Fw: SunToads Health News 291. The VA's Claim dodge

November 14, 2007

- SunToads

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Wednesday, November 14, 2007 12:49 PM

SunToads Health News 291. The VA's Claim dodge

There are many thousands of Veterans' disability claims that have been mishandled and/or intentionally sabotaged by the VA and/or military....... Guess what........ Social Security is also guilty of similar behavior...... SunToads

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The VA's (Veterans Administration) Claim Dodge <http://www.prospect.org/site/_media/_common/spacer.gif> Beyond the awful conditions at Walter Reed hospital, something smells fishyin the government's handling of veterans' claims. One appalling case studysuggests what might be happening and why. <http://www.prospect.org/site/_media/_common/spacer.gif> Deb Derrick | November 12, 2007 | web onlyhttp://www.prospect.org/cs/articles?article=the_vas_claim_dodge <http://www.prospect.org/site/_media/_common/spacer.gif> <http://www.prospect.org/site/_media/_common/divider_h_752.gif> The two signature injuries of the Iraq and Afghanistan wars are traumaticbrain injury and post traumatic stress disorder (PTSD). An estimated 26,000U.S. veterans from these wars have had their brains traumatized from nearbyexplosions. Another 45,000 have initiated post traumatic stress disorderclaims at the Department of Veterans Affairs (VA). These claims concern real disabilities that are medically hard to prove. Ineach VA case, it is up to the military and the Department of Veterans'Affairs to decide if and how much any given soldier's mental faculties havebeen impaired. These are also precisely the kinds of claims that the U.S.government has actively thwarted in the past -- and recent news and healtharticles suggest that a repeat performance is underway. The DefenseDepartment is being accused of under-funding studies of traumatic braininjuries. The VA and Defense Departments are refusing to make their braininjury data public. Current PTSD claimants are finding their medical andservice records missing, lost, or subject to challenge. A class actionlawsuit was recently initiated on behalf of PTSD claimants. My recent investigation on the VA claims of a Navy waste disposal ship, theUSS Calhoun County, provides a cautionary tale about what might be happeningand why. Harvey Ray Lucas served in the late 1950s on the USS Calhoun County, alow-ranking Navy ship whose primary mission was to dump atomic and othermilitary waste into the Atlantic Ocean. Lucas spent four years heavingradioactive materials over the side of the ship. After leaving the military,he suffered from chronic health problems and sired five children with birthdefects. Lucas's testimony made my jaw drop. He described one baby whoseskin oozed "bloodwater." He described the birth and death of another whomphysicians termed an "anencephalic female monster." A couple years after histestimony, Lucas died of a rare cancer associated with radiation exposure. I came across Lucas's story in 1998, when I worked in a U.S. Congressionaloffice and read the transcript of his Board of Veterans Appeals hearing.Lucas's widow, Barbara, and my boss, Congressman David Skaggs (D-Colo.),both felt that Harvey Lucas and his family's illnesses stemmed fromradiation exposure in the Navy. But Barbara Lucas had been pursuing acompensation claim with the VA for 18 years without success. The VA alwaysseemed to need more or different evidence. When our office dug up a keyfinal document and Barbara prevailed, I decided to write a book about theUSS Calhoun County and her VA claim. Deck logs and interviews with the ship's sailors, officers, and scientistssuggested that the USS Calhoun County had carried excessively radioactivematerial and that the ship's decks had been contaminated. When I discovereda number of other sailors had experienced odd health problems, I broadenedmy inquiry to look at the VA cases of other USS Calhoun County veterans. I interviewed Deane Horne, whose teeth and hair had fallen out after he leftthe ship and whose eldest son was born without a femur. I interviewedRichard Tkaczyk, who had also lost his teeth and whose first born son