Equal Access To Justice Act, So the lawyers are making money anyway while still taking on our claim Options

[free_spirit_etc]

I hired an atty for my appeal to the CAVC and he won me a remand. He applied for payment under the EAJA. He did have to submit his hours and costs and then they approved his payment. Without the EAJA I couldn't have appealed, to the CAVC. I believe they get paid whether they win or lose.

pr

I think they only get paid if they are the prevailing party. And they also have to show that the government's position was not substantially justified.

http://www.equalaccess2justice.us/cgi-bin/...AJA+Information

LIMITATIONS OF THE EQUAL ACCESS TO JUSTICE ACT
ARE SO GREAT AS TO DENY EQUAL ACCESS TO JUSTICE

Dear U.S. Citizen:

Congress enacted the EQUAL ACCESS to JUSTICE ACT of 1948, as amended, (EAJA),to encourage lawyers to undertake litigation to vindicate constitutional and statutory rights of those individuals who could not otherwise afford to vindicate those rights. (June 25, 1948 ch 646 ' 1, 62 Stat. 971) The purpose of EAJA is to insure that people would not be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in pursuing their rights.

EAJA accomplishes this purpose by providing for the recovery of costs and attorneys fees etc. to prevailing parties in actions or proceedings against government or their officials, under specified circumstances. Essentially, the government waives its sovereign immunity in those specified circumstances.

EAJA limits recovery of costs and attorneys fees etc. to specified administrative proceedings. Only those administrative proceedings where: (1) they were to be determined on the record after opportunity for an agency hearing, by law; (2) they were not one of the statutory exceptions; (3) the government was represented by an attorney; (4) the position of the agency was not substantially justified; (5) there were not special circumstances; (6) they were subject to the Administrative Procedures Act; (7) and, the party prevails; are subject to EAJA. (5 USCS " 504 and 554; Ardestani v. INS, 502 US 129, 112 S.Ct. 515 (1991))

EAJA limits recovery of costs and attorney fees etc. to specified legal actions. Only those legal actions where: (1) they were not sounding in tort; (2) they were not one of the statutory exceptions; (3) the position of the government was not substantially justified; (4) there were not special circumstances; and, (5) the party prevails; are subject to EAJA. (28 USCS ' 2412; Pierce v. Underwood et al., 487 US 552, 108 S.Ct. 2541 (1988))

EAJA limits attorney fees to $125 per hour, without some justification for a higher fee. (Baldi Bros. Constructors v. US, 52 Fed. Cl. 78 (2002)) Justification for a higher fee is limited to cases where specialized attorneys are required.

Equal Access to Justice, Inc. submits that these limitations, effectively, countermand the purpose of EAJA and thereby deny equal access to justice to the people of the United States.

[mrsvet28]

The court can award, deny or remand. A denial is a loss. An award is a win. A remand is a win because it allows an already denied claim to be sent back and to be re-developed and readjudicated, thus making it a win.

pr

We have hope then (IMG:http://www.hadit.com/forums/style_emoticons/default/biggrin.gif)

[mrsvet28]

"My question is: if the RO missed something to begin with(like crucial evidence to the claim) WHY DOES THE BVA REMAND IT BACK THERE TO BE DECIDED- ie: MrVet had a conflicting 2ndCP to IMO exam and 3rd CP agreed with the 3 IMos which were done over a 6 year period?"

The BVA- as soon as they open the file- must determine

1. did the vet get full rights under the VCAA?

(They check the wording of the VCAA letter and then the VCAA response form)

2.If the VCAA was deficient (THOUSANDS deliberately are)

does the deficiency prejudice the veteran's claim?

3. If so a remand is in order for correction of that legal error-

The veteran then has an open widow for even more evidence---to be presented asd the VA develops a legal compliant VCAA letter and/or proceeds to follow the instructions in the remand from the BVA.

The claimant at some point has right to waive the RO review-so that the claim can be returned to the BVA for a decision.

