MSPB and Federal Employee Attorney Blog

Veterans Benefits: The VA Fiduciary Program is a Colossal Failure to those who Served.

Chris Attig — Sat, 04 Feb 2012 11:31:23 +0000

Over the next few weeks, I would like to talk about the VA’s “Fiduciary” Program. I often refer to this program as the “Fraud-uciary” program because of the problems associated with it. It’s time to start clamoring for change about this process, and this is a very small step in that direction.

What is the VA’s Fiduciary Program all about? Here’s how it works, generally.

The VA decides that a Veteran is not mentally capable of managing their own finances. (In nearly all of the cases I have reviewed, there was no medical or clinical evaluation to support this decision).

After making that decision, the VA appoints a “fiduciary” to manage the finances of that Veteran. The VA will reach into the bank accounts of the Veteran, taking control of the Veteran’s savings and giving it to the “Fiduciary”. In one case we are looking at, the VA took the Social Security payments of a Veteran’s wife and gave those to the Fiduciary as well.

The fiduciary is most commonly someone that the Veteran does not know, and who does not know the Veteran. The fiduciary is allowed to take up to 4% of the Veteran’s savings and monthly benefits as a ‘fee’ for managing the Veterans finances.

Why is this a problem? To answer this, let me point out some of the abuses of the VA Fiduciary Program – I assure you, they are the norm and not the exception. I have yet to find a fiduciary that has properly managed a Veterans finances. Sometimes the mistakes are small, sometimes they are not.

1) Joe Phillips, a Houston attorney, and his wife. This “fiduciary” is currently pending a federal criminal trial in Houston for allegedly scheming (with his wife) to steal over $2 million from the bank accounts of the Veterans whose finances they were to manage. This scheme is alleged to have started in 2003 – meaning it took the VA and the Dept. of Justice over 8 years to audit the fiduciary, identify the alleged fraud, and charge these individuals for their alleged malfeasance. Read the story here on the Department of Justice website.

2) Read about this Central Texas Veteran whose family had to pawn their possessions because the VA’s appointed “fiduciary” appears to refuse to communicate with the Veteran and refuses to provide the money the Veteran needs to take care of himself: Veteran’s Family Asking About Their Money.

3) Read about this Florida Veteran whose fiduciaries are taking a percentage of all of his money – not just his VA benefits. Vets lose benefits as VA covers up mistake.

4) Read about this Tennessee Veteran whose fiduciary allegedly embezzled over $100,000 in money from the Veteran and the Veteran’s estate: Surviving Family members fight for Memphis Veteran’s Benefits.

5) Read about how the VA appointed a convicted felon (!) to manage this Veteran’s money. VA Hires Convicted Felon to Manage this Veteran’s Money.

I could go on with more – and worse – examples. (And I intend to in the coming days).

It is my opinion that the VA Fiduciary Program needs to be gutted completely. Why? There is a process under every state’s guardianship law for every Veteran. This process involves the Veterans’ family, is managed and audited by the state court, and ensures that the Veteran’s physical, medical and other needs are being met (something that the VA’s Fidiciary program falls woefully short on).

Here is what should happen to effectuate change in the VA:

1) States should pass laws regulating the conduct of individuals who serve as fiduciaries of that state’s veterans. These laws should include the appointment of special prosecutors at the state and county level to investigate and prosecute fraud, embezzlement, theft, etc., of Veteran’s money and property. The Attig Law Firm is in the process of drafting Model Legislation for States to use. Please contact Attorney Chris Attig if you would like to join this effort or receive updates on this effort.

2) Veterans should challenge the VA’s appointment of any fiduciary that they do not know – immediately! In a 2011 Decision issued by the Court of Appeals for Veterans Claims (Freeman v. Shinseki - argued by friends of the Attig Law Firm and attorneys Katrina Eagle and Doug Rosinski), the court found that Veterans should have an opportunity to file an appeal of the VA’s appointment of a fiduciary. (This is going to be hard because in many cases the VA doesn’t tell the Veteran that they appointed a fiduciary and emptied the bank accounts of the Veteran until months later). How does the Veteran challenge the decision? File a Notice of Disagreement with the VA Regional Office just as you would for your disability compensation appeals.

3) Veterans should contact attorneys in their geographical area to ask for help ensuring that the Fiduciary has complied with their own State laws involving the VA Fiduciary’s Duties to the Veteran. In many cases, state law provides avenues to take the Fiduciary to State Court and sue in civil court for damages if the VA Fiduciary is mismanaging a Veteran’s money or has breached a VA fiduciary duty to the Veteran. (If you are in the DFW area, contact the Attig Law Firm and we will discuss with you whether or not we will be able to assist you in investigating your VA Appointed Fiduciary – unfortunately, we are not able to assist Veterans with Fiduciary issues outside the DFW Metroplex at this time. We are working to build a referral network of attorneys outside DFW that are able to assist in these cases, and maybe able to refer you to an attorney in your area, so shoot us an email anyway: vetlaw@attiglawfirm.com

4) If you feel that your fiduciary is stealing money from a Veteran – contact your City and County District Attorney’s Office. If that doesn’t work, contact your States’ Attorney General’s Office. If that doesn’t work, contact your State legislators. If that doesn’t work, contact your Federal legislators. Keep reaching out to these folks until someone answers and helps investigates whether your VA Fiduciary has committed a criminal act or act(s).

