[Mb-civic] Who Can Fight for the Soldiers? - James C. McKay - Washington Post Sunday Outlook

[William Swiggard]

Who Can Fight for the Soldiers?
Veterans Need the Right to Hire a Lawyer

By James C. McKay
Sunday, January 22, 2006; B02

If American soldiers are mature and responsible enough to choose to risk 
their lives for their country, shouldn't they be considered competent to 
hire a lawyer? No, not if that lawyer is going to pursue their veterans' 
benefits claims before the Department of Veterans Affairs. That's the 
flabbergasting answer from Congress and the Supreme Court.

During the Civil War, a statute was enacted imposing a $5 limit on the 
fees paid to lawyers or agents assisting veterans applying for pensions, 
reenlistment bounty or other military allowances. Two years later, the 
cap was raised to $10 -- and remained at that level for 124 years. In 
those days, filing a claim involved simply filling out a one-page form; 
a $10 fee was reasonable for the claimants who needed assistance. But as 
time passed, the fee became so trivial that its practical effect was to 
bar veterans from employing lawyers.

In 1985, the Supreme Court upheld the limit, rejecting the contention 
that it effectively deprived veterans of their Fifth Amendment right to 
due process or their First Amendment right to petition for the redress 
of grievances. And in 1988, while Congress eliminated that $10 ceiling 
and created a Court of Appeals for Veterans Claims, it also said that a 
veteran could hire a lawyer only after completing a complex 
administrative process that culminates at the Board of Veterans' Appeals 
(BVA). By that time, however, a case has been lost, often because the 
veteran did not present the correct claim, or properly present available 
evidence -- technicalities that could hurt the case on appeal even after 
a lawyer is involved.

As a result, many veterans' benefits disappear down the rabbit hole. 
Take the case of Dana Myers, who joined the Marine Corps as a teenager 
and who received an honorable medical discharge on Dec. 20, 1957, 
because of back problems. The next year, he was denied disability 
payments. In April 1959, he sent a letter to the regional Veterans' 
Affairs office taking issue with that ruling. But later the Board of 
Veterans' Appeals said that Myers didn't use the precise words that are 
required for what is known as a "notice of disagreement" (or NOD). 
Without that, the board rejected his appeal.

If Myers had hired a lawyer, he would likely have followed the correct 
procedure back in 1959. Instead, Myers is still fighting his case. In 
1994, he won a 40 percent disability payment, but it wasn't paid 
retroactively because of his procedural errors back in 1959. I began 
representing him on a pro bono basis in July 1998, the first time he 
ever had a lawyer, and we won retroactive payments. Now the Veterans 
Administration (VA) is refusing to give him back payments based on 
anything more than a

10 percent disability for most of that time. Another appeal is pending.

Consider the plight of Terry Ledford, who developed schizophrenia while 
serving in the Air Force. He lived on 100 percent disability benefits 
from his medical discharge in 1976 until 1981, when his benefit level 
was suddenly reduced under provisions of new rules in a VA circular. A 
non-lawyer veterans' service organization representative was assigned to 
help Ledford. But it took 17 years for the case to make its way through 
VA administrative processes and court hearings. And in the end, a 
federal court threw out the claim because Ledford failed at the outset 
of his case to challenge the legality of the circular -- a strategy a 
lawyer might have pursued but not an untrained vet, let alone one 
suffering psychiatric problems.

This issue of legal assistance for vets has been scrutinized by those in 
the best position to know whether an attorney would help or hinder the 
process, or whether an attorney could expedite and clarify the process. 
Judge Frank Nebeker, the first chief judge of the Veterans' Appellate 
Court, said in a January 1999 concurring opinion that the court 
continued "to see many appeals where, if counsel were realistically 
permitted to represent a claimant during the adjudication process before 
a final BVA decision, an appeal would be unnecessary or seen as futile 
by the applicant. Effectively limiting lawyer representation until after 
a BVA final decision is, quite arguably, unnecessarily paternalistic."

