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

[FormerMember]

Likewise, I am not an attorney or a VSO-just a lowly nonattorney practitioner.

Alex

[broncovet]

Alex I respect your advice.    I did not post that the claimant SHOULD self represent at the board level or below, I posted that he "COULD" self represent provided that he had some skills.    Just because one COULD do something does not equate to that necessarily being the best option.  

Like yourself, I generally think its worth it to pay for your own representation rather than let VA compensate "one of their own" (a VSO) to repesent you.  One should be especially cautious, whenever your "opponent at law" offers to hire an attorney for you.  

For many Vets, the issue is less about legal representation, but rather "when" they would pay the IMO fee.  

Many Vets simply  cannot afford to "up front" a IMO/IME.   Remember, Vets applying for benefits almost always have "some degree" of lost earning ability.   If a lawfirm can provide one to be paid out of the retro, its a life jacket that can save the claim. 

Its been my experience that lawfirms try to get a remand at the CAVC, then the claimant can get an IMO up fronted by the law firm, to win at the BVA.  

Its an unfair reality that the claimants with the money to hire an upfront IMO (or fortunate enough to have a lawfirm upfront the IMO for them) are far more likely to win than those absent of both of these.  

The IMO is often the dealmaker/deal breaker at the BVA and below.  

Its especially difficult for a claimant to find an attorney willing to up front a IMO..then wait 5 years to get paid.  I really can not blame attorneys for not wanting to do that.  

Its much more lucrative to practice at the CAVC exclusively.  Its faster..much faster..and no IMO needed.  

[retiredat44]

8 hours ago, asknod said:

.................. I will never do Videoconferences again-ever. I did one  for my Vet in Puerto Rico with the VLJ in DC and myself and my interpreter sitting in Seattle in July 2018. We lost the connection twice in an hour. The San Juan camera was 10 feet away from my clients. At a TB hearing, you and your client are 3 feet away from the Judge. They say a picture is worth a thousand words. A TB hearing is one thousand times better. Personally presenting the IMO is the icing on the cake. They can't help but look it over right there while you're giving your brief. Believe me when I say they remember you at the next TB hearing. Gaining the trust of the Judge is very hard. A lot of VSOs come in and say all manner of crap- with none of it helpful. They beg for benefit of the doubt when they have no evidence. I've seen one use the f word right to the Judge's face in a transcript. Bad idea. ............

l

I did the in person BVA hearing with my POA in the room, and the video taping and recording equipment kept breaking down, so they kept stopping my hearing.... so, even with a live hearing, they will find a way to screw...... my judge was a good guy,,, he was just doing his job, but I fear they have been draggin it on for several years and by the time they finish he will have been long gone and someone that has no clue will take his place... no mind reader, but the first judge was good to me.... now they are spending year sin appeals and digging up medical opinions for the VA. Just paranoid.......

[FormerMember]

Dear Mr. RetiredAt44,

A BVA Judge is hamstrung by law. S/he can be the most pro-Vet trier of fact at 810 Vermont Ave. but if you arrive with your POA and little more than a plea for §3.102 and the benefit of the doubt, they have no repair order for you. The whole idea of the face-to-face TB hearing is to provide the critical evidence you were lacking prior to arriving-i.e. one of the three Caluza/Shedden/Hickson elements. If you put up a good argument, a VLJ will send it out for a new IMO. Sadly, we all know what the VA calls an 'independent' IMO. It will be done by a VA doctor. Yes, you'll probably lose. This is exactly what you don't want. 

Imagine the Titanic after it went down. We litigators are the "lifeboats" plodding through the waters trying to save some of you before you die. There are about 600-700 lawyers and 350 agents to serve millions of Vets. Worse, not all of us have deep pockets. Add in we're lucky if we see any remuneration from VA for a long time. I have one I began helping in 2013. I began by getting him his medals so we could prove he was a combat Vet. I filed 3/30/2015. I filed the NOD 8/4/16. We got a TB hearing 9/20/2018 and we were advanced on the docket to boot. It's at the Board and due for a decision literally any day now. If he won today, it would still be a month before he gets any $. I'll be lucky if I see it by November.  

