Honorable Steve Buyer
Chairman, Committee on Veterans’ Affairs
U.S. House of Representatives
335 Cannon House Office Building
Washington, D.C. 20515-6335

Dear Mr. Chairman:

I understand that your Committee has recently received S. 2694 and that a conference with the Senate Committee is scheduled for September. I am also informed that you may have some misgivings as to the wisdom of permitting lawyer representation of veterans for initial claims for benefits. The purpose of this letter is to shed some light on what is really at stake in this legislative effort from the perspective gained form my eleven years as Chief Judge of this Court. I submit respectfully that it demeans our veterans to impose upon them a paternalistic policy which carries the inescapable implication that they lack sufficient intelligence and commonsense to choose between VSO representation and retained counsel with respect to their personal claims.

I am convinced from the thousands of appeals I have seen before the Court that if many claims had been handled by legal counsel from the outset, a remand from the Court would not have been necessary. The error rate in decisions by the BVA far exceeds that of any other administrative agency and the requisite remands by the Court add more years to final disposition of veterans’ claims. In my view, something must be done to help veterans to avoid this ingrained delay in processing claims, especially for today’s claims which involve increasingly intricate legal and evidentiary issues. To that end, I can state with certainty that vast numbers of benefits claims could be resolved much sooner if a claimant were able to exercise a choice to seek legal counsel in the beginning of the process.

Let me emphasize that S. 2694, and similar legislation pending before your Committee, are simply about affording a choice to a veteran, a choice – indeed a right enjoyed by everyone else – to be represented by counsel in all disputes and claims. The idea of making it a criminal offense to pay or receive a fee for initial claims services – as the present system does – is simply wrong. It is now bad public policy as well.

The few entities in opposition (there are many in support) vastly overstate the impact of the Senate Bill and surely they oppose from a desire to protect a system of VSO representation. I do not wish to be understood as denigrating those services. Indeed, VSO representation well served veterans and the benefits system for decades when that system was far simpler and encumbered with little delay. Now, however, the system is one of the most complex and delayed programs in government. I am also sure that those in opposition to change have resorted to the familiar and overused argument that this world will come to an end if change is made. Nevertheless, I believe that there is room for both VSO and retained representation of veteran claimants in the benefits arena from the beginning of the claims process. And, most importantly, all veterans who served before and after you served in the Gulf War have earn ed the right of choice.

Please do not hesitate to call upon me if I can be of assistance in this regard.

Sincerely,

Frank Q. Nebeker

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Judge Nebeker has devoted his entire adult life to government service. A native of Utah, he holds an associate degree in history from Weber College, a bachelor's degree in political science from the University of Utah, and a law degree from American University. During his law school years, Judge Nebeker worked as a correspondence secretary in the White House. He began his legal career in 1956 as a trial attorney in the Internal Security Division of the Department of Justice. Two years later, he became an Assistant United States Attorney for the District of Columbia, serving from 1962 to 1969 as the Chief of the Appellate Division. His reputation as an appellate counsel led to his appointment in 1969 as an Associate Judge on the District of Columbia Court of Appeals, where he served until his retirement in 1987.

Judge Nebeker's retirement was short. He responded to yet another call to public service as Director of the Office of Government Ethics, responsible for developing and monitoring the rules which govern the conduct of those in the Executive Branch. When Congress provided for judicial review of veterans benefits decisions and created the new seven-judge U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims), the President appointed Judge Nebeker, with the consent of the Senate, to be its first Chief Judge. The Court began operating on October 16, 1989. In November 2000, he retired from the U.S. Court of Appeals for Veterans Claims and now serves as a Senior Judge of the District of Columbia Court of Appeals. Judge Nebeker has been active for many years in the organization and presentation of education programs for attorneys and appellate judges throughout the country.

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