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.
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.
Everything you read here about attorneys who represent veterans also applies to accredited agents. Accredited agents are individuals who have trained to represent veterans and who are authorized by VA. They perform much the same function as an attorney.
This may be the most important page in the VAWatchdog series. We urge every veteran to give serious consideration to speaking with an attorney as soon as you receive a denial letter. This right to attorney representation had been denied to you until 2007.
Now you have the right to legal representation...use it!
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.
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.
Retaining an Attorney (Written by a veterans attorney)
Hiring an attorney is one of the hardest decisions for a veteran in pursuing VA benefits. Hiring the right attorney is even harder.
Reason to Consider Hiring An Attorney
First things first. The only reason for a veteran to hire an attorney is because the veteran believes that an attorney can help achieve a more favorable result than the veteran alone would otherwise obtain.
That’s it. There is no other good reason.
The trick is, of course, to know when an attorney can get a better result than the veteran alone or with a non-attorney representative. Recognizing a situation where an attorney can be helpful is the first key to successfully hiring an attorney.
When An Attorney Can Help
Attorneys are trained to advocate for their clients. That means an attorney can help a client when the work to be done requires someone to understand the facts of the claim, the law that applies to the claim, and there is an opportunity to explain to a someone why the facts and the law favor their client. In short, an attorney is can be more helpful in some situations than in others.
What An Attorney Can Do
Explain the status of your claim, why it has been denied, and what will likely be needed to obtain an award.
Organize the facts of your claim to present the most favorable possible basis for an award of the benefit sought.
Research the rules and regulations that are relevant to your claim.
Combine the facts and law into the most compelling argument for an award of the benefit sought.
Identify the available procedural options (appeal, DRO, remand, etc.).
Receive and respond to VA letters and requests.
Prepare responses to VA and the Board of Veterans’ Appeals requests for evidence.
Prepare written arguments and briefs.
Make oral arguments at VARO hearings, before the Board, and the Court of Appeals for Veterans Claims.
What An Attorney Cannot Do
Change or create facts
Find or create missing records
Change the law, rule, or regulation
Promise to "speed things up" at the VA (may be able to get a "stalled" claim moving)
Create a favorable medical diagnosis
“Sue the Secretary”
“Sue” any other VA employee
Guarantee an award
Attorney Representation in the VA System
As with most other aspects of the VA benefits system, there are rules for hiring and compensating attorneys. A basic understanding of these rules is important for a veteran looking to have an attorney represent them in seeking an award.
It often comes as a shock to veterans (and non-veterans as well) to learn that a veteran cannot just go out and hire a lawyer to help him or her file a VA benefits claim. Quite the contrary, veterans are explicitly prohibited from paying anyone to assist them in filing or pushing a claim through VA until VA denies the claim! Amazingly, up until very recently, it was a federal criminal offense for an attorney to accept compensation of any type for helping a veteran file a VA claim.
Even more amazingly, Congress still limits a veteran’s right to hire an attorney, supposedly to protect the veteran from evil attorneys who are only out to steal benefits from poor, addled veterans. No, its true! Congress continues to believe that attorneys are more of a threat to a veteran’s benefits than the VA. (Just for fun, think of the outrage on cable news shows that would occur if Congress limited the ability of a gender, ethnic or racial class to hire an attorney the same way as they do with veterans).
The key VA rules regarding a veteran hiring an attorney are summarized as follows:
An attorney cannot charge a fee for representing a veteran in a benefits case until the veteran files a Notice of Disagreement (NOD) with the decision denying the claim.
For an attorney to represent a veteran before the VA, the attorney was be “accredited” by VA.
A fee agreement between an attorney and a veteran must be in writing and submitted to VA.
Again, VA insists that these restrictions are to protect veterans from unqualified attorneys. Perhaps so, but such restrictions also limit the number of attorneys available to veterans.
Good intentions and public service aside, veterans seeking to hire an attorney have to recognize one fundamental fact: attorneys are in business. To survive, a business must bring in more money than it spends. And, just like plumbers and doctors, attorneys must charge for services to survive. It is amazing how many veterans seeking to hire an attorney do not understand this basic fact. Recognizing the realities of the legal business will make hiring and working with an attorney much easier.
Not surprisingly, VA also has rules about how and how much an attorney can charge a veteran for work before the VA (meaning the Regional Office and the Board of Veterans’ Appeals). For work before the VA, attorneys can charge:
A fixed fee;
An hourly rate;
A percentage of benefits recovered (a “contingency” fee);
A combination of the above;
as long as the total fee is “reasonable.”