5) Everyone should contact their Federal legislators and ask them to hold hearings into the abuses visited on Veterans by these “fiduciaries”. Only through these hearings will the legislative needs of our Veterans become clear.

It is very important that we note that each and every Veteran’s claim is different. Just because we were able to secure substantial past-due benefits for one Veteran does not mean or imply that we will be able to do so for you. In some cases, we may not be able to secure you any financial compensation due to the facts of your particular case.

It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case. If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability Appeals in Texas, Arkansas, Oklahoma, and all around the nation, contact the Attig Law Firm, PLLC, for a free consultation with a VA Benefits attorney.

The Attig Law Firm, PLLC, and VA benefits attorney Chris Attig, represents military Veterans in Texas, Arkansas, Oklahoma (as well as all around the nation) before the VA Regional Office, the Board of Veterans Appeals (BVA) and the Court of Appeals for Veterans Claims (CAVC)in claims for disability compensation from the Department of Veterans Affairs.

Veterans Benefits: Texas adds Veterans designation to Driver’s License

Chris Attig — Sat, 04 Feb 2012 10:37:36 +0000

The State of Texas has just added a Veteran’s designation to its Drivers License for qualified veterans. All you need to do is bring proof of an Honorable Discharge (DD-214) to your DMV office (or mail it in).

Many services in the State of Texas require proof of Veteran Status. For example, discounts on property taxes and many public services are available to certain veterans. The Veteran’s Designation is all the evidence you need to prove your Veteran’s status in the State of Texas.

Here is the link to the announcement regarding these new license designations from the Texas Veterans Commission:

http://www.tvc.state.tx.us/latest-news/entry/information-from-the-department-of-public-safety-regarding-the-veteran-driv

Veterans Scam Targets Texas and Oklahoma Veterans and Seniors

Chris Attig — Fri, 20 Jan 2012 11:44:30 +0000

This post is to inform you of a possible veteran scam operation from Oklahoma that may be setting up shop in the DFW metroplex or elsewhere in Texas.

KFOR-TV (NBC Channel4) in Oklahoma City has reported recently on an “organization” by the name of Veteran’s Outreach Mission Inc. run by a man named Bruce Wayne Rhoades aka Rhodes & Sawyer.

Mr. Rhoades is currently a wanted convicted felon out of Oklahoma County, allegedly running a house raffle in Oklahoma City and collecting thousands of dollars to be used for a” veteran’s rehab center.” Neither the home builder mentioned on the raffle fliers nor the restaurant where the raffle drawing was to be held had any idea their name was being used for such a nefarious purpose.

Moreover, Mr. Rhoades has allegedly used senior citizen employees through an AARP program but never paid them. Any money that was collected during fundraising was (allegedly) immediately taken by Rhoades and former employees claim there were no receipts or books kept. Also in checking with the IRS, neither Veteran’s Outreach Mission Inc. nor Bruce Rhoades hold any properly registered non-profit, 501 (c)3 status, or lawful registration.

How does this involve Texas?

As of Oct. 18, 2011, Mr. Rhoades has registered Veteran’s Outreach Mission Inc. with the Dallas County court clerk at the address of 1100 W. Main Suite 115 Grand Prairie, TX. That location comes back as a hotel room.

Learn more on KFOR News Coverage: http://www.kfor.com/videobeta/cd382196-ff8f-4845-8791-c357a5d164fb/News/Update-Bogus-House-Raffle-Sparks-Outrage

See the Oklahoma County Warrant for Mr. Rhoades here: http://www.oklahomacounty.org/sheriff/warrantsearch/warrantdetails.asp?PERSON_ID=186108731

The Attig Law Firm, PLLC, and VA benefits attorney Chris Attig, represents military Veterans in Texas, Arkansas, Oklahoma (as well as all around the nation) before the VA Regional Office, the Board of Veterans Appeals (BVA) and the Court of Appeals for Veterans Claims (CAVC) in claims for disability compensation from the Department of Veterans Affairs.

VA Disability Compensation: Edward J. Derwinski, First Secretary of the Department of Veterans Affairs, dies.

Chris Attig — Thu, 19 Jan 2012 13:42:03 +0000

No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the Veteran, some power. This information is not widely or easily accessible to Veterans. The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case. Likewise, their may be information that is applicable to your case that is not provided on this Veterans Disability Compensation Blog.

Edward J. Derwinski, the first Secretary of the Department of Veterans Affairs, died yesterday at age 85.

Here is a link to some early coverage about former Secretary Derwinski’s career and life:

NY Times coverage.

Washington Post coverage.

DeKalb, IL Daily Chronicle.

