Attorney Disinterest in New Claims

On 4/21/14 I had an interview with a new VA client. He needed to reopen a claim for his left foot rated at 10 percent. His attorney told him that’s the most he can get for his disability, and had recently dropped representation. The veteran was never asked about an altered gait, a secondary lumbar injury with sciatica down his left lower extremity and degeneration of his left knee. The veteran worked with Morse code and was in an artillery unit and was never asked about hearing loss and tinnitus. The veteran was never asked if all of these disabilities gave him anxiety and depression. He says he was trying to tell the VA that the body is all connected. The veteran is not employed.

VFFR has addressed some of the conflicts of interest attorneys have when giving advice about a new claim involving fees with claims that are on appeal. In the instant case, it appears there was just disinterest because the attorney would not have a stake in the outcome so there was no advice at all about possible new claims. When a veteran seeks an attorney, the veteran believes the attorney will give the veteran VA advice that would benefit the veteran not only the attorney.

- David L Huffman, Esq.

Congress asked to Pass the OSS Congressional Gold Medal Act

Picture of Office of Strategic Services (OSS) Director General William J. Donovan with members of the OSS Operational Groups (WWII)

Office of Strategic Services (OSS) Director General William J. Donovan with members of the OSS Operational Groups, forerunners of today's US Special Operations Forces, at Congressional Country Club in Bethesda, Md., which served as the primary OSS training facility during World War II. (PRNewsFoto/The OSS Society, Inc.)

Feb 3rd, 2014 - Former secretaries of defense Robert Gates and Leon Panetta have sent a letter to members of Congress asking them to pass the Office of Strategic Services Congressional Gold Medal Act (H.R. 3544 and S. 1688). This legislation would award a Congressional Gold Medal, the highest civilian honor bestowed by Congress, to the "members of the Office of Strategic Services in recognition of their superior service and major contributions during World War II."

The Office of Strategic Services (OSS) was the World War II predecessor to the CIA and the US Special Operations Command. It was founded and led by the legendary General William "Wild Bill Donovan," the only American to receive our nation's four highest military decorations, including the Medal of Honor. Its personnel were drawn from every military branch and the civilian population. They included Julia Child, the actor Sterling Hayden, Virginia Hall (the only American civilian woman to receive the Distinguished Service Cross in World War II), Ralph Bunche (the first African-American to receive the Nobel Peace Prize), Col. Aaron Bank (a founder of US Special Forces), Supreme Court Justice Arthur Goldberg, and four directors of central intelligence.

In their letter to members of Congress, Gates and Panetta wrote that "despite its small size, OSS personnel were awarded more than 2,000 medals, including 56 Distinguished Service Crosses. General Donovan said they performed 'some of the bravest acts of the war.' We hope that by awarding a Congressional Gold Medal to the OSS, as it has to other World War II units, Congress will remind Americans that our intelligence and special operations communities were created by the 'greatest generation.' When General Donovan died in in 1959, President Eisenhower said he was the 'last hero.' There is little time left to honor the few surviving OSS veterans. We would be very grateful if you would become a cosponsor of this legislation to honor the 'last hero' and all the heroes of the OSS."

Charles Pinck, president of The OSS Society, said: "We are very grateful to Secretary Gates and Secretary Panetta for offering their support to this legislation to honor the OSS. Their bipartisan backing is reminiscent of the relationship formed during World War II between President Roosevelt and General Donovan who, despite strong political differences, formed a close alliance to protect the United States at its moment of greatest peril by creating the OSS."

The OSS Society is a nonprofit organization that celebrates the historic accomplishments of the OSS and educates the American public about the importance of strategic intelligence and special operations to the preservation of freedom.

PulteGroup Launches “Built to Honor” to Recognize, Thank Our Nation’s Veterans

Company sets 2014 goal of building 20 mortgage-free homes for veterans and their families

PR Newswire

BLOOMFIELD HILLS, Mich., Feb. 4, 2014

Today, PulteGroup, Inc. (NYSE: PHM), one of the nation's largest homebuilders, announced the launch of Built to Honor™ with the goal of providing the gift of a new home to 20 wounded veterans and their families in 2014.

