Veteranclaims’s Blog

March 12, 2009

DAV Aide vs. Lawyer

Filed under: DAV Aide vs. Lawyer; SOAR Comer; FedCir; — veteranclaims @ 7:55 pm

The professional staff of the Paralyzed Veterans of America’s (PVA) represents claimants before the Board of Veterans’ Appeals, the Veterans Court, and the Court of Appeals for the Federal Circuit and tracks legal issues that matter to veterans.

One of their publications is called “SOAR”, the Service Officers Appeals Report. It “is a quarterly newsletter providing information on cases at the Board of Veterans’ Appeals, Veterans Court, and Court of Appeals for the Federal Circuit; opinions and rulemaking of the Department of Veterans Affairs; judicial review; and other issues of concern to Paralyzed Veterans service officers.”

PVA website with link to SOAR

SOAR

2 0 0 9 V o l u m e 13 N u m b e r 1

Federal Circuit Decisions Representation: DAV Aide vs. Lawyer
On January 16, 2009, the Federal Circuit issued its decision in the case of Comer v. Peake, __ F.3d __, No. 2008-7013 (Fed. Cir. Jan. 16, 2009).
The Federal Circuit reversed a Veterans Court holding that Mr. Comer—the veteran—did not properly raise the issue of whether he was entitled to an earlier effective date for total disability based on individual unemployability (TDIU) benefits. The Federal Circuit remanded the case to the Veterans Court because the Veterans Court misinterpreted the Federal Circuit’s opinion in Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001), when it
held that the duty to fully and sympathetically construe a pro se veteran’s filing did not apply to an appeal submitted to the Board of Veterans’ Appeals (BVA) following a rating decision by a VA regional office.
The Federal Circuit rejected a government argument that the BVA “had no duty to construe Comer’s appeal sympathetically because he had assistance from an aide from [the Disabled
American Veterans (DAV)].” The Federal Circuit noted that although it had “held that the duty to construe a veteran’s filing sympathetically does not necessarily apply when a veteran
is represented by an attorney…the assistance provided by the DAV aide is not the equivalent of legal representation.”
The Federal Circuit then explained why the assistance provided by a “DAV aide” is “not the equivalent of legal representation”:
Indeed, even if Comer had received more significant assistance from the DAV, representation by an organizational aide is not equivalent to representation by a licensed attorney. Although aides from veterans’ service organizations provide invaluable assistance to claimants seeking to find their way through the labyrinthine corridors of the veterans’ adjudicatory system, they are “not generally trained or licensed in the practice of law.” Cook v. Brown, 68 F.3d 447, 451 (Fed. Cir. 1995).… The DAV was created by congressional
charter “to advance the interests of all wounded, injured, and disabled American veterans” and “to cooperate with the Department of Veterans Affairs…[in] advancing the condition,
health, and interests…of disabled veterans.” 36 U.S.C. § 50302 (emphasis added). Since
the function of aides from the DAV is to cooperate with the VA in obtaining benefits for disabled veterans, their role is fundamentally different from attorneys who represent clients in adversarial proceedings. See Stanley v. Principi, 283 F.3d 1350, 1355-56 (Fed. Cir. 2002) (noting that lawyers had been historically excluded from board proceedings in order to keep the system informal and non-adversarial). To hold that a veteran forfeits his right to have his claims read sympathetically if he seeks assistance from a veterans’ service organization would be to discourage veterans from seeking the much-needed assistance that those organizations provide. Comer v. Peake, slip op. at 11-12 (emphasis in original) _

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