If not waived -the vet could receive an award from the VARO at that point-

Most of the backlog however comes from remands that are still done wrong by the VARO.

Mine is good example.

The very first statement on my I-9 (after the statement NVLSP recommends which I posted here many times)
was that my VCAA letter was deficient and I told them why.

Although I didnt waive RO review -the BVA ,after remand and return of the file this time - found that my evidence outweighed even the prejudicial VCAA letter I got, and awarded my claim.

But VARO upon receipt of the award has sent me two incorrect award letters so far-so my claim is still not resolved.

I asked them to CUE the first one which produced another deficient award letter.

Last week I sent my second request due to their clear and erroneous award letter (this second one was worse that the first one) for a proper award letter to them, but also to VACO and the OGC , Chairman BVA and Chairman H VAC.

I figured the more people I send it to-the better my chances of finding someone in the system who can read.
------------
Remands-
A Remand can give the claimant one more window of opportunity to enhance the evidence they have,send more, rebutt any new C & P exam, and to re-submit anything they have not considered.

I followed the remand instructions myself- another thing a claimant can sometimes do-

the remand called for a cardio doc opinion.

I found a cardio doc and prepared copies of the clinical record for IMO.

I got a PA's opinion instead from the VA.

I rebutted the PA C & P diligently hoping my IMO would come in time.Send these rebuttals to remand C & Ps to both BVA and the VARO.

In a few weeks I called to see if the cardio doc was done only to find he had just got to my file.

Then I found a BVA envelope in my mail box- and cancelled the IMO (they refunded half of the fee)

The BVA had read my rebuttal as well as my other IMOs and awarded the claim.

We need to aggressively pursue our claims and never depend on any RO doing the right thing.

And we too can help satisfy what a remand calls for in some cases without depending on the ROs to do it.

Great post, hope you had thatpeaceful cup of coffee!---So I am guessing that is why the lawyers mailed and faxed everything the remand called for--so they wouldnt miss nothing as they said to me--now I'm thinking I'll keep them!! (IMG:http://www.hadit.com/forums/style_emoticons/default/smile.gif)

[mos1833]

berta
my lawyer just collected on my claim,because i was the ( prevailing party )i got another remand,he got the cash,is this one of the 5 conditions you were talking about. thanks

[broncovet]

One of the problems is the RO gets to interpret the regulations in the manner they see fit.
Even an "award" by the BVA can be interpreted in a negative way enabling the RO to completely deny benefits..they did just that to me.
A grant or award by the BVA is supposed to mean the RO has no discretion in awarding benefits..they must simply award them per the BVA order. They dont do that.
A remand is even worse. It sends the case back to the RO, sometimes with instructions on how to proceed. The RO then, at its own discretion, applies the BVA instructions
(or ignores them), and re adjucicates the claim.
Some Veterans claims are remanded multiple times: Claim denied by RO, claim is appealed to BVA, claim is remanded back to RO, RO denies/lowballs, Veteran appeals, BVA remands again, etc. Its what Larry Scott calls the "hampster wheel" that goes nowhere, sometimes for decades.
In a report I read by the BVA they are trying to reduce the number of remands, recognizing that they frustrate the Veteran.
Bottom LIne: A remand is not a "win" UNLESS the RO decides its a win and awards benefits. Even a "complete Grant" by the BVA is not a win unless the RO decides to award benefits. One way the RO "weasels" out of paying is to "Award" a zero percent rating and the Vet gets nothing. This method is not supported by case law, but the RO's do it anyway. In case nobody has told you yet, the RO often follows regualtions only when it supports their position, that is, they follow the regs when they want to.
Its one of the many RO loopholes. You see, the RO wants a chance to decide a claim before its decided by the BVA. So, if the RO just shredded, overlooked, or otherwise didnt consider evidence, the BVA often remands the case, telling the RO to consider that evidence. Then the RO can come back and say , "We considered that evidence and the answer is still no, but they are supposed to give their "Reasons and basis" for denying it the second time. It is pretty easy for the RO to simply cling to the reason they denied you the first time.

