Our Disclaimer
This Knol is provided to you to describe general processes and procedures that occur during the application for disability compensation and pension and other benefits within the Department of Veterans Affairs System. Any author you find here is not providing you with legal advice. Any information provided by this Knol or any contributor to this Knol is not intended as and should not be construed as legal advice. You should always consult an attorney to help answer specific questions regarding how VA laws apply to you and/or your situation. The summaries provided here are incomplete, and the DVA laws and regulations are subject to change. We do not guarantee and we are not liable for the accuracy or completeness of any of the information provided, or any results or outcome as a result of the use of this information. |
| Public Domain. Source: DOD. An ex-prisoner of war salutes during the playing of the National Anthem at the POW/MIA Recognition Day ceremonies at the Pentagon on Sept. 15, 2006. Congressman and Vietnam veteran Robert Simmons was the guest speaker at the ceremony hosted by Deputy Secretary of Defense Gordon England and Chairman Joint Chiefs of Staff Gen. Peter Pace, U.S. Marine Corps. DoD photo by Helene C. Stikkel. |
Source
What is a C-file,
why it’s important to your claim for VA Compensation Benefits and how to use it to help you win?
Article by Karl Kazmierczak, Esq.
This article will be about the importance of your C-file, why you need it, and other evidence you may want to get to put into this file. One of the reasons I am writing this article is because many of the veterans who have come to me for help with their claims do not know what a c-file is or why it is important to their claim. I have had veterans come to me after years of appeals and they never saw their own c-file. I will first explain what your C-file is. I will then discuss what you can expect to find in your C-file. I will also discuss what will probably not be in your C-file that may be important to your case.
All of your evidence that the VA attains or that you got for your claim is kept in your C- file. It is extremely important to get this file by requesting it from your local regional office and to review it thoroughly. The VA will base its decision on the evidence that is in this file. Many veterans assume that the people making the decisions at the VA are making that decision with all of the evidence the veteran assumes they have. Even if you provide the VA with all the necessary information including dates, medical facilities you were treated at, where you were serving, the unit you were in and other information requested by them you cannot safely assume that the VA got all the information necessary for your claim. Most of you are aware of the VA's duty to assist. However, I can tell you it is very rare that all the information that can help your claim will be found in your file. If you leave it up to the VA to get all your evidence to prove your claim you do so at your own risk. By getting a copy of your file you will be able to see exactly what those who are going to decide your case are looking at to make their decision.
So what will you find in your C-file? You will usually find all your correspondence with the VA and the claims that you have made. You will also normally find your DD 214 and military medical records. You will also usually find your entrance and separation exams. You should also find any C&P exams performed on you. There is very little structure to the C-file. They can be extremely large and require a great deal of time to go through every page. Unfortunately, you must go through the entire file and read every page. If you do not think you have the ability or knowledge to do this than find a representative or lawyer who will. I have often found very important pieces of evidence in the middle of many pages that don't seem relevant at all to your claim. On a few occasions, I have seen one page of a report at the beginning of the file and the rest of the pages of the report scattered throughout the rest of the file. When you review your file you should take notes and tab the pages that are important to your case. I do this by scanning the entire file onto the computer and then I use Adobe to bookmark important pages while I make notes on a separate Word document. This may seem like a lot of work, and it is, but you have to look at it from the view of the person who is deciding your claim. The person at the VA who is deciding your claim has a huge caseload with each file he or she has to look at numbering hundreds of pages each. Chances are if you review your own file and take notes and you are able to present your case as briefly as possible, you can make it easier for them to find in your favor by pointing out exactly in the file the evidence that is favorable to you. The easier you make their job the better chance you have of winning your claim.
If after reviewing your file, you find that there is important information missing you should request the VA obtain the information. You should also try and get the information yourself if you have the means to do so. Often times, you will not find in your file your military personnel records which includes things like how you performed in your duties, what your unit did, and any awards and decorations. You will also probably need to update the medical information in your file. You may also want to seek to get nexus letters or reports from your present treating doctors. You may also want to request a C&P exam if your particular case calls for one or more. Looking through the file and not finding medical records you know should be there or records that you sent in that are not in the file is the easy part. Knowing what evidence you need to get to give yourself the best chance to win can be the more difficult task. This is where professional help can make a difference. Not everyone needs a lawyer or representative to get the benefits they are seeking. If you review your file and become knowledgeable of VA law you will be able to assess whether it is something you can handle or something that you need help with.
I will now talk about some types of evidence that can be helpful for your claim that you may or may not have considered. If you're trying to get unemployability and you are currently on Social Security Disability benefits then your Social Security Disability file can be important to your claim. This is particularly important when you were found disabled by Social Security for the same medical conditions that you are service-connected for. The VA is not bound by this evidence but it is strong evidence in your favor. Also in regards to unemployability claims, you may also want to include documents regarding your job history, much of which can be found in your Social Security records. In claims for unemployability you may also want to consider getting the opinion of a vocational expert. For all type of claims you may want to consider getting statements from family and friends or people you served with. These statements can help in different ways for different claims. They can sometimes help prove an incident or give a better picture of how your condition affects you. A letter or e-mail to someone back home while you were serving can help to verify an incident or help prove you were somewhere that you say you claimed to be but there is no record of (a letter from a base in Vietnam to home to show you were in Vietnam for example). There is no limit to the different types of evidence that could help your claim and often times even with the help of a lawyer or representative only you will know of some piece of evidence that you may have lying around or that you can get that will help you win your claim.
