NOVA, the National Organization of Veterans Advocates, holds its annual spring conferences out west here. Cowboy hats are optional. This being the third I will be attending, it dawned on me why it’s almost tantamount to an annual Hajj to Mecca. I feel impelled to attend not simply because I need the Continuing Legal Education(CLE) hours demanded by the Office of General Counsel (OGC 22D) but by the camaraderie of meeting old friends and making new ones. Moreover, one gets an opportunity to have one’s picture taken with a famous amos Vet lawyer, a VLJ or the occasional CAVC Judge. A cell phone is an amazing tool.
Of more concern to me was why we all convene at these social constructs. Until our enlightened Congress passed a law back on June 10th, 2007, it was against the law for a Veterans attorney to charge a Vet a dime more than ten dollars US. The law had remained on the books since the presidency of Abraham Lincoln with nary a bump for COLA increases. As you can imagine, it was a wide-open field for wanna be pro bono leagle beagles. Sadly, you cannot eat altruism. You cannot pay the mortgage with good intentions and the market for full-time free legal help is always desperate for volunteers. EAJA fees don’t even cover the airfare or hotel room for a hearing.
Congress remedied this to a certain extent. Real, talented legal help is yours for the taking- just as soon as you lose the first time. It’s like coming up to bat and the umpire loudly exclaims “Strike one” before the pitcher even throws the ball. You suddenly have two opportunities (instead of three) with which to prove your claim with adequate legal counsel. I’m not complaining, mind you. Two is better than none or a last-ditch effort at the Court of Veterans Appeals to get a vacatur or set aside to build it correctly all over again. We’re angling to be remunerated at the beginning but I expect that’ll be a big donnybrook all by itself far in the future-if ever.
The incredible sequence of events that led me here was VA telling me I’d never been in Vietnam. You can call me late to dinner; you can call me a retard; you could probably go so far as to tell me to get lost but calling me a liar would be a mistake. Doing it twice or more will give me the distinct impression we are not going to be BFFs. It took eighteen years to make them eat those words. 2019 will mark 30 years of warfare and still I am fighting- albeit legally for others now.
Being allowed to help Veterans is a sacred gift. Every win is another knife in their back with a smile on my face. Each altercation is done civilly as if we are denizens of a polite ‘Mizz Manners’ upbringing. We all smile and shake hands as only Perry Mason and Hamilton Burger did every Thursday night at 8PM Eastern in the 50’s. Personally, I have no problem acting civilized to a Decision Review Officer. My first inclination will always be to inquire if there is anyone with a higher-than- room-temperature IQ on the 12th Floor at the Seattle RO. Knowing rhetorical questions need no answer allows me to squelch that thought. Rather, being polite gives me that warm, sensuous fuzzy feeling only a cat can describe while toying with a mouse in its grasp. You know you’re going to prevail by intelligence alone. Time is the only downside. It doesn’t weigh so heavily on those of us who have prevailed. However, I do know what it feels like personally before the final success. It’s extremely depressing and worrisome and understandably so.
NOVA has a large number of far thinkers like Keith Snyder who convened their first meeting in 1993 at a Baltimore Holiday Inn. We’ve come a long way, baby. We are 500-strong now according to the published NOVA literature. Our success rate on claims has increased exponentially over VSO-represented Veterans in the last ten years (over 35% just at the BVA and 74% at the CAVC). We continue to learn new techniques in legal Jiu Jitsu and how to take the best impromptu selfies. Attorneys and agents are also responsible drinkers and rarely make asses out of themselves. That’s a major plus at a big gathering.
The enduring question is why we even need an organization like NOVA. Most nations would be grateful to their citizen soldiers like the Greeks in the centuries before Roman domination. That an agency of Government erected solely for the purpose of protecting and nurturing our injured would inflict so many obstacles to proper remuneration and stoically intone “For he who shall have borne the battle…” whilst waiting for him to die and denying him benefits is the worst kind of hypocrisy. That it requires yet another host of defenders to bring justice to bear or charitable institutions to defray life’s costs is equally horrendous. Lastly, it speaks volumes that Congress never addressed this with the VJRA enacted in 1988 and it languished several decades until 2007. Why offer access to the Federal Courts if you enucleate the right to attract quality paid legal help at the outset?
Many of the hierarchy among Veterans Service Organizations consider us to be bloodsuckers and ambulance chasers. As a general rule, most of us charge 20% of the retroactive winnings. Some are prone to charge up to 33%. Since I don’t have a student loan of $225,000 or an overhead of a storefront office plus personnel, I don’t have to charge full freight. I feel overwhelmed if I have more than 20 Veterans on my dance card. Think about that from the standpoint of a VSO having 250 and literally having no time to return their calls. Hell, I take Vets to their c&ps lots of times. If they’re broke, I tide them over with a grubstake. I’m not the regular run-of-the-mill Vet Rep but then there are no defining rules, are there? Contemplate the below.