The Attig Law Firm, PLLC, and VA benefits attorney Chris Attig, represents military Veterans in Texas, Arkansas, Oklahoma (as well as all around the nation) before the VA Regional Office, the Board of Veterans Appeals (BVA) and the Court of Appeals for Veterans Claims (CAVC) in claims for disability compensation from the Department of Veterans Affairs.

Veterans Disability Compensation: Court of Appeals holding in Quattlebaum is a great decision for Veteran’s survivors.

Chris Attig — Thu, 19 Jan 2012 11:46:15 +0000

The Court of Appeals for Veterans Claims (CAVC) started off 2012 with a very positive decision for Veteran’s survivors when it issued its opinion in Quattlebaum v. Shinseki.

Here’s how it used to be: When a Veteran passed away, and had a pending claim for benefits, his survivor (typically a spouse or eligible surviving parent or child) had the ability to file a claim for “accrued benefits” (Click on the link to read more about accrued benefits claims). If the survivor was denied accrued benefits in a final decision (remember, a final decision is one where a timely appeal was never filed), that used to be the end of the road for the Veteran’s survivor’s accrued benefits claim. Until now, the only way to get an accrued benefits claim reopened was to show that the VA violated its “Duty to Assist” the Veteran during his/her lifetime, and that if the VA had not violated the Duty, the Veteran would have had evidence to prove his/her claim for benefits.

Here’s how it is now: The CAVC ruled that – insofar as reopening the claim is concerned – an accrued benefits claim is no different from any other type of benefits claim. If a survivor finds “new and material evidence” to support the elements of an accrued benefits claim, then the VA must reopen the claim.

Why is this a big deal? In my experience, the VA routinely denies “accrued benefits” claims in anything but the most clearly obvious situations. By denying the accrued benefits claims, I think that the VA knew that a large number of survivors would just abandon the appeal and give up the claim. Now, when Veterans’ survivors decide that an attorney may be able to help them with their accrued benefits claim, the survivor has some options to reopen the denied claim and pursue the compensation the Veteran and his/her spouse is still entitled to.

One important note. First, it is crucial to note that the Quattlebaum decision does NOT change the fact that a survivor must apply for accrued benefits within one (1) year of the Veteran’s death. If a survivor does not file in that one year, it is going to be virtually impossible to successfully pursue the claim for accrued benefits.

The Attig Law Firm, PLLC, and VA benefits attorney Chris Attig, represents military Veterans in Texas, Arkansas, Oklahoma (as well as all around the nation) before the VA Regional Office, the Board of Veterans Appeals (BVA) and the Court of Appeals for Veterans Claims (CAVC) in claims for disability compensation from the Department of Veterans Affairs.

Veterans Disability Benefits: Eight (8) Facts Veterans should know about the Court of Appeals for Veterans Claims (CAVC).

Chris Attig — Tue, 13 Dec 2011 11:52:22 +0000

Here are eight (8) facts that I think every Veteran should know about the Court of Appeals for Veterans Claims:

1) Range of outcomes. Many Veterans think that they will win their claim outright at the Court of Appeals for Veterans Claims (CAVC). While this is a possibility, it is not a common occurrence at the CAVC. By far the most likely outcome is that the Court of Appeals for Veterans Claims will remand the claim back to the Board of Veterans Appeals (BVA). In fact, if I recall the statistics I recently saw, some 80% of CAVC Appeals are remanded back to the BVA to correct an error. Other possible outcomes include dismissal of the case for lack of jurisdiction (if the Court doesn’t have statutory or Constitutional authority to hear a case), or outright denial of the claim. The last outcome is rare, but it does happen. If it does happen, your only viable options are to appeal to the Federal Circuit Court of Appeals, or attempt to reopen your claim at the VA Regional Office.

2) No jury trial. There is no point in the VA claims process where you are entitled to a trial by jury. That’s unfortunate, because I suspect a jury would be far more sympathetic to most Veterans claims than the Department of Veterans Affairs. Instead, your appeal will either be decided by a single-judge, or a panel of three (3) judges. Single-judge decisions are used in cases that are non-precedential – meaning generally that they do not create new law. Panel decisions are typically used in cases where the decision of the Court of Appeals for Veterans Claims will have an impact beyond the current case – they are precedential, meaning that the “lower courts” (i.e., the BVA and the VARO) are (in theory) bound to follow them.

3) No discovery. In traditional litigation, each party has the opportunity to “discover” information about the case that the other party has. This could include depositions, document production, written questions, and admission/denial of certain facts. I am of the opinion that if there were traditional discovery under the Federal Rules of Civil Procedure in Veterans claims, that the claims process would move much, much quicker. Regardless, that option is never available. There are three major sets of “evidence” that you can – and should get from the VA: a) your claims file, or C-File, b) your VA Medical Records, and c) the ROA, or Record on Appeal. The ROA will be sent to you – typically in paper and on a CD-R – by the attorney representing the VA at the Court of Appeals for Veterans Claims.

