Vets Aren't Guaranteed Effective Counsel for Benefits Appeals

By Robyn Hagan Cain on December 06, 2012 | Last updated on March 21, 2019

Ernest Pitts, Jr., a veteran, claimed that he was entitled to disability benefits from the Department of Veterans Affairs (VA) based on post-traumatic stress syndrome (PTSD), a psychiatric disorder other than PTSD, a sinus disorder, and a skin disorder, all of which he contends are service-connected conditions.

The Board of Veterans' Appeals found that (1) Pitt's lower back condition resulted not from service but from a post-service work-related injury; (2) there was no evidence that his psychiatric disorder other than PTSD was linked to his service; and (3) his PTSD claim was not shown to be service-connected because there was no evidence of an in-service stressor.

The Court of Appeals for Veterans Claims (CAVC) affirmed the Board's ruling.

Pitts argued to the Federal Circuit Court of Appeals that his lawyer provided him inadequate representation in the CAVC, depriving him of his constitutional right to effective assistance of counsel before that court.

Last month, the Federal Circuit concluded that the Constitution does not guarantee effective representation of counsel in connection with veterans' benefits appeals before the CAVC.

The appellate court noted, "It is well established that, as a general matter, the constitutional right to counsel -- and thus the constitutional right to the effective assistance of counsel -- does not attach in civil cases that do not involve the potential deprivation of a liberty interest." In civil cases, a constitutional right to counsel exists, if at all, only when an indigent party "may lose his/her personal freedom if the action is lost."

However, when the government is not constitutionally required to furnish counsel in particular proceedings, errors by private counsel are not imputed to the government.

Here, the Federal Circuit reasoned that veterans' disability benefits are not categorically different from social security disability payments, welfare assistance, or other benefit programs, as to which the courts have never recognized a right to the effective assistance of counsel as a component of due process.

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