"Can your attorney, without your approval, change your appeal forum at the BVA?"

[Lemuel]

My attorney told me some time ago that I was not going to get a hearing.  

I was just called by the BVA to find out if I agreed with the attorneys statement that no nearing was necessary.

I replied emphatically, NO!

My attorney at the CAVC also made decisions without consulting me, rather just emphatically telling me how it was going to be.

I had a Legacy Appeal at the BVA that, during COVID, slammed me into AMA without addressing my alternative of the BVA Judge asking me question by secure email on my brief and motions.

I believe the BVA is going to give me the Legacy Appeal Hearing, according to the BVA caller, within a couple of weeks.

I will pull documents into a file and highlight sections I want to specifically reference.  Will post here how I thought it went after the hearing and a redacted copy of the Decision when I receive it.

[ShrekTheTank]

Oh wow,  this sounds like some shady business.  

Seems they want the easy way out and not put in th work to get this done.

 

[broncovet]

When you grant a POA (Power of Attorney) to your attorney, yes, this enables him to make decisions on your behalf.  

While some may consult you about decisions first, others may not for some good reasons:

   For many/most Veterans, the bottom line is the result:  How much retro did he get for you?  The attorney's job, therefore is to get the maximum retro, in the minimum amount of time, AND to do so inexpensively for you as well as being profitable for the attorney.    This goal often precludes what I may refer to as "handholding", "counseling", or teaaching/instructing you on being an attorney.  Attorney's will often limit or even eliminate these three, and just make decision in your behalf.  Its just not always feasable for the attorney to discuss each and every piece of paper he files, or each and every decision he makes in your best interest.  Frankly that is labor intensive and attorney labor usually runs something like $150 to $400 per hour.  If you get the desired result, then you may well have to forgo "instruction" on how you should file claims/appeals, as well as forego "handholding" or counseling, or debating the pros and cons of each decision he makes.  

      In everything we buy, including legal services, we expect a low price, and high quality.  Most of the time, the price and quality is rather a compromise.  The item may not be as good quality as you like, but if it works and you can afford it, that is good.  This applies here.  The attorney would like to maximize his income, which means he needs to successfully complete your appeal/claim with the minimum amount of labor (his or hers) in order for him to be profitable.  This happens when you buy a table, a home, car, or just about anything.  Whoever you buy it from needs to minimize his hours invested in order to mazimize his income/aka profit.  You too, probably want to maximize your income both now and when you were working if you are retired now.  And, the company you worked for, probably watched you, and expected you to produce the maximum quality output in a minimum amount of time (labor).  A big part of the cost of most things boils down to materials and labor.  Even materials is often mostly labor, because those materials need to be harvested from a tree, the ground, or whatever it is that your product is made from, even plastic, glass, wood, metal, etc.  For the company you work for to keep in business, they expect you to optimize the fruits of your labor.  If you produce more, you can often be given a raise, while if you are slow, you may get fired.  

      By focusing on the "end result" and cutting steps that may not produce any better end product, the attorney can maximize his income, which he needs to do or get out of the business.  

      If you need counseling, make an appointment with your counselor, or maybe talk to your spouse.  Same with "handholding".  If you want instruction, then you could attend college and take law courses.   Or, you can ask questions on hadit, and voluteers may be able to help.  

      If you go into a resteraunt to buy a meal, they will unlikely want to cut up your meat for you, butter your bread, or put catsup on your burger.  They also probably cant explain what state the beef came from, how the bread was made, or the recipe for the soup..    They need to herd customers in, quickly take their order, maybe refill the coffee, bring your food after its cooked, and the check.  Then they have to clean up the mess.  There is often not time to discuss your car breaking down, why your spouse was mad at you, or how many miligrams of iron are in your burger.  

      I focus on the result, and let the attorney figure out the best process.  You probably dont tell the cook in the resteraunt how long to cook your fries, but you probably aint gonna like it if they are too done, too raw, or too salty or oily.  You just want a good result, not a class on cooking, or resteraunting.  

     For that reason, I dont expect the attorney to instruct me, entertain me, council me, or hold my hand and tell me it will be ok.  I just want him to be good at getting me the max retro, and Im good.  I dont really need a call from him every time he makes a decision, or to involve me in the decision, when he could do it faster, utilizing his vast experience and expertise.  