What you should take away from reading this article is your need to request by certified mail from your regional office your C-file and service medical records, review every page, take notes, determine what is missing and what additional evidence you need to get to win your claim. You then need to take all this information and explain as briefly as possible why you are entitled to the benefits you seek and point out the evidence in the file that is favorable to your claim. Remember make the person deciding your claim's job as easy as possible to find in your favor. Lastly, if you find this overwhelming or even if you're unsure seek help with your claim.
Hiring A Lawyer
Douglas Rosinski
Attorney
Columbia, South Carolina
Hiring an attorney is one of the hardest decisions for a veteran in pursuing VA benefits. Hiring the right attorney is even harder.
Reason to Consider Hiring An Attorney
First things first. The only reason for a veteran to hire an attorney is because the veteran believes that an attorney can help achieve a more favorable result than the veteran alone would otherwise obtain.
That’s it. There is no other good reason.
The trick is, of course, to know when an attorney can get a better result than the veteran alone or with a non-attorney representative. Recognizing a situation where an attorney can be helpful is the first key to successfully hiring an attorney.
When An Attorney Can Help
Attorneys are trained to advocate for their clients. That means an attorney can help a client when the work to be done requires someone to understand the facts of the claim, the law that applies to the claim, and there is an opportunity to explain to a someone why the facts and the law favor their client. In short, an attorney is can be more helpful in some situations than in others.
What An Attorney Can Do
Explain the status of your claim, why it has been denied, and what will likely be needed to obtain an award
Organize the facts of your claim to present the most favorable possible basis for an award of the benefit sought
Research the rules and regulations that are relevant to your claim
Combine the facts and law into the most compelling argument for an award of the benefit sought
Identify the available procedural options (appeal, DRO, remand, etc.)
Receive and respond to VA letters and requests
Prepare responses to VA and the Board of Veterans’ Appeals requests for evidence
Prepare written arguments and briefs
Make oral arguments at VARO hearings, before the Board, and the Court of Appeals for Veterans Claims
What An Attorney Cannot Do
Change or create facts
Find or create missing records
Change the law, rule, or regulation
First things first. The only reason for a veteran to hire an attorney is because the veteran believes that an attorney can help achieve a more favorable result than the veteran alone would otherwise obtain.
That’s it. There is no other good reason.
The trick is, of course, to know when an attorney can get a better result than the veteran alone or with a non-attorney representative. Recognizing a situation where an attorney can be helpful is the first key to successfully hiring an attorney.
When An Attorney Can Help
Attorneys are trained to advocate for their clients. That means an attorney can help a client when the work to be done requires someone to understand the facts of the claim, the law that applies to the claim, and there is an opportunity to explain to a someone why the facts and the law favor their client. In short, an attorney is can be more helpful in some situations than in others.
What An Attorney Can Do
Explain the status of your claim, why it has been denied, and what will likely be needed to obtain an award
Organize the facts of your claim to present the most favorable possible basis for an award of the benefit sought
Research the rules and regulations that are relevant to your claim
Combine the facts and law into the most compelling argument for an award of the benefit sought
Identify the available procedural options (appeal, DRO, remand, etc.)
Receive and respond to VA letters and requests
Prepare responses to VA and the Board of Veterans’ Appeals requests for evidence
Prepare written arguments and briefs
Make oral arguments at VARO hearings, before the Board, and the Court of Appeals for Veterans Claims
What An Attorney Cannot Do
Change or create facts
Find or create missing records
Change the law, rule, or regulation
Promise to "speed things up" at the VA (may be able to get a "stalled" claim moving)
Create a favorable medical diagnosis
“Sue the Secretary”
Create a favorable medical diagnosis
“Sue the Secretary”
“Sue” any other VA employee
Guarantee an award
Attorney Representation in the VA System
As with most other aspects of the VA benefits system, there are rules for hiring and compensating attorneys. A basic understanding of these rules is important for a veteran looking to have an attorney represent them in seeking an award.
It often comes as a shock to veterans (and non-veterans as well) to learn that a veteran cannot just go out and hire a lawyer to help him or her file a VA benefits claim. Quite the contrary, veterans are explicitly prohibited from paying anyone to assist them in filing or pushing a claim through VA until VA denies the claim! Amazingly, up until very recently, it was a federal criminal offense for an attorney to accept compensation of any type for helping a veteran file a VA claim.
Even more amazingly, Congress still limits a veteran’s right to hire an attorney, supposedly to protect the veteran from evil attorneys who are only out to steal benefits from poor, addled veterans. No, its true! Congress continues to believe that attorneys are more of a threat to a veteran’s benefits than the VA. (Just for fun, think of the outrage on cable news shows that would occur if Congress limited the ability of a gender, ethnic or racial class to hire an attorney the same way as they do with veterans).
The key VA rules regarding a veteran hiring an attorney are summarized as follows:
An attorney cannot charge a fee for representing a veteran in a benefits case until the veteran files a Notice of Disagreement (NOD) with the decision denying the claim
For an attorney to represent a veteran before the VA, the attorney was be “accredited” by VA
A fee agreement between an attorney and a veteran must be in writing and submitted to VA
Again, VA insists that these restrictions are to protect veterans from unqualified attorneys. Perhaps so, but such restrictions also limit the number of attorneys available to veterans.
Attorney Fees
Good intentions and public service aside, veterans seeking to hire an attorney have to recognize one fundamental fact: attorneys are in business. To survive, a business must bring in more money than it spends. And, just like plumbers and doctors, attorneys must charge for services to survive. It is amazing how many veterans seeking to hire an attorney do not understand this basic fact. Recognizing the realities of the legal business will make hiring and working with an attorney much easier.
