Attorney Fee Questions

[McRay]

I won SC for a PTSD claim dating back to Oct of 2015 (initial claim was filed in 1978). Originally, I had filed a claim for unspecified depressive disorder, and unspecified mental condition, and PTSD back in 2015 through a service officer with the Viet Nam Veterans and was turned down. I then filed a NOD and went out a got 2 IMO's that supported my claim. In the meantime, my SO with the VVA suggested I hire an attorney and gave me the name of a firm in Maryland. He said they were 'the best' and had the resources to help my case should I need more. I signed the agreement papers in his office and faxed them to the attorney. On the form I signed, I agreed to a 33% fee. This was done 2/23/16 and then the attorney apparently filed another appeal which is dated 03/22/2016.

When I received my award, in October of 2018, there was no money held out for attorney fees. Having just settled an insurance auto claim for the 33% fee, I didn't think this was really excessive UNTIL I started reading things here on this forum and then looking at other atty websites and reading some information on VA websites. As an aside, I'm not sure exactly what happened, but my VVA service officer ended up not providing my files to the attorney and it seems there was some sort of falling out between them. I sent the attorney a check for 33% of my settlement, somewhat grudgingly, but I had agreed to do that.

I have been ambivalent as to how good my attorney is. I tend to agree with Broncovet and would rather pay money if it means winning my claim. I don't need anyone to hold my hand or babysit me. In 3 years I've not spoken with the attorney handling my case, only the case manager. My only communication with him was a letter he sent via email recommending I withdraw a claim I had for dental, his reasoning being it would interfere with the bigger psych claim. Recently I sent the case manager an email detailing my dissatisfaction -- yet -- I still didn't hear from the attorney. Instead, about a week later, she emailed me telling me that my recent appeal had been decided but had been sent back because of errors. Then this last Friday another email telling me she hadn't been able to get good information about the decision on my appeal and requesting a signature on a form for TDIU. Also, my case mgr told me that part of the strategy would be to get an IMO with their doctor, but she couldn't tell me when this would be because he was very busy.

I'm trying to take the long view and not get my ego involved. I did win my appeal after hiring the attorney (but then again I won it before hiring attorney -- according to VA.gov claim tracking). I would like to get full disability and would like the effective date changed back to the date of my original claim in 1978. My original service officer told me how good this firm is and 2 case managers have told me the same (wry grin) and that the atty sits on some NOVO board or something. 

I would like to have the best representation possible. I've dealt with attorney's in the past under contingency agreements. This is a whole different situation. I don't want to drag things out by changing attorney's nor do I want to be caught short because the attorney I've got is too busy to have a case prepared. Then there is also the 33% fee.. Is that excessive?  Seems most people are at 20%

Or another possibility is that I'm impatient and have too much time on my hands. Recommendations?

[GBArmy]

From what I have seen, when you win your claim, the fee to the lawyers is automatically taken out of the settlement and you get the balance. I also believe that the VA is supposed to get a copy of your contract with the lawyers and they are supposed to make sure that they aren't charging too high a fee. (I seem to think the "normal fee" is 20%. plus expenses such as costs for IMO or dbq's.) If that is the case you should be able to get an answer from the VA Benefits office.

[acesup]

The fee is only withheld from the retro pay IF it is 20% or less, AND there's a signed (by veteran and attorney) "Fee Agreement" on file with the VA Office of General Counsel. 

If you signed an agreement to pay 33%, that's what you owe, and the VA won't get involved, unless they're made aware of a your disagreement with the fee.  If you don't believe the fee is fair, you have to serve notice of that to the attorney, and then file a protest with the VA OGC telling them what you are challenging, and you must also supply evidence that you've notified the attorney of your disagreement with the fee.  Unless you do that, there's no basis for the VA to review the fee, and they won't.

IF your appeal was decided in your favor before you ever signed with the attorney, I don't think you would owe the attorney.  This should be pretty simple to figure out;  there's a date on your Decision Letter, and there's a date on your Fee Agreement and/or other paperwork you would have signed for representation.  If the date you were granted your appeal is prior to the date the attorney agreed to represent you, I don't think you would owe any of that money to anyone;  if this is what happened, you definitely should challenge it.

Otherwise, as far as whether a 33% fee is "excessive"; the VA considers a fee in excess of 33-1/3% "unreasonable".   If you signed up to pay 33%, and then got an award, and then decided it was excessive, you likely have no recourse but to pay it. 

Without knowing any of the specifics of your appeal and grants, it does sound like your attorney, through the Case Manager, is proactive and looking out for your interests, if they're pursuing TDIU for you, and they might even be doing a great job.   Nothing else matters much, does it?

Here are some relevant links:

https://www.va.gov/ogc/accreditation.asp

https://www.ecfr.gov/cgi-bin/text-idx?SID=7c8f90d08160838eff7394bf01103d9e&mc=true&node=se38.1.14_1636&rgn=div8

 

 

[GBArmy]

Acesup. Good to know but that said, I wonder why they withhold only on agreements  20% or less. Seems odd, but then, we are talking about the VA.

[FormerMember]

The VA also deducts $100 from our settlement for "dealer prep and destination fees". If you sign for 33%, that's your responsibility to pay the atty. directly. If your appeal was won before you signed w/ atty., ask for you money back. With that said, if atty. did win it and you jump ship and try to get another atty. to take it, you won't find one. Attys. hate claim jumpers. Worse, the first atty. may have a large amount of time invested and s/he would never sign off on waiving the fees s/he feel they legitimately earned. Succeeding attys won't touch it if they think the fee will be contested by atty. #1. If it were me, I'd be ironing out what's up legally with the win rather than asking for advice from us. We cannot see your case file. Going back to 1978 for an EED implies a CUE or §3.156(c) law. Both require extensive legal knowledge of contemporary VA law at that time.

[McRay]

Thanks everyone, for the answers. I appreciate your input.

This is a complicated world of VA law and I'm quite ignorant of how (and why) things work. AskNod, yes -- the first atty does have a lot of time invested and I'm really not ready to jump ship. I was ignorant of the process when I signed the original agreement, but as time goes by I'm learning. It's expensive -- hopefully I will end up with a good education.

All that said, I have no real beef with my atty, other than he appears to ignore me. Perhaps that is the way of the VA foodchain... As I said before -- it's a whole different landscape than anything I've experienced. 

[FormerMember]

Well, sir. Imagine this scenario. I get to work at 0800. Sometimes I have to get up and call  VA raters and DROs and ask them why they screwed my Vet(s). If they're in St. Pete's, I have to get up at 0500 to call them. I also get calls from them answering my emails. I have to write legal briefs for upcoming travel board hearings before VLJs. I don't have any office staff to do it. Even if I did, I'd still be researching a claim-sometimes on Westlaw which costs me $59 a minute to access.  Many big outfits use paralegals (unaccredited) to do intake and communicate with the Vet. It's not that we don't want to talk but that it isn't always feasible. I keep my caseload down to about 100 and it still eats all my time. And yes. I talk to every one of my clients if they call unless I'm with another Vet -but I'm the rare exception. 

If your atty. is winning your claims and they are very difficult, then 33% is a bargain. I won a Vet $188 K a year or two ago. He was pissed I got $37 K. That was 20%. If I'd lost, I would have gotten 20% of zero dollars even if I had worked my butt off. He still got $151 K but feels like I screwed him. That's the down side to helping anyone. Murphy's first law is " No good deed goes unpunished." As most know, I generally take those funds to offset the cost of helping other Vets for free... 

There are good attys and bad ones. Too bad they don't have Win/ Loss records!