VSOs call us bloodsuckers for charging Vets to help. VSOs tout that they do it for free. I can't argue with that. They also have a rather abysmal success rate compared to us. Anyone who thinks this is a fair fight doesn't know government. They have X dollars and gazillions of Vets. Over the years I've noticed the number of 100% schedular P&Ts and TDIU folks have remained static but the number of Vets has skyrocketed as has the number of claims filed. See the problem? VA artificially controls the number of top payees. The only way to win, and win rapidly, is to present an IMO at the BVA. If you try this at the VARO level, they may deny a perfectly good IMO by going out and getting one of their "independent" doctors to rebut it. If you present it to the VLJ with a cogent argument, s/he will gladly grant. They won't waste your (and their) time going out to get a new "independent" IMO. 

All I can say is plan ahead. Do not wait until you're dying of something to begin your fight. If you don't have the funds to do this right, try a financial path like GoFundMe. Be creative.You were taught how to fight a war. Use that knowledge to fight VA. We have a lot of info on this site and mine. I've looked at tons of Vet help sites and none matches this or mine by a mile. You need knowledge-not someone to cry into your beer with. Sure there are some here who can help or offer good advice but you can't invite us all in to your hearing with a Judge. You need to learn why you lost and how to fix it. I depend on mechanics to fix my car.  I do not depend on anyone to tell me how to drive the car. Some things we have to learn for ourselves. I notice far too many of my clients insist on giving me the "back story" on what has already happened to them. Did any of you ever notice the windshield of a car is larger than the rear view mirror? It's more important to see where you're going-not where you've been. I don't need to know how mean and insulting the DRO was to you. I need to know what you're lacking and supply it.

In order to be prepared for things like mechanical breakdowns in the VA hearing process, I bring a concise legal brief that encompasses everything I present to the VLJ verbally. I give it to him for the record at the end along with any IMO I present. This is one more way to CYA your appeal. Even if they lose the transcript, they still have a record of what you wanted to get across. I read transcripts and my hair stands on end to see a VSO say "Your honor, what we're asking for here is the BOD" The judge says "Fine. Give me some ammo to rebut what the rater said." Benefit of the doubt is called "equipoise". Your argument has to be at least as equally compelling as VA's. Judges have a lot of leeway and can slant justice towards you but you have to have a hot dog to put the mustard on.

In answer to BroncoVet, my initial response was in answer to his comment "The best time to get a lawyer is after a BVA denial." I guess I missed the "could" or "should" discussion. I stand by my advice-get an attorney or agent as soon as you get denied. Do not wait. Go to the NOVA site and begin at "A" and call every one of them until you get one to rep you. If you still come up with a dry hole, one of two things is amiss. Either your claim doesn't hold water legally or you're faking it. To me, going to the CAVC is a last gasp proposition. Excluding CUE, you cannot "win" there because you cannot submit any new evidence. The CAVC is not a Court of equity. They don't cut the check. All you can hope to do is to win a remand to fight another day. My philosophy is to win before you have to go there. Chances are if you do prevail at the CAVC, you will find yourself back at the BVA or the AOJ obtaining the very same IMO you needed to begin with in order to win right where you should have won three years earlier. Why squander three years on it only to start over?

And that's all I'm going to say about that.

[Jonathan AF]

My sleep apnea secondary to my 30% PTSD was denied, and I hired Carpenter Chartered Law to help with my appeal.  They took my case, and I signed all the paperwork they sent, so now I'm just waiting to see what's next.  I definitely think a lawyer for an appeal is the best decision, because as said in these comments, they won't take a case unless they think they can win it.

They are going to charge me 30% of my retro if I win, but totally worth it.  That's WAY better than getting nothing at all.