Vets Battle Each Other Over Right to Legal Counsel

Military veterans are locked in combat with each other on the battlefields of the courts and Congress over how to best care for their comrades hobbled by war.

The issue is whether lawyers can do better than organizations such as the Disabled American Veterans when it comes to helping disabled vets and their survivors wrest pensions and disability pay from the Veterans Administration’s $14.5-billion-a-year compensation program. About 50 veterans’ organizations now handle the cases, usually with non-lawyers employed as claims representatives.

The dispute has surfaced in the trial here of a lawsuit brought by veterans of post-World War II atomic bomb testing, who are seeking to invalidate a 123-year-old law that effectively bars lawyers from representing veterans before the VA for a fee.

Efforts Opposed

Most large veterans’ groups, including the Disabled American Veterans and the American Legion, have opposed recent efforts to make such a change, and argue that attorneys are less interested in better representation for veterans than in a lucrative new source of revenue.

But a smaller force of attorneys, and some veterans’ groups, argue that the claims representatives employed by veterans’ organizations are too often not competent to handle increasingly complex claims involving events such as nuclear test fallout and cancers allegedly cause by the Vietnam defoliant Agent Orange.

“They are well intentioned people and they’re doing their best, but I’m afraid their best just isn’t good enough,” said Michael Ram, one of a bevy of lawyers suing the VA here on behalf of the 6,000-member National Assn. of Radiation Survivors.

Michael Leaveck, spokesman for Vietnam Veterans of America, the one major veterans’ group that wants the system open to lawyers, said representation by many veterans’ organizations is “spotty at best.” Claims officers frequently “just do not understand provisions of the law.”

Critics say untold thousands of veterans are being shut out from what would be their only source of income because of shoddy work by veterans’ groups and the VA itself. As it is, an estimated 2.8 million disabled, often destitute veterans and their survivors, collect pay of between $300 and $1,600 a month. Defenders of the system, including the VA, warn that any change would only make it more cumbersome, leaving needy vets the real losers.

In the system, unique in the federal government, vets have no right to sue when the VA denies them benefits. Applicants for Social Security disability pay, for example, can have their day in court if they lose benefits. Veterans also are barred from paying lawyers more than $10 to handle their case. The cap dates back to the Civil War, and was intended at the time to protect veterans from greedy lawyers who cheated them of $5-a-month pensions. To that end it worked, but it also has effectively kept all but a handful of lawyers out of the VA system.

Paid Claims Officers

As a result, most veterans seeking GI benefits for disabilities, ranging from asbestos exposure to old gunshot wounds and post-traumatic stress, turn to the Disabled American Veterans, American Legion, Veterans of Foreign Wars and other veterans’ groups to obtain disability pay.

The service is free, although many organizations mention this service prominently in fund-raising efforts and the recruitment of new members. The groups pay their claims officers, called service representatives, anywhere from $10,000 to $40,000 a year and officers commonly are responsible for more than 1,000 claims a year.

The suit before U.S. District Judge Marilyn Hall Patel names only the VA as defendant. But much of the focus of the trial, expected to last another two weeks, has been on veterans’ groups and whether they are competent in their claims efforts. In their attempt to prove that lawyers are needed to handle veterans’ claims, the plaintiffs have sought to demonstrate that veterans’ groups are unable to do the job.

“We don’t enjoy dumping on them,” said Thomas C. Vinje, another lawyer involved in the case.

The plaintiffs argue that the $10 fee cap is unconstitutional. They contend that veterans who allegedly suffer from rare forms of cancer or other conditions linked to exposure to radiation during atomic bomb tests and the postwar occupation of Nagasaki and Hiroshima need lawyers to represent them in their complicated claims. They point out that the VA has granted only about 40 of the 7,000 claims for radiation-related illness.

Cover Complex Cases

The plaintiffs’ attorneys hope a win--whoever loses will appeal--could be extended to cover other complex cases. So, veterans exposed to radiation have found allies among Vietnam-era veterans, who want lawyers for post-traumatic stress and Agent Orange claims.