Not surprisingly, VA also has rules about how and how much an attorney can charge a veteran for work before the VA (meaning the Regional Office and the Board of Veterans’ Appeals). For work before the VA, attorneys can charge:
A fixed fee;
An hourly rate;
A percentage of benefits recovered (a “contingency” fee);
A combination of the above;
as long as the total fee is “reasonable.”
A fixed fee, as the name suggests, is where the attorney agrees to do a specified task for a specific fee. The advantage to a fixed fee is that the veteran knows up front exactly how much he or she will pay the attorney. Fixed fee can run from a few hundred dollars to several thousands of dollars depending on the task. Similarly, an hourly fee is an agreement for the attorney to charge for each hour spent on the agreed task. An hourly rate can vary from around one hundred dollars per hour to several hundred dollars per hour. Hourly fees are not common in veterans work because the fees can add up quickly and veterans rarely have funds to pay an hourly rate if they do not get a large award.
The most common type of fee is the percentage or contingency fee, which is the most favorable fee structure for most veterans in most veterans benefits cases. This is because the attorney is only paid if (1) an award is made and (2) there is an amount owed to the veteran at the time of the award. The attorney is then paid a percentage (usually between 20% and 33%) of the amount owed to the veteran when an award is approved. This amount, also known as a “retroactive” award, is the amount of due to the veteran from the effective date of the award up to the date of the award. If the award was made following an appeal to the Board and the effective date is the date the claim was originally filed (as it is in most cases), the retroactive amount could be 3 or 4 years of benefits. If the case goes up to the Veterans Court and back, the retroactive period could be ten years or more.
As an example, assume a veteran filed a claim on January 1, 2004, and enters into a 20% contingency fee agreement with an attorney. On January 1, 2008, the veteran is awarded a 100% disability rating. The retroactive amount is the 100% monthly payment for the period between January 1, 2004, and January 1, 2008 (four years), which is approximately $120,000 at current rates. The attorney’s fee would be 20% of the $120,000 or $24,000.
Attorney Fees Before the Veterans Court
Fees for attorney work in the Veterans Court are not subject to the restrictive VA regulations. The Court still requires that fees be “reasonable” for the services rendered and the results obtained. The most common fee by far is still the contingency fee.
At the Court, however, a federal law known as the Equal Access to Justice Act or “EAJA” offers veterans who win at the Court the opportunity to have the government pay all or part of their attorney fees. Many attorneys will take an engagement for a case at the Court and agree to accept the EAJA fee, if any, as payment. A veteran looking to hire a lawyer for an appeal at the Veterans Court should discuss the possibility of using EAJA to pay the attorney.
Costs
In addition to attorney fees, a fee agreement may also specify that the veteran may be responsible for “costs,” which are the out-of-pocket expenses (postage, copying, experts, etc.) paid by the attorney on behalf of the veteran. A veteran should make sure he or she understands who is responsible for costs before signing a fee agreement.
Reality Check
Veterans are sometimes surprised by the amount of fees that result from a contingency or hourly fee agreement and question whether the attorney “earned” that much money. “After all, I am the one who is hurt/sick/unable to work” is the usual logic for raising this question. Several issues make such second-guessing unfair.
The first issue is whether the veteran received what he bargained for in exchange for the fee. If so, the next issue is whether the attorney received the fee that the veteran agree to pay. If this is also true, there is not a legitimate reason to challenge the fee. Another way to think of such situations is to consider whether the veteran would be better off with 100% of nothing (no award) or 80% of an award. In any event, the time for questioning a fee agreement is before it is entered into, not after the award is obtained.
That is not to say that a fee agreement cannot be challenged because it was unreasonable, unfair, or improperly used to the attorney’s advantage. Many attorneys will adjust their fee if the situation resolved itself without the expected effort. Many times a disagreement can be resolved by discussing the issue with the attorney. For cases where the veteran still feels a fee was unfair, VA has a process for veterans to file complaints and challenge fee agreements. In fact, for fees administered by VA, the agency holds the attorney’s fee for several months or until the veteran tells VA he or she has no objection to payment of a fee by VA.
Finding An Attorney
Only after you understand (1) what you want done, (2) what an attorney can do for you, and (3) what it should cost you, is it time to find some attorneys to interview.
There are a only a small number full-time veterans’ attorneys. There are other attorneys who handle veterans’ cases on a part-time or occasional basis. In addition, other attorneys volunteer their services through organizations that match veterans with attorneys willing to work on a pro bono (without charging a fee) basis. For all that, there are pitiful few competent and experienced veterans attorneys out there.
The low number of attorneys is somewhat balanced by the national nature of the practice. In other words, it is not necessary for an attorney to be located near a claimant to properly represent them before the VA. Most veteran attorneys rarely meet clients personally because the clients are located all over the country. Distance is not a problem, as a good attorney will routinely communicate with clients by mail, telephone and email, as events develop.
Regardless of where a veteran lives, the best source to find an attorney is a recommendation from a friend or other veteran that has previously engaged that attorney in a VA matter. Nothing is better than a personal recommendation from someone you know and trust. But keep in mind that even the best and most knowledgeable attorney does not always win and even the worst prepared and disagreeable attorney will get an award sometimes.
If a personal recommendation is not available, the next best things are recommendations from other veterans on websites and blogs such as this Knol, VAWatchdog.com, and The Veterans Voice. Another good source is a recommendation from well-respected advocates (such as our own Jim Strickland). If you are comfortable on the web, a search on Google or similar search engine for “veteran’s attorney” will bring you all sorts of entries and advertisements for attorneys practicing in this area. Your state or local bar association may also have a referral service where attorneys seeking veteran clients list themselves.