Built to Honor is PulteGroup's program for the construction and donation of mortgage-free homes to returning military personnel who have been injured during their term of service.  The program works in partnership with Operation Finally Home, a nonpartisan/nonprofit organization that identifies veteran candidates, and helps bring together builders, contractors, manufacturers and sponsors throughout the country.

"We at PulteGroup are forever grateful for the countless sacrifices our service men, women and their families have made defending our freedom," said Richard J. Dugas, Jr., PulteGroup Chairman, President and Chief Executive Officer.  "We've long been in business to make lives better, and thanks to our size, expertise and trade partnerships, we can help make a difference for our nation's veterans by simply doing what we do best...building homes."

In 2013, PulteGroup constructed nine homes under its Built to Honor program for delivery to wounded veterans and their families in its Pulte Homes and Centex branded communities in Arizona, Michigan, Nevada, New Mexico, South Carolina and Texas.  In 2014, the Company will more than double its effort to provide more than $6 million worth of new homes to deserving veterans.  PulteGroup, along with its generous suppliers and partners, will work with each family to help ensure the home best meets their needs.

"We at Operation Finally Home are humbled by the continued support and generosity of the PulteGroup," said Russell Carroll, Executive Director of Operation Finally Home.  "PulteGroup's commitment to provide 20 wounded veterans and their families with homes in the coming year is a true testament to their strong belief in supporting America's veterans."

"One in four veterans who served in Iraq and Afghanistan have a service-connected disability, and we view Built to Honor as a way to ease the struggles of these individuals and their families as they return home," said Dugas.  "We are excited about expanding this program in 2014, and realize that success can only be achieved through the significant contribution of time, materials and financial resources of our trade partners who have embraced this work wherever it has been initiated."

For more information about Built to Honor, visit www.pultegroupinc.com/builttohonor or follow us on Twitter: @BuiltToHonor.

Issue – Veteran’s Medical Records

The Veteran’s medical records are crucial and necessary in substantiating a claim for disability benefits; however, obtaining copies of these records can be arduous and time-consuming as well as costly. There appears to be little consistency among the VA medical facilities in handling requests for copies of a Veteran’s medical records. Is the request processed under the Privacy Act or under the Freedom of Information (FOIA) Act?  Is the Veteran himself requesting his records? Is the Veteran’s Representative requesting his client records on behalf of his client? Is there a difference? Is there a fee or are they processed without charge? 

Some VA medical facilities provide the copies of the Veteran’s medical records at no charge. Other will provide copies to the Veteran himself without charge, but not to the Veteran’s Representative. Some facilities charge a “per page” fee for copies ($0.15 after the 1st 100 pages), some charge a flat rate for a CDROM of the records ($10-$25) and some charge a flat rate for an “abstract”, a summary of the pertinent data contained in the records ($10-$15). However, the most disconcerting interpretation of the regulations (38 C.F.R. §1.526 i(1) & (2) or 38 C.F.R. §1.577 f &g),  by some of the facilities appears to combine all of these different methods of billing into one large fee. They charge per page to copy the medical records to a CDROM, and then assess the flat rate for the “cost” of the CDROM. One facility even includes the fee for an “Abstract” in addition to the “per page” fee and the CDROM fee.

The medical records are an essential component in substantiating a Veteran’s claim for benefits. In addition it permits the Veteran’s Representative to determine in a timely fashion whether specific medical and or psychological opinions need to be obtained.  To avoid possibly jeopardizing the Veteran’s claims, the Veteran’s Representative is compelled to pay these excessive fees in order to obtain the records promptly. It’s important to remember that ultimately these costs are passed on and paid by the Veteran out of any favorable award he may receive.

The interpretation of and the rules promulgated from these regulations need to be standardized and followed consistently by all VA medical facilities.  This would eliminate billing irregularities and inconsistencies among the VA medical facilities.  After all, the VA claims process is non-adversarial, with the Veterans Administration and the Veteran’s Representative sharing the same goal of providing the veteran the necessary care, treatment and benefits of which he is entitled.