     That's my take on this.  You need to understand, generally, the attorney is MAKING YOU MONEY.  If he does not make you money, fire him.  If he does make you money, be grateful, and easy to work with..  Make a good decision on which attorney you choose, but then trust him to do a good job.  A cook may not like you standing in his kitchen watching his every move, and an attorney may not either.  

      

Edited July 13 by broncovet

[Lemuel]

No POA.  Only a fee agreement.  They can back out anytime and now is their chance.  The hearing is going to happen.  I took it to the CAVC and a "pro bono" attorney stepped in to help.  I made it clear at the CAVC, even though the attorney did not stand up for the "Legacy Appeal Hearing" that I had filed for one and expected the remand, which was not clear, to be for a legacy appeal hearing, at the BVA to adjudicate the facts of my appeals per my personal pro se motions and brief.  I am not asking for hand holding and teaching.  Just read the briefs that have been remanded.  Tell me which will be viable, or decide to just say to the Judge, that I have made briefs and motions in Pro Se that are included in the remands that they have not developed in their brief because "they do not have time for counseling and teaching" to make enough on the case to pay for their time.

That is why I received the call from the BVA clerk to verify I was O K with the attorney's decision.  I am not O K with it and said so.  I will have a hearing probably within the next two weeks according to the BVA clerk that called me. I may have drawn the same judge as the one that made the 2017 Decision and will remember that she told me I would probably be back again.  That would be an outstanding bit of luck.

The Judge will have to wade through the additional evidence presented, the Brief and its statement of facts with specific references, and the motions with their statement of facts and references regarding un-processed remands, the evidence (contact reports) that the examiners had been limited in their examinations by the RO ordering the examinations which is contrary to the Secretary's Regulations.  Audiology exams that did not report tinnitus because a report of tinnitus was specifically excluded in the examination order and the demonstration of evidence of record that tinnitus is disabling more than 10% because of safety reasons for someone who is mentally disable for a desk job and could only do manual work at the time, wrist exams that only reported finger and not thumb articulation because the thumb was specifically excluded from the examination order.  Eventually the TDIU covered the tinnitus remand, but the tinnitus still should be rated higher because of all of the jobs that have warning signals that tinnitus interferes with your hearing them, even restaurant dishwashers.  No manufacturing line, or warehouse floor job. Personally, I would not even be able to drive a tractor in a hay field that was not at least 40-years-old without fear of missing a signal that something was wrong with the equipment.

You cannot appeal these things to the CAVC if the prior BVA remands for development are ignored and facts are not developed.  Not reported in the rating decision.  The BVA is the FACT FINDER.  You have to ensure the facts are addressed in your brief to the BVA in order to argue, (high bar) an arbitrary and capricious ignoring of the facts in a court of appeal filing.

I have several copy decisions that ignore the issues and copy the same broad claim of evidence reviewed decision to decision when more evidence was accumulated.  It is a quick way to get a claim off an RO or DRO's desk.  And it puts you in that constant circle.  The only way to break the circle is a detailed brief with specific references not noted by the RO and DRO Decisions.

The earliest documents in this remanded appeal are 1974.  Only the remand of the 1987 extra-schedular TDIU remand to the Director, Compensation Services was developed.  The additional BVA remands from my 2017 BVA Decision were ignored except for the dental claim which became moot before it was granted because of the 100% TDIU grant back to 1985.

Complicated cases, like mine are supposed to be referred to the Director, Compensation Services after developing.  There is a motion I filed with specific detailed documents, to remand my appeals not granted by the BVA to the Director, Compensation Services.  That includes a 1994 "next of friend" claim for extra-schedular benefits for walking talking veterans that are unemployable like me and two friends and were unemployable because of organic brain syndromes.  The two friends were given 100% PTSD to remove the class claimants from the organic brain syndrome claim.  At the time that was done there was no CAVC, no attorney representation because all you could pay an attorney was $25.00.