A fixed fee, as the name suggests, is where the attorney agrees to do a specified task for a specific fee. The advantage to a fixed fee is that the veteran knows up front exactly how much he or she will pay the attorney. Fixed fee can run from a few hundred dollars to several thousands of dollars depending on the task. Similarly, an hourly fee is an agreement for the attorney to charge for each hour spent on the agreed task. An hourly rate can vary from around one hundred dollars per hour to several hundred dollars per hour. Hourly fees are not common in veterans work because the fees can add up quickly and veterans rarely have funds to pay an hourly rate if they do not get a large award.
The most common type of fee is the percentage or contingency fee, which is the most favorable fee structure for most veterans in most veterans benefits cases. This is because the attorney is only paid if (1) an award is made and (2) there is an amount owed to the veteran at the time of the award. The attorney is then paid a percentage (usually between 20% and 33%) of the amount owed to the veteran when an award is approved. This amount, also known as a “retroactive” award, is the amount of due to the veteran from the effective date of the award up to the date of the award. If the award was made following an appeal to the Board and the effective date is the date the claim was originally filed (as it is in most cases), the retroactive amount could be 3 or 4 years of benefits. If the case goes up to the Veterans Court and back, the retroactive period could be ten years or more.
As an example, assume a veteran filed a claim on January 1, 2004, and enters into a 20% contingency fee agreement with an attorney. On January 1, 2008, the veteran is awarded a 100% disability rating. The retroactive amount is the 100% monthly payment for the period between January 1, 2004, and January 1, 2008 (four years), which is approximately $120,000 at current rates. The attorney’s fee would be 20% of the $120,000 or $24,000.
Attorney Fees Before the Veterans Court
Fees for attorney work in the Veterans Court are not subject to the restrictive VA regulations. The Court still requires that fees be “reasonable” for the services rendered and the results obtained. The most common fee by far is still the contingency fee.
At the Court, however, a federal law known as the Equal Access to Justice Act or “EAJA” offers veterans who win at the Court the opportunity to have the government pay all or part of their attorney fees. Many attorneys will take an engagement for a case at the Court and agree to accept the EAJA fee, if any, as payment. A veteran looking to hire a lawyer for an appeal at the Veterans Court should discuss the possibility of using EAJA to pay the attorney.
In addition to attorney fees, a fee agreement may also specify that the veteran may be responsible for “costs,” which are the out-of-pocket expenses (postage, copying, experts, etc.) paid by the attorney on behalf of the veteran. A veteran should make sure he or she understands who is responsible for costs before signing a fee agreement.
Veterans are sometimes surprised by the amount of fees that result from a contingency or hourly fee agreement and question whether the attorney “earned” that much money. “After all, I am the one who is hurt/sick/unable to work” is the usual logic for raising this question. Several issues make such second-guessing unfair.
The first issue is whether the veteran received what he bargained for in exchange for the fee. If so, the next issue is whether the attorney received the fee that the veteran agree to pay. If this is also true, there is not a legitimate reason to challenge the fee. Another way to think of such situations is to consider whether the veteran would be better off with 100% of nothing (no award) or 80% of an award. In any event, the time for questioning a fee agreement is before it is entered into, not after the award is obtained.
That is not to say that a fee agreement cannot be challenged because it was unreasonable, unfair, or improperly used to the attorney’s advantage. Many attorneys will adjust their fee if the situation resolved itself without the expected effort. Many times a disagreement can be resolved by discussing the issue with the attorney. For cases where the veteran still feels a fee was unfair, VA has a process for veterans to file complaints and challenge fee agreements. In fact, for fees administered by VA, the agency holds the attorney’s fee for several months or until the veteran tells VA he or she has no objection to payment of a fee by VA.
Finding An Attorney
Only after you understand (1) what you want done, (2) what an attorney can do for you, and (3) what it should cost you, it's time to find some attorneys to interview.
There are a only a small number full-time veterans’ attorneys. There are other attorneys who handle veterans’ cases on a part-time or occasional basis. In addition, other attorneys volunteer their services through organizations that match veterans with attorneys willing to work on a pro bono (without charging a fee) basis. For all that, there are pitiful few competent and experienced veterans attorneys out there.
The low number of attorneys is somewhat balanced by the national nature of the practice. In other words, it is not necessary for an attorney to be located near a claimant to properly represent them before the VA. Most veteran attorneys rarely meet clients personally because the clients are located all over the country. Distance is not a problem, as a good attorney will routinely communicate with clients by mail, telephone and email, as events develop.