Cancers, Presumptive and Non-presumptive Dilemmas

I represent a veteran who is service connected for prostate cancer and lung cancer.  Before he had any of the just mentioned cancers, he had colon cancer.  He now has cancer in his brain.  Since he’s a Vietnam Veteran; he receives service connection for the prostate and lung cancer.  Based on the presumption that the said cancer was caused by Agent Orange.

 

Brain cancer and colon cancer are not on the presumptive list.  Therefore, he was denied service connection for those cancers.  When a veteran is denied service connection for a non-presumptive cancer a veteran still can receive service connection if the veteran obtains medical opinions connecting the cancer to the herbicide exposure while in Vietnam.

 

In the instant case, medical opinions were provided.  Service connection for the colon and the brain cancer are still pending.  The instant case is an example of how important it is to get service connection for all types of cancer whether the cancer is on the presumptive list or not.  It doesn’t matter if a veteran is already 100 percent.  If the veteran is deceased from a service connected cancer his spouse would receive Dependency & Indemnity Compensation (DIC) benefits.  If a veteran dies from the non-service connected cancers which now are colon and brain cancer, his spouse would not receive the DIC benefits after his death unless she can prove that the veteran’s non-presumptive cancer is due to Agent Orange exposure.

 

The veteran is already 100 percent.  The instant case is an example of how important it is for a veteran to have a representative to stay on top of ongoing claims whether it is a paid representative or a representative for free.

Questions a Veteran Needs Answers for When Hiring a Non-Attorney Veteran Representative

A veteran can hire for a fee a non-attorney representative on the same terms as if the veteran hired an attorney; 20 percent of any back check for claims on appeal.  The first question a veteran needs to ask himself when hiring a non-attorney representative for a fee needs to be “am I paying for the same value and skills that I am expecting when I hire an attorney?”  It is important to note that the non-attorney representative is tested by the VA to verify basic knowledge of VA law in order to become accredited by the VA to practice VA law at the administrative level.  The accredited non-attorney representative does not have the authority to represent a veteran at the U.S. Court of Appeals for Veterans Claims level as a result of his VA administrative accreditation.

 

At the administrative level, the non-attorney representative has the same restrictions as an attorney does in charging a fee: as attorney, the non-attorney paid representatives cannot receive a fee or donation for claims that are not on appeal under current law right or wrong.  Likewise, any advice the non-attorney representative gives a veteran with claims not on appeal may affect the fees with claims on appeal.  If the non-attorney representative maximizes the veteran’s claims not on appeal, it’s possible he would delete the fee entirely; again like an attorney.  If the non-attorney representative assists the veteran with issues that are not on appeal, he agrees to assist the veteran for free on those non-appealed issues in order to possibly work for a fee when the claim is appealed.  Since claims that are not on appeal could be original claims, reopened claims that require new and material evidence, worsening condition of service connected claims, secondary claims, ongoing claims with common etiology like diabetes, missed claims, Unemployability and special monthly compensation; an accredited non-attorney representative is caught in the same ethical dilemma as an attorney.

 

The resources and skills of the non-attorney representatives issue stands out even more for the veteran.  For instance, even if the non-attorney for fee veteran representative is ethically willing to help a veteran from start to finish on any claim, does he have the skills and the financial resources to draft and obtain a medical or psychiatric opinion.  A non-attorney representative does have a financial interest in the outcome, but like an attorney, only the financial interest in the outcome of claims on appeal.  The veteran still has to face the same dilemma he faced when he has an attorney representing him with issues not on appeal:  a little bit of advice; come back when you have initial claims on appeal.   If the paid non-attorney representative assists veterans for claims not on appeal, the veteran needs to be aware that the representative may not want to spend the time and financial resources in order to assist with the best outcome for the veteran prior to the appeal of any claim unless there is true altruism to work against the non-attorneys own financial interest; the same position an attorney is put in under current law.

