Opinion
BUSHNELL, FL - Walter Miller waits for the next service at the Florida National Cemetery November, 10, 2008 in Bushnell, Florida. Miller has been a volunteer with the Veterans of Foreign Wars at the cemetery since 1992. More than three million Americans, including veterans of every war and conflict from the Revolutionary War to the Gulf War are honored through burial in a VA National Cemetery. (Photo by Stephen Morton/Getty Images) BUSHNELL, FL - Walter Miller waits for the next service at the Florida National Cemetery November, 10, 2008 in Bushnell, Florida. Miller has been a volunteer with the Veterans of Foreign Wars at the cemetery since 1992. More than three million Americans, including veterans of every war and conflict from the Revolutionary War to the Gulf War are honored through burial in a VA National Cemetery. (Photo by Stephen Morton/Getty Images)  

The VFW And American Legion’s Veterans Affairs Conflict Of Interest

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Joanne Butler
Former Staffer, House Ways and Means Committee
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      Joanne Butler

      Joanne Butler is a senior economics fellow at the Caesar Rodney Institute of Delaware. You can email her at joanne-butler@comcast.net.

With Father’s Day approaching and VA Secretary Eric Shinseki’s resignation last week, I am reminded of a promise my late Dad (WWII vet, bronze star medalist) demanded I make when I was in 8th grade: That I never send him to a VA hospital. I expect if my Dad were here today, he’d be calling me to say ‘see, I told you.’ My question: where were the American Legion and the Veterans of Foreign Wars when the problems began to bubble up last year and earlier this year?

A young vet’s answer to me was these groups seemed to be more reactive than proactive. Could this be because these groups also represent veterans in the VA benefits system?

In some ways, the VA situation is a familiar bureaucratic story: career civil servants not informing the political appointees of actual and potential problems, and the political appointees putting too much trust in what the career employees are saying.

Imagine a group of top career managers sitting around the Secretary’s big table, with their Cheshire cat grins, murmuring soothingly, ‘nothing to see here, Mr. Secretary, move along.’ But the department outside the Secretary’s suite is ruled by the iron law that political appointees come and go; career people stay on forever.

What makes the VA story unique is the role of politically powerful outside groups who represent veterans’ interests, ones that can get a meeting with the Secretary, or any Senator or House member by just picking up the phone. Plus a phone call will get them major media access on demand.

By contrast, what if the Association of Builders and Contractors had major issues with the Department of Housing and Urban Development? I don’t know if the HUD Secretary (or any Senator or House member) would clear his or her schedule to meet with the ABC head, but it’s a safe bet the ABC and its HUD woes wouldn’t get a prime slot on cable news.

So where were these service organizations when the VA hospital system was spinning out of control? Were they afraid of reprisals due to their work representing benefits claimants?

To its credit, the American Legion was one of the first to call for Shinseki’s departure on May 5, but it was in reaction to an inspector general’s report from the VA. However, news organizations had been doing investigative work on the hospital situation for months before that.

Why would the service organizations be cautious in criticizing the VA? It’s because a little-known but major function of the American Legion and the Veterans of Foreign Wars is helping veterans or their families file for benefits and representing claimants in the VA appeals process. And while by law they cannot charge for helping someone file a claim, they can charge for representational services if the claim is denied and appealed.

Federal law also puts a “reasonable” fee arrangement at twenty percent of past due benefits (benefits the claimant would have received if a positive outcome had resulted at the first step in the decision process).

Any good trial lawyer will tell you that part of their ‘zealous representation’ duty is to have a good working relationship with the decision-maker — usually a judge, magistrate, etc. This also means the attorney and his or her firm doesn’t publicly criticize their local judicial system. For example, let’s say attorney Green is representing a client before Judge Anderson; meanwhile, another member of the same firm is standing on the courthouse steps having a heated press event alleging that Judge Anderson is corrupt nitwit. Green’s client immediately switches to a different firm – and all other clients who have business before Judge Anderson do the same.

There’s a similar dynamic between the VA and veterans’ service organizations, which have a vested interest (fee payments) in not rocking the VA boat. These organizations must have a good working relationship with the VA benefits decision-makers if their clients are to win. Would this relationship be jeopardized if the Legion or VFW shifted into attack-dog mode over problems at VA hospitals?

Thus, I note while the Legion called for Shinseki’s resignation a month ago, the VFW took a milder tone, stating he needed take “strong action” and calling for more Congressional oversight. Could this have an impact on the Legion’s success rate in benefits appeals?

Further, a little-noticed aspect of the Legion’s May 5 statement was its call for the resignation of the under-secretary of benefits, Alison Hickey. Give credit to the Legion, for making what I consider a bold move, in light of its representational work.

Nevertheless, if I was the head of the Legion or VFW, I would be embarrassed that it took a VA inspector general report to reveal the problems on the ground at the Phoenix hospital.