June 15, 2006 TO: Senate Veterans' Affairs Committee Members Dear Senator :                     It is extremely unfortunate that the Disabled American Veterans (DAV) was not allowed to testify at the Senate Veterans' Affairs Committee hearing on June 8, 2006, on S. 2694, the Veterans’ Choice of Representation Act of 2006. As the largest veterans service organization representing veterans before the Department of Veterans Affairs (VA) and the United States Courts of Appeals for Veterans Claims and the Federal Circuit, DAV staff has in-depth knowledge of the claims process, appellate process and judicial review, and could have provided much-needed insight in response to comments and questions raised during the hearing, many of which went unanswered or only partially answered.                    Personally, I spent five years (1985-1990) as a VA staff attorney at the Board of Veterans’ Appeals (BVA) reviewing thousands of veterans’ appeals. In 1990, I was hired by DAV to represent veterans before the newly established United States Court of Veterans Appeals, during which time I reviewed hundreds of potential judicial appeal records and represented hundreds of veterans before the Court. After more than two years of representing veterans before the Court, I was transferred to DAV’s legislative staff, responsible for oversight on the VA’s claims and appellate processes and the judicial review process. I believe, with more than 20 years of experience in these areas, I would have provided the Committee with insight as to whether attorneys should be allowed to charge fees of veterans during the initial claims process. On both a personal and professional level, and as a veterans’ advocate, I believe opening the claims process to attorneys would have disastrous effects on the VA’s adjudication process, a situation that VA is ill-prepared to handle.                    Since the legislation and the tone of the Senate Veterans' Affairs Committee hearing have phrased the issue as a question of choice, a veteran’s right to hire an attorney to represent him or her in the claims process, I will address the issue, initially, from that standpoint. First, let me state that the prohibition against attorneys charging fees to represent veterans before the agency of original jurisdiction is no longer the result of a “paternalistic Civil War-era” law, but the result of congressional action in 1988, when Congress established the United States Court of Veterans Appeals, allowing for judicial review of veterans’ benefit claims and removing the $10 fee limitation on attorney representation, which was established during the Civil War era. The issue of restrictions on attorney fees has been reviewed on a number of occasions by federal courts, including the United States Supreme Court in Walters v. National Association of Radiation Survivors, 473 U.S. 305 (1985).                    Currently, veterans have the ability to hire an attorney on two separate occasions. First, according to the VA General Counsel (VAGC), in a May 24, 2004 letter to Representative Lane Evans, Ranking Democratic Member of the House Veterans' Affairs Committee (attached), the VAGC opined that title 38, United States Code, § 5904, which governs representation of veterans before the VA, does not preclude an attorney from charging veterans fees for “pre-filing consultation.” The VAGC noted that “pre-filing consultation” fees “would generally include review of records, research, counseling, and any other assistance that a potential VA claimant might need short of actually preparing and presenting a specific claim for benefits.” The VAGC stated that, while an attorney could not charge for the “‘preparation’ and ‘presentation’ of a claim,” an attorney could charge a veteran for any “pre-filing consultation” and “simply prepare the claim on a pro bono basis.”                    Second, with the passage of the Veterans Judicial Review Act, Public Law 100-687, in 1988, a veteran also has the opportunity to hire an attorney within one year of a final BVA decision on a claim for benefits. An attorney can request that the BVA reconsider its prior decision or he or she can request that the BVA revise or reverse its decision on the grounds of clear and unmistakable error. Additionally, if timely filed within 120 days of the BVA decision, the attorney can request judicial review of the adverse BVA decision.                    Accordingly, veterans already have the right to hire an attorney and receive paid-for assistance when pursuing claims for veterans’ benefits. Therefore, phrasing the issue as a veteran’s right to choose an attorney obfuscates the real problem, and why so few veterans feel the need to hire an attorney during the claims process. The real problem, and DAV’s main concern, is that the current claims process does not properly work for veterans as it was originally intended. It is our firm belief that Congress should focus on correcting the process, not making it more adversarial and legalistic and less veteran-friendly by allowing attorneys into the initial claims process. The question should not be whether veterans have a right to hire an attorney, but how to improve claims processing so that veterans and their dependents receive all benefits to which they are entitled. Clearly, the solution to the latter question is not to allow attorneys into the process; the solution is to correct the process so that it works better for veterans and their dependents.                    The VA benefits delivery system was designed to be open, informal, and helpful to veterans. The VAGC May 24 letter provides an excellent discussion of the congressional intent in 1988 in continuing restrictions on attorney representation of veterans. The goal of providing a veteran-friendly claims process was to ensure that veterans received the benefits a grateful nation has provided for them and at no cost to them, rather than discouraging or inhibiting their claims with government “red tape” or lengthy litigation or requiring veterans to expend their money to receive these benefits. Pursuant to title 38, Code of Federal Regulations, § 3.103(a): “Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government.” (Emphasis added.) Allowing attorneys into the process would interfere with this goal and will create a system that is more adversarial and legalistic and less veteran-friendly. I refer you to my written testimony, submitted for the record prior to the June 8 hearing, and attached to this letter, for a more detailed discussion on this issue.                    Accordingly, a veteran should not feel it is necessary to hire an attorney and spend his or her earned benefits to receive what a grateful nation has provided for him or her. Therefore, I call upon you to oppose misguided efforts to fully open the VA claims process to attorneys, and help DAV and other veterans service organizations focus congressional oversight on the core problems of the VA adjudication system: inadequate employee levels, insufficient training, and lack of accountability in the claims adjudication process.                    I hope you consider all the facts pertaining to this issue, and not mistakenly focus solely on the “right to choose” argument presented at the hearing. In this regard, I would be happy to meet with you or your staff to discuss all aspects of this legislation.                    Thank you for considering the concerns of DAV and other veterans service organizations regarding allowing attorneys into all levels of the claims process. Sincerely, JOSEPH A. VIOLANTE National Legislative Director JAV:lmb Enclosures c:            All Senators                House Majority Leader Boehner                House Minority Leader Pelosi                House Veterans' Affairs Committee Members  Printer-Friendly Version