 

When hiring an attorney, a veteran needs to be aware that the attorney and the firm may be an entity in which the non-attorney veteran representative is hired in order to save money for the firm.  Therefore, when a veteran hires an attorney the veteran needs to know if an attorney will actually be representing him or will it be a non-attorney accredited representative with the support and assistance of the attorney in his firm.  A veteran may not want to pay a 20 percent fee for an attorney and have a non-attorney representative show up at a future hearing.  Details of the representation need to be worked out with the veteran upfront.  The hiring of an attorney or non-attorney representative does not solve the historical decades of problems with veteran organization representatives and state representatives; for example turning a veteran away, missed claims, advising a veteran to file one claim at a time, don’t appeal you might be reduced, and don’t get the VA mad.

 

VA law has now become more complicated with the possibility of multiple representatives, as well as the veteran being forced to represent himself on some claims.  It doesn’t help a veteran to wait 2 or 3 years in order to get the kind of representation the veteran wants which may cost the veteran more money in the long run.  On the other hand, choosing a veteran organization representative or state representative for free may be the best option for the veteran.  Some of these representatives do an excellent job especially when additional expertise of an attorney is not needed.  That’s why Vets for Full Representation is so important on behalf of veterans.  Its focus is on the needs of the veteran rather than the needs of veterans’ organizations, state representative programs, an attorney, or another person for hire.  When a veteran has the right to choose representation from start to finish the veteran would have a marketplace of representation in the veteran’s favor.  The representative (free or paid) would have to show what will actually be done for the veteran in order to attract a veteran.  For more information, visit www.vets4fullrepresentation.com or call (304) 834-3904 or (855) 373-1189.

 

Questions Veterans Need Answered When Being Represented by Veterans Organizations and State Representatives

State representatives and some veteran organizations veteran representatives are paid by the state and the veteran organizations respectively.  Other veteran organization representatives especially at local post assist veterans with their claims without pay.  It is more likely that the state and veteran organizations veteran representatives that work for pay may have some training. It’s less likely that the volunteers have training.  It’s important for a veteran to realize that none of these representatives have a financial interest in the outcome of the veteran’s claim.  Veteran organizations themselves do have a financial interest because they solicit for donations nationwide as a result of their veteran representative programs as do attorneys and other paid representatives that receive 20 percent of the veteran’s back check for issues on appeal.  Many of the veterans’ organizations and state representative programs do receive taxpayer funding in order to financially support the programs.  A veteran needs to be aware of the knowledge and skills level including writing of these representatives which could be from anywhere to very good to none at all.

 

A veteran needs to ask himself a question, “Do I need someone just to assist me with my paperwork and filing a claim, or do I need additional assistance?” In most cases, state and veteran organization veterans’ representatives do not receive funds for sending away for medical records and may have a difficult time with the organization of and the drafting of medical or psychological opinions with the appropriate documentation to support the claim and do not have the funds to pay for these opinions.  The VA and the veteran himself may be expected to obtain the supportive medical documentation.  A veteran needs to know if his representative is capable of assisting with any needed buddy or continuity of symptoms statements, as well as obtaining a claims file, unit records, and police reports, etc.  There may be a big variance between the ability of one representative and another to do the follow up work necessary in order for the claim to be successful.

 

In addition a veteran needs to find out who is going to assist him from start to finish, and who is also going to assist the veteran with his appeal if he’s not happy with the decision on his claim.  Moreover, the veteran needs to know actually who will represent him at any required VA hearing. Historically, the veteran’s representative that the veteran has known and has becomes familiar with the veteran’s claim may not be the same representative that will represent the veteran at a hearing.  Furthermore the representative may not even be from the same veterans’ organization or agency.  For instance, in some states local representatives that occupy space provided by and at the VA Regional Office are known to just become familiar with the veteran’s file the day of the hearing and may not be from the same organization or agency.  A veteran needs to as himself is this alright with him.  Sometimes as a result of the outcome of the veteran’s claim, some veterans believe that veterans’ organizations are in bed with the VA, although it is not true.  Moreover, many times the VA gets blamed for what is a result of inadequate representation.