4) The VA will have an attorney. This is the first stage of the claims process where the VA will openly be represented by an attorney. The law does not permit the VA claims process to be adversarial, so the VA’s attorneys are not as vicious or conflict-prone as, say, USPS attorneys. In fact, I have enjoyed working with the VA’s attorneys at the CAVC. However, VA attorneys are not your friends – they do represent the government’s interests, and not yours. For that reason, it is always a smart idea to consider having an attorney represent you before the Court of Appeals for Veterans Claims. Here is a blog entry that will help you to choose an attorney for your veterans claim before the Court of Appeals for Veterans Claims.

5) You can hire an attorney. Here is another post about choosing an attorney at theCourt of Appeals for Veterans Claims. It is important for you to know that the industry standard is that attorneys do not charge Veterans up-front fees for representation at the Court of Appeals for Veterans Claims. The attorneys typically petition the CAVC to have the VA pay the attorney’s fees, under the Equal Access to Justice Act (EAJA) if the Veteran is a “prevailing party” at the CAVC. As for costs, different attorneys have different arrangements, and an attorney is permitted to ask you to repay reasonable costs from the appeal to the CAVC.

6) Length of time. The average time for the adjudication of an appeal to the Court of Appeals for Veterans Claims is somewhere around 254 days from filing to decision (or mandate, as it is called in the appellate courts).

7) Filing Fee. There is a filing fee for the Court of Appeals for Veterans Claims. It is currently $50, but you can have it waived for financial hardship. Many law firms will advance the filing fee to their client as part of the attorney-client agreement covering representation before the Court of Appeals for Veterans Claims.

8 ) Settlement and the Rule 33 Briefing Conference. Technically, the VA cannot “settle” VA disability benefits claims. However, sometime before the Appellant’s Brief is due, the Court of Appeals for Veterans Claims will hold a “Briefing Conference”. At the Briefing Conference, the parties/attorneys discuss, with a representative of the Court of Appeals for Veterans Claims, the substance of the claim. There are typically two outcomes to this conference: Joint Motion to Remand and Briefing the Appeal. I will talk more about the JMR – Joint Motion to Remand – in later posts, but for now, it is sufficient to say that if the Parties believe that the BVA and/or the VA Regional Office made an error, they can send it back to that level to correct the error. Many times – but certainly not always – this results in a grant of service-connection and/or past-due benefits to the Veteran. If the VA’s attorney is not convinced of the BVA or VA Regional Office error, the case will be briefed. However, I have found that even when unsuccessful, any dialogue between attorneys for a claim is useful to develop a relationship for possible future resolution of the claim.

The Attig Law Firm, PLLC, and VA benefits attorney Chris Attig, represents military Veterans in Texas, Arkansas, Oklahoma (as well as all around the nation) before the VA Regional Office, the Board of Veterans Appeals (BVA) and the Court of Appeals for Veterans Claims (CAVC) in claims for disability compensationfrom the Department of Veterans Affairs.

Veterans Disability Benefits: Three places Veterans should check before hiring an attorney in their Veterans Disability Benefits Claim.

Chris Attig — Wed, 23 Nov 2011 11:40:25 +0000

This blog entry by the Attig Law Firm contains 3 places that Veterans should check before hiring an attorney to represent them at any stage of their claim. But first, I’d like to explain why a Veteran would want to make these 3 checks.

In a nutshell – Veterans need to protect themselves against unscrupulous attorneys – or, attorneys that hold themselves out to be something that they are not.

Yes, the legal profession has a bad rap. And yes, there are more lawyer jokes than any other kind of joke (and as much as I hate how these jokes tear down my profession, I have to admit, some of them are pretty funny).

The Attig Law Firm has been providing original content in this blog to Veterans about the various levels of the claims process since 2007. It has come to our attention that many law firms have been reposting the content in these blogs and passing it off as their own. Further, other law firms have outright plagiarized content from our web site.

How does this affect the Veteran seeking compensation for his/her disability benefits? Quite simply, the law firms that are stealing our content are passing themselves off as something that they are not – a law firm that provides information to assist veterans. You see, there are two purposes for blogs:

1) Providing information and content to a particular audience on the internet. This is what the Attig Law Firm has committed to doing for over 4 years. We believe that information is power, and that the more information a Veteran has, the more that they can help themselves beat the VA Bureaucracy. And, if Veterans that read our blog get frustrated fighting the VA bureaucracy, they can always consider seeking help from the Attig Law Firm.

2) Another reason for blogs is something called “Search Engine Optimization”, or SEO. Here’s how it works – the search engines like “Google” and “Yahoo” have spiders that crawl the internet, looking for and sorting the information that appears. Each page is ranked by its keywords and the amount of content on its site – among other factors….Google’s search-engine algorithm is a closely guarded secret. The theory is that a website with certain keywords will be a good content match for a “searcher” looking for those keywords. The search engines, like Google, reward websites like ours with high rankings because we provide relevant and useful content on a specific number of keywords.

Some less than scrupulous businesses out there leech off the hard work of other businesses, by reposting their original content. You’ve seen the sites – search pages full of nothing but ads, blog “catalogs”, etc. By reposting someone else’s content, they are boosting their search engine rankings without actually providing any original content.

