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LAWYER FOR APPEAL & COST


Galen Rogers
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Question

Howdy All,

I am considering going with a lawyer to appeal the NOD denial of moving my OSA effective date. I have read the VA allows them to charge between 20% and 33%. By chance is there an average I can expect?  Also any recommendations on possible lawyers?

Edited by Galen Rogers
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"If" this was a BVA decision, and you are appealing to the CAVC an attorney will likely represent you at zero cost to you, because EAJA pays the fees at the CAVC level.  

To qualify:

1.  You need to appeal the BVA decision within 120 days.

2.  Your attorney agrees you have at least one "issue of merit".

3.  The attorney agrees to take your case for eaja fees.  (most will).  The most likely outcome of a CAVC appeal is a remand.  Now, if your attorney ALSO represents you at the BVA, he can charge YOU for that to the extent that the eaja fees were LESS than 20 percent.  

      Example:  Julie Glover represented me at the CAVC.  She won a remand, and collected 6000 in eaja fees.  She continued to represent me at the BVA, where she also won.  20 percent was 7000 dollars...minus the 6000 she had already received eaja fees, so I paid 1000.  

      I have personally been represented by Chris Attig at Attig-Steele, and I would recommend him.  However, he is very busy and may or may not have room for you on his agenda.  Vets dont get this, but there is a shortage of experienced attorneys who represent Veterans.  The reason is simple:  The attorneys dont like, and many cant afford, to wait for 4 years or more to get paid.  So, at least one attorney I spoke with "quit" representing Veterans at the VA, they simply could not wait 4 or more years to get paid.  

      When you were working, or if you are working, would you want to wait 4 years to get paid??

     I recommend you pick from this list:  https://www.vetadvocates.org/cpages/sustaining-members-directory

These are members of National Organization of Veterans Advocates and have met their qualifications to join.  Im also familiar with these "well known" law firms:

1.  CCK law.  This is a very large law firm.  Mr Chisholm is very experienced, and is on the short list of lawyers who understand SMC.  

2.  Carpenter Chartered...Ken Carpenter is the best..if you can get him.  However, he is kind of "old school" and, a few years ago "he would not accept" my emailing him a copy of my decision..it had to be mailed.   I dont know if this still holds true or not.  

3.  Hill and Ponton.   Also recommended.  Word on the street says they are one who will consider "up fronting" the cost of an IMO provided that the attorney thinks it will seal the deal.  

This is a huge deal for many Vets.  If they need an IMO to win it and cant afford one, well this is the way to go.  The IMO will be paid for out of your retro.  Glover Luck also did this for me.  

Names also mentioned in a positive light:   Doug Rosinski, Bergman and Moore, Ben Krause.  

       Most all of these lawyers, above, who have a good reputation, will be busy and you will likely have to contact more than one because dont be suprised if one or more of these is too backed up to help you.  

       If you are appealing a VARO decision to the Board, you can also hire an attorney but you will likely have to pay 20 percent of the retro.  The VA permits lawyers to charge "over 20 percent" up to 35 percent, "but only if" the lawyer can justify his charges, such as if your appeal is exceptionally complex.  The attorney will have to explain "why" your case is complex that an additional fee is indicated.  

Edited by broncovet
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My appeal will be at the BVA/Law Judge level. Some folks have said you don't need a lawyer at that level. But my appeal deals with an earlier effective date roughly 10 years in the past. So I feel I need a legal eye to make sure I don't miss anything especially since common sense has no real effect in issues with the VA.

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I would always seek representation at the BVA level. 

Also, I can attest to broncovet’s opinion of Hill & Ponton as I am represented by them. Hill & Ponton will upfront the cost of an IMO if they feel your case is very strong. The IMO will be paid out of your retro.

Godspeed to you Galen Rogers.

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Its my opinion (and I have been fighting VA for 18 years, so I have a fair amount of experience) that you are "highly unlikely" to get 10 years retro without a lawyer.  If VA didnt give it to you in the past 10 years (without an attorney), what makes you think they will give it to you in the next 10 years?  Ans:  They wont.  The have "marked" their territory, signaling their intent to fight you tooth and nail.  It would be worth it, especially if you need an IMO.  

ONE HUGE advantage that attorney's have:  Seeing your VBMS file online.  This "puts to rest" what evidence the VA does or does not have.  That is a huge problem, even for me.  The decisions are often very vague as to what evidence they considered.  You, know, they put stuff like "Veterans Cfile from June 2002-April 2020".  That is so vague we have no idea.  This is like saying their is a 99 percent chance that a human being will win the next election.  

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I agree broncovet.

I am also in the process of getting a vocational rehabilitation assessment from a vocational expert. I’m putting everything into this BVA hearing until I win.

An unfavorable C&P exam by a NP should never trump an IMO from a board-certified specialist but it does with the VA if they want to fight you tooth and nail like you stated.

Veterans should not have to go before the BVA to get justice, but this is the game the VA wants us to play.

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After BVA remanded and then denied my claim I had to get a lawyer for the CAVC.  The CAVC remanded my claim and then BVA granted my claim after 15 years.  The local VARO screwed up my rating percentage and my effective date.  I filed a NOD and the local VARO increased my rating but not my effective date.  I filed a NOD to that decision and BVA granted my EED.  It took an additional 6 years to get my correct effective date. My lawyer was gone after my CAVC remand but I  had enough evidence from my CAVC remand and my BVA grant and remand to win my EED. So I agree that there will be times that a veteran will have to get a lawyer to win their benefits even if the claim has to go to the CAVC.

 

I keep thinking what if I had gave up and not file a disagreement after my denials and after the VARO awarded me 100%  scheduler P & T and ask me if I wanted to withdraw all my appeals.

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