Question On Attorneys

[jeff10]

Just wondered if many people get frustrated enough with VSO's and head to an attorney who practices V.A.law. Or..maybe that is what I should be doing. VSO filed for 100% IU in Feb.2010. I recv'd 70% in fall of 2010. VSO has sent me to my V.A. doc twice since then to get him to call VSO and give opposing opinion to CP examiner. My doc has said sure both times and called my VSO to ask what he needs exactly. VSO has ALWAYS been busy and says he will return docs call..but can never get a handle on how to hook up with him!! My VSO told me he's going to wait till Aug.2011 to appeal or disagree or whatever it is he does,because that's 12 months from Decision. Does this sound a little dicey on his part? Any advice from anyone on forum who has taken the step to use an attorney,? downsides?

jeff10

[john999]

You need a written statement from your doctor saying your SC conditions is the sole cause of your being unemployable. Phone calls don't cut it.

[carlie]

Ditto on John999's post and I believe I posted that to you in another thread.

Also, I'm not sure you're open to hire an attorney at this point.

Other's will chime in.

[rakkwarrior]

In a perfect world, the VA would infer a claim for TDIU if the evidence of record suggests evidence of unemployable, i.e. a medical opinion relating the conditions which are SC'd as being so severe that they render the claimant unemployable. If not they are in error. (See Fenderson v. West (1999), and Rice v. Shinseki (2009))

The VA will in most cases re-evaluate all conditions, even if recently evaluated if a claim for TDIU is now claimed without a current medical opinion and properly filed VA form 21-8940 of record. Did your VSO ask you to start working on the VAF 21-8940 and additionally advise you to obtain 4192's from your prior employers to expedite the claim?

You may want to clarify the intentions of your representative, and if needed seek a second opinion before consulting an attorney. If the VSO is developing your claim, and is working diligently, then try to appreciate the tremendous workload these men and women bear. I have often seen cases where the veteran appointed an attorney after the VSO did the majority of the work in reviewing the claim and often arguing for the 70% evaluation, and was working to develop the claim for TDIU. I think a good VSO, should always tell their clients what we are doing and what the end goal is. You don't have to understand the law involved to appreciate the strategy.

This is best I can tell you without more precise info. This is giving your rep the benefit of the doubt that he or she knows what they are doing and why. There is internal guidance in VA Training Letter 10-07 which states:

"VA examinations are generally undertaken in conjunction with original disability

compensation claims and claims for increase in accordance with VA’s statutory duty to

assist a Veteran in developing his/her claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. §

3.159©(4).

In such claims, if a request for a TDIU evaluation is expressly raised by the

Veteran or reasonably raised by the evidence of record, a general medical examination is to

be scheduled. Specialty examinations (Eye, Audio, Mental, Traumatic Brain Injury, and

Dental) may also need to be scheduled. These specialty examinations are only to be

ordered when the Veteran is service connected for an eye, audio, mental, or dental

condition that is not already at the schedular maximum, even if this condition is not one

that the Veteran is claiming as causing his or her unemployability. Additionally, the

examiner should be requested to provide an opinion as to whether or not the Veteran’s

service-connected disability(ies) render him or her unable to secure and maintain

substantially gainful employment, to include describing the disabilities’ functional

impairment and how that impairment impacts on physical and sedentary employment."

If no medical opinion is of record, a solid one may be needed addressing the SC'd conditions to ensure the Rating Board is provided with more than one assessment as to "unemployability". The Gen Med examination will not exclude those disabilities found which are not service connected, and this in-and-of itself presents a potential problem to a favorable outcome. As far as the phone calls, I know most full-time, working (emphasis added) VSO's carry a high demand. I stress to my counterparts how, no matter how many man-hours you spend on a case, not returning phone calls will kill any faith, trust, or gratitude your client may have had in you and/or the Organization.

In the end you need to evaluate the communication and relationship you have with your advocate, and whether or not your needs are being met, and if they can be met, however, if I understand properly, he was trying to do the right thing.

Hope this helps.

[Testvet]

in order to legally get a lawyer involved in a VA claim you have to have a written denial of a claimed benefit, I don't see that noted in this discussion, the VA is not like Social Security where you can hire a lawyer at any point in the claims process you want to even for the initial claim the VA doesn't allow that they require a denial of a claim at the Regional office level now this law was changed in June 2007 before this veterans were not allowed to have lawyers involved until the claims were denied by the BVA and were then being appealed to the Court of Veteran Appeals

you don't have to like the VA rules but you do have to play by them

[jeff10]

Carlie, I think you did say I needed something written (can't find the post on forum). But the VSO said he wants to talk to the doc to tell him what needs to be specified. I also asked VSO about attor. today. He said I could if I wished because there is no appeal filed at this time.He said VA does frown on it though and could stretch the time out. What is it you think could prevent me from going that route at this time. I hate to make the move and find out they put it on a back burner. To answer rakkwarrior,VSO never had me fill out anyVF21-8940. As far as last employer goes they contacted them already.

jeff10