate Court, Donald Ivers, who is also a former VA general counsel, stated that "The Court has historically taken a position recognizing that involvement of lawyers before the VA could be very helpful, and I concur." Retired Judge Ronald Holdaway, at the 2004 Eighth Judicial Conference of the veterans appellate court, stated his view that veterans should have the right to counsel at the administrative level: "I think you would get better records, you would narrow the issues, there would be screening . . . But the fundamental reason: Why should veterans be treated differently from anyone else?" Federal circuit court judges also understand the changes in the veterans' benefits system since the creation of the veterans appellate court, and the importance of the presence of lawyers at the early stages of VA proceedings.

Years ago, Justice Oliver Wendell Holmes wrote that it is "revolting" if a rule of law "simply persists in the blind imitation of the past." The adherence to a Civil War era approach to veterans' rights seems to fall into that category. If veterans are mature and responsible enough to go to war, vote and pay taxes, they should be treated as old enough to decide whether to pursue a claim with the help of a lawyer.

Author's e-mail:JMcKay@cov.com

James McKay, a veteran of World War II, is a senior counsel at the Washington law firm of Covington & Burling. Over 10 years, he has represented, on a pro bono basis, many veterans seeking disability benefits.