[As I mention later, many websites properly and professionally repost our content - you can identify those sites as they give credit to our Firm for that information. Here's an example of a credible and professional reposting site: http://www.lexisweb.com/Search.aspx?Query=court+of+appeals+for+veterans+claims ... notice how this site clearly gives credit to each original poster?]

How does this affect the Veteran? I can answer that question by asking you to answer these two questions:

1) Which Firm seems more trustworthy and scrupulous – the one that posts original free content that is helpful to Veterans, or the one that steals that content and passes it off as their own to boost search engine rankings?

2) Which Firm do you think is more likely to cut corners on your case in order to “churn” many cases for a profit (these types of firms are referred to as “mills” – Bankruptcy Mills, Veterans Benefits Mills, etc.) – the firm that takes the time to prepare original and thorough free content to Veterans, or the Firm that steals that content, passes it off as its own, in an attempt to lure Veterans into their offices?

Here’s an example of one of the Firms that is reposting our threads and not providing us with the proper credit for providing original content:

Link to Firm that is passing off Attig Law Firm content as its own. (this link opens in a separate window).

[As of November 23, 2011, we have again asked this firm to please give us the proper credit for the original content they are reposting and implying is their own. As of this writing, we have not heard back.]

Compare our original post yesterday (November 22, 2011, posted about 7am): Attig Law Firm: How can a Veteran get their claim before the Court of Appeals for Veterans Claims?

To the plagiarizing firm’s post yesterday (November 22, 2011, posted about 4 hours later): Click here for link to the plagiarized post.

Exact copies of another firm’s content? Yes. Let’s look a little deeper to see this firm’s experience in representing Veterans – as it purports to have on its site.

1) None of the attorneys listed in the Firm appear 0n the list of attorneys admitted to practice before the Court of Appeals for Veterans Claims (as of November 23, 2011).

2) None of the attorneys at that firm have appeared in a Veterans’ appeal to the Court of Appeals for Veterans Claims since – at least – October 10, 2008 (I didn’t check the database prior to October 10, 2008.

3) Only one of the firm’s attorneys appeared on the list of VA Attorneys accredited to represent Veterans by the VA Office of General Counsel (the VA won’t even respond to filings from non-accredited attorneys).

4) None of them appear to be members of the National Organization of Veterans Advocates (NOVA). (The Attig Law Firm has always recommended that Veterans look first at Veterans advocates that are affiliated with this organization, as members of NOVA voluntary commit to hold themselves to higher ethical standards than other practitioners.

[CAVEAT: It is possible that the failure of this firm to give us credit for our posts is benign - one firm that copied substantial portions of their website did so because a young intern tried to cut corners - that law firm took immediate corrective action and apologized for its oversight. In short, I am not saying the firm in the link above is unscrupulous, or that it is not competent to represent Veterans; I am only saying that it has failed to give proper credit for content that is not its own.]

Now, there are firms that we have authorized to repost our content – you will recognize these firms because my picture will show up, or the introduction will give credit to my Firm for the original content. Here is an example (click to open link in new window).

In light of this, let’s add a few more checks for Veterans that are looking for an attorney to represent them:

1) Verify that the attorney is accredited by the VA Office of General Counsel to handle VA claims. Do not hire an attorney that is not accredited by the VA. Here is where you can check on a Veterans Attorney’s accreditation (go there, type in “Attig”, check the attorney block, and you will see that I am accredited. The site won’t tell you, but I’ve been accredited since very early in that process – September 2008)

VA Office of General Counsel Accreditation Search (click to follow link)

2) Verify that the attorney is admitted to practice before the Court of Appeals for Veterans Claims. Here is the site where you can check on that:

Attorneys Admitted to Practice before Court of Appeals for Veterans Claims (click to follow link)

3) Check whether the attorney is a member of the National Organization of Veterans Advocates (NOVA); I can’t think of a single viable reason that an attorney that represents Veterans would not be a NOVA member. Here is the NOVA website:

National Organization of Veterans Advocates (NOVA)…click to follow link.

It is my opinion, Veterans advocates that are not listed at each of the above three (3) places (VA Accreditation, CAVC admission, and NOVA membership) are not ideal choices to represent Veterans. Others hold different opinions – that is just mine. I have seen one too many cases where a Veteran got bad advice or bad representation from law firms or attorneys that didn’t know what they were doing or that had no business representing that Veteran.

The Attig Law Firm, PLLC, and VA benefits attorney Chris Attig, represents military Veterans in Texas, Arkansas, Oklahoma (as well as all around the nation) before the VA Regional Office, the Board of Veterans Appeals (BVA) and the Court of Appeals for Veterans Claims (CAVC) in claims for disability compensationfrom the Department of Veterans Affairs.

Veterans Disability Benefits: How can a Veteran get their claim before the Court of Appeals for Veterans Claims?

