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VA'S NEW PATERNALISM: THE FATHER-FIGURE WE DIDN'T WANT
VA attorneys don't want veterans to have attorneys. But,
Veterans' Advocate Jim Strickland punches holes in their claim of a
"New Paternalism" at the VA.
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Veterans' Advocate Jim Strickland
provides regular columns for VA Watchdog dot Org.
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VA'S NEW PATERNALISM: THE FATHER-FIGURE WE DIDN'T WANT
by Jim Strickland
In
their treatise "Effects of Representation
by Attorneys in Cases before VA: The 'New Paternalism'"
Department of Veterans Affairs (DVA) lawyers Reiss and Tenner
presume that the DVA consistently practices at every level to be
non-adversarial and to always give every veteran the benefit of the
doubt.
(The paper by Reiss and Tenner is
available here for viewing or download.)
"Paternalism" isn't
a particularly positive noun. No matter the spin Reiss and Tenner
would apply to it, the definition is generally along the lines of,
"a system under which an authority undertakes to supply needs or
regulate conduct of those under its control in matters affecting
them as individuals as well as in their relations to authority and
to each other".(1)
A
second characterization of paternalism is, "a policy reminiscent of
the hierarchic pattern of a family based on patriarchy, that is,
there is a figurehead (the father, pater in Latin) that makes
decisions on behalf of others (the "wife" and "children") for their
own good, even if this is contrary to their wishes."(2)
It's further noted that, "critiques of paternalism have identified
it as a set of
 expectations
that are always organized around the presumption of the authority of
the powerful (whatever the source of power) over the less powerful."(3)
Reiss and Tenner seem to be comfortable with their perspective that
VA is a benevolent, kind and all knowing sort of dad and will always
make decisions for us that are in our best interest. We're part of
their family after all, we're the children who must be protected
from threats outside the home and even ourselves.
These authors tell us that, "The Supreme Court observed that the
district court found that neither VA offcials (sic) themselves nor
the service organizations were providing the full array of services
that paid attorneys might make available to claimants. In this
regard, it acknowledged the district court’s determination that a
heavy caseload and a lack of legal training combined to prevent
service representatives from adequately researching a claim, and
that it was standard practice to submit 'merely' a one to two page
brief."(4)
In
what seems to be in the same breath used to recite that above, they
also tell us, "...the VA adjudicatory system is 'uniquely
pro-claimant.' For the entirety of the VA claims adjudication
process, the adjudicatory system is nonadversarial."(5)
It
takes almost 50 pages and over 18,000 words of legalese, citations
and word-smithing before this scholarly discourse reaches its point.
The authors conclude that should you retain an attorney to represent
you to the VA as you go about the process of claiming that which is
rightfully yours, the VA won't think kindly of that. You're now on
notice that should you hire a lawyer you'll no longer be treated as
one of the children of the beneficent, charitable and caring family
of the DVA.
The authors herald a stern warning to veterans that, "...claimants
who select attorneys give up the benefts (sic) of a paternalistic
atmosphere of an informal and nonadversarial process."(6)
To
bring your lawyer along to assist you will, "...likely inject an
adversarial tone into the adjudication process."(7)
In
their foreboding conclusion, Reiss and Tenner scowl, flex some
muscles and admonish, "...veterans, and other claimants seeking VA
benefts (sic), should carefully weigh the pros and cons of attorney
representation before choosing an attorney to prosecute their
claims."(8)
We've been warned.
When I began my retirement career as a lay advocate and writer for
the popular VA Watchdog dot Org web site, one of the first phrases I
saw as being inappropriately used to describe the VA process was
"non-adversarial".
My
first article published at VA Watchdog dot Org was "NEXT TIME AROUND
WITH THE VA, I WANT MY LAWYER!"(9)
It
wasn't long before I focused on the DAV, a "Veterans Organization"
that was adamantly opposed to allowing lawyers onto the playing
field. At that time I noted that then DAV Commander Bradley S.
Barton, Esq. had said that the "VBA is a “largely administrative
claims process, which is designed to be open, informal and helpful
to veterans.”(10)
I
was as dumbstruck by the continuing upholding of the fantasy that
the VBA is helpful to veterans then as I am now. And it is a fantasy
to say that there is anything open and non-adversarial about the
confrontation of the average veteran and his or her VA Regional
Office.
When the average veteran faces off with the Compensation and Pension
section of the Veterans Benefits Administration, he or she never
encounters the sort of "open, informal and helpful" process that
Attorney Barton spoke of. I can't recall at any time I've witnessed
"a liberal reading of the record"(11)
as the wishful thinking of Messrs. Reiss
and Tenner would want us to believe in.
