Accredited Agent, Attorney, Agent, What's the difference?

[broncovet]

My advice is to hire a professional.  Why?

https://www.vetadvocates.org/cpages/why-professional-advocacy

This does not mean a VSO can not do a good job for you, especially in the early stages.  Most Veterans dont hire a professional until/unless they are unable to or frustrated by the long delays with a VSO.  

At the CAVC level, generally, lawyers will receive their compensation from EAJA fees.  To make this happen, you need to appeal a BVA decsion within 120 days and no more.  Dont wait the full 120 days, it does take time to enlist the services of a NOVA advocate professional.

At least some Veterans hired "unaccredited agents" and did not get a good result.  In all fairness, not every Veteran is happy with his or her attorney either.   The 2 biggest complaints I hear from Veterans about their attorneys are:

1.  They often dont return phone calls promptly.  This is an upgrade from VSO's who often dont return them at all.  

2.  The attorney "does not persue the claim" in the manner suggested by the Veteran.  Or, "the Attorney did not do anything".   Generally, the attorney does not call the Veteran and say, "Gee, I read 400 pages of your file today and filed an amendment to your appeal, adding a point of law the Veteran overloooked".  And, he does not send the Veteran a copy of this either. 

Best and safest is to stay with an accredited agent or better yet, lawyer experienced in representing Vets on this page:

https://www.vetadvocates.org/cpages/sustaining-members-directory

At least one Veteran reported he did not get a good result when he hired an "unaccredited agent":

https://www.texastribune.org/2023/07/05/veterans-disability-benefits-brian-reese-va-claims-insider/

[broncovet]

My attorney explained it.  The law firm can collect the "greater" of (the percentage agreed upon) or eaja fees, but not both.  

In my case, I had agreed to 20 percent which would have been 5000.  But, since eaja already paid her 4000 from the cavc, She got 1000 from me and 4000 from eaja.  And, she only got the 1000 because I agreed to pay her for representation at the BVA.  

In my other appeal, Chris attig does not represent claimants at the board.  He won a remand at cavc, collected his eaja fees, I paid nothing.  He advised me to go pro se, I went with a vso and hired a IMO per his recommendation, with a name he provided.  The IMO cost 500, and I won a six figure retro where my only cost was a 500 IMO.  

I hope this explains it.  

IN short:  EAJA pays fees at the CAVC

YOU pay the fees at the BVA 

[Lemuel]

The minute you file an appeal to the CAVC, attorneys will start checking if you have a way to win.  Almost impossible to win at the CAVC if you do not have an attorney. (in pro se)

Most veterans lose for "lack of jurisdiction) in pro se because they do not understand that the BVA is the sole fact finder.  The CAVC has no jurisdiction of finding of facts unless you can prove "arbitrary and capricious findings".  This necessitates briefing your case to the BVA before your hearing and referencing the positive items in your record.  Also obtaining any evidence from observers of facts that will help your case, even letters to mom help and an independent medical opinion.

If the fact is not presented as a statement of fact then you cannot say the BVA judge was arbitrary and capricious in deciding the fact.  In my brief, which I hope BVA judge in remand has to read, as well as decide motions on 38 CFR 21.1000 for reopening previous appeals, I stated, "It is a fact..." and followed with the fact and the reference from which it was drawn.  Since it is a partial remand and may still be in AMA instead of Legacy with a hearing and consideration of later evidence including an IMO, I am not sure how it will turn out.

Example.  From a motion under 38 CFR 21.1000, "It is a fact that the VA Medical Division withheld medical outpatient records from my treatment in the West Los Angeles VAMC Spine Clinic and Seizure Clinic.  reference..." (the request for records by the benefits section, references to the records in other outpatient records and inpatient records including pharmacy, lab, and Xray reports.)

Have to wait to see if earlier BVA decisions are reopened and my "confirmed" Seizures and lower back disc disease are service connected.

