Should I get a lawyer for my appeal?

[ed33]

Hi everyone,

I about to submit for my appeal and I spoke with a law firm yesterday about representation. They are going to look over my letter and decide if they want to take the case. My question is, is it even worth using one at this point? I think I want to just do the higher level review so what would a lawyer actually be doing other than submitting the form and maybe participating on the conference call with the reviewer. I'm not sure at this point that would be worth giving up 30% of my award. What do you guys think?

Thanks

[broncovet]

There is a right time and a wrong time to hire a lawyer.  There are also good lawyers, and bad lawyers.  

The absolute best time to hire a lawyer?  Immediately after a BVA denial, or, if your board decision decided an unfavorable effective date, even if it was an award.  

Reason:  At the CAVC the court frequently awards EAJA fees to Veterans who get at least a remand from the court.  Therefore, many attorneys accept cases "at no cost to the Veteran", strictly on EAJA fees.  

You should never go to the CAVC without an attorney, except when you decide to file a pro se writ of mandamus.  

As far as good lawyers or bad lawyers, I suggest you check the NOVA website.  Most practicing attorneys who represent Vets are members of NOVA.  Be cautious if they are not NOVA members.  

You can go with "big well known names":  

Examples:

 CCK law firm

Carpenter Chartered (Mr. Carpenter has a stellar reputation for winning Vet benefits). 

Hill and Pontoon  

Attig Law firm

    There are many other quality reputable law firms, these are just a few with a great reputation.  

    The NVLSP "may" also accept your case, pro bono, provided that you have a recent BVA denial, and they think your case has merit.  

[broncovet]

My advice is to "listen carefully" to the lawyers opininion, probably even take notes, and ask lots of questions.  

If they accept your case, chances are that your probability of success is high.  

You can represent yourself provided that:

1.  You are organized and good with computers. 

2.  You are willing to be patient and stick it out, and are persistent.  

3.  You have great reading and writing skills. 

4.  You are willing to ask hadit for help.  

[FormerMember]

I respectfully disagree with BroncoVet on this one. I prefer to attack the VA the moment my client gets a denial at the local VARO level. It's far cheaper for the Vet and far less work for me to win at the BVA rather than increase the eventual 20% we charge our clients by litigating it all the way to the CAVC (and an additional year of retro). I am sometimes embarrassed to have a client arrive 90 days before the cutoff date for submission of new evidence prior to a decision at the BVA. I file an IMO and win (or sometimes just threaten to file one) and win a claim that has been continuously prosecuted for 5 years. My client has to pay me a huge sum (think $35 K) for 90 days of work to win his claim.  I'm a fan of winning the claim, not litigating it to death. VA attorneys think the opposite because they get paid more by prolonging it. 

[Vync]

To add on to @broncovet's comments, it depends on your situation.

I recently called several law offices and was advised exploring higher-level review and supplemental claim options first. They would only get involved if I was denied at the board.

I recommend going over the "Reasons and Bases" section of the denial letter so you clearly understand why they denied your claim. You need to have all three Caluza elements otherwise they will deny:

1. Event/injury in service or secondary to an existing SC disability
2. Current diagnosis
3. Medical nexus connecting 1 and 2

For example, I recently filed a claim for Cushing's via my local VSO. The VA denied it without a C&P. The reasons and bases section of the VA letter stated I did not have a current diagnosis (Caluza element #2). I obtained those records from the non-VA doc and sent them to the VA via the supplemental claim lane along with a signed release of medical records authorization.

If you are missing a Caluza element, the supplemental claim lane might be your best bet because you can obtain and provide new evidence for review. You can't do that in the higher level review lane because they will not allow new evidence - they just have someone else with more experience take a second look. Higher level could be handy if the VA employee who evaluated your claim made blatant errors.

If the VA denied due to a nexus, it might be worth trying to get a strong nexus statement.

If higher level review and supplemental claim lanes result in a denial, the board appeal would be your remaining option. It's probably best to reserve this last because it can take a very, very long time to get a response.

I hope this helps!

 

[vetquest]

I agree with asknod about getting an attorney prior to the BVA decision.  An attorney can make or break you at the BVA.  Yes you lose some of your retro but they have access to the BVA that we do not.  Access is everything when dealing with the higher levels of the VA.

[retiredat44]

from what I understand, lawyers will not help unless they are almost sure they will win. And Will not take cases that take a long time. At least that is what I went through.