NEW TECHNIQUES FOR VA ADVOCATES
In 2007, I reported for a c&p for Hepatitis and Porphyria. I dragged along a bunch of stuff from other doctors. Both doctors said “I’m really not supposed to look at these but I’d like to make a copy.” I always bring them a copy. They quickly secrete them in their desks. Doctors are very insecure and unsure of themselves and their diagnoses. They prefer to describe themselves as ‘practicing medicine’ rather than ‘performing’ it. They could no more turn away (and turn to a pillar of salt) and ignore what you bring. Many times it focuses the disease or injury in their minds more clearly such that they are more sympathetic to your plight. I consider it my impersonal asknod DBQ. After all, am I not simply embracing VA’s unofficial motto: “All’s fair in love and war” ? Ex parte justice isn’t as immutable as VA would contend. Remember, the object is to grant the Vet anything he is entitled to by law. Information is King to this enterprise.
During Butch Long’s numerous C&Ps, I again began hauling in relevant documents, both medical and military, to his Compensation and Pension Exams and handing them to the doctors/shrinks etc. I pointedly kept them out of sight at the front desk so as to avoid a confrontation. VA advises you to neeeeeever take anything in with you. I’ve also been denied entrance with the Veteran. I merely brandish my (non)attorney status as his counsel and they acquiesce instantly. This allows me to interject comments sotto voce if the client overlooks something important. At Butch’s second eye c&p several weeks ago, I laid into the ophthalmologist and chewed him out for not annotating that Butch’s 2013 cataract surgery, which I’d left him to read in 2015, noted two retained metal fragments. That deprived him of a 10% rating. It so rattled Dr. Eyeballs that he got out the biiiiig magnifying glass and discovered not two but nine retained foreign bodies and aphakia (loss of lens) from the 1969 injury. I’m sure his QTC writeup is going to be explosive this time around. I even got a lukewarm apology for his earlier mistake and a hearty TY4YS for Butch. They change their tune when you wave that Purple Nurple certificate under their noses. I get that. I’m sure there are Veterans too numerous to count who come in with wild, unsubstantiated outlandish tales.
I’ve always tried to stretch what you can do legally. I believe my record is 112 mph in a 55 with no jail time. Mr. Law Enforcement Officer graciously reduced it to a 100 in a 55 with the codicil I promise to not contest it and pay the $498 ticket. Unless, or until, VA tells me it’s against the law to bring in material evidence and share it with the doc, you can almost predict I’ll continue showing up with a file cabinet on a hand truck. And if no one tells me I can’t interject comments during a bent brain c&p, you can be sure I’m going to bark like a dog. Vets are already given a shady deal in this game with one hand tied behind their back. Any possible high ground I can attain is a given. Until they begin frisking us at the door, I’m going to continue to engage in mission creep.
Cupcake to the Rescue
Fortunately, as a newly minted VA nonattorney practitioner, I have a secret weapon. Cupcake has been getting mighty restless doing real estate these last 20 years and has been talking about coming aboard as community organizer and Girl Friday. It’s either that or hire a FNG with a shiny new JD and zero legal preconceptions about VA law. This is a win-win deal and it doesn’t even require marriage. I’ve already consumed the most toxic substance on earth (wedding cake) twice and survived to talk about it. Truth be told, I’m probably the only guy you know who had an official Divorce reception replete with a three-tiered cake and a champagne fountain. Photography was forbidden, naturally. One never wants to further enrage the aggrieved party and pay a higher alimony.
Wheels up on Friday, April 14th. Deb claims the Cupcakemobile will make 1.65 lightspeed so we anticipate arriving Thursday afternoon the 13th. It’s far more entertaining at low altitude and you get to see a broader slice of America and Americans. Truth be told, flying commercially while wearing an abdominal support scares the bejesus out of the TSA agents. Three of them surround you with blast shields and ask you to gingerly raise your shirt with your thumbs and index fingers only. They wipe your ‘belt’ down with little pieces of cloth and put them in a machine to detect any explosive residue. Several years ago, we were traveling home after the 2015 Hugfest in Magnet, Indiana and I’d been setting off fireworks while wearing one. I got everything but an MRI and a colonoscopy. We almost missed our flight. The other positive thing about driving is you can pack a firearm with fewer Imperial Entanglements. What? You travel without? That’s uncivilized in this day and age.