Regardless of where a veteran lives, the best source to find an attorney is a recommendation from a friend or other veteran that has previously engaged that attorney in a VA matter. Nothing is better than a personal recommendation from someone you know and trust. But keep in mind that even the best and most knowledgeable attorney does not always win and even the worst prepared and disagreeable attorney will get an award sometimes.
If a personal recommendation is not available, the next best things are recommendations from other veterans on websites and blogs such as this VAWatchdog.com, and The Veterans Voice.
If you are comfortable on the web, a search on Google or similar search engine for “veteran’s attorney” will bring you all sorts of entries and advertisements for attorneys practicing in this area. Your state or local bar association may also have a referral service where attorneys seeking veteran clients list themselves.
Learn How To Search The Internet,
Another potential source of information about veterans’ attorneys is contact by an attorney looking for clients. Some attorneys advertise through direct mail. Veterans with new appeals in the Veterans Court often receive many offers of representation. Whether you agree or disagree with such tactics, a veteran can find an attorney by responding to these contacts. However, as with responding to any other advertisement of services, you should carefully investigate and interview an attorney identified in this way.
Most active veterans attorneys have their own websites and many advertise on other veterans-related websites. The local “yellow pages” may contain advertisements from veterans attorneys. Several organizations, such as the Court of Appeals for Veterans Claims (http://www.vetapp.gov/practitioners) and the National Organization of Veterans Advocates (NOVA) (http://www.vetadvocates.com) also maintain lists of attorneys available for veterans’ cases. In addition, the VA lists attorneys and non-attorney representatives that have completed the VA accreditation process in a database searchable by city, state and zip code (http://www.va.gov/ogc/apps/accreditation/index.html). For veterans meeting specific requirements, the Veterans Consortium Pro Bono Program (http://www.vetsprobono.org) may be able to find an attorney for veterans with a case on appeal to the Veterans Court. Finally, local or national offices of the major veterans’ service organizations (such as the VFW, DAV, VVA) may be able to make suggestions.
Selecting Your Attorney
After you have put together a list of at least two or three attorneys and their contact information, it is time for you to interview the attorneys. Many veterans make a big mistake at this point – they speak to one attorney and hire him or her without considering any others. They do so without making sure that the attorney they select is right for them and their case. The result can sometimes be worse than if no attorney was hired and always results in more stress than necessary. So prepare yourself to find the best attorney for you and your case.
To do this, you must prepare yourself to have a productive information exchange with the attorney. This means, as a minimum:
Organize the key documents in your case, beginning with the last correspondence from the VA and including any rating decisions, Statement of the Case, Board or Court decisions and any important records or evidence
Prepare a short (one page at most) summary of what your claim is, and the evidence that supports the claim
Know where your claim is in the VA system (VARO denial, NOD filed, at the Board, at the Court, etc.)
Once you are prepared, review the lists of what an attorney can and cannot do. If you find yourself getting ready to ask for something an attorney cannot do, stop. If during your discussion, the attorney promises to do something that he cannot do, move on to someone else.
One other issue worth discussing is the charging of a "consultation fee" or otherwise requiring a veteran to pay something up front for an attorney to review a case. No reputable attorney of which the authors are aware charge such a fee. If an attorney requires a fee to review your case, our suggestion is to move on - the attorney may not be doing anything wrong, but there are plenty of attorneys that will review a case without charge.
Only when you are prepared should you contact the attorneys on your list. If you decide to telephone the attorney, be prepared to discuss your case, not just leave a message – many attorneys will take a call from a potential new client even when they are busy. It is wasteful of everybody’s time to have an attorney’s attention and not be able to discuss your case.
If you are comfortable with email, many attorneys prefer to communicate in this way because they can check their email while away from the office and on breaks during the day. Also, an email acts as a record of the contact and the information exchanged – this avoids misunderstandings and errors in note taking during phone calls. An initial email containing or attaching the short description of your case and the key information you prepared above goes a long way towards getting a busy attorney to respond. Also, when the attorney does respond, he or she has your email to work from during the follow-up conversation.
Things to do when interviewing an attorney:
Do tell the attorney why you are calling (for example: “I am looking for an attorney to represent me in my appeal of a Board decision denying my PTSD claim.”)