I do not believe either of my attorneys at the BVA adequately stated the facts and referenced them.  Certainly, the DAV attorney at the BVA hearing in DC did not even present a brief.  In 1990 a BVA hearing consisted of 9 Judges.  Different than now.  But even with the 9 judges, the unadjudicated 1987 TDIU claim was missed as well as the "next of friend" claims for TBI residuals and p. falciparum malaria residuals were missed.  I would have found none of this if I had not finally received treatment for my seizures which enabled be to function better and more consistently mentally.

The 2017 BVA Judge caught the 1987 TDIU extra schedular claim (I was 40% combined then) and remanded to the Director, Compensation Services.  I then received a TDIU award, in April of 2020, from September of 1985 to the July 2009 award by the 2017 BVA Judge.

Edited January 29 by Lemuel
clarify

[Tbird]

25 minutes ago, broncovet said:

My advice is to hire a professional.  Why?

https://www.vetadvocates.org/cpages/why-professional-advocacy

This does not mean a VSO can not do a good job for you, especially in the early stages.  Most Veterans dont hire a professional until/unless they are unable to or frustrated by the long delays with a VSO.  

At the CAVC level, generally, lawyers will receive their compensation from EAJA fees.  To make this happen, you need to appeal a BVA decsion within 120 days and no more.  Dont wait the full 120 days, it does take time to enlist the services of a NOVA advocate professional.

At least some Veterans hired "unaccredited agents" and did not get a good result.  In all fairness, not every Veteran is happy with his or her attorney either.   The 2 biggest complaints I hear from Veterans about their attorneys are:

1.  They often dont return phone calls promptly.  This is an upgrade from VSO's who often dont return them at all.  

2.  The attorney "does not persue the claim" in the manner suggested by the Veteran.  Or, "the Attorney did not do anything".   Generally, the attorney does not call the Veteran and say, "Gee, I read 400 pages of your file today and filed an amendment to your appeal, adding a point of law the Veteran overloooked".  And, he does not send the Veteran a copy of this either. 

Best and safest is to stay with an accredited agent or better yet, lawyer experienced in representing Vets on this page:

https://www.vetadvocates.org/cpages/sustaining-members-directory

At least one Veteran reported he did not get a good result when he hired an "unaccredited agent":

https://www.texastribune.org/2023/07/05/veterans-disability-benefits-brian-reese-va-claims-insider/

[Lemuel]

No guarantees, even with a CAVC attorney.  You can search cases by the attorney.  See if they have done anything.

I have had three attorneys.  The last two were rip offs taking money from my back pay.  Did little and took the money and ran. The first was bailed out by the BVA Judge who found my unadjudicated TDIU claim, sent it to the Director, Compensation Services and gave me the TDIU from 2009 on the presumptive.  If that attorney had not quit, she would have gotten the 20% on the TDIU award from 1985 to 2009.

I got another attorney because of other issues in the remand that were not being addressed in a DRO decision.  He jumped in, did not get the issues not being addressed, and quit after getting 20% (over $80,000.00) withheld from my TDIU award from 1985 to 2009.

So back to the BVA on the remands that the attorney did not get addressed and the BVA ignored them so an appeal to the CAVC bringing on the pro bono attorney who's firm contacted me without me contacting them.  I believe this firm is a scam taking veterans appeals who have a large RBA, mine is over 10,000 pages, to be able to bill a lot of time instead of actually taking a case to a decision other than getting a remand agreed to in conference and not necessarily even the remand needed.

A remand is not the decision you want from the CAVC.  See Rattler's post on SMC with the link to the CAVC hearing on Haskell vs McDonough.  The Judge on the right kept asking questions about the plausibility of a remand based on the regulations the way they were, while the other two Judges seem to be in favor of finding the Secretary's (VAGC) interpretation presented in the regulations as unfounded to being at the point of being incredulous per the Senior Judge who is in the Center.

If remanded, then the veteran would pay the attorney if the attorney continued at the BVA.  As the veteran's attorney said that may mean back to the CAVC after the BVA decides again (until the CAVC makes a decision on the interpretation of the law that can be appealed to the CAFC where such changes are usually made).

