The
Disabled American Veterans (DAV) Opposes Legislation that will Permit
Attorneys to Charge Claimants for Veterans Benefits a Fee for
Preparation, Presentation, and Prosecution of a Claim in the
Administrative Claims Process of the Department of Veterans Affairs.
Before enactment of Public Law 109-461 at the end of the 109th Congress
last year, section 5904(c)(1) of title 38, United States Code, provided
that “a fee may not be charged, allowed, or paid for services of agents
or attorneys with respect to services provided before the date on which
the Board of Veterans’ Appeals first makes a final decision in the
case.” The longstanding public policy reasons for this limitation have
been clear and firmly fixed. “There would seem to be no need for the
assistance of an attorney in order to initiate the claims process by
completing and filing an application. Moreover, even if the initial
decision is adverse, the Committee believes that it may be unnecessary
for a claimant to incur the substantial expense for attorney
representation that may not be involved in appealing the case for the
first time to the BVA. The claimant may well prevail, as many claimants
currently do, without legal representation when the case is first
before BVA.” S. Rep. No. 100–418, at 63-64 (1988). “The Government
interest, which has been articulated in congressional debates since the
fee limitation was first enacted in 1862 during the Civil War, has been
this: that the system for administering benefits should be managed in a
sufficiently informal way that there should be no need for the
employment of an attorney to obtain benefits to which a claimant was
entitled, so that the claimant would receive the entirety of the award
without having to divide it with a lawyer.” Walters v. National Ass’n
of Radiation Survivors, 473 U.S. 305, 321 (1985). The DAV therefore
opposed provisions in the bill enacted that removed the bar against
charging veterans a fee for claims representation.
- no
disabled veteran should have to pay an attorney to obtain the benefits
that a grateful nation provides and the veteran is rightfully due
- the
disabled veteran, or his dependent or survivor seeking VA assistance,
should receive the full economic value of the benefit to aid in the
purchase of the necessities of life or to ameliorate the effects of
disability
- the claimant’s
application may very well result in an award of benefits on the initial
VA decision, and it would be especially unwarranted to divert 20
percent or more of the claimant’s retroactive award to an attorney for
merely assisting the claimant in completing the application for benefits
- for
fulfillment of the VA mission to award benefits to all entitled
claimants, the VA claims process should remain open, helpful, informal,
and pro-veteran to provide every reasonable assistance to claimants in
filing and prosecuting claims for the benefits reserved for them as a
special and highly deserving class of government beneficiaries
- allowing
attorneys to prosecute VA claims for their own economic gain is likely
to change the non-adversarial relationship between claimant and VA by
requiring a more guarded reaction to claimants by VA decision makers
and by requiring new and less informal procedures to counter the effect
of attorneys attempting to wear VA adjudicators down as they would an
opponent
- enactment of this
legislation is likely to aggravate the claims backlog, require an
infusion of substantially higher appropriations to deal with the
consequent added burdens upon an already overburdened system, and
require additional personnel to monitor and process fee awards
- enactment
of this legislation would represent a disavowal of the government’s
obligation to ensure veterans receive the benefits due them and an
abandonment of the social contract between the citizens of our Nation
and the special few who willingly make extraordinary sacrifices on
their behalf in our national defense
- in
those cases in which attorneys represent claimants before the Board of
Veterans’ Appeals, as permitted by current law, attorneys have no
higher success rate overall than veterans service organization
representatives whose services are wholly without cost to the claimant
- on
the whole, enactment of this legislation will benefit neither claimants
nor VA, but has a great potential for adverse effects and unintended
consequences
For
these same reasons, VA also opposed this change in law. The DAV
therefore urges legislators to repeal these provisions contained in
section 101 of Public Law 109-461.
Read Letter to Chairman Buyer (pdf)
DAV Resolution No. 199 (pdf)
Read News Release
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