Guarantee an award
Attorney Representation in the VA System
As with most other aspects of the VA benefits system, there are rules for hiring and compensating attorneys. A basic understanding of these rules is important for a veteran looking to have an attorney represent them in seeking an award.
It often comes as a shock to veterans (and non-veterans as well) to learn that a veteran cannot just go out and hire a lawyer to help him or her file a VA benefits claim. Quite the contrary, veterans are explicitly prohibited from paying anyone to assist them in filing or pushing a claim through VA until VA denies the claim! Amazingly, up until very recently, it was a federal criminal offense for an attorney to accept compensation of any type for helping a veteran file a VA claim.
Even more amazingly, Congress still limits a veteran’s right to hire an attorney, supposedly to protect the veteran from evil attorneys who are only out to steal benefits from poor, addled veterans. No, its true! Congress continues to believe that attorneys are more of a threat to a veteran’s benefits than the VA. (Just for fun, think of the outrage on cable news shows that would occur if Congress limited the ability of a gender, ethnic or racial class to hire an attorney the same way as they do with veterans).
The key VA rules regarding a veteran hiring an attorney are summarized as follows:
An attorney cannot charge a fee for representing a veteran in a benefits case until the veteran files a Notice of Disagreement (NOD) with the decision denying the claim
For an attorney to represent a veteran before the VA, the attorney was be “accredited” by VA
A fee agreement between an attorney and a veteran must be in writing and submitted to VA
Again, VA insists that these restrictions are to protect veterans from unqualified attorneys. Perhaps so, but such restrictions also limit the number of attorneys available to veterans.
Attorney Fees
Good intentions and public service aside, veterans seeking to hire an attorney have to recognize one fundamental fact: attorneys are in business. To survive, a business must bring in more money than it spends. And, just like plumbers and doctors, attorneys must charge for services to survive. It is amazing how many veterans seeking to hire an attorney do not understand this basic fact. Recognizing the realities of the legal business will make hiring and working with an attorney much easier.
Not surprisingly, VA also has rules about how and how much an attorney can charge a veteran for work before the VA (meaning the Regional Office and the Board of Veterans’ Appeals). For work before the VA, attorneys can charge:
A fixed fee;
An hourly rate;
A percentage of benefits recovered (a “contingency” fee);
A combination of the above;
as long as the total fee is “reasonable.”
A fixed fee, as the name suggests, is where the attorney agrees to do a specified task for a specific fee. The advantage to a fixed fee is that the veteran knows up front exactly how much he or she will pay the attorney. Fixed fee can run from a few hundred dollars to several thousands of dollars depending on the task. Similarly, an hourly fee is an agreement for the attorney to charge for each hour spent on the agreed task. An hourly rate can vary from around one hundred dollars per hour to several hundred dollars per hour. Hourly fees are not common in veterans work because the fees can add up quickly and veterans rarely have funds to pay an hourly rate if they do not get a large award.
The most common type of fee is the percentage or contingency fee, which is the most favorable fee structure for most veterans in most veterans benefits cases. This is because the attorney is only paid if (1) an award is made and (2) there is an amount owed to the veteran at the time of the award. The attorney is then paid a percentage (usually between 20% and 33%) of the amount owed to the veteran when an award is approved. This amount, also known as a “retroactive” award, is the amount of due to the veteran from the effective date of the award up to the date of the award. If the award was made following an appeal to the Board and the effective date is the date the claim was originally filed (as it is in most cases), the retroactive amount could be 3 or 4 years of benefits. If the case goes up to the Veterans Court and back, the retroactive period could be ten years or more.
As an example, assume a veteran filed a claim on January 1, 2004, and enters into a 20% contingency fee agreement with an attorney. On January 1, 2008, the veteran is awarded a 100% disability rating. The retroactive amount is the 100% monthly payment for the period between January 1, 2004, and January 1, 2008 (four years), which is approximately $120,000 at current rates. The attorney’s fee would be 20% of the $120,000 or $24,000.
Attorney Fees Before the Veterans Court
Fees for attorney work in the Veterans Court are not subject to the restrictive VA regulations. The Court still requires that fees be “reasonable” for the services rendered and the results obtained. The most common fee by far is still the contingency fee.
At the Court, however, a federal law known as the Equal Access to Justice Act or “EAJA” offers veterans who win at the Court the opportunity to have the government pay all or part of their attorney fees. Many attorneys will take an engagement for a case at the Court and agree to accept the EAJA fee, if any, as payment. A veteran looking to hire a lawyer for an appeal at the Veterans Court should discuss the possibility of using EAJA to pay the attorney.
Costs
In addition to attorney fees, a fee agreement may also specify that the veteran may be responsible for “costs,” which are the out-of-pocket expenses (postage, copying, experts, etc.) paid by the attorney on behalf of the veteran. A veteran should make sure he or she understands who is responsible for costs before signing a fee agreement.
Reality Check
Veterans are sometimes surprised by the amount of fees that result from a contingency or hourly fee agreement and question whether the attorney “earned” that much money. “After all, I am the one who is hurt/sick/unable to work” is the usual logic for raising this question. Several issues make such second-guessing unfair.
The first issue is whether the veteran received what he bargained for in exchange for the fee. If so, the next issue is whether the attorney received the fee that the veteran agree to pay. If this is also true, there is not a legitimate reason to challenge the fee. Another way to think of such situations is to consider whether the veteran would be better off with 100% of nothing (no award) or 80% of an award. In any event, the time for questioning a fee agreement is before it is entered into, not after the award is obtained.
