From: MAY 26, 2005 QUESTIONS BY SENATOR LARRY E. CRAIG, CHAIRMAN ANSWERS OF THE DISABLED AMERICAN VETERANS              The DAV opposes Mr. Chisholm’s recommendation to amend the law to permit attorneys to charge claimants for claims assistance and representation at the regional office level. As you know, current law does not bar attorney representation in the initial administrative proceedings before VA, but it does prohibit an attorney from charging for that representation. On behalf of the National Organization of Veterans Advocates, Mr. Chisholm seeks amendment of section 5904 of title 38, United States Code, to remove the prohibition against charging veterans for claims counseling, assistance in filing benefit applications, and representation in benefit claims at the regional office level.              Section 5904(a) provides that the Secretary of Veterans Affairs may recognize attorneys for the preparation, presentation, and prosecution of claims. However, subsection (c)(1) of that section provides “a fee may not be charged, allowed, or paid for services of agents or attorneys with respect to services provided before the date on which the Board of Veterans’ Appeals first makes a final decision in the case.”              The change NOVA seeks would not be in the best interests of veterans for several reasons, and would be detrimental to the administrative processes. The principal reason for the DAV’s opposition is founded in the public policy underlying the current prohibition against charging veterans for claims assistance. Reviewing the history of pensions provided to veterans, the Supreme Court of the United States observed the enduring principle that this monetary assistance should go solely for the benefit of the veterans for which they were provided: “Enough appears in these references to the legislation of the Congress under the Constitution to show that throughout the entire period since its adoption it has been the unchallenged practice of the Legislative Department of the Government, with the sanction of every President, including the Father of the Country, to pass laws to prevent the diversion of pension money from inuring solely to the use and benefit of those to whom the pensions are granted.” United States v. Hall, 98 U.S. 343, 354 (1879). “The Government interest, which has been articulated in congressional debates since the fee limitation was first enacted in 1862 during the Civil War, has been this: that the system for administering benefits should be managed in a sufficiently informal way that there should be no need for the employment of an attorney to obtain benefits to which a claimant was entitled, so that the claimant would receive the entirety of the award without having to divide it with a lawyer.” Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305, 321 (1985).              Veterans and their dependents should not have to resort to hiring and paying lawyers to obtain veterans’ benefits to which they are rightfully entitled. Through a variety of social programs, our Nation unselfishly provides benefits to assist citizens disadvantaged for one reason or another. Veterans’ benefits are more than a matter of relief provided out of generosity. Because veterans make special sacrifices, subject themselves to extraordinary risks, and bear unusual burdens for the benefit of the rest of us, and because we owe our very existence as a nation to our veterans, they earn special rights and special treatment. Veterans, who fought for our country, should never have to fight our government to get the benefits our grateful citizens have provided as a reward for veterans’ sacrifices and service. It is intended that these benefits be provided with a minimum of difficulty for the veteran claiming them. Veterans are therefore accorded a privileged status and are due more personal assistance from VA than claimants receive when seeking benefits from other Government sources. It is important, we believe, to remain mindful that veterans obtain their benefits through an informal, nonadversarial, and benevolent claims process, not a litigation process. The fundamental distinctions between the VA process and litigation reflect a calculated congressional intent and design to permit veterans to receive all the benefits they are due without any necessity to hire and pay lawyers.              The nature and purpose of the distinctions between the VA process and other forums are well known and understood by those who are familiar with veterans’ benefits law. Generally, veterans have the burden of proof, but, in the VA context, that only connotes the measure of evidence that will or will not warrant a grant of the benefits sought. It merely means VA cannot award benefits without the existence of evidence to reasonably confirm the veteran is entitled. Its effect is to prevent the burden from being put on VA to disprove entitlement when no affirmative evidence exists to show entitlement. If the burden is not met, it is the veteran that suffers the consequences in that the claim fails.              The difference between the meaning of burden of proof for veterans and what burden of proof connotes in the traditional usage is much more than an insignificant subtlety. In its broadest traditional sense, the term includes (1) the obligation to fill the void by physically producing enough evidence to demonstrate the issue warrants formal consideration and (2) by producing enough evidence to convince the fact finder of the truth of the claim. These two elements of the burden of proof are known respectively as the “burden of production” and the “burden of persuasion.” In a judicial proceeding, if the party asserting a claim fails to produce enough evidence to even suggest a valid claim, the matter may be summarily decided against him or her without necessity of full consideration of the merits. If the party’s evidence is sufficient to meet the burden of production but insufficient to convince the decision maker of the truth of the facts alleged, the party loses on the merits.              