Noteboom The Law Firm

New Bill Could Bar Veterans From Receiving Legal Assistance for Disability Claims

March 2, 2011 - Those veterans making claims for their VA benefits or Social Security disability benefits may be facing a huge roadblock in their immediate future. Congress is currently working on keeping the government open and functioning while determining what will be cut from the 2012 budget. Federal funding and programs are taking significant losses, and this includes veterans who need to sue the government for their rightful disability benefits.  

The House Appropriations Committee passed Continuing Resolution HR1 (CRHR1) last week, but in doing so attached Amendment 195. CRHR1 made budget cuts totaling $61 billion and next week it will be up to the Senate on whether to pass the bill along or stop it in its tracks. Any veteran or veteran legal representative will say as long as Amendment 195 is attached, passing CHRH1 is the wrong answer as it may serve to put an end to the Equal Access to Justice Act (EAJA) thereby crippling many veterans' chances of ever getting their owed disability compensation.

People litigating against the government in order to secure their owed disability compensation often rely on the EAJA for reimbursement of attorney fees and expenses, which mean even veterans without substantial income can have access to legal representation for their claims. The EAJA awards their attorney fees at the conclusion of the case if the applicant wins. Those without the financial ability to challenge the government with legal representation on their side are at a distinct disadvantage throughout the claims and appeals processes, some of which require a lawyer. Without these funds, the veteran would have to pay for the attorney out of funds they likely do not have.  

For the most part, Amendment 195 would eliminate EAJA fee payments for at least the rest of 2011. The language of Amendment 195 is "ambiguous" according to the National Association of Social Security Claimants (NOSSCR). It could be read to say there is no definitive time for when EAJA fee payments would resume or if they would ever resume at all. When or if payments resume, there is nothing in the language of the Amendment stating the amount of the payments would remain the same.

This effectively bars the vast majority of veterans from retaining lawyers for representation in Federal Court as there is a very good chance that those lawyers will not be paid for their services. Without clients, law firms practicing disability law will see much of their business disappear; there are more people affected than just disability claimants. According to Adam Neidenberg of Lavan & Neidenberg, P.A.:

If the law passes, this eliminates the ability to appeal lower court decisions for claimants who cannot afford attorneys on their own. The higher up in the courts you go, the more costly attorney's fees become. Therefore, few cases will come in to the appeals court, and even fewer to the federal court. If the appeals council knows they're not governed, there's no pressure to do the right thing because most claimants cannot afford to appeal their cases at federal court.

Passage of CRHR1 while Amendment 195 is attached will deprive those thousands of veterans in need of disability benefits the legal counsel they need to secure that compensation. This law may end up saving the government millions by denying benefits to disabled veterans and civilians who cannot afford a lawyer on their own.