[Berta]

PS_ any claimant can challenge a lawyer's fee.

I posted the regs here when the new lawyers for vets regs came out.

The VA will send a letter as to the fee.

There are 5 conditions that have to be met for VA to pay the legal fees to an attorney.

They deduct the fee from the retro and hold it until you respond to their letter.

You can technically NOD the fee payment if they lawyer has failed to comply with any or all of the 5 points.

The lawyer can then rebutt and file their own NOD.

[Berta]

"My question is: if the RO missed something to begin with(like crucial evidence to the claim) WHY DOES THE BVA REMAND IT BACK THERE TO BE DECIDED- ie: MrVet had a conflicting 2ndCP to IMO exam and 3rd CP agreed with the 3 IMos which were done over a 6 year period?"

The BVA- as soon as they open the file- must determine

1. did the vet get full rights under the VCAA?

(They check the wording of the VCAA letter and then the VCAA response form)

2.If the VCAA was deficient (THOUSANDS deliberately are)

does the deficiency prejudice the veteran's claim?

3. If so a remand is in order for correction of that legal error-

The veteran then has an open widow for even more evidence---to be presented asd the VA develops a legal compliant VCAA letter and/or proceeds to follow the instructions in the remand from the BVA.

The claimant at some point has right to waive the RO review-so that the claim can be returned to the BVA for a decision.

If not waived -the vet could receive an award from the VARO at that point-

Most of the backlog however comes from remands that are still done wrong by the VARO.

Mine is good example.

The very first statement on my I-9 (after the statement NVLSP recommends which I posted here many times)
was that my VCAA letter was deficient and I told them why.

Although I didnt waive RO review -the BVA ,after remand and return of the file this time - found that my evidence outweighed even the prejudicial VCAA letter I got, and awarded my claim.

But VARO upon receipt of the award has sent me two incorrect award letters so far-so my claim is still not resolved.

I asked them to CUE the first one which produced another deficient award letter.

Last week I sent my second request due to their clear and erroneous award letter (this second one was worse that the first one) for a proper award letter to them, but also to VACO and the OGC , Chairman BVA and Chairman H VAC.

I figured the more people I send it to-the better my chances of finding someone in the system who can read.
------------
Remands-
A Remand can give the claimant one more window of opportunity to enhance the evidence they have,send more, rebutt any new C & P exam, and to re-submit anything they have not considered.

I followed the remand instructions myself- another thing a claimant can sometimes do-

the remand called for a cardio doc opinion.

I found a cardio doc and prepared copies of the clinical record for IMO.

I got a PA's opinion instead from the VA.

I rebutted the PA C & P diligently hoping my IMO would come in time.Send these rebuttals to remand C & Ps to both BVA and the VARO.

In a few weeks I called to see if the cardio doc was done only to find he had just got to my file.

Then I found a BVA envelope in my mail box- and cancelled the IMO (they refunded half of the fee)

The BVA had read my rebuttal as well as my other IMOs and awarded the claim.

We need to aggressively pursue our claims and never depend on any RO doing the right thing.

And we too can help satisfy what a remand calls for in some cases without depending on the ROs to do it.

This post has been edited by Berta: Nov 8 2009, 06:52 AM

[Philip Rogers]

You can request the attorney(s) send you a monthly statement of hours and costs. I need to correct a statement I made. The attorneys get paid from the award, if they win. If they lose they can request payment thru the EAJA but they don't always get it. The hours and costs must be reasonable and then the fee must be approved. It's kinda a win/win situation for them. The EAJA usually pays.

pr

My point exactly-which is why I am always questioning what they are doing for me-

This post has been edited by Philip Rogers: Nov 8 2009, 07:53 AM

[Philip Rogers]

The court can award, deny or remand. A denial is a loss. An award is a win. A remand is a win because it allows an already denied claim to be sent back and to be re-developed and readjudicated, thus making it a win.

pr

How is a remand a win??