In judicial proceedings, each party must discover and physically present to the court his or her own evidence. It is not the court’s place, nor proper role, to discover and obtain evidence for either of the parties or itself, because the court must be impartial and disinterested. Thus, in judicial proceedings, the burden of proof includes both the mechanical aspect of the duty of evidence production and the standard of persuasion upon the party having the burden of proof. The burden of proof in the traditional usage entails much more than is required of veterans seeking benefits.              Under a proper interpretation and application of VA law, the veteran need only claim entitlement to a benefit, supply VA with the basic information necessary to confirm veteran status, and inform VA of the pertinent circumstances on which entitlement is claimed and sources of evidence that will support the claim. VA has the duty to inform the veteran of what facts and evidence are pertinent so the veteran can in turn help VA identify sources of evidence. VA has the duty to assist the veteran in obtaining available evidence. As such, the veteran has no burden of production. For the veteran, having the burden of proof simply means that it is he or she that bears the risk of nonpersuasion and stands to lose if the evidence is insufficient to convince the adjudicator of entitlement.              Two more aspects of the VA process that fundamentally distinguish it from litigation and other administrative proceedings are the formalities and the obligations upon the parties. In court proceedings, the party must specify the precise legal grounds for the claim and know the proper venue, jurisdiction, and legal authorities on which the action rests. The parties must carefully negotiate a structured process governed by extensive formal and complex procedural rules filled with pitfalls and obstacles. The assistance of attorneys is essential. In judicial or other administrative proceedings, professional legal advice is usually required even before an action is brought; in the VA process, its employees counsel veterans on the bases of eligibility and their potential entitlement to the various benefits. VA will assist a veteran in completing and filing the relatively informal application for the benefit sought. VA personnel determine which activity has jurisdiction and direct the claim to the proper location. VA takes the initiative to advance the claim forward through the appropriate procedural steps. VA will inquire of the veteran if additional information is needed and will advise him or her of any necessity for additional evidence, again assisting in obtaining it if the veteran desires. Otherwise, the matter is completely in VA’s hands once the claim is filed, and the veteran has no responsibility to take any further action to prosecute it. Congress placed the duty on VA to ensure all alternative theories of entitlement are exhausted and all laws, regulations, and other legal authorities pertinent to the case are considered and applied.              Theoretically, because it is ultimately VA’s duty to ensure all pertinent law is correctly applied, a veteran should have the same result with good representation, bad representation, or no representation. We all know, nonetheless, that no legal system is perfect, and veterans service organization representation is therefore advisable so errors can be discovered, but that does not relieve VA of the ultimate duty to ensure that all law is properly applied and all legal theories of entitlement are explored and considered.              Therefore, it is the Government’s responsibility to ensure that veterans are given every reasonable consideration and awarded every benefit to which they can be shown entitled. To accomplish that, we must have an agency that is fully devoted to serving veterans. The agency that serves veterans must do so with a sense of gratitude and with a duty to help rather than hinder veterans seeking benefits. It would be inconsistent with our indebtedness to veterans, our deep sense of gratitude, and the special honor we accord veterans to make them feel like their claims are unwelcome, require them to fight for their benefits, or even to require them to deal with a burdensome process. It would be shameful if a veteran seeking disability compensation for war wounds, for example, was confronted by a passive, indifferent, resistant, or contentious bureaucracy and was expected to have to pay a lawyer to get what was due from the Government. We firmly believe it would be inappropriate for us to condone a situation in which lawyers were needed to obtain veterans’ benefits. We believe it would be equally inappropriate for us to agree to allow lawyers to interject themselves into the claims process so they could charge veterans for assistance in obtaining benefits.              On the issue of the inappropriateness and lack of need of attorney representation in the initial administrative proceedings, our view from a practical and fairness standpoint, is similar to the view of Congress: “there would seem to be no need for the assistance of an attorney in order to initiate the claims process by completing and filing an application. Moreover, even if the initial decision is adverse, the Committee believes that it may be unnecessary for a claimant to incur the substantial expense for attorney representation that may not be involved in appealing the case for the first time to the BVA. The claimant may well prevail, as many claimants currently do, without legal representation when the case is first before BVA.” S. Rep. No. 100–418, at 63-64 (1988).              Obviously, no benefits delivery system can be perfect. Admittedly, VA has fallen far short of serving veterans in the manner intended. VA sometimes denies veterans’ claims erroneously, even arbitrarily. Veterans sometimes do have to fight an aloof bureaucracy to obtain what they are clearly due. However, if we agreed to permit attorneys to charge veterans fees for claims assistance, that would be an abandonment of the effort to force VA to reform and to force the system to work as intended. It would be viewed as a concession that the system cannot be made to fully work for veterans. With that concession, all efforts by Congress to force VA to perform as it was intended would likely cease. There would likely be an acceptance of circumstances and a system in which it was expected that veterans would have to pay lawyers and fight to obtain their benefits. VA would no longer grant benefits without being prodded to do so. Veterans would come to be treated as ordinary litigants rather than a special group entitled to special treatment.              