In recent testimony, witness William G. Smith, a Korean War veteran and Los Angeles lawyer who handles veterans’ cases under a Legal Aid Foundation grant that pays him $300 per case, said that even in less-complex cases, representation by service officers is so bad that it “approaches a national tragedy.”

Smith testified that service officers had lied to clients about their attendence at VA hearings and often ignored the special needs of indigent and mentally incompetent veterans. “Totally unfounded,” John Heilman of the Disabled American Veterans said in an interview after Smith testified. “There are no names, no case numbers. It’s just this fellow sitting up there in federal court bad-mouthing the veterans’ organizations.

“We’ve been in business since 1922,” Heilman added. “During that period we have represented millions of veterans. You want me to say that during that time we didn’t have a rotten apple? You could take lawyers as a class and get the same answer.”

Extensive Training

Disabled American Veterans has the largest system of service representatives of any group. Its officers go through the most extensive training of the service organizations and are the most highly paid, with salaries for senior officers reaching to as much as $40,000, DAV attorney Joseph Zengerle of Washington said.

It has a budget of about $20 million and 250 service officers nationwide. That count includes 10 appellate officers, who handle roughly 40% of the approximately 60,000 cases decided yearly by the Board of Veterans Appeal, the veterans’ “court” of last resort. While critics contend that the officers cannot possibly keep up with their workload, Zengerle said the caseload is not as great as its seems.

“The plain fact is that there is a fair number of frivolous appeals that do come through DAV,” he said. The DAV will file appeals even in cases that have no apparent merit in an effort to accommodate veterans. However, he also said service officers dispose of such cases in one- or two-page appeals.

Lacks ‘Procedural Niceties’

Zengerle calls it a “mass justice system.” Because of its size--the VA makes 5 million decisions a year--the system lacks “procedural niceties.” But it has benefits because it is informal and is supposed to be non-adversarial, set up for the benefit of veterans. Service officers have ready access to press their cases with VA officials who pass judgment, he said.

The solution to complex cases is not lawyers, but new laws to ensure payment, Zengerle said, noting the DAV is backing a bill to make veterans exposed to radiation eligible for disability pay.

Barry L. Levin, a Westwood attorney who routinely handles veterans’ cases for free and who was wounded in Vietnam during his second tour of duty in 1968, agreed that it doesn’t take legal training to handle disability claims. In his cases, he has worked with service officers and found them to be “dedicated (and) hard-working.”

If lawyers are allowed to get paid for handling veterans, he warned, “the money is going to come off of the backs of the veterans.”

Decision Reversed

The case before Patel dates back to the early 1980s, when she declared the $10 limit unconstitutional. The Supreme Court reversed that decision in 1985 and upheld the law. The court, however, left open the possibility of a new challenge limited to complex cases in which a lawyer might be essential. That is the issue in the current case.

The suit does not demand that veterans be allowed to go outside the VA and press their claims in the courts. But both sides say that is the ultimate goal of the critics.

Veterans, meanwhile, have turned to Congress. A bill to abolish the $10 cap and allow court oversight died last year before a house subcommittee chaired by Rep. G.V. (Sonny) Montgomery (D-Miss.).

“The bottom line is that no major veterans’ organization supports it,” said Jim Holley, spokesman for Montgomery. “Why should the committee go against the wishes of organizations that represent millions of veterans across the nation?”

But another committee member, Rep. Lane Evans (D-Ill.), a Vietnam-era vet, called the end to the $10 cap, coupled with judicial review, the “No. 1 issue of Vietnam veterans.” While the system works well for veterans with “traditional” gunshot injuries, “it is not working well for the atomic veteran. It’s not working well for the Agent Orange veteran.”

A new bill advocated by Evans and backed by Vietnam Veterans of America would allow vets to have the right to a day in court and cap lawyers’ fees at $750 for a losing claim and no more than 25% of any back-pay award in winning claims. Lawyers would not get a piece of monthly payments.