Many of my readership bring horror stories to me about their representation by Veteran Service Organizations (VSOs). I get it. It’s one of the prime reasons I decided to become a representative myself-albeit as a private rep. In the past, I have been known to disparage VSO reps as slightly higher than whaleshit and for that I apologize. It’s not that these folks purposefully set out to destroy your claims. It’s because they are not briefed in on the proper techniques to win. If you were never taught your Veteran needed a medical nexus to win his claim on a direct basis, it follows you probably wouldn’t bother mentioning it to him. This, then, is the perennial problem. It’s not ignorance (for the most part) so much as lack of training. Hence my apology for this belated revelation.
From what VSOs I interact with tell me, they get a crash course indoctrination on VA forms and the most rudimentary principles of VA law. We’re talking about a compressed 30-hour how-to and a few weeks of supervision before they are issued their wings. Granted, only a National Service Officer who has passed the accreditation exam and is in good standing can legally sign your 526 or 995/996/10 182. The rest of the time, letters and correspondence are conducted unsupervised by the VSO’s hierarchy. This is how/why you end up on appeal to the BVA with your VSO asking for 10% for tinnitus for each ear. Vet reps don’t read Part IV of the VASRD. They aren’t required to. DC 6260 isn’t in their vocabulary. From what I gather, if there’s an error in the pleading, it’s presumed the NSO will catch it and send it back for correction(s). But what if…?
Well, Pilgrims. Here’s a few of the what ifs I’ve seen over the last decade or so. How about your Georgia Dept. of Vet Affairs representative is arguing on your behalf at a Travel Board hearing before Veterans Law Judge Ursula “the Unmerciful” Powell and he allows as the Veteran “was f–king sick as a dog” to her… all the while sitting beside the Veteran’s surviving spouse. Boy howdy that’s not the position I’d want to be litigating from.
As mentioned above, I was searching BVA decisions for the perfect cite to precedence and ran across a DAV-repped denial by a VLJ that spent two full pages explaining (with a straight face) that the Secretary’s regulation specified DC 6260 (Tinnitus) was awarded at 10% for one ear or bilaterally. There simply was no path to an individual rating of 10% for each ear. There was no mention of the fact that this was a horrible squandering of scarce judicial resources or a legal boondoggle. Crickets. Perfect aplomb.
During my search for knowledge on Tinnitus, I ran across a BVA decision where the VSO’s representative had argued at the Travel Board Legacy Hearing that his client was not entitled to a compensable rating for his SC Tinnitus. Aru? Trying to talk the VLJ out of awarding the client the highest and best award that can be supported in law? Hold the phone. What’s wrong with this ex parte picture? Fortunately, in spite of the VSO rep’s argument against, the VLJ awarded the 10%.
The VSO representation model is a Congressionally chartered process. Each prospective Veterans Service Organization must promise to assist the Department of Veterans Affairs in adjudicating the Veterans’ claim(s). Time out…. Now, read that again. The VSO is promising to assist the VA-not the Veteran. This is why we have NOVA, VA attorneys and agents. We represent your interests-not the VA’s. That is a very important distinction. I doubt any of you currently doing battle with VA over a claim realize you might be equally well-served by doing it yourself to a certain extent.
From 1989 to 2008 I trusted VSOs as the vehicle to ensure my evidence and 4138 statements were associated with my claims file. I used them as glorified mailmen. Imagine my surprise after finding out I needed a nexus letter. When I provided my representative that very item from my doctor, it never arrived at the VA. I began to suspect something wasn’t kosher so I mailed in a copy myself. Mr. VSO rep came unglued and told me if I ever did that again, he’d fire me. Aruuuu? I saved him the trouble and went pro se. Cupcake’s immortal words as we walked out of his office were “We have a better chance of winning the Publisher’s Clearinghouse Sweepstakes than we do winning with that bozo.” Sure enough we won. Well, not the Publisher’s Clearinghouse gig but the claims. I’m still working on the PCH angle. And here we are.
I used the DAV to begin with and did get 0% across the board. No mention of going for the gold. I was told I’d look greedy if we appealed it. We certainly wouldn’t want that. VSOs have repeated this old wives’ tale since the War of 1812. I wish they’d cease. The whole purpose of the appeals system is to right a wrong. VA argues they have a 98% success rate in their decisions. We know that 74% of all BVA decisions are set aside, vacated, or reversed due to legal error. If that is any benchmark, then the 98% claim is fool’s gold. In fact, why even have a Federal Court process if VA is always right? That’s kinda how it worked until 1989.
Some say “I used the PVA/DAV/VFW/VVA etc. to do my claim. They have a far higher success rate than any other VSO outfit.” There are two sides to that coin. You are assigned a representative. S/he might be new, motivated and extremely gung ho. S/he may also be older, burnt out and depressed with his/her workload and the futility of losing claim after claim. It’s like Forest Gump’s box of chocolates analogy. A given VSO doesn’t translate into an effective advocate. Your advocate has to be willing to go off the reservation and actually advocate for you proactively. Sadly, most representatives who exhibit this mustang behavior frequently get canned. Conformity to a set of rules forbids actually helping a Vet win all but the most obvious claims like GSWs or missing appendages. X rays don’t lie. VA examiners do-but that’s another subject for another day.
In the VA claims arena before the AMA, if you were pro se you could pretty much do anything you wanted and they’d straighten it out eventually. If you had a VSO, they might show leniency for your stupidity. There weren’t any fuddy-duddy lawyer rules that said you have to file this or that just so. VSOs have always been granted vast leeway in their dealings with the VA. Well, duh. They work for VA, pilgrim.
