Do I Need a Lawyer for VA Disability? When and Why to Hire a Veterans Law Attorney
CCK Law: Our Vital Role in Veterans Law
Technically, veterans do not need to hire an attorney to file for disability compensation from the Department of Veterans Affairs (VA). The process was intended to allow veterans to file claims on their own (e.g., by setting low evidence requirements). Current federal law even forbids any party from charging veterans a fee to help with initial claims.
That said, veterans law has become extremely complex, and the enormous VA bureaucracy creates many opportunities for inconsistency and mistakes. In recent decades, Congress and VA have recognized the value of VA-accredited attorneys in many situations, such as appeals. Several laws and rules now exist to involve lawyers, regulating their fees and responsibilities (e.g., 38 U.S.C. § 5904 and 38 C.F.R. § 14.632).
This article will consider several of the situations where VA-accredited law firms play a common role and what the benefits are of hiring a lawyer for a VA disability claim.
Watch CCK Law Partners Emma Peterson and Michael Lostritto discuss the resources provided by VA-accredited lawyers:
When Do Veterans Most Often Hire a Lawyer for VA Disability?
Most often, veterans hire a VA-accredited attorney to assist after VA has made some kind of a decision on the veteran’s claim. Some of the most common situations include:
- The veteran is appealing a denied claim and is feeling overwhelmed by the appeals process.
- The veteran’s appeal seems to have been delayed indefinitely.
- The veteran’s disability rating was lower than expected, or if their condition has deteriorated over time.
- VA applied the wrong effective date to the veteran’s claim (resulting in reduced back pay).
- The veteran wishes to appeal a final VA decision to court (i.e., the Court of Appeals for Veterans Claims (CAVC) or Federal Circuit Court of Appeals).
How Can a VA Disability Lawyer Help Maximize Benefits?
One of the most prominent benefits of hiring a VA-accredited attorney is their in-depth knowledge of how to build a strong disability claim and maximize a veteran’s benefits.
“When we begin representation, we typically want to take an inventory of the entire case,” says Claire Babcock, VA-accredited claims advocate with CCK Law. “We’ll map out all of the decisions, all of the medical records, and we’ll kind of form a strategic plan for how we want to approach all of those issues. We want to help fill the gaps to really round out the claim and make sure that it’s completely developed.”
Some of the strategies that attorneys can use to build a veteran’s case and maximize their benefits include:
- Assessing the possibility of secondary service connection and aggravation, to ensure the veteran is receiving compensation for every qualifying condition they possess.
- Pushing for retroactive compensation all the way back to the veteran’s effective date, even if they have to file an appeal to do so.
- Pursuing higher-level benefits like Special Monthly Compensation (SMC) or Total Disability Based on Individual Unemployability (TDIU), assuming that the veteran is eligible.
- Helping the veteran obtain service records, medical records, lay statements, and other essential evidence to bolster the veteran’s case.
- Arguing for a new Compensation and Pension (C&P) exam to be conducted in the event that the veteran’s previous exam was inadequate.
Watch CCK Law Partner Maura Black discuss how a VA-accredited law firm like CCK Law approaches a veteran’s case:
What VA Systems Can VA-Accredited Law Firms Access?
VA-accredited law firms have access to information that is otherwise restricted for VA internal use only. This includes access to sources like the Veterans Benefit Management System (VBMS), Share, and Case Flow.
Veterans Benefit Management System
The Veterans Benefit Management System, or VBMS, is a system used within VA to keep track of and manage the claims files of veterans. A veteran’s file within the VBMS will contain everything they have submitted to VA, including service records, disability claims, written statements, and more.
Having access to the VBMS through a VA-accredited attorney can be invaluable for a veteran’s claim. It not only provides a comprehensive picture of the veteran’s claim, but also where the claim is at in VA’s process.
“Access to the VBMS provides the ability to see in real time what VA has, how they’ve recorded it, and what they’re marking it as,” says Emma Peterson, Partner at CCK Law. “It’s an important piece of the puzzle. You can sometimes even see the steps that VA has taken on your claim, where your case is being sent, and who’s working on it.”
Other Sources of VA Internal Information
In addition to the VBMS, VA-accredited attorneys also gain access to other exclusive sources of VA information, including:
- VA Share – Share is a system used by VA to keep track of the disability payments sent to veterans. This system allows attorneys to check on various aspects of their clients’ disability payments, including payment dates, payment amounts, and other features. This helps to quickly alleviate any anxieties veterans might have about their monthly compensation.
- BVA Case Flow – Case Flow is the case management system used by the Board of Veterans’ Appeals (BVA). Veterans who are appealing to the Board can have their attorneys access this system to gain a high-level view of where the appeal is in the Board’s process.
Can an Attorney Reduce Delays or Speed Up My Claim?
Yes, there are strategies available to VA-accredited attorneys that may help to reduce certain delays on a veteran’s claim. These include active monitoring of a veteran’s claim, as well as procedural actions like a Claim Accuracy Request, or CAR.
