VA, Veterans Face Off Over Lawyers’ Pay

Lawyers for soldiers of the atomic age went to court Tuesday in hopes of overturning a Civil War-era law that effectively limits the ability of veterans seeking disability pensions to gain legal representation.

After more than four years of pretrial wrangling that included a trip to the U.S. Supreme Court and hefty fines against the federal government, the trial opened without a jury in front of U.S. District Judge Marilyn Hall Patel. It is expected to last a month.

Attorneys for the veterans of atomic blasts are attacking a law that dates back to 1862, when Congress limited the amount that lawyers can charge in such cases to $10. The law was passed to shield Civil War veterans and their widows from lawyers who cheated them of their pensions or death benefits of $5 a month. The fee limit, originally $2, was raised to $10 in 1864 and remains intact.

There have been at least five failed efforts in Congress to change the system by allowing veterans to hire lawyers and sue in court if their claims are turned down by the agency.

In court Tuesday, a bevy of lawyers working without pay began building their case that radiation veterans have no chance of winning disability payments without paid attorneys because, they said, the rules governing such claims are so complex that even Veterans Administration officials fail to fully understand them.

Keith D. Snyder, the veterans’ first witness, said legal training is “essential” to interpreting the maze of regulations related to radiation claims. “I can see nothing more difficult in VA claims,” said Snyder, attorney for the Vietnam Veterans of America.

VA attorneys refused to discuss the case. But the agency has defended the claims system, saying that since the process is not adversative, there is no need for attorneys. For the same reason, several veterans groups, which provide assistance to veterans, also oppose changing the law.

Gordon Erspamer, the veterans’ lead attorney, maintains that claims have grown more complex during the last century.

This is particularly true of radiation claims, in which medical experts must reconstruct doses that veterans may have received before awarding disability pay. Of the 7,787 radiation claims filed, the VA has granted disability or death benefits in only 41 cases, Erspamer said. Monthly payments range from $300 to about $1,600.

The case attracted attention in 1984 when Patel declared the $10 limit unconstitutional. The Supreme Court overturned that ruling in 1985, concluding that the government had a right to maintain the lawyer-free system. But the court left open the possibility that claims may be so complex that attorneys would be needed. The result is a narrowed trial, affecting only atomic blast veterans.

Earlier this year, Patel ordered the VA to pay $115,000 in fines for shredding thousands, perhaps millions of pages of documents that might have aided the veterans’ case. Agency lawyers said the document destruction was part of a routine purging of files.