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Article of Interest

Texas Lawyers for Texas Vets: VA Claims, Denials, and Appeals
By: Brian Walker

For most of our nation’s history attorneys, have taken very little, if any, part in assisting veterans in obtaining benefits from the Department of Veterans Affairs (VA). For many years, federal policy even discouraged attorney representation of VA claimants, and in some instances, created criminal penalties for attorneys who took a role in the veterans benefit process. In the most recent decades, however, Congress has opened the door to attorney representation. Attorneys can assist veterans on a pro bono basis at all phases in the claims process, and as of June 20, 2007, Congress legalized accredited attorneys to get involved in the VA benefits adjudication process and charge a fee as long as the veteran claimant has applied for benefits and been denied those benefits at least once. Contrary to popular belief, attorneys can charge a fee and become involved in the VA claim process at the initial level of the VA hierarchy and can take an active role in the adjudication process well in advance of traditional appellate litigation, which occasionally does take place, albeit much longer down the road in the life of a VA claim.

Substantive Issues Likely Faced by Veteran Claimants

VA benefits include disability benefits, certain education assistance benefits, burial benefits, widow benefits, certain types of pension benefits, certain types of life insurance benefits, and a long list of other miscellaneous benefits. However, most of the VA denial of benefit cases and the legal practice surrounding those denials focus on veterans’ disability claims. Similar to the beneficiaries of the Social Security system, veterans who suffer from certain service-connected disabilities can, in some instances, be entitled to disability benefit payments. There are three basic elements that are necessary for a veteran to be entitled to VA disability benefits. First, the veteran must suffer from a current recognizable disability. Second, the veteran must have suffered from an injury or disease that was ‘incurred’, or was ‘aggravated’, during a period of active duty service. Third, there must be a ‘nexus’ connecting the current disability to the event that took place while the veteran was serving in an active duty capacity.

All VA claims begin when a veteran files a claim at their local VA Regional Office (VARO) where the claim is initially processed by an individual employee of the VA. If the veteran is not successful, the claim can be reviewed by another employee of the VARO called a Decision Review Officer (DRO). In general, if the claim is denied at the VARO level, the veteran has the right to appeal his or her claim to the Board of Veterans Appeals (BVA), and ultimately if not successful at the BVA, the Court of Appeals for Veterans Claims (CAVC) in Washington D.C. Unlike traditional legal practice, VA claims can make their way up and down the different levels of the VA hierarchy a multitude of times. It is not uncommon for a VA claim to make its way up to the BVA and be remanded back to the VARO two or three times. It is also possible for a previously denied claim to be applied for and re-opened by the VA many times. There are few limitations to this right, and it happens on a regular basis many years after a previous VA denial.

VA Accreditation of Attorneys

In order for an attorney to represent veterans before the VA, an attorney must be accredited by the VA. To obtain accreditation, the attorney must formally apply with the Office of the General Counsel of the VA, and, after receiving proper credentials, must regularly complete a certain amount of hours in related continuing legal education (CLE) to maintain the VA accreditation.

Helpful Resources for VA Claimants and Legal Representatives:

* TYLA and Texas Lawyers for Texas Veterans have published Resources for Veterans Seeking Help and Resources for Lawyers Assisting Veterans. Please click here to download a copy.  Texas Lawyers for Texas Veterans is a State Bar of Texas program developed to assist pro bono legal clinics throughout the state for military veterans. You can find links to a number of resources on the State Bar of Texas’ website: www.texasbar.com/veterans

*Check with your local bar association to find a local accredited VA attorney

*You will soon be able to find continuing legal education (CLE) courses in VA disability law at Texas Bar CLE or their website at www.texasbarcle.com.

*The American Bar Association Initiative on Veterans Affairs at www.abanet.org/vetaffairs/home.shtml is a great resource with many helpful publications, articles, and links for veteran claimants or their representatives.

*The National Veterans Legal Services Program at www.nvlsp.org has been assisting veterans and VA lawyers for decades. You can purchase legal treatises, VA regulations, and CLE materials at their website.