hadseizures and brain damage. I interviewed George Albernaz, who was halfparalyzed after suffering from an odd brain disease that his physiciancalled radiation necrosis. All had filed claims with the VA. None had madeany headway. In all cases, the VA began the claims process by asserting that there was noproof that the USS Calhoun County had even carried atomic waste -- eventhough there was ample evidence of the ship's mission in public federalarchives. In all cases, the Navy forwarded personnel files to the VA thatwere missing a key radiation exposure document. The treatment of these men's claims echoed what had happened with the Lucasclaim. It was also entirely consistent with a vastly discouraging history ofthe VA's handling of hard-to-prove claims, including radiation, asbestos,Agent Orange, Gulf War Syndrome, and PTSD-based injuries. All such caseswere and are handled centrally out of a special office in VA headquarters.All required Congressional or court intervention to force the VA to grantclaims. In the case of radiation-based claims, the military was found omittingincriminating documents from veterans' databases; veterans' documents weredestroyed in a huge and mysterious fire at a military personnel recordsfacility; the VA was found hiding and shredding more veterans' evidence; andwhistleblowers were subjected to death threats and workplace retaliation. As I unearthed this information, I was drawn into providing evidence for theclaims of several USS Calhoun County veterans. In particular, I beganhelping George Albernaz, who had served with Lucas on the ship between 1957and 1958. To verify his claim, I sent the VA data on the ship's atomic loads, notingthat my information came from deck logs in the National Archives. The VAcalled my information unsubstantiated. I sent Navy documentation on them.The Navy and the VA said that they still had no proof that Albernaz himselfhad ever been exposed to radiation. I sent information from the Lucas claimthat challenged such "zero dose" exposure estimates. It was deemedirrelevant. Looking for more evidence on Albernaz's behalf, I dug deeper in the ship'sadministrative archives. I came across a memo to the ship's CommandingOfficer from 1956, indicating that the deck of the USS Calhoun County hadbecome radiologically contaminated. I found another from 1958 stating thatall attempts to remove the contamination had failed. But my breath failed mewhen I read a final memo from 1962, stating that the Navy had never, in itshistory, been able to render such a ship safe for use and recommending thatthe USS Calhoun County be sunk. If I thought that such evidence would help win the Albernaz case, however, Iwas quite mistaken. Albernaz and I submitted the incriminating documentsbetween 2005 and 2007. Yet the VA omitted the documents from the "evidenceof record;" the Navy re-asserted that they had no proof of Albernaz'sexposure but that he'd likely only received safe doses; and the VA continuedto take the Navy at its word. As of this month, the VA was demanding a longlist of additional evidence to support Albernaz's claim -- much of which heand I had already submitted. The treatment of these sailors exposes a U.S. veterans' claims adjudicationsystem that enshrines military-produced evidence as the only "objective"arbiter of claims, even when there is ample reason to doubt it. Evidence --even documents from the National Archives -- produced by the likes of HarveyLucas and George Albernaz is viewed and treated as potentially fraudulent.And far from making any attempt to validate or verify claims throughdatabases, "buddy statements," or consolidated claims reviews, the VAactively dismisses their compatriots' evidence as "irrelevant" to theirclaims. In sum, the veterans are treated as liars, told to prove their owncases to the government, and subject to having credible evidence dismissedwhen it contradicts military assertions. Americans are now becoming increasingly concerned with the treatment of Iraqand Afghanistan war veterans, and they ought to be. Because unless the U.S.revamps its veterans claims system to allow for decisions made independentlyof the U.S. military, we are headed for another series of large VA scandals.

