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Veterans' Advocate and "all 'round good guy," Jim is available to answer questions for Veterans and their families on a wide variety of issues. He has dealt extensively with the VA and has a background in the medical field.
He offers a wealth of knowledge and it's all free of charge.
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This is not legal advice. You should always seek the advice of an attorney who is qualified in Veterans' law before you make any decisions about your own benefits. Visit Stateside Legal (below) for assistance with legal issues.
NOTE: Letters in my Q&A columns are reprinted just as they come to me. Spelling and grammar are left as is and only small corrections are made to improve readability, ensure anonymity or delete expletives that may offend some readers. This is not legal advice. You should always seek the advice of an attorney who is qualified in Veterans' law before you make any decisions about your own benefits.
How To Hire An Attorney
This page will address the intricacies of retaining a lawyer for your case with the VA. The general thoughts and principles you'll read here apply to almost all instances that you need to think of legal representation.
A little history is appropriate.
Until 2007 veterans weren't allowed to have attorney representation for VA actions in most cases. Only appeals in higher courts were open to lawyers who would represent vets.
When a veteran filed a claim for a deserved benefit with the VA, he or she had two choices. They could use a Veterans Service Officer (VSO) or they could go it alone. I refer to that as the Do It Yourself (DIY) way of handling your claim.
The restriction has loose origins about the time of the Civil War. As the war came to an end and many veterans were injured, the government started development of what would eventually become today's Department of Veterans Affairs. The profession of law wasn't as well defined, controlled or restricted as it is today and any number of charlatans were advertising their services as lawyers.
Veterans were easy targets for these less than honest types and the government sought to protect veterans by making it illegal to charge veterans for any services that had to do with claims against the government. Professional lawyers can't afford to give away their services all the time so they were more or less forced to deny veterans representation.
This continued until about 2005 and although attempts to modify existing statutes had been made, none were successful until 2006 when the law was changed. By 2007, a veteran could retain a lawyer to represent him if and when there was a denial of a claim by the VA.
Changing the law was interesting to observe. The Veterans Service Organizations such as the DAV fought hard to maintain the status quo. They said that lawyers would take money from veterans and that veterans didn't need to have any rights to hire a lawyer...they proposed (as did VA itself) that the VA was a friendly and paternalistic organization and that veterans could use organizations like DAV if they needed help.
The bottom line was that DAV and VA told veterans that they have no rights to representation or to due process when those same veterans had fought long and hard to preserve those very rights.
In 2007 veterans gained the right to hire attorneys for appeals at all levels. At first there were very few lawyers practicing veterans law but over time the field grew and practitioners were trained and professional organizations were formed and standards were set. Today there are many excellent attorneys available who can assist you.
The trick, of course, is to find the right lawyer for you. I'll help you along with that task.
Rumors persist that lawyers don't have the training and experience of the VSO who has been doing veterans claims for many years. You may hear that a lawyer won't do anything but take a percentage of the money and that a VSO could do a better job for free.
I disagree with that. I use this example often; I was a very good medic and surgical technologist while on active duty. My 912D20 training was excellent and I had good fortune to have a good bunch of people who mentored me. Once I ETSed I worked in civilian hospitals for many more years and I developed a reputation as being darn good at my work. In many settings I was the go-to guy for complex procedures in operating rooms and cardiac cath labs.
I wasn't a doctor and never pretended that I was. Like a VSO compared to a skilled attorney, I didn't have the basic underlying education or certification to diagnose and treat your disease or injury. Sure, I could second guess a lot of the things I saw and there is no doubt I knew my stuff.
But...do you really want me to do your surgery? When it comes to the complex world of VA law, who do you want to trust your appeal to?
I urge veterans to speak with a lawyer the moment they have a denial for any claim. I don't know of any lawyer who won't assess your claim for free and give you a good opinion as to your chances to prevail with your appeal.
When do you call the lawyer?
To hire or "retain" an attorney to guide you through a VA disability benefits appeal, you must first have a denial of an application that you submitted. The lawyer usually can't help you before that happens.
You may have filed your claim to VA through a Veterans Service Officer or you may have used my preferred way of doing things and gone DIY...Do It Yourself. Most VSOs and your buddies will tell you that you need the help of a VSO to file a claim. I don't support that idea. The VA claims process isn't complex to dive into and only requires that you file some paperwork.
About 70% of claims are denied at first no matter who files it. It's very likely you'll have something denied so you can start thinking about an attorney now.