Generally speaking, the Constitution frowns on government paternalism -- 
the idea that mature adults are incapable of charting their own destinies.

For example, in 1977, the Supreme Court held in Bates v State Bar of 
Arizona that because of the First Amendment, advertising by lawyers 
could not be prohibited in order to protect consumers from making what 
the government believed would be ill-advised choices. Justice Harry 
Blackmun explained that the purported justification "assumes that the 
public is not sophisticated enough to realize the limitations of 
advertising, and that the public is better kept in complete ignorance 
than trusted with correct but incomplete information."

Yet both Congress and the Supreme Court have taken a paternalistic 
approach toward veterans seeking benefits by denying them an opportunity 
to hire a lawyer. Although grudgingly recognizing that a lawyer might be 
helpful in a complex case, a plurality of Supreme Court justices in 1985 
declared that in most instances unscrupulous lawyers were likely to 
overcharge veterans, sow confusion, cause delays and obscure the truth. 
In any event, according to the justices, lawyers were superfluous in the 
vast majority of cases because only a tiny fraction of the cases were 
complex. Besides, added the four justices in the same ruling that upheld 
the $10 fee, non-lawyer representatives of numerous veterans service 
organizations were available to assist veterans free of charge.

Whatever the merits of excluding lawyers in the past, the reasons no 
longer exist. Since the creation of the veterans' appellate court, cases 
have become far more complex. Today, many veterans' cases are as 
complicated as medical malpractice claims, which are prosecuted on 
behalf of clients by highly specialized lawyers. They often require 
experienced advocates to analyze, evaluate and develop evidence relating 
to a vast number of mental and physical disabilities.

Although representatives from some veterans' service organizations are 
trained to develop claims, many other reps lack such skills. In any 
event, they are not lawyers, who are better suited to perform those 
tasks. Moreover, each service representative typically handles scores of 
veterans, minimizing personal contact. All this makes it unlikely that 
service representatives will persuade the board to sustain the veterans' 
claims and, when claims are denied, leave the case in the best possible 
position for an appeal to the veterans' appellate court.

The exclusion of lawyers has also been a cause for the huge delays 
throughout the benefits system. It is common for a VA proceeding to last 
more than a decade. Many claims are recycled over and over. Whereas 
ethical rules prohibit lawyers from filing frivolous claims, there are 
no such rules constraining service representatives. Many veterans have 
died of old age before their claims were resolved. Their claims die with 
them, since widows and orphans by statute have no right to pursue the 
claims.

In a 2004 interview, another chief judge of the Veterans' Appellate 
Court, Donald Ivers, who is also a former VA general counsel, stated 
that "The Court has historically taken a position recognizing that 
involvement of lawyers before the VA could be very helpful, and I 
concur." Retired Judge Ronald Holdaway, at the 2004 Eighth Judicial 
Conference of the veterans appellate court, stated his view that 
veterans should have the right to counsel at the administrative level: 
"I think you would get better records, you would narrow the issues, 
there would be screening . . . But the fundamental reason: Why should 
veterans be treated differently from anyone else?" Federal circuit court 
judges also understand the changes in the veterans' benefits system 
since the creation of the veterans appellate court, and the importance 
of the presence of lawyers at the early stages of VA proceedings.

Years ago, Justice Oliver Wendell Holmes wrote that it is "revolting" if 
a rule of law "simply persists in the blind imitation of the past." The 
adherence to a Civil War era approach to veterans' rights seems to fall 
into that category. If veterans are mature and responsible enough to go 
to war, vote and pay taxes, they should be treated as old enough to 
decide whether to pursue a claim with the help of a lawyer.

Author's e-mail:JMcKay at cov.com <mailto:JMcKay at cov.com>

James McKay, a veteran of World War II, is a senior counsel at the 
Washington law firm of Covington &amp; Burling. Over 10 years, he has 
represented, on a pro bono basis, many veterans seeking disability benefits.

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/21/AR2006012100100.html
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