Chris Attig — Tue, 22 Nov 2011 12:19:51 +0000

How does a Veteran get his or her claim for disability benefits before the Court of Appeals for Veterans Claims (CAVC)? In order for the CAVC to have jurisdiction over a Veteran’s claim, the Veteran must meet the following requirements:

1) The Veteran must have a final decision of the BVA. BVA Decisions are not always the easiest to read; however a decision of the Board of Veterans Appeals is final if it doesn’t remand the claim to the VA Regional Office or award benefits. Many BVA decisions include a combination of outcomes – in that case, the portions of the claim that are not remanded or granted are appealable to the Court of Appeals for Veterans Claims (CAVC). However, even when a claim is partially remanded and partially denied, the CAVC may still refuse jurisdiction – if the issues are “inextricably intertwined”. A common example of this is the Veteran’s survivor who files for DIC and Accrued Benefits – if a factor in the Accrued Benefits claim would affect the outcome of the DIC claim, then the Court can refuse to exercise its jurisdiction over the denied portion and remand the whole claim to the BVA for correction.

2) The Veteran must file the appeal to the CAVC within 120 days of the Mailing of the BVA Decision. The Veteran must file the appeal within 12o days of the date that the BVA mailed its decision (this date is usually referenced in the cover letter to the BVA Decision). We recommend filing the CAVC Appeal well before the 120 day deadline, but understand that circumstances arise where it will be necessary to file at or near the 120 day deadline. In those cases, the Veteran must provide evidence demonstrating that the NOA was properly addressed, stamped and mailed in time to reach the CAVC in the normal course of business before the 120 day deadline has elapsed. A good way to do this is to use technology: I snap a “photo” of the envelope after the Post Office has affixed postage, using an iPhone app called “JotNot Scanner Pro” – which allows my iPhone to work as a scanner. Another good way to do this is to fax the Notice of Appeal to the Court. Read more about that process by going to the CAVC Website.

3) The Veteran must file a proper Notice of Appeal (NOA) (and pay the filing fee). The easy way to do this is to use the Notice of Appeal form on the CAVC website. However, if a Veteran does not use the NOA form, (s)he must meet the following elements:

- The name, address, phone number of the Veteran and the appropriate VA Claims file number

- Reasonable identification of the Board Decision being appealed from, and reasonably signal an intent to seek CAVC review of that decision

- Notice of Appearance filed by any representative entering their appearance in the case on behalf of the Veteran.

4) There must be a “case or controversy”. This is a requirement of every Federal Court, and the phrase has its roots in the Constitution. Books could be written on what “case or controversy” means. However, for the purposes of a CAVC appeal, so long as the Veteran is appealing a final BVA decision, and so long as the Veteran is not seeking what is called an “advisory opinion”, the Veteran’s appeal more likely than not meets this element.

It is important to note that a “case” is considered to be submitted for decision once the Appellant files the reply brief (or the deadline for the reply brief has passed). This is important because if a Veteran dies before a case is “submitted for decision”, the CAVC might rule that the appeal is moot – or, if it issued a decision without knowing the Veteran died before the case was “submitted for decision”, it may withdraw the decision altogether.

Now – this is very important – survivors may have the ability to substitute into the case of a deceased Veteran. I will post more on the topic of substitution in a later post, as it is a rather complex topic. If you are a survivor of a Veteran that died during the pendency of an appeal before the CAVC, it is vital that you contact an attorney that is familiar with appeals to the Court of Appeals for Veterans Claims (CAVC) to see if you can substitute into the deceased Veteran’s appeal and recover benefits owed to him/her by the VA.

The Attig Law Firm, PLLC, and VA benefits attorney Chris Attig, represents military Veterans in Texas, Arkansas, Oklahoma (as well as all around the nation) before the VA Regional Office, the Board of Veterans Appeals (BVA) and the Court of Appeals for Veterans Claims (CAVC) in claims for disability compensation from the Department of Veterans Affairs.

Veterans Disability Benefits: Does a Veteran need an attorney at the Court of Appeals for Veterans Claims (CAVC)?

Chris Attig — Mon, 21 Nov 2011 13:16:30 +0000

There is no absolute “yes” or “no” answer to this question. Most Veterans will benefit from having an attorney represent them at the Court of Appeals for Veterans Claims. Let’s talk about a couple advantages of having an attorney represent a Veteran before the Court of Appeals for Veterans Claims.

1) The Veteran should never have to pay “out of pocket” for an attorney to represent them at the Court of Appeals for Veterans Claims. Attorneys that work before the CAVC typically get their fees reimbursed by the VA pursuant to a law known as “EAJA” – Equal Access to Justice Act. This law allows the Veteran’s attorney to petition the CAVC to have the VA pay the Veteran’s reasonable attorney fees and costs if the Veteran “substantially prevails” before the CAVC. Attorneys may also charge a contingency fee for their work before the CAVC in the event that the CAVC grants past-due benefits to the Veteran. When an attorney doesn’t cost a Veteran anything in terms of up-front costs, its hard to think of a reason that a Veteran wouldn’t spend some time trying to find the best CAVC attorney that they can.