The fact is that most of the records I review for veterans are
seemingly not read at all, much less favorably. Evidence (that which
isn't lost or destroyed(12)
) is skipped over in the rush to meet quotas that
lead to fat bonuses(13)
for the VBA employees and their leaders.
If
the veteran is foolish enough to seek some data to help as he
develops pro se his own claim, he might naturally call the Regional
Office. He'd probably want to speak with one of the kindly VA
employees who would be there to help him as the VBA fulfills its
"Duty To Assist"(14).
We
aren't allowed to call that Regional Office though. Those numbers
are secret and any veteran who does get a direct number will be
greeted with, "How did you get my private number?" We can't call the
people who are working on our claim, we're routed to "call centers".
It's unfortunate that in our world (as opposed to the rarified
atmosphere of the VACO) we discover that, "VA HELP LINES REGULARLY
GIVE OUT WRONG INFORMATION --VA'S OWN STUDY PROVES IT"(15).
In
January of 2006 an unknown Senator named Obama declared that
veterans, "DESERVE BETTER THAN BEING GIVEN BAD INFORMATION."(16)
As
they worked alongside the hundreds of other lawyers employed by the
VA, Reiss and Tenner have apparently missed my reporting of cases
that to the rest of us are our norm. We anticipate that the widow
Connie Hasler(17)
and veteran John Nettles(18)
will be treated unfairly by the VA.
It
seems incongruous that so many government lawyers (DAV's Stanley
Barton Esq. comes to mind along with Reiss and Tenner) are so ready
to reach out and comfort veterans with a pat on the head and softly
tell us that we don't need a lawyer.
According to the logic presented in their monograph Reiss and Tenner
are assuring us that if we don't hire our own lawyers to deal with
their lawyers, we'll be much better off.
I'm not so sure.
There's something that just seems a little lopsided about this to
me, although I can't quite put a finger on it. It has something to
do with not going to a gunfight armed with a knife.
I
recall a speech I listened to many years ago when I was employed by
a company that took me to D.C. often. The lady lawyer keynote
speaker had been a prosecutor of some renown in the DOJ and had
(thankfully) become a consultant to our more enlightened side of our
business.
She told us that day of The Three Great Lies. I can't forget her
words:
(1) Of course I'll respect you in the morning darling.
(2) Yes sir, the check is in the mail.
(3) Hello. We're lawyers. We work for the federal government and
we're here to help you.
Reiss and Tenner don't get it. Trust in the badly broken VA system
won't come by way of the slanted and insubstantial writings of well
paid employees.
Their work reads like an infomercial for VA lawyers. It ends with a
blustering caution that if we dare have lawyers to help us, our
expectations of fairness diminish appreciably. The gloves come off!
Trust is built on actions documented in history...facts. In the case
of the VBA, trust isn't a word any veteran uses to describe what
happens when we interact with our RO.
Neither I nor any veteran I know (I know a lot of veterans) has any
shred of trust...or respect...left for the VBA.
Words are cheap.
Thinly veiled threats by VA attorneys about how veterans may be
harmed if we retain our own counsel to joust with VA are cheap
shots.
Now, more than ever, I want my lawyer.
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(1)
http://cheetah.eb.com/dictionary/paternalism
(2)
http://en.wikipedia.org/wiki/Paternalism
(3)
http://en.wikipedia.org/wiki/Paternalism
(4) Effects of Representation by Attorneys; Page 10
(5) Effects of Representation by Attorneys; Page 2
(6) Effects of Representation by Attorneys; Page 47
(7) Effects of Representation by Attorneys; Page 48
(8) Effects of Representation by Attorneys; Page 49
(9)
http://vawatchdog.org/old%20newsflashes%20
JUL%2006/newsflash07-05-2006-2.htm
(10)
http://vawatchdog.org/old%20newsflashe
s%20AUG%2006/newsflash08-25-2006-1.htm
(11) Effects of Representation by Attorneys; Page 49
(12)
http://vawatchdog.org/VAshredderscandal.htm
(13)
http://www.vawatchdog.org/09/nf09/nfsep09/nf092309-6.htm
(14) Effects of Representation by Attorneys; Page 25
(15)
http://www.vawatchdog.org/old%20newsfl
ashes/newsflash12-31-2005-1.htm
(16)
http://www.vawatchdog.org/old%20newsfla
shes%20JAN%2006/newsflash01-27-2006-1.htm
(17)
http://vawatchdog.org/09/nf09/nfsep09/nf092509-4.htm
(18)
http://www.vawatchdog.org/09/nf09/nfaug09/nf081309-3.htm
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TOPICS: veterans,
veterans' benefits, VA, Department of Veterans' Affairs, Jim
Strickland, Veterans' Advocate, |
