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Appealing Denials of Veterans’ Benefits

The process for obtaining veterans’ benefits through the federal Department of Veterans Affairs (VA) was originally meant to be non-adversarial and friendly to veterans and their families. New applications by Iraq and Afghanistan war veterans and their family members have increased both the numbers and the complexity of claims pending before the VA, resulting in long delays and a higher likelihood of mistaken denials. If you are facing an uphill battle with the VA to get benefits that are rightfully yours as a veteran or a veteran’s family member or survivor, a veterans’ benefits attorney like one at Johnston Law Offices P.C. in Edwardsville, IL, can help you sort out the legal issues.

The Role of an Attorney before the VA

Representation by a lawyer before the VA is complicated because of VA regulation of legal fees before the agency. In the late 1800s, veterans’ attorneys were viewed with suspicion because they were assumed to be motivated by greed rather than by compassion for veterans. The VA was seen as benevolent, so no appropriate role was seen for seemingly adversarial veterans’ attorneys. Until recently, fees could not be charged by an attorney for representation before the agency, either at the initial application stage or on appeal to the agency’s Board of Veterans’ Appeals (BVA). In a significant break with tradition, now attorneys’ fees may be charged for representation before the BVA, but still not for the initial application stage.

Some authority suggests that attorneys may charge for a consultation about VA benefits before the initial application is filed. However, for the initial application itself, a fee may not be charged. What this means to the applicant is that to obtain legal assistance with the application, he or she will need a lawyer who will not charge a fee for that stage. An alternative is to obtain help with the application from a veterans’ service organization approved by the VA.

If an initial application is denied, the veteran’s benefits applicant can file an appeal to the BVA with a “Notice of Disagreement.” Once this notice is filed, the claimant may be represented by a veterans’ benefits attorney before the BVA for a fee. The attorney must file the fee agreement with the VA, and if the appeal is successful, the lawyer may be eligible for up to 20 percent of any past due benefits as his or her legal fee. Paying the fee from the past due benefit award allows a veteran concerned about the cost of an attorney to proceed with his or her claim well-represented.

Court Appeal

If the BVA still denies benefits, the claim can be appealed outside the VA to the federal courts in this order:

  1. Court of Veterans’ Appeals (CVA)
  2. Court of Appeals for the Federal Circuit
  3. US Supreme Court

Legal Fees Under The Equal Access to Justice Act

The government may ultimately be responsible for paying the veteran’s attorney’s fees for representation before the BVA and in court under a federal law called the Equal Access to Justice Act (EAJA) if the claimant is successful and the government’s position was not substantially justified. The EAJA fees would reimburse for any fees due out of past due benefits, so under this provision, the veteran or family member would not personally be responsible for paying pay any attorney’s fees.

Conclusion

This article describes the most common and traditional appeal method for veterans’ claims. Other appeal and review procedures exist and may vary depending upon the type of benefit sought. For a complete understanding of what legal options you have in your veterans’ claim, consult with a veterans’ benefits lawyer such as one from Johnston Law Offices P.C. in Edwardsville, IL.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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