That is not to say that a fee agreement cannot be challenged because it was unreasonable, unfair, or improperly used to the attorney’s advantage. Many attorneys will adjust their fee if the situation resolved itself without the expected effort. Many times a disagreement can be resolved by discussing the issue with the attorney. For cases where the veteran still feels a fee was unfair, VA has a process for veterans to file complaints and challenge fee agreements. In fact, for fees administered by VA, the agency holds the attorney’s fee for several months or until the veteran tells VA he or she has no objection to payment of a fee by VA.
Finding An Attorney
Only after you understand (1) what you want done, (2) what an attorney can do for you, and (3) what it should cost you, is it time to find some attorneys to interview.
There are a only a small number full-time veterans’ attorneys. There are other attorneys who handle veterans’ cases on a part-time or occasional basis. In addition, other attorneys volunteer their services through organizations that match veterans with attorneys willing to work on a pro bono (without charging a fee) basis. For all that, there are pitiful few competent and experienced veterans attorneys out there.
The low number of attorneys is somewhat balanced by the national nature of the practice. In other words, it is not necessary for an attorney to be located near a claimant to properly represent them before the VA. Most veteran attorneys rarely meet clients personally because the clients are located all over the country. Distance is not a problem, as a good attorney will routinely communicate with clients by mail, telephone and email, as events develop.
Regardless of where a veteran lives, the best source to find an attorney is a recommendation from a friend or other veteran that has previously engaged that attorney in a VA matter. Nothing is better than a personal recommendation from someone you know and trust. But keep in mind that even the best and most knowledgeable attorney does not always win and even the worst prepared and disagreeable attorney will get an award sometimes.
If a personal recommendation is not available, the next best things are recommendations from other veterans on websites and blogs such as this Knol, VAWatchdog.com, and The Veterans Voice. Another good source is a recommendation from well-respected advocates (such as our own Jim Strickland). If you are comfortable on the web, a search on Google or similar search engine for “veteran’s attorney” will bring you all sorts of entries and advertisements for attorneys practicing in this area. Your state or local bar association may also have a referral service where attorneys seeking veteran clients list themselves.
Another potential source of information about veterans’ attorneys is contact by an attorney looking for clients. Some attorneys advertise through direct mail. Veterans with new appeals in the Veterans Court often receive many offers of representation. Whether you agree or disagree with such tactics, a veteran can find an attorney by responding to these contacts. However, as with responding to any other advertisement of services, you should carefully investigate and interview an attorney identified in this way.
Most active veterans attorneys have their own websites and many advertise on other veterans-related websites. The local “yellow pages” may contain advertisements from veterans attorneys. Several organizations, such as the Court of Appeals for Veterans Claims (http://www.vetapp.gov/practitioners) and the National Organization of Veterans Advocates (NOVA) (http://www.vetadvocates.com) also maintain lists of attorneys available for veterans’ cases. In addition, the VA lists attorneys and non-attorney representatives that have completed the VA accreditation process in a database searchable by city, state and zip code (http://www.va.gov/ogc/apps/accreditation/index.html). For veterans meeting specific requirements, the Veterans Consortium Pro Bono Program (http://www.vetsprobono.org) may be able to find an attorney for veterans with a case on appeal to the Veterans Court. Finally, local or national offices of the major veterans’ service organizations (such as the VFW, DAV, VVA) may be able to make suggestions.
Selecting Your Attorney
After you have put together a list of at least two or three attorneys and their contact information, it is time for you to interview the attorneys. Many veterans make a big mistake at this point – they speak to one attorney and hire him or her without considering any others. They do so without making sure that the attorney they select is right for them and their case. The result can sometimes be worse than if no attorney was hired and always results in more stress than necessary. So prepare yourself to find the best attorney for you and your case.
To do this, you must prepare yourself to have a productive information exchange with the attorney. This means, as a minimum:
Organize the key documents in your case, beginning with the last correspondence from the VA and including any rating decisions, Statement of the Case, Board or Court decisions and any important records or evidence
Prepare a short (one page at most) summary of what your claim is, and the evidence that supports the claim
Know where your claim is in the VA system (VARO denial, NOD filed, at the Board, at the Court, etc.)
Once you are prepared, review the lists of what an attorney can and cannot do. If you find yourself getting ready to ask for something an attorney cannot do, stop. If during your discussion, the attorney promises to do something that he cannot do, move on to someone else.
One other issue worth discussing is the charging of a "consultation fee" or otherwise requiring a veteran to pay something up front for an attorney to review a case. No reputable attorney of which the authors are aware charge such a fee. If an attorney requires a fee to review your case, our suggestion is to move on - the attorney may not be doing anything wrong, but there are plenty of attorneys that will review a case without charge.
Only when you are prepared should you contact the attorneys on your list. If you decide to telephone the attorney, be prepared to discuss your case, not just leave a message – many attorneys will take a call from a potential new client even when they are busy. It is wasteful of everybody’s time to have an attorney’s attention and not be able to discuss your case.
If you are comfortable with email, many attorneys prefer to communicate in this way because they can check their email while away from the office and on breaks during the day. Also, an email acts as a record of the contact and the information exchanged – this avoids misunderstandings and errors in note taking during phone calls. An initial email containing or attaching the short description of your case and the key information you prepared above goes a long way towards getting a busy attorney to respond. Also, when the attorney does respond, he or she has your email to work from during the follow-up conversation.
Things to do when interviewing an attorney:
Do tell the attorney why you are calling (for example: “I am looking for an attorney to represent me in my appeal of a Board decision denying my PTSD claim.”)