Do explain the basic facts supporting your claim
Do ask the attorney to describe his or her VA claims experience
Do ask the attorney whether he or she has handled similar claims
Do ask the attorney if he or she is accredited by VA
Do ask the attorney what type of fee arrangements are possible
Do take ‘no’ for an answer – if the attorney declines to take your case, you should spend your time trying to find an attorney that will, not trying to convince the first attorney of the merits of your case
Don’t expect the attorney to agree to take your case after one call or email – a good attorney often needs to review the facts and law further after discussing the matter with you.
Don’t ask the attorney to “give you odds” on getting as award – no case is a sure thing and any claim can be denied despite the best efforts of an attorney
Don’t try to describe your entire military history in the first call or email – focus on the event relevant to your claim.
Don’t argue with the attorney about what the law is or why the law is “wrong” – if you disagree with the attorney’s view of the law, it is better to find another attorney. If you really believe that you know the law better than the attorneys you interview – perhaps you don’t.
Don’t take one attorney’s decision to pass on your case as the end of the matter – but if multiple attorneys decline representation, it may be time to take a hard look at your claim
If an attorney tells you he is not interested in your case, politely ask for a reason. Most attorneys will at least tell you whether it is because they do not see a reasonable chance of success or whether they are too busy or not familiar with that type of claim. Whatever the reason, do not take one attorney’s opinion as the final word. Every attorney has a different view of a case and often another attorney will take a case that has been rejected elsewhere. Some attorneys pride themselves with taking the “hard” cases that no one else wants.
Engaging An Attorney
Once you have identified the attorney you want to hire you have to reach agreement with the attorney on the terms and conditions of the engagement. A veteran should not be shy in requesting, reviewing, and asking questions about:
The scope of the representation (what the attorney will do)
How the attorney fee and cost will be calculated (how and how much the attorney will be paid)
What the attorney expects you to do (provide documents, not contact VA, etc.)
What the attorney will do for you (communicate with VA, prepare all documents, attend hearings, etc.)
What happens if you fire the attorney
What happens if the attorney fires you
Whatever else, do not enter into an engagement or sign a fee agreement until you understand everything in the agreement. A good attorney will not have a problem answering your questions.
The Attorney-Client Relationship
Once your fee agreement is effective, you are in an “attorney-client” relationship. Among other things, this means you and your attorney must live up to the terms and conditions in the fee agreement. In particular, a client must be open and forthright regarding the facts and evidence relevant to the claim(s). Withholding information or failing to be completely truthful is the most common failing of veterans in dealing with their attorneys. For attorneys, the most common complaint is the failure to communicate with clients and keep them up to date with developments.
The attorney-client relationship can and should be professional and rewarding to both parties. In the VA system, such relationships can last for years or decades. The attorney and client should work to keep it a positive relationship.
Respect the Relationship
It is very safe to assume that every veterans attorney is busy and that his or her time is very precious to them and their clients. The surest way to get fired by an attorney is to waste his or her time.
It often comes as a surprise to clients, but an attorney can fire a client for failing to do the things promised in the fee agreement or becoming an intolerable distraction from other client’s work. An attorney has a duty to work diligently for a client and to communicate on developments affecting the client’s claim. A veteran client should recognize that there are times in the VA process where there is absolutely nothing to report – and that repeatedly contacting the attorney will not change the situation.
How to be an engaged and helpful client:
Be absolutely truthful about all aspects of the claim
Return phone calls and respond to letters from the attorney promptly
Tell the attorney whenever you receive a letter or call from any VA office
Keep the attorney informed of changes in your address and contact information
Tell the attorney about and keep all VA appointments
Send the attorney copies of all medical reports and other documents that you receive
Do not contact or discuss your claim with any VA individual
Do not write your Congressman or Senator or contact the media about your claim
How to become a former client
Lawyers are bound to operate within the law and in an ethical manner. Your lawyer can and will fire you as a client if you don't want to play by the rules.
Call or email the attorney repeatedly seeking the status of your claim after the attorney asks you not to
Demand that the attorney submit every letter and legal submittal to you for review and approval
Order the attorney to file every possible paper to “bury” the VA
Tell your attorney an untruth or “forget” to tell him or her a fact relevant to your claim
Demand that the attorney tell VA something that is untrue
Go around the attorney and call, email, or mail the VA about your claim
Miss VA appointments without reasonable excuse
Continue to write the local newspaper, Members of Congress, or the President without discussing with the attorney
Insist that the attorney take a specific legal approach despite the attorney’s best legal advice not to.