 

There is one Regional office in each state, although there are two Regional offices in larger states that adjudicate veterans’ claims.  The state or veteran organization veteran’s representative that is in contact with the veteran may work in cooperation with a representative at the local Regional office, or may send the veteran’s evidence directly to the adjudicators at the Regional office.  The veteran needs to find out if the representative he speaks with when he has a question is the same person that will have access to the veteran’s claims file in the future when reviewing the claims file becomes an issue for medical opinions, etc.  In addition, the veteran needs to be aware of the attitude and the reputation of the veterans’ organization representative and/or the state veterans’ representative he is dealing with at the time.  For decades many of these representatives have been judgmental and sent veterans back home with legitimate claims, missed claims, failed to reopen claims, and file new claims; told veterans to file one claim at a time, don’t appeal you might be reduced,  and don’t get the VA mad.  These attitude problems may have something to do with the lack of financial interest in the outcome of the veteran’s claim.  On the other hand the attitude and the quality of the veteran’s representative may be very good.  Good traditional claims representatives may be the best option to represent veterans from start to finish in many cases.  Free service to a veteran is always the best choice if the quality is equal.  If the quality of representation is not up to par, and the veteran has nowhere else to turn, it is a nightmare for the veteran and on many occasions, has been for decades.  Waiting two to three years for an attorney or other paid representative in order to receive a medical or psychiatric opinion or other evidence is not in the best interest of the veteran.

 

The problem for the veteran is that an attorney cannot get paid for issues that are not on appeal.  Veterans’ claims may take several years and have separate claims on each path forcing a veteran to represent himself for some claims or have multiple representatives because of the law.  In many cases it would be advantageous to a veteran to find an attorney that is willing to work for free for issues that are not on appeal, in addition to assisting with issues that are on appeal and trying to find an earlier effective date for a claim.  These kind of attorneys may be rare and far between.  Vets for Full Representation’s purpose is to educate veterans about all of the veteran’s options so the veteran will be able to choose his representative with the knowledge the veteran needs.  To learn more about your options as a veteran, visit:  www.vets4fullrepresentation.com or call:  (304)834-3904 or (855)373-1189.

 

Questions Veterans Need Answered When Hiring an Attorney for a Fee

Veterans Affairs only allows fees for claims that are on appeal.  It doesn’t matter if the claim is an original claim, missed claim, secondary claim, or a reopened claim.  It doesn’t matter if the claims have a common etiological basis like diabetes which requires continuous filings; or if the claim is Unemployability based on the underlying claims.

 

The restrictions on attorney fees create a problem for veterans when seeking an attorney to assist with veterans’ claims.  When considering an attorney rather than a traditional representative; the veteran should ask the attorney the following questions:

 

  1. Is the attorney just representing the veteran on claims on appeal because the attorney can only receive a fee for claims on appeal?
  2. Does any advice the attorney give the veteran for claims not on appeal affect attorney fees for issues on appeal; and will the attorney hold back any of that advice?
  3. Will the attorney be willing to work pro bono for claims that are not on appeal?
  4. If the attorney does work pro bono for claims that are on appeal, will the attorney work on those claims as zealously and unselfishly as he does for claims that are on appeal?
  5. Will the attorney obtain medical records and medical and psychiatric opinions prior to an initial decision; or will he wait for a decision to be made on any new claim?
  6. Will the attorney assist with the filing of all possible claims at the earliest possible date in order to benefit the veteran even though the new claim may delay the claims on appeal, and ultimately the attorney fees for claims on appeal?
  7. Will the attorney be willing to continuously file new claims as they occur although it will further delay the attorney fees for issues on appeal as well and affect the attorney fees on appeal?
  8. Will the attorney charge additional fees for advice on new claims and charge additional fees for reviewing the claims file?
  9. Veterans claims may take several years and have several paths with several claims on each path: will the attorney be willing to stick with the veteran throughout this process?
    1. Will the attorney assist with planning for and assisting the veteran with any possible future reduction in benefits before the veteran actually gets reduced which would not result in attorney fees?

 

In addition to the above ten questions; a veteran needs to know the philosophical manner in which the representative handles the veteran’s claim: will the attorney wait until he obtains evidence before assisting a veteran with filing a claim, or will he assist a veteran when the attorney can foresee a plausible basis for the claim after the evidence is received in order for the veteran to receive the earliest effective date possible for his claim?  Will the attorney put the veteran first before the interest of himself, other attorneys, the VA, and/or veterans’ organizations, or other representatives?