Do explain the basic facts supporting your claim
Do ask the attorney to describe his or her VA claims experience
Do ask the attorney whether he or she has handled similar claims
Do ask the attorney if he or she is accredited by VA
Do ask the attorney what type of fee arrangements are possible
Do take ‘no’ for an answer – if the attorney declines to take your case, you should spend your time trying to find an attorney that will, not trying to convince the first attorney of the merits of your case
Don’t expect the attorney to agree to take your case after one call or email – a good attorney often needs to review the facts and law further after discussing the matter with you
Don’t ask the attorney to “give you odds” on getting as award – no case is a sure thing and any claim can be denied despite the best efforts of an attorney
Don’t try to describe your entire military history in the first call or email – focus on the event relevant to your claim
Don’t argue with the attorney about what the law is or why the law is “wrong” – if you disagree with the attorney’s view of the law, it is better to find another attorney. If you really believe that you know the law better than the attorneys you interview – perhaps you don’t.
Don’t take one attorney’s decision to pass on your case as the end of the matter – but if multiple attorneys decline representation, it may be time to take a hard look at your claim
If an attorney tells you he is not interested in your case, politely ask for a reason. Most attorneys will at least tell you whether it is because they do not see a reasonable chance of success or whether they are too busy or not familiar with that type of claim. Whatever the reason, do not take one attorney’s opinion as the final word. Every attorney has a different view of a case and often another attorney will take a case that has been rejected elsewhere. Some attorneys pride themselves with taking the “hard” cases that no one else wants.
Engaging An Attorney
Once you have identified the attorney you want to hire you have to reach agreement with the attorney on the terms and conditions of the engagement. A veteran should not be shy in requesting, reviewing, and asking questions about:
The scope of the representation (what the attorney will do)
How the attorney fee and cost will be calculated (how and how much the attorney will be paid)
What the attorney expects you to do (provide documents, not contact VA, etc.)
What the attorney will do for you (communicate with VA, prepare all documents, attend hearings, etc.)
What happens if you fire the attorney
What happens if the attorney fires you
Whatever else, do not enter into an engagement or sign a fee agreement until you understand everything in the agreement. A good attorney will not have a problem answering your questions.
The Attorney-Client Relationship
Once your fee agreement is effective, you are in an “attorney-client” relationship. Among other things, this means you and your attorney must live up to the terms and conditions in the fee agreement. In particular, a client must be open and forthright regarding the facts and evidence relevant to the claim(s). Withholding information or failing to be completely truthful is the most common failing of veterans in dealing with their attorneys. For attorneys, the most common complaint is the failure to communicate with clients and keep them up to date with developments.
The attorney-client relationship can and should be professional and rewarding to both parties. In the VA system, such relationships can last for years or decades. The attorney and client should work to keep it a positive relationship.
Respect the Relationship
It is very safe to assume that every veterans attorney is busy and that his or her time is very precious to them and their clients. The surest way to get fired by an attorney is to waste his or her time.
It often comes as a surprise to clients, but an attorney can fire a client for failing to do the things promised in the fee agreement or becoming an intolerable distraction from other client’s work. An attorney has a duty to work diligently for a client and to communicate on developments affecting the client’s claim. A veteran client should recognize that there are times in the VA process where there is absolutely nothing to report – and that repeatedly contacting the attorney will not change the situation.
How to be an engaged and helpful client:
Be absolutely truthful about all aspects of the claim
Return phone calls and respond to letters from the attorney promptly
Tell the attorney whenever you receive a letter or call from any VA office
Keep the attorney informed of changes in your address and contact information
Tell the attorney about and keep all VA appointments
Send the attorney copies of all medical reports and other documents that you receive
Do not contact or discuss your claim with any VA individual
Do not write your Congressman or Senator or contact the media about your claim
How to become a former client
Call or email the attorney repeatedly seeking the status of your claim after the attorney asks you not to
Demand that the attorney submit every letter and legal submittal to you for review and approval
Order the attorney to file every possible paper to “bury” the VA
Tell your attorney an untruth or “forget” to tell him or her a fact relevant to your claim
Demand that the attorney tell VA something that is untrue
Go around the attorney and call, email, or mail the VA about your claim
Miss VA appointments without reasonable excuse
Continue to write the local newspaper, Members of Congress, or the President without discussing with the attorney
Insist that the attorney take a specific legal approach despite the attorney’s best legal advice not to
Only when you are prepared should you contact the attorneys on your list. If you decide to telephone the attorney, be prepared to discuss your case, not just leave a message – many attorneys will take a call from a potential new client even when they are busy. It is wasteful of everybody’s time to have an attorney’s attention and not be able to discuss your case.
If you are comfortable with email, many attorneys prefer to communicate in this way because they can check their email while away from the office and on breaks during the day. Also, an email acts as a record of the contact and the information exchanged – this avoids misunderstandings and errors in note taking during phone calls. An initial email containing or attaching the short description of your case and the key information you prepared above goes a long way towards getting a busy attorney to respond. Also, when the attorney does respond, he or she has your email to work from during the follow-up conversation.
Things to do when interviewing an attorney:
Do tell the attorney why you are calling (for example: “I am looking for an attorney to represent me in my appeal of a Board decision denying my PTSD claim.”)
Do explain the basic facts supporting your claim
Do ask the attorney to describe his or her VA claims experience
Do ask the attorney whether he or she has handled similar claims
Do ask the attorney if he or she is accredited by VA
Do ask the attorney what type of fee arrangements are possible
Do take ‘no’ for an answer – if the attorney declines to take your case, you should spend your time trying to find an attorney that will, not trying to convince the first attorney of the merits of your case
Don’t expect the attorney to agree to take your case after one call or email – a good attorney often needs to review the facts and law further after discussing the matter with you
Don’t ask the attorney to “give you odds” on getting as award – no case is a sure thing and any claim can be denied despite the best efforts of an attorney
Don’t try to describe your entire military history in the first call or email – focus on the event relevant to your claim
Don’t argue with the attorney about what the law is or why the law is “wrong” – if you disagree with the attorney’s view of the law, it is better to find another attorney. If you really believe that you know the law better than the attorneys you interview – perhaps you don’t.