I expect the attorney to have at least read my briefs and to represent me at the BVA unless stated in the Fee agreement that he was only going to do the SMC new claim.  The firm signed on for the whole job, not just the part that was easiest.  At least there is nothing in the Fee Agreement that says they were just going to do the one claim. The fee agreement does allow them to resign and me to fire them.

I presented the whole ball of s**t to them and they should be ready for the Legacy Appeal Hearing that was remanded from the CAVC or at least show me the issues I am appealing and have briefed already are not viable, not just try to bully me with a statement, that it "does not work that way".  All they have to do is say one of the briefed items was by me is before the BVA and state the reason they think it is or is not viable and their reasons for that statement or simply say to the Judge they are relying upon my earlier brief with or without amendments.  I do not think any judge will accept, "it does not work that way" as a reasonable reason to deny a remanded item even though the remand was blanket.  The decision was not a final decision because it was remanded.

I may or may not have an attorney at the hearing when they discover the BVA is going to hold the LEGACY APPEAL HEARING as remanded.  They will have to prepare or resign.  I have seen no sign of preparation yet other than on SMC which is still at VARO in the development stage.

Sorry for the rant.  But there are a lot of things at stake that need to be remanded to the Director, Compensation Services for possible benefit for a lot of veterans besides me.

[broncovet]

When I first started, I was just like you.  I was gonna get up there and tell the VA a thing or two, and fix the whole VA.  Those judges were gonna listen to all my complaints about what they did.  Reality soon set in, and my wife helped with most of it.  

My attorney asked me if I wanted retro money, or an audience to listen to my theories about what the VA did wrong and how to fix it, and,  that I couldn't have both.   I chose the money and let him handle it.  Im not in a position to "right the VA's wrongs" nor, do they really want to hear about most of "my opinions" of what needs to be done.  

Im very glad I let the attorney handle it, and I buckled up my mouth.  I had already written VA and said things I regretted, but the Attorney and the judges could pretty much easily dismiss the things I said that could have hurt my case by simply realizing "he's applying for a mental health disorder".  

So, I did my rants in front of my spouse and she nodded and said, "uh huh, ok", and the attorney won for me.  

I learned how many times the best thing to say is "as little as possible".  Im paying this guy to speak for me, so Im gonna get my money's worth, and I did!   He knew what to say much better than I did, because he knew better on how to win than I did.  My combined experience in court totaled "zero" and my attorney had gotten W's or remands dozens of time, so I realized who was more competent:  The attorney or me?  

   For me, it was not the first time I figured out why I have 2 ears and one mouth, and, my ears have not gotten me into trouble, but my mouth sure has.  

Of course, I did not always like the way the attorney did it.  If the attorney did everything I say, exactly the way I want, then I should be the attorney, and I knew better than that.  I was paying him to make the best decisions for me, and he earned every dime, and I happily paid him and it even worked out to far less than 20 percent of the retro, because eaja paid most of the fees.  How good it that?  

Do it the way you please, but go against your attorney's advice at your own peril.  

My brother got a knee replacement, as did I.  My spouse insisted I do the physical therapy and pretty much what the doc said.  My brother, however, did not want to pay for Physical therapy, and figured out his "own" version of PT.  He had to revise his surgery twice, and its still not near as good as mine.  

I am not better at surgery than my doctor, and Im not better at winning claims than my attorney.  They both outclass me be a mile in education and experience.  So, I did it there way and am very glad both times.  Wise men listen to the advice of others, but a fool listens only to his own words.  

[Lemuel]

My choice went the other way.  I do not need more now as much as I need right.  I guess it is the medic instilled, "leave no one behind" and the recognition that leaving veterans "behind--on the paper trail" is killing too many of them.

Thank you so much for my opening at my BVA hearing.  I will tell the judge that I made that choice.  I will keep coming back as long as I have a breath and enough intellect to fight for the veterans who are committing suicide because of VA mistreatment and mis compensation.

My next of friend claim in my 11/26/1994 response to the "Statement of the Case" means more to me than any benefit that I might get for myself now.  Especially with my wife having passed.  

If I end up back on the street outside the DVA Central Office demonstrating again until the VA gets combat veteran suicide down to at least the blue collar suicide rate, that will be what I will do.  I will be there with those veterans who but for that option, would have made that final exit to the end.