[mrsvet28]

Attorneys who handled Court appeals, in the days before we were allowed attorney representation after the first VARO denial, would gladly handle Court appeals because Usually, for the amount of work they put into an appealEAJA would pay them in the event of a Court remand (which is a win)., and the volume of appeals they handled, that would be good enough. There are still attorneys who will not handle VA appeals until they reach the Court, for the same reason. They're not comfortable having to depend 100% on the veteran for payment.

How is a remand a win??

[mrsvet28]

My understanding was that Vets can get their money, paid to the lawyer, back from the government for fighting their claims under the EAJA. The Vets lawyer has to apply for the money after the claim is successful.

I don't really think that the government wants Vets to know this. Why would the gov promote the fact that they would have to pay, for your lawyer, to fight against their own interest?

But that wouldnt be the 20% of retro award would it-because if I've done most of this paperwork and research(they even commented how I have superb recordkeeping) -I dont wanna share that-because they went to 2 hearings-which I felt the DRO and the BVA hearings were pretty much the same --then it got remanded back to the RO warranting another CP exam..still waiting expeditiously my butt....

[mrsvet28]

I hired an atty for my appeal to the CAVC and he won me a remand. He applied for payment under the EAJA. He did have to submit his hours and costs and then they approved his payment. Without the EAJA I couldn't have appealed, to the CAVC. I believe they get paid whether they win or lose.

pr

My point exactly-which is why I am always questioning what they are doing for me-

[mrsvet28]

I had an excellent lawyer handle my claim at the RO and the BVA she also taught VA law at a University for new lawyers that wanted to learn how to deal with the VA system. She is a member of NOVA where the lawyers meet quite often and have seminars to share knowledge of the system, when they run into an issue and they need help they can call people like Ken Carpenter, and Robert Walsh very good veterans lawyers to mentor them.

Can they speed up the claims process no, but with a lawyer you stand a better chance of getting steam rolled relying on a SO that may not have had any training to handle a compensation claims.

My question is: if the RO missed something to begin with(like crucial evidence to the claim) WHY DOES THE BVA REMAND IT BACK THERE TO BE DECIDED- ie: MrVet had a conflicting 2ndCP to IMO exam and 3rd CP agreed with the 3 IMos which were done over a 6 year period?

[mrsvet28]

It is apples and oranges if your lawyer is representing you through the entire VA claims process. If they win in this situation they get a percentage of your retro award. Even if you lose at the BVA I would hope your claim is in good enough shape so that when it gets to the Court there is not some fatal defect in it. To my mind this is why you hire a lawyer. He can't make the VA work faster, but he is supposed to be an expert in VA law. He should be able to use the law to give you every advantage. He should recognize the fatal mistakes in your claim and help you correct them before your claim gets to the BVA or the Court. The lawyers are dealing with the same monsterous system we deal with but they are supposed to know how that system works and all the loopholes.

If I dont keep on them I feel they just sit back and keep telling me "let us worry for you now" that was 3 years ago.....

[mrsvet28]

Did you read the entire content of what the link says, that you just posted.

What it said was, even thought the "Equal Access To Justice Act" (which was enacted sometime in the late 1940's or early 1050's) was SUPPOSED to provide an incentive for attorneys to take on cases brought by citizens that could not afford the legal costs involved in their cases, that it (the Equal Access To Justice Act) was NOT working as intended and that attorney's were NOT, in fact, receiving the incentive that they were intended to receive.

Are your attorneys receiving compensation from this Act?

In the past years one attorney I contacted said they couldnt help me until the BVA level sent a remand or denial-my present one I brought this up to them and they really had no answer and I still dont know-

[Testvet]

http://www.equalaccess2justice.us

According to this link the lawyers make money from our claims whether we win or not.