Don’t take one attorney’s decision to pass on your case as the end of the matter – but if multiple attorneys decline representation, it may be time to take a hard look at your claim
If an attorney tells you he is not interested in your case, politely ask for a reason. Most attorneys will at least tell you whether it is because they do not see a reasonable chance of success or whether they are too busy or not familiar with that type of claim. Whatever the reason, do not take one attorney’s opinion as the final word. Every attorney has a different view of a case and often another attorney will take a case that has been rejected elsewhere. Some attorneys pride themselves with taking the “hard” cases that no one else wants.
Engaging An Attorney
Once you have identified the attorney you want to hire you have to reach agreement with the attorney on the terms and conditions of the engagement. A veteran should not be shy in requesting, reviewing, and asking questions about:
The scope of the representation (what the attorney will do)
How the attorney fee and cost will be calculated (how and how much the attorney will be paid)
What the attorney expects you to do (provide documents, not contact VA, etc.)
What the attorney will do for you (communicate with VA, prepare all documents, attend hearings, etc.)
What happens if you fire the attorney
What happens if the attorney fires you
Whatever else, do not enter into an engagement or sign a fee agreement until you understand everything in the agreement. A good attorney will not have a problem answering your questions.
The Attorney-Client Relationship
Once your fee agreement is effective, you are in an “attorney-client” relationship. Among other things, this means you and your attorney must live up to the terms and conditions in the fee agreement. In particular, a client must be open and forthright regarding the facts and evidence relevant to the claim(s). Withholding information or failing to be completely truthful is the most common failing of veterans in dealing with their attorneys. For attorneys, the most common complaint is the failure to communicate with clients and keep them up to date with developments.
The attorney-client relationship can and should be professional and rewarding to both parties. In the VA system, such relationships can last for years or decades. The attorney and client should work to keep it a positive relationship.
Respect the Relationship
It is very safe to assume that every veterans attorney is busy and that his or her time is very precious to them and their clients. The surest way to get fired by an attorney is to waste his or her time.
It often comes as a surprise to clients, but an attorney can fire a client for failing to do the things promised in the fee agreement or becoming an intolerable distraction from other client’s work. An attorney has a duty to work diligently for a client and to communicate on developments affecting the client’s claim. A veteran client should recognize that there are times in the VA process where there is absolutely nothing to report – and that repeatedly contacting the attorney will not change the situation.
How to be an engaged and helpful client:
Be absolutely truthful about all aspects of the claim
Return phone calls and respond to letters from the attorney promptly
Tell the attorney whenever you receive a letter or call from any VA office
Keep the attorney informed of changes in your address and contact information
Tell the attorney about and keep all VA appointments
Send the attorney copies of all medical reports and other documents that you receive
Do not contact or discuss your claim with any VA individual
Do not write your Congressman or Senator or contact the media about your claim
How to become a former client
Call or email the attorney repeatedly seeking the status of your claim after the attorney asks you not to
Demand that the attorney submit every letter and legal submittal to you for review and approval
Order the attorney to file every possible paper to “bury” the VA
Tell your attorney an untruth or “forget” to tell him or her a fact relevant to your claim
Demand that the attorney tell VA something that is untrue
Go around the attorney and call, email, or mail the VA about your claim
Miss VA appointments without reasonable excuse
Continue to write the local newspaper, Members of Congress, or the President without discussing with the attorney
Insist that the attorney take a specific legal approach despite the attorney’s best legal advice not to
Veterans' Law
Understanding References In The LawPaul C Burton, JD, MSEd
A veteran involved in any way with existing veterans’ benefits will likely encounter references to Public Law (Pub L.), the United States Code (USC), and The Code of Federal Regulations (CFR). Less likely are encounters with Statutes (Stat), the Federal Register (FR) and court cases. This article provides veterans with an informative overview of the three references they are most likely to encounter, Pub. L., USC, and CFR, and explains how these references fit together to make veterans’ law. The goal of this article is to empower the veteran reading the overview by providing a basic understanding of these frequently-encountered references to veterans’ law. Knowing how legislation, statues, codes, and regulations fit together to make veteran’s law is one key to a comprehensive understanding of veterans benefits.
Lawyers call written references to cases and codes “citations.” There are rules which govern the form of written citations. These rules are not important to understanding the basics of a reference to a law, however. Understanding a reference only requires knowing exactly what the numbers and letters represent.
Federal benefits are extended to veterans in the United States by legislation passed by Congress and signed by the President[1]. Upon Presidential signature, legislation passed by Congress becomes an enactment of public law[2]. Each enactment (Act) of public law is identified by two numbers. The first number is chronological, the second number is sequential. The first number designates the current Congress. At the writing of this article, the current Congress (2006-2008) is the 110th[3]. The second number designates the numerical progression of bills signed into law during that specific Congress. Thus, Pub. L. 110-252 designates the 252nd bill of the 110th Congress signed into law.
Public Laws are filed as Statutes (Stat). Statutes are filed sequentially, consistent with the chronology of the current Congress and the progressive next bill number. Thus, Pub. L. 110-252 is filed as 122 Stat 2323. Because sequential filings are difficult to research[4], Public Laws are also filed by topic. One of those topics is “Veteran’s Benefits.” All public laws addressing Veteran’s Benefits are located in Title[5] 38 of the United States Code. Thus, 38 USC § 101 designates Title 38 Section 101 of the United States Code.