The last of my attorneys was "pro bono" meaning he took the amount paid by the VA for "winning" at the CAVC.  But his "remand" portends me having to go through another BVA Decision without a hearing and back to the CAVC because it was a "partial remand" when a full remand was justified because the "Legacy Appeal" hearing was not granted and the decision was made on only what was before the RO, not my brief with references to the record and motions with references to the record.  As it stands, I am potentially still slammed into AMA without a hearing and review of my brief and motions.  Depends on the Judge I draw.  The Judge will not be required to give a hearing and decision on briefs and motions which I will have to redo if the Judge grants a hearing based upon the record in remand.  Hopefully, the Judge will just send it to the Director of Compensations services where my 1987 "next of friend claim" for TBI for victims of all wars prior to the 2009 law will be addressed for an EED to the date of my next of friend claim for them.

My briefs and motions to the BVA were ignored and there is no reason to expect they will not be ignored again because nothing was specified in the "partial remand" agreed to in "conference".  

Should have known something was wrong when the attorney told me he wins in conference and then I had no part in the conference and the conference report, which is not appealable, said I agreed to it by his signature without mine.  Because my RBA is so huge he probably billed a lot of hours while vacationing for reviewing the file.  Certainly, will not use the "pro bono" firm again because it is pro bono in name only.  He got paid by the VA for doing nothing for me.  At least that is the way I see it at this point. May see it differently after the BVA remand decision.  The last BVA Decision was supposed to be on a BVA remand to AJO but did not consider the issues as remanded?  Only the issues the DRO reported without referencing the remands.

The deny, delay wait until the die, is in full force with my last trip to the CAVC.  

Edited January 27 by Lemuel
clarify

[Dustoff1970]

Many years ago (2000to2003) I did an extensive search of veteran's lawyers practicing before the CAVC and other Federal courts to see which ones won their cases for their vet clients with favorable court decisions.  There were more than a few but I do remember Ken Carpenter of Kansas (???) as one of the outstanding few who where consistently successful and their court decisions help establish veterans case laws and changes to the 38 CFR regulations and even the U.S. Code Title 38.

I do have a list of hundreds of VA lawyers from that time period accredited to practice before BVA and/or CAVC.  However a great many are totally incompetent so the list is basically useless except for verification of accreditation.

Google search for veterans law will reveal many well know reputable vet attorneys organizations.

Here is old PDF article concerning veteran attorneys and their impact on veterans appeals.

Veterans Law Article on use of lawyers in VA claims under EAJA - Copy (2).pdf

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

Edited January 28 by Dustoff1970

[broncovet]

Carpenter is the cream of the crop.   He is extremely busy.  

According to this report, in the link below, 80% of CAVC claims end in remand:

https://www.gao.gov/assets/d24106156high.pdf

That leaves just 20% total for "win" and lose for the Veteran.    With a remand, your attorney could/should ask for eaja to pay the fees to date.  

That leaves what do do with representation "at the BVA" upon remand.  This should be brought up with your attorney, preferably, sooner rather than later.  

I had 2 remands:

1.  Glover luck represented me also at the board.  She applied for at got CAVC eaja fees, which were deducted from the 20 percent I had agreed to.  I may have mentioned earlier, the 20 percent amounted to $5000, of which $4000 was paid by eaja fees, so I paid $1000.  Not bad.  

2.  Chris Attig also won a remand, and applied for eaja fees.  He informed me "he does not represent (at that time) Veterans before the board, probably for reasons like you mentioned.  He advised me an IMO before the board should win it, gave me the name of a skilled IMO writer.  He suggested I could represent myself before the Board.  Instead, I went with a VSO, won, got the IMO, paid $500 for the IMO, and no attorney fees.  

   Both of these were a win for me, and a big win. Im not sure if it was dumb luck or due diligence, but, either way, it worked out well.  

     Its unrealistic to expect the attorney to:

1.  Do the claim "just like you do."  If that were the case you dont need an attorney.  

2.  Hold your hand or call you each time he files a document.  A win or remand is good enough.  He does not need to prove to me he is working.