I do not feel mine are doing anything to speed up the final process, even though I signed a contract-I am ready to let them go because I've done everything they went to DRO and BVA hearing - and I dont feel that warrants all the $ for them-

I had an excellent lawyer handle my claim at the RO and the BVA she also taught VA law at a University for new lawyers that wanted to learn how to deal with the VA system. She is a member of NOVA where the lawyers meet quite often and have seminars to share knowledge of the system, when they run into an issue and they need help they can call people like Ken Carpenter, and Robert Walsh very good veterans lawyers to mentor them.

Can they speed up the claims process no, but with a lawyer you stand a better chance of getting steam rolled relying on a SO that may not have had any training to handle a compensation claims.

[john999]

It is apples and oranges if your lawyer is representing you through the entire VA claims process. If they win in this situation they get a percentage of your retro award. Even if you lose at the BVA I would hope your claim is in good enough shape so that when it gets to the Court there is not some fatal defect in it. To my mind this is why you hire a lawyer. He can't make the VA work faster, but he is supposed to be an expert in VA law. He should be able to use the law to give you every advantage. He should recognize the fatal mistakes in your claim and help you correct them before your claim gets to the BVA or the Court. The lawyers are dealing with the same monsterous system we deal with but they are supposed to know how that system works and all the loopholes.

[Philip Rogers]

I hired an atty for my appeal to the CAVC and he won me a remand. He applied for payment under the EAJA. He did have to submit his hours and costs and then they approved his payment. Without the EAJA I couldn't have appealed, to the CAVC. I believe they get paid whether they win or lose.

pr

http://www.equalaccess2justice.us

According to this link the lawyers make money from our claims whether we win or not.

I do not feel mine are doing anything to speed up the final process, even though I signed a contract-I am ready to let them go because I've done everything they went to DRO and BVA hearing - and I dont feel that warrants all the $ for them-

[Stretch]

Scroll, down to the bottom of this page in the link for Veteran info.

http://www.equalaccess2justice.us/cgi-bin/...AJA+Information

(1) Veterans Affairs Board of Contract Appeals
(2) Small Business Association EAJA Summary

Thats right there is nothing there.

[vaf]

Attorneys who handled Court appeals, in the days before we were allowed attorney representation after the first VARO denial, would gladly handle Court appeals because EAJA would pay them in the event of a Court remand (which is a win). Usually, for the amount of work they put into an appeal, and the volume of appeals they handled, that would be good enough. There are still attorneys who will not handle VA appeals until they reach the Court, for the same reason. They're not comfortable having to depend 100% on the veteran for payment.

[Stretch]

My understanding was that Vets can get their money, paid to the lawyer, back from the government for fighting their claims under the EAJA. The Vets lawyer has to apply for the money after the claim is successful.

I don't really think that the government wants Vets to know this. Why would the gov promote the fact that they would have to pay, for your lawyer, to fight against their own interest?

[john999]

Leadbelly said it better "Land of the Brave, home of the free. I don't want to be mistreated by no bourgeoise". You know in your heart that a government owned by special interests is not going to help citizens sue potential campaign contributors. If you don't have the money you have to get out of town. It was not until the 1940's or 50's I believe before destitute defendants were provided lawyers for free in criminal cases.

[LarryJ]

Did you read the entire content of what the link says, that you just posted.

What it said was, even thought the "Equal Access To Justice Act" (which was enacted sometime in the late 1940's or early 1050's) was SUPPOSED to provide an incentive for attorneys to take on cases brought by citizens that could not afford the legal costs involved in their cases, that it (the Equal Access To Justice Act) was NOT working as intended and that attorney's were NOT, in fact, receiving the incentive that they were intended to receive.

Are your attorneys receiving compensation from this Act?

[mrsvet28]

http://www.equalaccess2justice.us

According to this link the lawyers make money from our claims whether we win or not.

I do not feel mine are doing anything to speed up the final process, even though I signed a contract-I am ready to let them go because I've done everything they went to DRO and BVA hearing - and I dont feel that warrants all the $ for them-