2) There is an old saying among lawyers that goes something like this: the lawyer that represents himself has a fool for a client. Okay, that may be a bit harsh, but to an extent, a third-party is almost always able to advocate better for the Veteran. By the time the Veteran has gotten to the Court of Appeals for Veterans Claims, he or she has probably spent 5-10 years fighting their way through the bureaucracy. Most Veterans that get to the CAVC are angry and frustrated about the system and want to talk about this before the CAVC. An attorney can help a Veteran stay focused on the issues and relief the Veteran seeks.

3) Deadlines are a big reason that Veterans should consider hiring an attorney to represent them before the Court of Appeals for Veterans Claims. There are many deadlines – such as deadlines for the Veteran to counter-designate the record, deadlines for briefs, deadlines for conferences, etc. For Veterans that are used to a bureaucracy that allows months or years for responses from the Veteran, the CAVC’s deadlines can put a lot of stress on a Veteran. Attorneys are used to this – we live and die by deadlines and calendars.

4) Veterans should consider the consequences of a loss at the CAVC. If the Veteran loses before the Court of Appeals for Veterans Claims (CAVC), then there are only two ways to proceed: a) appeal to the Federal Circuit Court of Appeals or b) start all over at the VA Regional Office with a request to reopen the claim. The first option is not all that great – the Federal Circuit is extremely limited in its jurisdiction, and I would venture a guess that less than 5% of Veterans that appeal to the Fed Circuit get any relief. The second option is not all that great either – the Veteran could likely lose the earlier effective date of their claim and have to start over from scratch in the VA’s nightmare bureaucracy. There are things an attorney can do – like try to negotiate a Joint Remand – that will give the Veteran more opportunities to prevail before the VA with the benefit of their earlier effective date.

All in all, there are a good number of reasons for a Veteran to hire an attorney before the Court of Appeals for Veterans Claims. The biggest disadvantage of hiring an attorney would likely be hiring an attorney that you, the Veteran, don’t feel comfortable working with. Take some time, search around for and talk to a few attorneys that represent Veterans before the Court of Appeals for Veterans Claims, and consider hiring one to help represent you before the CAVC.

The Attig Law Firm, PLLC, and VA benefits attorney Chris Attig, represents military Veterans in Texas, Arkansas, Oklahoma (as well as all around the nation) in their claims for disability compensation from the Department of Veterans Affairs. The Attig Law Firm represents veterans before the VA Regional Offices, the Board of Veterans Appeals and the Court of Appeals for Veterans Claims.

Can you meet the 2011 Veterans Day Challenge?

Chris Attig — Sat, 12 Nov 2011 13:32:40 +0000

If you follow our blogs here at the Attig Law Firm, you’ll notice that we don’t post a blog on Veterans Day. With the flood of “thank-you-for-your-service” emails and blogs and parades (and, apparently, free wings for Veterans at Hooters), our message would just be lost in the flood.

So I’m posting this blog entry the day after Veterans Day in the hopes more of you will read it, and act on it.

I’m going to ask each of you that read it to commit to doing each of these things for Veterans in the next 90 days. Let’s call it the “2011 Veterans Day Challenge”.

Once you complete the 2011 Veteran’s Day Challenge, if you’d like, email me at attorney@attiglawfirm.com . We’re on the honor system around here, so all you have to tell me is “I completed the 2011 Veterans Day Challenge”, and I’ll post your first name, last initial, and city/state below.

The ideas I’m going to suggest here require a bit of “pain” on your part – but if you can do one of these things, you might help 1, 5, 10 or more Veterans who put their life on the line so that you didn’t have to go and fight. And you just might feel better than if you just went to a parade or merely said “Thanks”.

If you’re a Veteran, you made the same sacrifice we all did – you put your life on the line, you put your country and your principles ahead of all else. But as we who served all know – the wars are never over. As the Ranger Creed tells us – “I will never leave a fallen comrade…” Find a fallen comrade, and do something to help them back up on their feet.

1) CONTRIBUTE TO THE DALLAS VETERANS COURT.

The Dallas Veterans Court is the project of Judge Michael Snipes, himself a Veteran (Retired Army Colonel).

He set up and runs a court for combat veterans that are charged with certain non-violent, non-sexual felonies. The Court’s Program helps these Veterans get back on their feet and out of prison. Veterans get job counseling, access to psychiatric assistance where needed, and much much more – successful completion of the program leads to dismissal of the criminal charges. Read this article in the Dallas Morning News about the Dallas Veterans Court.

With 50,000 Iraqi and Afghanistan Combat Veterans expected to be discharged in the next 3 years (many of whom are victims of severe PTSD – Post Traumatic Stress Disorder resulting from almost 11 years of sustained, daily, combat with the enemy).

With the high rate of homelessness and joblessness among our Iraqi and Afghanistan Combat Vets, programs like the Dallas Veterans Court are going to prove essential to acclimating our returning Veterans in the months and years ahead.

But this court needs money to run – its not funded by the State or County or Federal Government. Make a donation to the address below.

Give whatever you can – $10, $25, $50, $100 – it all helps pay for supplies and other needed resources at the Court.

