Every once and in while I receive inviting news of how the VA is secretly employing chemtrails to change our minds and prevent us from winning our claims. Others talk of vast Left or Right wing conspiracies hatched in Arkansas fishing shacks to do as much. And then there is the school of thought that VA secretly is in league with Vet attorneys and pays them NOT to take our cases or worse-to throw sand in the gears causing us to lose.
I enclose the following from an anonymous member The subject header was:
Are You Aware that the VA…
pays attorneys to take our cases for the express purpose of giving us bad advice? Before I knew that attorneys could not accept payment until our claims go before the U.S. Court of Appeals I was taken in by three of these attorneys, all in different states. It’s easy to detect these guys; all they’ll ask from the vet is his DOB, SSN, and Name. With this they contact the VA who in turns gives the attorney precise instructions on how to best MISGUIDE the Veteran.
Has anyone ever discussed this with you. I know your very knowledgeable about these things.
My response follows:
The law is dispositive on this now since 2004( or was it 2007?) The moment a Vet receives a denial from the Agency of Original Jurisdiction (where you file), he is entitled to a lawyer if he so desires. Many do not know this. Many lawyers do not realize they can influence our claims this early in the process. I’ve had attorneys tell me they cannot touch it if you filed new and material evidence after a VARO denial. I’ve had them tell me they cannot be hired until you get to the BVA. The fact of the matter is simple. Just like anyone in Vetland, you get to choose who represents you the moment you lose the first time. Period. I know. It sucks and they don’t even give us A Miranda Warning.
If you are unhappy with DAV, pull your Power of Attorney (POA) and take it elsewhere. If you can get a Vet attorney to take it, off you go. The only time you are stuck with them is at the CAVC once you file. At that point this person will become your shield bearer. Not all accepted to practice VA law have the CAVC credentials. It costs $1000 a year for a license to practice there and even more up at the Federal Circus. Few Vet attorneys, if any, keep active credentials at the Supreme Court.
Some attorneys are not as motivated as others and cherry pick really good claims. Some claims that will return very little (like hearing loss or tinnitus) are not deemed as important or worth their time if they are really good attorneys. If you were F. Lee Bailey, would you be taking cases for guys who were suing for auto claims of $5,000 dollars? No. You’d reserve your time for the guys who were paying $3,000 an hour for your expertise on a difficult claim for PTSD or Hep C back to 1994.
Sadly, there are Vet’s attorneys who claim-shop. I won’t name them. We just thank our lucky stars that some Vet attorneys are there for us when the really long, drawn out litigation occurs over a decade or more. The Ken Carpenters, the Virginia Girard-Bradys, the Robert Chisholms and others too numerous to mention, are better than no line of defense at all. NVLSP and NOVA have wonderful pro bono programs for just this contingency at the CAVC. The fact that these fellows are limited to 20% and EAJA fees is why some have to be more careful not to sandbag themselves into an earned-income bracket. Nobody gets rich at this except for the gomers who work at VA and the VSO hierarchy. Thirty years ago they fought each other to be president for free at the DAV and the VFW. Now they pay themselves $350 K a year for wearing funny hats, going to conventions and getting drunk. There’s the crime, sir. Vet’s attorneys do not make $350 K a year. Ever. Not on Vet claims.
Never ever think that you are in this alone unless you are using a VSO with the brains God gave a rubber duck. Somewhere out there is a Vet attorney that cannot stand to see injustice. You, as a Veteran have to “prequalify yourself” as you would for a home loan. You cannot arrive with all your legal knowledge and loudly proclaim you’ve been wronged. You have to have a claim that will hold water. Perhaps therein lies the problem for many. They are so utterly convinced they have a viable case that they overlook the obstacles in actually proving it.
Many come to me each month and say “I have a claim for CUE and the attorney won’t take it. Who do you recommend that will?” If an attorney won’t take it, he’s not cherry picking it. He knows it won’t float. He also might consider it much ado about nothing. Remember, there are Vets out there dying of diseases and injuries far more serious that Follicular Barbae and pes planus. Never prejudge a Vet lawyer’s motivations solely on your failure to interest him in your case. He, as an officer of the Court , is held to a higher standard and must legally reject anything he sees as frivolous or a waste of the Court’s time. He risks censure for disobeying the dictate. This is why the Extraordinary Writ at the CAVC was considered shakey ground to tread for decades. A pro se Vet risks nothing except being thrown out on his or her ear. A Vet attorney risks being denied privileges of practicing there if he pisses them off. They walk a fine line.
Besides, let’s be logical. VA is too busy trying to figure out how to line their own pockets with unwarranted bonuses. What would make you think they would set aside their greed and share the largesse with a bunch of Vet attorneys? It flies against their grain. I prefer to use the Occam’s razor for this test.
When you see the rules in a clearer light, you begin to understand this isn’t a spaghetti-contest to get some pasta to stick on the judicial wall. Unlike us, law dogs have to observe decorum . Hell, even VSOs are legally relegated to the booby bin as unschooled bumpkins. And once you realize that, you are well on your way to winning. Knowledge is power. VA would prefer you were a mushroom in the dark with a VSO handmaiden. And that’s all I’m gonna say about that.