Ignorance of the VA’s regulations probably aids VSO reps and VA employees too. I don’t mean that as an insult. The new AMA regulations seem to confuse most Veterans nowadays. I’m sure it confuses VSOs equally so. VA does expect them to use the right form to file or appeal now. I watched this one unfold back in March of 2015 when the new VA Form 21-0958 Notice of Disagreement came out. VSO reps continued to use the old 21-4138 to file the NODS for several years after that. Old habits die hard. Oddly, VA continued to accept them from the VSOs. Now just imagine if an attorney or an agent had done this. Their 4138 NOD filing would end up in the circular file lickety spit and never be seen again. They’d discover it in the next tranche of records when (or if) they got a new copy of the Vet’s claims file.
In sum, the rank and file VSO representative is a valuable tool as your mailbox to the VA. You should be prepared to examine their filings before they launch. Do not, I repeat, do not let them file for everything including the kitchen sink. If you do not have Tinnitus, don’t let them say “Shoot, buddy. Everyone got that when they were in. We always file the Vet for it.” File your claims for that which you actually suffer from…that began in the service. If you watched them bend atoms down at Bikini Atoll in the Pacific, then file for glow-in-the-darkitis. If you served in Vietnam or inside the 12-mile territorial waterways, then file for the AO presumptives. If you’re “Vietnam-era Veteran who only served in Germany, VSOs are famous for filing you for Parkinson’s and your Diabetes Mellitus Type II. When you file a claim, you file it for a disease or an injury. It has to be recognized as such. Itchy skin, absent a diagnosis of shingles- or whatever- is not a disease. 20/80 vision 25 years after service is not going to be a winner unless you served in Vietnam and have diagnosed diabetic retinopathy. Unfortunately, VSOs will try their dangedest to put it in the 526.
I’m glad VSO folks exist to be the first line of attack for a Veteran. Considering how few there are of us agents and attorneys, VSOs provide a valuable service as an intake vehicle to get Veterans aimed in the right direction. Hadit.com and some of the other sites for Veterans claims can also be an invaluable asset for newbies. Helping Veterans is fighting the good fight. Giving them good advice is the hard part. Every claim I open and investigate is unique and different from any other. Each Veteran has walked a different path to get here. Each claim for any given benefit has facets that can help or hinder you. There simply is no one-size-fits-all so don’t buy it. The 12 gauge approach, also known as the spaghetti offense to see what sticks to the wall, can backfire on you later. Due to the immense volume of claims each VSO rep is forced to shoulder necessarily means you are not going to get top drawer service. Nevertheless, it’s the best way to begin your battle. In almost all cases, it’s going to be the only way.
As attorneys or agents, we are swamped with Veterans seeking help. The pandemic only increased the queries because all the VSO offices were shut down. I spend hours on the phone handing out free advice to avoid having to take a claim. Most of us will not take a claim on from the beginning. By law, we cannot charge for helping you file your claims. We enter into the litigation arena only after you are denied. This isn’t meant to be greedy as some VSOs would have you think. Most of the folks in this game who practice VA law have wives, children, a mortgage and a humongous student loan debt by the time they begin their practice. Agents do not. We aren’t lawyers but get to dress up and pretend we are. We may have wives, children and a mortgage but we don’t have that insurmountable debt.
Speaking of money, it’s somewhat facetious for VSOs to say agents or attorneys are only in it for the money. Keep in mind every VA Form 21-22 that DAV, VFW or American Legion (or the 143 other VSOs registered) turns in results in a $200 “contribution” from VA into their National coffers. It pays to file with a VSO. Now, that $200 dollars I mention was way back in 2008 when I queried the Washington Dept. of Vet Affairs about it. The gal confided that it wasn’t common knowledge. Inflation suggests it has probably gone up.
Several years ago, A VSO National Service Officer from DAV called me a VA ambulance chaser. I’m not sure if that was an insult or a compliment. I’m sure I don’t know haw many claims I helped influence or win (or lose). Statistics show we have a far higher win ratio than VSOs. Who cares? The Veteran is our guiding North Star. One thing is for sure. If I hadn’t started chasing VA ambulances five years ago, there’d be a shit ton less Vets getting a compensation check. VA demands we be accredited- period. No one can engage in this without being credentialed. Thus, anyone who helps Vets legally is someone who cares enough to do it. I don’t look gift horses in the mouth. If a VSO can get you there, we all win. Reality shows that after you exhaust the VSOs’ limits, you’ll need to get professional help unless you have figured out how to do it yourself.
My abiding hope is that one day VSOs will engage in far more rigorous training to increase their representatives’ knowledge of this process. The AMA has created a minefield of new problems for the average Vet-not to mention his representative. The more knowledge of the processes of VA adjudication you learn, the more able you will be as a representative to help your Veteran. Punishing a representative for being successful is the antithesis of logic. In a perfect world, a VSO would be the equal to his private counterpart. But then, if six was nine we’d all have three more dollars in our savings accounts. Since it isn’t, and since VSOs, while they mean well, are not yet the equal to some who have learned the process, attorneys and agents will always find work until they do.
Again, my abject apologies go out to all of you who toil away at Veterans Service Organizations helping America’s Veterans for demeaning you. I don’t think of myself as a VA ambulance chaser. I prefer to think of myself as a Rain Man. It doesn’t grate on the ears as much.