Note that the “§” symbol indicates “section.” Two of these appearing together are shorthand for “multiply sections.” The number(s) following the use of the “§” symbol is always a reference to a section(s). Often the reference does not contain the “§” symbol. Even without the symbol, the reference is usually to a section.
Where appropriate, Congress includes language in an Act which authorizes the relevant agency of the government to promulgate administrative rules to implement the law. Once written, these rules are called regulations[6]. A law authorizing a new veterans’ benefit, or changing an existing veterans’ benefit, is administered by the U.S. Department of Veterans Affairs (DVA). DVA writes regulations to implement veteran’s law. New regulations are first “proposed.” For a short period of time comments regarding these proposed regulations are accepted by the issuing agency. Sometimes changes are made based on the comments received during the proposal period. Proposed regulations eventually become “final.” Once finalized, VA Regulations are just as much the law as the original legislation signed by the President (the ACT which became Statute and Code).
Regulations (CFR) necessarily interpret the law. Regulations are therefore the best place to develop a detailed understanding of what is required and expected by the law. Federal regulations are organized by topic (Titles) just like in the Code (USC). In some cases the topic has the same number in the Regulations as it does in the Code. Such is the case with Veteran’s Benefits. The topic of Veteran’s Benefits in the Code of Federal Regulations (CFR) has the same topic (Title) number as it does in the United States Code (USC), 38. Thus, 38 CFR 101 designates Title 38 of the Code of Federal Regulations Section 101, just as 38 USC 101 designated Title 38 of the United States Code Section 101.
USC represents The United States Code. CFR represents The Code of Federal Regulations. The 38 preceding USC and CFR in references is the topic number of all Veteran’s Benefits law. The number following 38 USC or 38 CFR usually refers to the “section.” Section numbers are sequential throughout the Veterans’ Benefits topic in both USC and CFR. In some cases a reference will contain a number following 38 USC or 38 CFR which refers to a Part, paragraph, or article number. In that case, knowing how material is divided throughout the topic is useful. The contents guide at the beginning of each volume (topic) clearly illustrates the division, but a brief overview here will serve to prepare an adventure into the written law.
The largest division of both the Code and the Regulations is the Title. There are 50 Titles. All references to Veterans’ Benefits in the Code (USC) and the Regulations (CFR) start with the Title (38). However, Code and Regulations do not share the same order of division into subsequent intermediate and small parts. In the Code (USC), Veteran’s Benefits are ordered by Title - Part - Chapter - Subchapter – Section, and so on. In the Regulations, Title is followed by Chapter - Part – Subpart - Section, and so on. These subtle differences are minor, but can be a source of delay and frustration when searching for a law or regulation if they are not anticipated. Here is an example of what a veteran might encounter: 38 USC 1712(2008). This indicates Title 38 Section 1712 as appearing in the 2008 publication of USC. Referencing to the sequentially numbered Sections in Title 38 facilitates speedy access and easy understanding of references. In the Regulations, Title is followed by Chapter (instead of Part as in the Code), but references are generally made to sections in both the USC and CFR. When in doubt, look in the contents to become acquainted with how the topic is divided.
SUMMARY:
Pub. L 110-252
Public Law is the legislation (Act) signed by the President which creates the law.
122 Stat 2323
The Act is then filed sequentially as a Statute.
38 USC §1712A (2008)
The U.S. House of Representatives has an office which takes the Act/Statute and revises the existing United States Code (USC) accordingly.
28 CFR 1742
The appropriate agency then writes regulations which interpret and implement the law. Regulations are found in the Code of Federal Regulations (CFR).
All of these are “the law.”
A veteran filing a claim is unlikely to have a specific legal purpose or task which requires seeking out public law (Pub. L) or statutes (Stat). Nor will a veteran filing a claim be “required” to actually read the law in the Code (USC) or the Regulations (CFR). However, a comprehensive understanding of the law does require reading it. Successful claims are built on a foundation of compliance with all the requirements of the law. It is therefore always beneficial to understand what constitutes the law, and reassuring to be able to quickly find the law by reference when desired.
FINAL NOTE
On occasion Veterans may encounter a reference such as 38 U.S.C.A. 1712 or 38 U.S.C.S. 1712. Do not be alarmed. “The “A” in U.S.C.A. stands for annotated. The “S” stands for “service.” “A” and “S” versions of the published Code include notes containing relevant additional information such as summaries of court decisions, law review articles, unpublished parts of the law, and authoritative information. While the United States Code (USC) published by the House of Representatives Office of the Law Revision Counsel (LRC) is the “official” version, annotated “unofficial” versions of the Code such as (U.S.C.A.) published by West and (U.S.C.S.) published by Lexis-Nexis are court-accepted citations. Annotations offer an expedited method of quickly identifying additional relevant materials to any particular section in the Code
[1] Congress can override a presidential veto with a 2/3 majority vote and thus pass legislation into law, but such an event is rare.
[2] There are also private laws and resolutions, but they are not relevant to this overview. Those will be discussed in a future article to appear on the knol.
[3] Note that each congress is two (2) years.
[4] And because a single Act may contain new law for several different topic areas.
[5] There are fifty (50) Titles. In the case of the United States Code, “Titles” may also be thought of as “volumes.”
[6] The Administrative Procedure Act of 1946 (5 U.S.C. §§551 et seq., 3105, 3344, 5371, 7521) governs administrative regulation.
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