As we have already experienced somewhat from judicial review and involvement of lawyers in that connection, the informal pro-veteran process would gradually evolve into a formal, legalistic, and adversarial one. If that were ever to occur, the probable result would be an increase in money spent on administration because of the back and forth that would take place between lawyers and VA on cases. In addition, VA would quite probably have to devote a substantial amount of its scarce resources—including a whole legion of employees—to the review of attorneys’ fee agreements. The result would be increased administrative costs, perhaps being paid for by a reduction in benefits elsewhere, and more benefits diverted away from the intended beneficiaries into the pockets of attorneys and agents. Agreeing to that would constitute an abandonment of our responsibility to work for the best interests of veterans.              Our position is one based entirely on the goal of preserving the special status veterans enjoy and promoting sound public policy. Veterans service organizations have nurtured the system from its inception. We have an investment in and appreciation for the system that attorneys simply do not have. That proprietary interest in the system ensures that, though we will aggressively and fully prosecute veterans’ claims, we will not do so blindly and with total disregard of the consequences for the system just to gain some perceived advantage for an individual claimant. On the other hand, lawyers handling individual claims will more likely “hit and run,” and possibly be more inclined to resort to tactics against VA that one might typically employ in adversarial proceeding to intimidate, overwhelm, or wear down an opponent. It would be difficult to criticize such an approach when it is billed as zealous representation. The open VA procedures designed for more gentle, gracious, and paternalistic dealings with claimants would probably have to be replaced with formal safeguards and restrictive rules to define prohibited practices and protect VA against such methods by zealous representatives. Veterans would lose the special considerations they are now accorded and lose rather than gain procedural advantages. Ultimately, it would be a “lose-lose” situation. The Court recognized the probable adverse effects in National Ass’n of Radiation Survivors: There can be little doubt that invalidation of the fee limitation would seriously frustrate the oft-repeated congressional purpose for enacting it. Attorneys would be freely employable by claimants to veterans’ benefits, and the claimant would as a result end up paying part of the award, or its equivalent, to an attorney. But this would not be the only consequence of striking down the fee limitation that would be deleterious to the congressional plan. A necessary concomitant of Congress’ desire that a veteran not need a representative to assist him in making his claim was that the system should be as informal and nonadversarial as possible. . . . The regular introduction of lawyers into the proceedings would be quite unlikely to further this goal. Describing the prospective impact of lawyers in probation revocation proceedings, we said in Gagnon v. Scarpelli, 411 U.S. 778, 787-788, 93 S.Ct. 1756, 1762, 36 L.E.d.2d 656 (1973): “The introduction of counsel into a revocation proceeding will alter significantly the nature of the proceeding. If counsel is provided for the probationer or parolee, the State in turn will normally provide its own counsel; lawyers, by training and disposition, are advocates and bound by professional duty to present all available evidence and arguments in support of their clients’ positions and to contest with vigor all adverse evidence and views. The role of the hearing body itself . . . may become more akin to that of a judge at a trial, and less attuned to the rehabilitative needs of the individual. . . . Certainly, the decisionmaking process will be prolonged, and the financial cost to the State--for appointed counsel, . . . a longer record, and the possibility of judicial review—will not be insubstantial.” We similarly noted in Wolff v. McDonnell, 418 U.S. 539, 570, 94 S.Ct. 2963, 2981, 41 L.Ed.2d 935 (1974), that the use of counsel in prison disciplinary proceedings would "inevitably give the proceedings a more adversary cast. . . .” Knowledgeable and thoughtful observers have made the same point in other language: “To be sure, counsel can often perform useful functions even in welfare cases or other instances of mass justice; they may bring out facts ignored by or unknown to the authorities, or help to work out satisfactory compromises. But this is only one side of the coin. Under our adversary system the role of counsel is not to make sure the truth is ascertained but to advance his client's cause by any ethical means. Within the limits of professional propriety, causing delay and sowing confusion not only are his right but may be his duty. The appearance of counsel for the citizen is likely to lead the government to provide one—or at least to cause the government's representative to act like one. The result may be to turn what might have been a short conference leading to an amicable result into a protracted controversy. . . . . “These problems concerning counsel and confrontation inevitably bring up the question whether we would not do better to abandon the adversary system in certain areas of mass justice. . . . While such an experiment would be a sharp break with our tradition of adversary process, that tradition, which has come under serious general challenge from a thoughtful and distinguished judge, was not formulated for a situation in which many thousands of hearings must be provided each month.” Friendly, “Some Kind of Hearing,” 123 U.Pa.L.Rev. 1267, 1287-1290 (1975). Thus, even apart from the frustration of Congress’ principal goal of wanting the veteran to get the entirety of the award, the destruction of the fee limitation would bid fair to complicate a proceeding which Congress wished to keep as simple as possible. It is scarcely open to doubt that if claimants were permitted to retain compensated attorneys the day might come when it could be said that an attorney might indeed be necessary to present a claim properly in a system rendered more adversary and more complex by the very presence of lawyer representation. It is only a small step beyond that to the situation in which the claimant who has a factually simple and obviously deserving claim may nonetheless feel impelled to retain an attorney simply because so many other claimants retain attorneys. And this additional complexity will undoubtedly engender greater administrative costs, with the end result being that less Government money reaches its intended beneficiaries. 