 

A veteran may consider looking for a firm that assists veterans from start to finish in the best interest of the veteran whether or not the firm receives a fee for its services.    A veterans’ law attorney could give veterans alternatives to the historical complaints of veterans about some of the traditional representatives by representing the veteran from start to finish; at the same time putting the veteran first.  Attorneys being allowed a fee for claims only on appeal and who just represent veterans with claims on appeal do not solve the decades of problems veterans have had with traditional representatives.   When seeking attorneys a veteran needs to ask and answer those above stated questions for himself, and needs to question the adequacy of the traditional representatives or state representatives; and whether or not the veteran wants to have multiple representatives or represent himself on some claims.  A veteran needs to ask himself if the attorney will be with me all the way and assist me from start to finish; or will the attorney say come back later when you have claims that need to be appealed.  The policy of a veterans’ law firm may mean everything to a veteran.

 

 

 

 

When Should a Veteran File a Claim?

The VA encourages a veteran to obtain evidence before filing a claim.  Some attorneys or other paid representatives, veterans’ organizations or state representatives may give the same advice.  It is true that it does take longer for a claim to be adjudicated if the evidence is not developed at the time of the filing of the claim.  Also the filing of an undeveloped claim may affect the time of adjudication of other claims.  However, there is another very important side of this issue.

A veteran can only be paid for any claim back to the date of filing.  Therefore, any delay of the filing of any claim will be at a financial cost to the veteran.  In addition, especially with the way the VA math works it is important for a veteran to file every possible claim as early as possible in order to obtain maximum results: put the veteran in a position to file for Unemployability when he’s no longer able to be employed, etc.

In most cases it appears the best policy is to file a claim when it appears that the substantiation of the claim in the future creates a plausible basis for that claim, and that future evidence can be adjudicated back to the date of the filing of the claim.  If a veteran is waiting on a decision on an existing claim and the filing of a new claim may cause the veteran hardship as a result of additional delay, it is good policy to file an informal claim; and then formalize the claim during the one year the VA requires the veteran to formalize the claim. The VA is not allowed to work on claims that are not formalized.

A good example is the following:  when a veteran is service connected for a right foot condition and his altered gait affects his back with sciatica and his knees, and he suffers from depression but has not yet sought treatment for these claims; treatment, MRI’s and a medical and psychiatric opinion can verify the veteran’s claim in the future.  At the same time establishing treatment may assist with the effective date being the date of filing.  There are many other examples.  Moreover, if the veteran is unemployable; he will not be where he wants to be to file for Unemployability at the earliest possible date unless he addresses all of the just mentioned claims as early as possible.

VA Stopping Treatment of Medication

Veterans are prescribed medication for pain and for other reasons such as psychiatric disorders.  The VA has been known to over prescribe medication, other times the VA may not prescribe medication when needed.  There has always been the issue of medication used as a tool for pain and psychiatric management.

 

The VA does have concerns about the long term effects of these medications and concerns about veterans selling their medication to other people and veterans not taking their medication as prescribed.

 

If a veteran runs out of medication sooner than the time prescribed, or other narcotics show up in the veteran’s urine or blood test, and/or the veteran is not taking the medication;  the VA physicians can and do on many occasions stop the veterans medications cold turkey.  Stopping medications cold turkey seems to be unfair in many circumstances.  Sometimes the veteran goes through debilitating withdrawal symptoms as a result of stopping the medications There may be mitigating circumstances involving the veterans’ taking the medications.   The veteran may have a memory problem & take his medication twice or feels he needs more during times when the pain gets more severe.  In other cases a veteran may only take the medication when absolutely needed because the veteran needs to drive or otherwise function during the day.

 

Sometimes the VA stops the veterans’ medication because marijuana shows up in the veterans’ blood or other opium products or other prescribed medications.  Although, the VA policy is understandable sometimes it can be cruel and harsh.

 

What do you as a veteran feel about this policy?