The right of veterans to choose their own advocates

The United States government provides a panoply of entitlement programs for its citizens, many of which involve complex sets of rules and laws that can prove challenging for the average person to navigate. As a result, cottage industries chock full of lawyers have cropped up with specializations in areas such as Social Security, Medicare, and unemployment compensation. A major exception to this pattern lies in the area of veterans disability benefits, where the number of lawyers who serve as advocates is relatively small.

There are many factors that contribute to the relatively few lawyers available to assist veterans, but primary among these reasons has been historic legal hurdles and the resulting economic barriers to entry. In the 1860’s 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 lawyers from taking on this type of work. Because lawyers stopped working in this area, veterans were effectively prevented from hiring attorneys 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.

The creation of veterans benefits programs

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 veterans cemeteries.

Paternalism takes hold as Congress sets limits on advocates

With so much money flowing into these then-new federal veterans 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.” 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. 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 . . .” See  56 Cong. Rec. 56, 1, 5222 (1918).

Inflation creates an economic barrier

To the extent that credence can be afforded to the justification offered in the congressional record, problems ultimately arose when Congress failed to adjust the $10.00 cap to account for inflation. Matters came to a head approximately one-hundred and twenty years later. Over the course of the following century, the veterans’ benefits system grew increasingly complex, making it challenging, and in some instances impossible, for unrepresented veterans to navigate. Many charitable, fraternal, and government veterans services organizations (VSOs) provided non-attorney advocates to assist. However, because attorneys are funded differently than nonprofits and government agencies, the un-adjusted $10-cap 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 necessary to operate a law firm because a reasonable fee could not be charged. As a result, attorneys who would have preferred to dedicate their practices to helping veterans could not do so, except in the limited circumstances where they could find employment with one of the major VSOs.

Veterans push for the right to hire advocates of their choice

Veterans’ frustrations over the inability to hire legal counsel came to a head during the Reagan administration. A group of veterans filed a lawsuit called Walters v. National Association of Radiation Survivors, in which they argued that the cap effectively and unconstitutionally denied veterans and their survivors the opportunity to retain counsel of their own choice. The Supreme Court upheld the 1862 law on a six to three vote; however, the veterans’ point caught the attention of Congress. In 1988 Congress addressed 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 in the Walters case that the veterans’ claims process has changed substantially from 1862. In many instances the process is much more involved than simply requiring the veteran to fill out the appropriate form.

The Court does not appreciate the value of individual liberty. It may well be true that, in the vast majority of cases, a veteran does not need to employ a lawyer, and that the system of processing veterans benefit claims, by and large, functions fairly and effectively without the participation of retained counsel. Everyone agrees, however, that there are at least some complicated cases in which the services of a lawyer would be useful to the veteran and, indeed, would simplify the work of the agency by helping to organize the relevant facts and to identify the controlling issues. What is the reason for denying the veteran the right to counsel of his choice in such cases?” (Internal citations omitted.)

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 now finds itself adapting 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 these issues frequently benefit from the re-introduction of attorneys into the system as a result of the statutory changes over the past few decades. The system is still far from perfect; however, the law now affords veterans with the right to choose their own advocates as they see fit, including retaining legal counsel if desired.

A slowly growing field of practice

Although it has been almost thirty years since the Veterans Judicial Review Act became law, the number of lawyers who practice VA law is still relatively small. The VA’s Office of General Counsel has accredited approximately 18,000 lawyers to represent veterans at the administrative level, the Court of Appeals for Veterans Claims has admitted almost 2,100 attorneys to practice before the court, and the National Organization of Veterans’ Advocates lists less than 300 VA attorneys. By way of comparison, the American Bar Association shows that 166,000 attorneys attorneys actively practiced law in California in 2015. VSOs and non-profit organizations such as the National Veterans Services Legal Program have done tremendous work to fill the gaps, but the field of veterans benefits law remains in need of more attorneys who are willing to serve the veterans community.

This article is authored through the collaborative efforts of Travis James West, Shana Dunn, and other legal professionals at West & Dunn, a law firm dedicated to providing quality legal services and business counseling to individuals and businesses, with a particular focus on assisting the veterans. An earlier version of this article was published on the West & Dunn website on November 18, 2016.