My father is one of the reasons I chose veterans law as a practice. Several years ago, I became his advocate in his VA disability compensation claim; and yesterday, a decision was rendered. It was granted. Because this particular client is my father, he has given me permission to candidly share his story. It sheds light on two basic elements of successful VA claims: to refuse to give up (within reason), and to know common VA errors.
My father is a veteran of the Vietnam era. He served in Bad Kissingen, Germany at the tail end of the war, and it was a wonder he was drafted. Even as a kid, my father had trouble with his hips and knees – to such an extent that he was exempt from high school physical education. When he was asked to undergo a medical examination prior to officially being drafted, he expected to be immediately dismissed. Instead, he received a cursory glance and was told to board the bus for basic training at Fort Leonardwood, Missouri. Basic training was so difficult for him that he received a waiver from its activities, but he was still somehow found fit to be shipped overseas to Germany. Once there, he assumed the duty of distributing the mail. Sure, that doesn’t sound particularly arduous, but carrying a 70-pound sack up and down steps and around the base isn’t good for someone with bad knees and hips.
As a young lawyer living and working in Washington, D.C. I learned about the VA disability compensation claims process. I’d heard Dad’s stories about serving in the Army, and I asked him whether he had considered applying for disability compensation. He relayed that he had completed an application immediately after his service in 1972 and was denied. “Well,” I told him, “You’re going to apply again, because I think you’re entitled.” I believed that he was entitled to service connection for an aggravation of injury – Dad’s knees and hips were made worse by what he was required to do in service.
Because I was ambitious, and because my father’s interests were at stake, I pulled out all the stops in his application. I put together a 23-tabbed binder with the new and material evidence required to reopen his claim. I hunted down old war buddies to take their statements, gathered new medical evidence, and wrote a legal argument. Basically anything that could be done, I did.
So what happened? Eight months later we received a denial. And here was the kicker – the VA treated Dad’s claim as an appeal, not as a reopening. An appeal is when the veteran challenges a VA decision based on the evidence that the VA had at the time of the decision. A reopening is when a veteran presents what is called “new and material” evidence to reopen a claim. I would say that in the materials we submitted, the terms “reopen” and “new and material” were mentioned forty times each (and “appeal” zero times), but somehow the claim was still treated improperly.
I filed a notice of disagreement, and again the VA came back with a denial. This time it took a little longer, and this time the VA stated that Dad’s conditions were “congenital,” meaning that he was born with them, when he clearly wasn’t. It also discounted without justification a medical opinion from a private physician who had opined that Dad’s conditions were “more likely than not” service-connected.
Eventually Dad was afforded a VA medical examination. This took place in May of 2012, and this decision was reached in August. Interestingly, I as the advocate have no idea what that doctor concluded, other than that he must have found service-connection given the decision. I do not know what the doctor concluded because I have not received a copy of the examination report – reports are not automatically sent to veterans or their advocates. But, after all this time, this is a victory, and I must admit that I am far less interested in that report than I would have been if the decision had been another denial.
Dad’s claim, from beginning to end, has taught me a lot about veterans law. More than anything, it has taught me not to give up. The process is confusing and cumbersome, and we could have given up during any of the many roadblocks we encountered. We refused to do so, and Dad now has his compensation. At the same, however, this lesson saddens me, because it illuminates how many veterans do in fact give up. It takes time, legal wherewithal, and resources to fight the VA. Also, many conclude that because the VA has denied them once, that must mean that they are in fact not entitled.
This experience has also taught me how important it is to know what constitutes a VA error. What if we hadn’t known that Dad’s claim should have been treated as a reopening instead of an appeal? Or that Dad’s conditions aren’t congenital? Or that he was entitled to a medical exam? Or what constitutes an “adequate” medical examination under VA standards? All of these issues came up during the pendency of Dad’s claim, and without knowing the answers, the claim could have failed.
At the end of the day, while I’m absolutely thrilled and proud that Dad’s claim was granted, I can’t help but think of the alternative. Most other veterans don’t have an advocate, or know the legal ropes to applying for VA compensation. If Dad had been one of those veterans, he would have either never filed or given up after the first denial. He wouldn’t have known that when it comes to the VA, a “no” is not the end of the road. For many it is just the beginning.
