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Turning the Wheels of Justice

Reprinted from PN April 2000

Volunteer lawyers help veterans who would otherwise get lost in the system.

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Some people say the wheels of justice move painfully slow. Marshall Scates, a 69-year-old U.S. Army veteran, knows this all too well.

Scates says he was healthy before he joined the Army in 1950, but when he left, he had permanent injuries the Department of Veterans Affairs (VA) refused to acknowledge.

With help from The American Legion, Scates tried to collect benefits for the injuries he received in the Army; a lack of records did not make it easy. He filed with his regional office, and the Board of Veterans' Appeals (BVA) denied benefits in 1961.

In 1984, doctors told Scates he should be classified as 100% disabled. He refiled his case to receive VA benefits for his back injury.

After BVA again denied disability benefits in 1995, Scates appealed to the U.S. Court of Veterans Appeals, now called the U.S. Court of Appeals for Veterans Claims (CAVC, or the Court), in Washington, D.C., from his home in Tennessee. It was the best thing he could have done.

In 1997, he was contacted by the Veterans Consortium Pro Bono Program, which places volunteer lawyers with cases to come before CAVC, which offered to match him with a volunteer lawyer. As a result, Scates won his appeal, and in June 1999 the court sent his case back to BVA for re-evaluation.

"They sure did their part," Scates says of his lawyer, Norton Joerg of Upper Marlboro, Md., and Paralyzed Veterans of America (PVA) attorney Brian Robertson, Case Evaluation and Placement Component director.

Robertson says many veterans have been trying for years to get VA to grant their claims. The pro bono program, he says, provides a chance to help people who would otherwise get lost in the system.

For years veterans were denied the benefit of judicial review. VA's decisions were final, even if veterans believed they were unfair. "There was no place a vet could go to evaluate his/her claim," says PVA General Counsel Lawrence Hagel.



A New Ballgame

The Veterans' Judicial Review Act of 1988 created the United States Court of Veterans Appeals (now CAVC), which changed all the rules.

Under the act, veterans could appeal BVA's decisions, but the process at this level was different than veterans had been used to. While VA considered the claim, veterans could win their cases by representing themselves.

The new appeals court process was legally complex and adversarial. Veterans acting alone were at an obvious disadvantage when arguing their cases against experienced VA lawyers. Still, eight of every ten veterans who filed appeals did so initially without lawyers' help.

The Court recognized that the process would be fairer if the veterans had lawyers. So it drafted a proposal to Congress to transfer money from the Court's operating budget to establish a program to recruit and train lawyers to represent veterans in their appeals-at no charge (pro bono).

These lawyers are storytellers-crusaders eager to discuss their clients' cases, their courtroom triumphs and frustrations, and the impact their work has made on their clients' lives. They take their cases seriously and even personally, sometimes continuing representation for years to get benefits for veterans.

The program has a 70% success rate attributable to successful lawyers as well as an involved screening process.

Who's Eligible?

The first hurdle is finances. The law establishing the program limits eligibility to veterans who have already filed an appeal with the Court without representation and who are unable to afford their own attorneys. Veterans are not eligible if their income, excluding disability or pension income, exceeds twice the nonfarm family weighted poverty level as reflected by the Social Security Bulletin, Annual Statistical Supplement.

Cases are then reviewed on merit. The program's staff carefully reads the files and will accept cases for which they can find an issue to argue before the Court.

According to Robertson, even veterans whose cases aren't taken receive assistance.

Milestone

In July 1997, the Pro Bono Program celebrated placement of its one thousandth case with a ceremony at the U.S. Capitol and two celebrity pro bono lawyers: former Senators Robert Dole and George Mitchell.

Record-keeper

Pro Bono Program lawyer Gary Beaver (Greensboro, N.C.), now working on his twelfth case, says the most important thing veterans can do is to make their records as complete as possible and get advice in the beginning. Appeals lawyers work from the records produced at the system's lower levels, so complete documentation early in the process helps win cases later on.

Although celebrating victories in the appeals court, many of the lawyers and clients like Scates also feel a hollowness. Until VA favorably redecides their cases, their only reward is the opportunity to wait. Since receiving a master's degree from the Columbia University Graduate School of Journalism, Erica Schlesinger has published articles and photos in print and on the Internet, and has broadcast on the radio. Now in law school, she looks forward to concentrating on Internet law.



Contact: Veterans Consortium Pro Bono Program, 601 Indiana Avenue NW, Suite 1010, Washington, DC 20004. (888) 838-7727 / (202) 628-8164 / 628-8169 (fax). For the complete version of this article, call PVA Publications at (888) 888-2201 and order the April 2000 PN/Paraplegia News.

 

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Turning the Wheels of Justice

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