To understand the evolution of attorney fees in veterans disability claims, it helps to look at the odd history of the veterans legal system.
The Department of Veterans Affairs (VA) has always operated free from judicial oversight. For decades, the veterans compensation process was off limits to lawyers.
Historically, the structure of judicial review in veteran benefits cases has not favored veterans. Until recently, if a claim was denied or underrated by VA, the veteran had no way to challenge the decision in court – a basic right that is afforded to other citizens.
Evolution of Attorney Fees in Veteran’s Disability Claims
- 1933-1962 – Federal law prevented veterans from appealing VA disability claim disputes to a federal court.
- Prior to 1988 – As far back as 1862, attorney fees were confined to a $5 Two years later this was doubled where it stayed until 1988. Attorneys could not charge more than $10 to help a veteran with his or her claim for disability benefits or to appeal. Any lawyer who charged a veteran more than $10 was guilty of federal crime where conviction was punishable by imprisonment at hard labor up to two years and/or fines.
- 1980: Equal Access to Justice Act (EAJA) was enacted. This Act significantly expanded the federal government’s liability to pay the attorney’s fees of parties that prevail against the government in litigation or administrative proceedings. Section 2412(d) of the EAJA applies to suits in “any court,” which would soon include the U.S. Court of Appeals for Veterans Claims (CAVC).While the EAJA is not limited to VA issues, veterans can benefit greatly when their claims prevail at the CAVC level. Attorneys who win on behalf of veterans at CAVC typically get their attorney fees and expenses reimbursed. NOTE: EAJA fees are not attorney fees paid from past-due disability benefits. Under the EAJA statute, CAVC awards EAJA fees (straight from the VA’s coffers) to the claimant who then pays the attorney.
- 1988 – Veterans Judicial Review Act (VJRA) was passed, introducing courts and attorneys into veterans’ benefits proceedings. Veterans could now hire an attorney for reasonable fees in excess of $10 but only after a final BVA decision. As a rule, the total fee payable to the attorney could not exceed 20% of the total amount of any past due benefits awarded. Twenty percent contingency fee was presumed by VA to be “reasonable.” This Act created the Veterans Court, allowing attorney representation before that body, as well as the right to appeal to the Federal Circuit and ultimately the U.S, Supreme Court. On March 1, 1999, the Court’s name was changed to the United States Court of Appeals for Veterans Claims (CAVC).
- 2006-2007 – Veteran’s Benefits Health Care and Information Technology Act was enacted to allow attorney participation at a much earlier stage in the VA claims adjudication process. Veterans could now hire an accredited attorney to appeal their claims once a Notice of Disagreement (NOD) was issued to a rating decision after June 20, 2007.
- February 19, 2019 – VA Claims and Appeals Modernization (AMA) became rule in which, along with creating a new, modernized review system, the VA continued to fine tune regulations regarding accreditation of attorneys, agents, and VSO representatives; the standards of conduct for those persons; and rules governing fees.
Decades of case law has culminated in improved legislation, allowing for:
- Judicial review—the power of a court to decide whether a decision by the government is constitutional. Veterans finally won the right to judicial review of a VA decision denying benefits.
- Lawyers can now represent veterans at the RO level following the filing of NOD — and for VA decisions issued on or after February 19, 2019, veterans can hire an attorney after an initial decision on a claim under the new VA appeals system.
The above changes to federal law came about because countless veterans genuinely needed attorney representation. Who fought hard to get this done? Disabled service members and their groundbreaking attorneys.
VA Has Always Held It Must Protect Veterans from Attorneys (and their Fees)
VA history pre-dating World War I tells us just how strongly the VA opposed the idea that a veteran should be treated the same as other citizens. Congress and the constantly evolving VA have historically affirmed that U.S. veterans must hold special status and that status should never be diminished.
While intended to honor the veteran, decades of this special status actually undermined a veteran’s ability to seek justice from our conventional legal system. “Veterans law” had evolved into its own unique set of legal doctrines and practices that functioned outside of mainstream U.S. law and legal institutions.
“Qualified” veterans attorneys were scarce. The Veterans’ legal stage had been isolated from conventional legal developments in administrative law, disability law and due process. Even those who took the occasional pro bono case could hardly master the expertise required to competently represent disabled veterans.
Veterans had little to no access to fair legal representation. Prior to 1988, US veterans had no legal voice or court of law in which to appeal their VA disability claim denial.
Congress Finally Takes Action
It was during the ‘70s and ’80s—largely in answer to zealous veteran’s advocacy groups responding to post-Vietnam disability claims—that Congress recognized that excessive limits on attorney fees had not protected veterans, but rather kept veterans from obtaining much-needed legal counsel.
Lawyers Serving Veterans
Disability benefits are a vital step toward restoring the lives of dedicated servicemen and women who were injured or harmed through their service to our country. The debut of accredited VA lawyers serving veterans under contingency attorney fees has made a profound difference in the lives of disabled veterans and their families.
Decisions have been made and laws passed that have in many respects revolutionized veterans law. The CAVC has brought about huge improvements in the way the VA operates, and how veterans may appeal unsatisfactory claims.
Every veteran now has an absolute right to retain a lawyer to represent him or her before the VA. We consider it an honor to fight for these benefits that our veterans and their families deserve.