Veterans should note, however, that these strategies are very situational and will not always work to speed up a disability claim. Delays are unfortunately common during the disability claims process and are something veterans must simply get accustomed to.
Claim Accuracy Request (CAR)
A Claim Accuracy Request is a procedural action that can be submitted by a VA-accredited attorney or representative. If a veteran receives an unfavorable decision on their claim, they can have their representative submit a CAR within 30 days of receiving the decision.
Functioning like an appeal, the CAR compels VA to reconsider their decision on the veteran’s case by sending it to a more senior VA employee for a Higher-Level Review. VA will then attempt to deliver a new decision within 30 days of receiving the CAR.
“CARs often come in handy when you can identify what VA calls an ‘obvious error in law or fact,’” says Michael Lostritto, Partner at CCK Law. “When VA issues a decision that contains an error, a CAR is basically our ability to take that decision and quickly turn it around by identifying the obvious error and getting a new decision issued.”
CARs can be used to identify a variety of errors, including procedural errors (e.g., VA assigning the wrong effective date for a claim) and factual errors (e.g., VA claiming a veteran has not served in a particular region, when evidence shows they have).
Other Strategies to Reduce Delays on VA Claims
In addition to CARs, VA-accredited attorneys have other advantages at their disposal to help reduce the number of delays in a veteran’s disability claim. These include:
- Active Monitoring of Disability Claims – With access to VA systems like the VBMS, VA-accredited attorneys can actively monitor the status of a client’s claim. This allows them to quickly identify and address delays by reaching out to VA to ensure the client’s case is moving forward.
- Knowledge of VA’s Internal Workings – VA-accredited attorneys generally have extensive knowledge of VA’s internal operations. This insight allows attorneys to know whom to contact to inquire about stalled cases and otherwise prevent unnecessary delays due to error.
Do I Need a VA Disability Lawyer for a Court Appeal?
While many disability claims are successfully appealed without the need for a courtroom session, some cases are complex enough that they may proceed up past the BVA and into the Court of Appeals for Veteran Claims (CAVC) and beyond.
The CAVC is a court that has jurisdiction over decisions made by the Board of Veterans’ Appeals (BVA). If the BVA makes an error of law in deciding a veteran’s case, then the veteran can appeal to the CAVC to attempt to get the BVA’s decision remanded or overturned.
However, court appeals are extremely different from administrative appeals (i.e., within VA’s appeal system). When a veteran appeals to the CAVC, they are essentially taking legal action against VA, and thus the case will turn adversarial. This means that VA no longer has duties to help the veteran gather evidence or build their case but instead will actually appoint a lawyer to argue against the veteran in court and defend VA’s actions before the CAVC.
If this happens, it is highly recommended that the veteran hire a VA disability lawyer with appellate and courtroom experience. Otherwise, the veteran will have to defend themselves against professionally trained attorneys with an intimate knowledge of veterans law.
Interested in Hiring a VA-Accredited Attorney? Contact CCK Law
If you believe that your VA disability case could benefit from legal counsel, the attorneys at Chisholm Chisholm & Kilpatrick may be able to assist.
Call CCK Law at 800-544-9144 or contact us online for a free case evaluation.
Frequently Asked Questions
When should veterans hire a VA disability lawyer?
Veterans should consider hiring a VA disability lawyer if their initial disability claim has been denied by VA and they think they would benefit from legal counsel for an appeal.
Some situations where it may benefit a veteran to hire a VA disability lawyer include:
- If the veteran needs help organizing or building out their claim to maximize their benefits.
- If the veteran’s situation would be improved by access to internal VA information exclusive to veterans law attorneys.
- If the veteran’s claim has been substantially delayed by obvious errors that a veterans law attorney would know how to circumvent.
- If the veteran expects to go to court over their claim and would therefore potentially benefit from a lawyer with courtroom experience.
Veterans should note that it is illegal for law firms to charge veterans for help in filing an initial disability claim to VA. As such, veterans law attorneys typically only take cases where VA has already made a decision of some kind.
Do you need a lawyer to file a VA disability claim?
No, you do not need a lawyer to file an initial VA disability claim. In fact, it is against the law for attorneys to charge veterans for help in filing an initial claim. This means most veterans law attorneys will only take cases where a veteran has received an improper decision from VA.
If a veteran needs help filing their initial claim, they should look into enlisting the services of a Veterans Service Organization, or VSO. These free, nonprofit organizations specialize in helping veterans file claims and appeals with VA.
On the other hand, it might also be worth considering hiring a VA-accredited attorney to handle an appeal, as this comes with several substantial benefits.
How much does a VA disability lawyer cost?
VA-accredited law firms are generally only paid if they secure a favorable outcome for the veteran and recover past-due compensation. In most situations, current law says that a veterans law attorney’s fees cannot exceed 33.3 percent of any retroactive award issued to the veteran as the result of a successful appeal.