Hiring a lawyer isn't difficult. The first thing you need to know is that you probably won't find a lawyer who is local to you. VA lawyers work at the federal level so as long as they are certified by VA to represent veterans, you can choose a lawyer who lives anywhere else away from you.
You may never meet your lawyer face to face. He or she will do all the work for you by mail, electronic mail and filings and on the phone. There isn't much hand holding to be done in VA cases, the evidence and the law will take care of itself with your lawyer guiding things.
To find the lawyer who is right for you will require that you pick up the phone or send some emails. The attorneys who are featured on my web site are known to me to be reliable and committed to winning for veterans. I urge you to talk to at least 2 or 3 prior to signing up with any attorney.
Look for an attorney who is prompt in getting back to you to discuss your case. If you are shuffled from one "paralegal" to the next and you aren't able to speak with the lawyer, move on to someone else.
The lawyer should seem interested in your case and spend enough time with you that you believe that he or she understands all the issues. If you are rushed or if the conversation is interrupted by other calls or people barging into their office, you'll want to move on to the next person on your list.
If you want a personal recommendation, I may be able to make one. You can always email me at jim912@gmail.com and I'll try to point out a lawyer who I think is a good match for you.
Next up...the expense of hiring a lawyer. I hear it a lot, "Jim. I don't have any money. I can't afford a lawyer!" You're about to be pleasantly surprised when I tell you that even if you're dead broke, you can afford a great lawyer.
I talk a lot in generalities. There are few absolutes in life and that applies to hiring an attorney as much as anywhere else.
So...generally speaking...attorneys who take on cases for veterans like appeals to the VA are strictly controlled by law as to how they can take a fee from you.
In civil and other cases the attorney may ask for a flat fee or an hourly fee or almost any other condition of payment that you two agree on.
The majority of an attorney's work for you in VA cases will usually be as a contingency fee. That implies that you agree to pay a percentage of any money that arises from the case if you win. If you don't win, you don't pay unless you've agreed to pay some expenses.
I like the contingency fee agreement. If you don't win the lawyer doesn't get paid. That's a great incentive for your attorney to work very hard for you.
This is all too often a potential source of friction between the attorney and the client. I urge the attorney and the veteran client to be very open and up front about what the fee will be (usually around 20% of any retroactive pay) and any circumstance that may alter the way the case is handled.
One issue that crops up may be that the attorney only has the case for 4 months and VA makes a sudden decision to award the full benefit to the veteran. If the retroactive pay is in the 6 figure range, the 20% paid to the attorney may suddenly seem exorbitant for the amount of time the lawyer has actually spent working on the case.
If there is a potential for that to happen, the veteran client and the attorney should make agree as to what will occur long before it happens.
Hiring a lawyer to help you with your case shouldn't intimidate you. Speak openly about your concerns. Talk freely about finances from the very beginning. Speak to as many attorneys as you feel you need to so that you're happy from the beginning.
When you do retain a lawyer, I advise that you immediately stop listening to anyone else about your claim. There are opinions from everyone and then there are advocates who you've made a contract with and who will work hard to protect your interests. "Too many cooks spoil the broth", the old saying goes. That's true of the approach to your claim too.
Be realistic. Lawyers don't come to the party wearing Superman (or Superwoman) capes. Your lawyer is as frustrated by the system as you are. Your lawyer can't make VA move any faster than VA wants to move on your claim. Calling your attorney every two weeks asking for an update or trying to find out the status of your claim wastes everyone's time.
What your attorney will do for you is to watch the process for the slightest wrongdoing by VA and ensure that you are treated fairly. You may not see it as it happens but your lawyer will work hard to earn every penny of that contingency fee. He or she will remain alert for any opportunities to maximize your benefit award and alert you to other benefits you may deserve.
I recommend that every veteran who is appealing any denial give thought to retaining a lawyer. It's much simpler to have that attorney in your corner for a DRO hearing than it will be 5 years down the road when you're heading to CAVC.
Don't be shy. These professionals want to work for you. Hire one and get out of the way. You'll be happy you did.
Be sure to use Jim's: "A to Z GUIDE OF VETERANS DISABILITY COMPENSATION BENEFITS"
click here...
And, for answers to questions and great advice, go to Jim's discussion board, "STRAIGHT TALK FOR MILITARY VETERANS"
click here...
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Please use the section below for general comments. E-mail Jim directly at jim912@gmail.com for answers to specific questions. Thanks!
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