473 U.S. at 323-26.              Undoubtedly, an attorney may very well provide some benefit in an individual case. Our consideration involves the good of the whole, however. We do not see how permitting attorneys to charge veterans for claims assistance could be beneficial for veterans or the system generally. Apart from the likely adverse effect discussed above where it will come to be accepted that benefits cannot be obtained without a fight and the services of a lawyer, lawyers are unlikely to have any other beneficial effect upon the system. Unlike nonprofit veterans organizations, which work for the good of the system and represent veterans free and without regard to the prospects or amount of monetary benefits, lawyers will participate for the purpose of earning fees. Because they will be representing veterans for a fee, they may only assist veterans in fee-producing claims, leaving veterans on their own in other matters. For example, it is unlikely that lawyers will be willing to spend great amounts of time counseling veterans, just listening to their problems, or helping them resolve all sorts of difficulties with VA that do not involve awards of monetary benefits. Veterans service organization representatives, whose sole function is assistance to veterans and their dependents, do these things every day. Veterans service organization representatives are not “on the clock” for purposes of charging fees and are therefore less concerned with taking a little additional time to explain matters and discuss veterans’ concerns. Much of what service officers gladly do for VA claimants would not be fee producing if done by attorneys, unless, of course, the veteran was foolish enough to pay an hourly fee for this service.              It is unlikely that an attorney would be willing to assist a veteran in obtaining service connection for a condition that would only be rated zero percent and would therefore result in no award of benefits. It is unlikely that an attorney would assist a widow in applying for a burial flag or VA headstone. It is unlikely that an attorney would assist a widow in a claim for a $300 burial allowance, or a veteran in obtaining the small annual clothing allowance. If an attorney did provide assistance with such matters, his or her fee might consume most or all of the benefit, or actually cost the claimant a substantial sum where the benefits had no monetary value. A veteran should not have to pay to get assistance in completing an application, especially when the benefit might be one about which there is no dispute as to entitlement. A lawyer might charge to help file an application where legal representation per se may never be necessary. In any event, VA benefits should go to the intended beneficiaries and should not come to be viewed as a source of fees for the legal profession.              It is understandable why some attorneys advocate changing the system. Perhaps veterans who advocate it do so under the belief that they would generally receive better representation by attorneys. Data on the subject simply do not support that belief. Attorneys presumably choose only the cases they believe more meritorious, where most veterans service organizations essentially represent any claimant and do not refuse representation in cases merely because of a lower likelihood of favorable outcome. Nonetheless, historically and currently, attorneys still have no greater success rate in BVA appeals, for example, than veterans service organization representatives. Indeed, the few veterans service organizations that are selective in who they represent have substantially higher success rates than attorneys, and even veterans service organizations that represent essentially any claimant that requests representation, such as DAV, generally have greater percentages of allowances on appeal than attorneys. In 2004, the average BVA allowance rate among veterans service organizations was 19.38 percent. The allowance rate for attorneys was 16.6 percent. All but one VSO had higher allowance rates than lawyers.              These are some of the reasons for our position. We believe the value of preserving the beneficial aspects of the current VA system and maintaining the special status veterans enjoy outweigh any benefit of permitting individual veterans to choose attorney representation. In public policy considerations, the right of personal choice is, of course, favored except when the good of the whole clearly outweighs any benefit to the individual or the value of individual choice.              Those who understand and appreciate the unique nature and purpose of the VA process also know that the formalities necessary to ensure a level playing field and referee proceedings between competing adversaries are not only superfluous to the VA process but actually operate to create inefficiencies and inhibit justice.              Thus, the foreseeable consequences of introducing lawyers in the administrative process are far reaching and almost uniformly undesirable. No positive tradeoff would result. It would not only, on the whole, be detrimental to the administrative claims processing system and the veterans it serves, it would decrease the efficiency of the system and ultimately cost taxpayers more, with no benefit except as a new source of fees for lawyers.              Our goal is to put veterans’ benefits in the pockets of veterans; NOVA’s goal is to put veterans’ benefits in the pockets of attorneys. We are taking a public policy position for veterans; NOVA is taking a public policy position for lawyers. We believe it would be a major mistake for Congress to change the law to permit attorneys to charge veterans for assistance in filing claims and prosecuting claims in the initial administrative proceedings.  Printer-Friendly Version