If the freedom we have in America – financed with the blood of our Soldiers, our Veterans and their families - has helped you to become a successful businessperson or community leader, or just have a better life, please repay some of that debt with a larger gift of $1,000, $2,500 or $5,000.

If you would like to consider adding a gift to the Veterans Court to your will, please email me at attorney@attiglawfirm.com and I would be glad to help you make this happen.

Here is the address where you can mail your check:
Make Check Payable to: Dallas County Veteran Court
Write, in Memo Section: “To be used at Discretion of Judge Snipes”
Send Check to: Dallas Veterans Court
ATTN: Ms. Tamayra Stell, Asst. Supervisor
Dallas County Adult Probation
133 N. Riverfront Blvd, 9th Floor
Dallas, Texas 75207

2) HELP A HOMELESS VETERAN.

[CAVEAT: I encourage you to do this activity with a friend or co-worker - don’t do this sort of thing alone. ]

So many of our Combat Veterans are homeless. In fact, the highest percentage of homeless veterans are between the ages of 18 and 30. These are our Iraq and Afghanistan Veterans – abandoned, without access to a warm meal or a roof over their head.

Take the day off from work – bring a friend or co-worker – go into your city’s downtown, and buy a warm meal for a homeless veteran. Sit down with the Veteran and listen to his or her story. Be thankful that you didn’t have to pay the price that this soldier did.

Or – better still – buy 10 thick heavy blankets and hand them out to homeless Veterans on a cold night. Help a homeless Veteran shop for a warm sleeping bag – and buy it for him or her.

Give a homeless Veteran $20 in cash – sure, maybe he’ll buy beer or smokes, but you might also have helped him or her pay for a warm bed for the night.

3) SPEND ONE HOUR ON THANKSGIVING OR CHRISTMAS WITH A WOUNDED VETERAN.

Many of your nations Veterans spend their holidays in the hospital. There are also a great number of Veterans that spend their holidays in the hospital, alone. Their families and friends have passed away, their caretakers have abandoned them out of sheer exhaustion, they are in long-term care situations far from their home, and any number of reasons.

Many of these Veterans served in World War II. While politicians sing their praises, these men and women spend their holidays alone.

Every VA Medical Center has a list of Veterans that spend the holidays alone. Contact your local VA Medical Center and tell them you’d like to spend an Hour with a Veteran on Thanksgiving or Christmas – better yet, volunteer to come down to the VA Medical Center and help in any way you can.

Contact your local VA Medical Center, and ask to talk to the Volunteer Coordinator.

http://www.volunteer.va.gov/apps/VolunteerNow/

If you try to do this, and can’t get in touch with the right people at the VA Medical Center, e-mail me at attorney@attiglawfirm.com and I will help you find the right people to talk to.

4) GIVE ONE DAY’S SALARY TO A VETERAN’S CAUSE.

We are all struggling in this economy. Sometimes it seems that one-day’s pay is a lot to sacrifice – and you’re right, it is. A life, a limb, a family – these things too, are a big sacrifice. If given the choice between giving our life and giving one-day’s salary in support of our freedom and way of life, most of us would give one day’s salary. Let’s follow through on that this year.

Pick up a calendar, choose one day in the next year, and call it your own “Give Away My Salary Day”. Between now and then, research a Veteran’s cause or organization that you feel strongly about. Once you have found one you liked, give one-day’s salary to them – put it directly into the hands of those who need help.

My “Give Away My Salary Day” is December 15th. What’s yours?

5) ASK FIVE (5) PEOPLE TO COMMIT TO THE 2011 Veteran’s Day Challenge.

Here are some different ways you can do this:

- Go on Twitter, and Tweet about the #2011VeteransDayChallenge – provide a link to this Blog Entry. To help you out, here is the TinyURL to this page: http://tinyurl.com/7mpbfc4

In fact, I’m going to make it easy for you: Here’s a Tweet you can cut and paste:

Can you meet the #2011VeteransDay Challenge ? http://tinyurl.com/7mpbfc4

- Go on Facebook, and ask your friends, family, co-workers and colleagues to join the 2011 Veterans Day Challenge – post a link to this blog entry. Again, here’s the TinyURL link to this page: http://tinyurl.com/7mpbfc4

- Talk to your friends at work, church, and school

- Send an email to everyone in your address book. It’s not as funny as that photo of Kermit the Frog getting his X-ray results, but I bet some of your friends and family will appreciate the link.

- This is my personal favorite: If you see a bumper-sticker that says “Support Our Veterans”, or a car with the Yellow Ribbon sticker on it, ask the driver to commit to the 2011 Veteran’s Day Challenge. Tell him or her how to find this blog. (Don’t assume these folks are the families of soldiers or Veterans – less than half are. A lot of times, these are just stickers left on the car from when it was sold or traded in.)

Once you complete the 2011 Veteran’s Day Challenge, if you’d like, email me at attorney@attiglawfirm.com .

We’re on the honor system around here, so all you have to tell me is “I completed the 2011 Veterans Day Challenge”, and I’ll post your first name, last initial, and city/state below.

Let’s see how many folks we can get to do this by next Veteran’s Day.