Forwarded by:

Dan Cedusky, Champaign IL "Colonel Dan"See my web site at:http://www.angelfire.com/il2/VeteranIssues/

Change your email address when needed by signing in atVeteranIssues/Forward to other veterans, tell them to Sign up at:VeteranIssues/join

Posted by: "Colonel Dan" colonel-dan coloneldan1 Tue Nov 13, 2007 9:46 am ((PST))

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Law Firms Massing to Help War Vets

Posted by: "Colonel Dan" colonel-dan coloneldan1 Tue Nov 13, 2007 11:41 am ((PST)) <http://malcontends.blogspot.com/2007/09/law-firms-rushing-to-veterans-aid.html>http://malcontends.blogspot.com/2007/09/law-firms-rushing-to-veterans-aid.htmlMany links at the above URL Good Attorney at:http://www.lawyers.com/Michigan/Battle-Creek/Robert-P.-Walsh-3292774-f.htmlLaw Firms Massing to Help War VetsA 'staggering' need for representationLynne Marek <http://www.nlj.com/> The National Law JournalSeptember 26, 2007 <http://www.law.com/jsp/llf/PubArticleLLF.jsp?id=1190745422599>http://www.law.com/jsp/llf/PubArticleLLF.jsp?id=1190745422599 The John Marshall Law School's Nicholas HenryWilmer Cutler Pickering Hale and Dorr attorney John Harwood, who was aMarine Corps platoon leader in the Vietnam War, and Nicholas Henry, athird-year law student in Chicago and Iraq veteran, don't know each other,but they now have a common mission: providing legal services to woundedveterans. They're not alone. Law firms, corporate legal departments and law schools are setting out tohelp thousands of disabled soldiers returning from Iraq and Afghanistanreceive fair and timely benefits from the U.S. Department of VeteransAffairs. Pro bono legal clinics and training sessions for lawyers have been croppingup across the country this year, from Illinois to North Carolina toCalifornia, in recognition of veterans' legal needs and a desire to createmodels for more programs. One national program currently being crafted willfocus some of the country's largest law firms -- including WilmerHale andSidley Austin -- on the issue. "We've all become much more acutely aware over the past six to nine monthsof what's happening to our Marines and soldiers and of the needs they aregoing to have when they return," said Harwood, who is on the board of theNational Veterans Legal Services Program, an organization that helpsveterans apply for benefits. DOZENS OF FIRMS The Pro Bono Institute is enlisting support from 38 corporate legaldepartments and law firms, including Morrison & Foerster and Morgan, Lewis & Bockius, to assist discharged military personnel -- and those on the cusp ofbeing discharged -- in filing claims. The program would train lawyers in thearcane area of veterans law and screen cases to identify those who wouldbenefit most from legal representation. "With the rise in need, we are working to develop a firmwide initiative,"said Morgan Lewis pro bono counsel Amanda Smith, noting that about 40interested attorneys at her firm was an "exceptionally strong response." News reports earlier this year about the shabby treatment some veterans werereceiving at Walter Reed Army Medical Center and other reports aboutbenefits being denied to some with post-traumatic stress disorder attractedattorneys to the cause, said Esther Lardent, president of the Pro BonoInstitute. In July, a presidential commission recommended changes to addressthose shortcomings. "There's a sense, generally, that the sacrifices have fallendisproportionately on a small number of people in uniform," said Ron Flagg,a Sidley attorney who is also chairman of the National Veterans LegalServices Program. While veterans have long received support in making claims from veterans'organizations, pro bono lawyers aim to help ease an overload of cases thatcould grow worse as more veterans return from Iraq and Afghanistan,according to attorneys working in the area. The U.S. Department of Defensereported 29,415 service members had been wounded in Iraq or Afghanistan asof Sept. 12. A 'STAGGERING NEED' Veterans Affairs did not respond to requests for comment about itsprocessing of claims. It did provide data showing that the annual number ofdisability-related claims for compensation has risen 20 percent during thepast six years, jumping to 806,382 last year from 674,219 in 2001. "The need is staggering," said Gordon Erspamer, a Morrison & Foersterattorney in Walnut Creek, Calif., who has worked on veterans' cases sincethe 1970s. The firm expects to participate in the institute's new program when it getsrolling. It is already involved in a Federal Circuit Bar Association probono program for vets that started in July and an older Swords to Plowsharesprogram in San Francisco, said Kathi Pugh, Morrison & Foerster's pro bonocounsel. A law passed by Congress last year may also encourage more attorneys to takecases for a fee. Under the old law, attorneys couldn't charge a fee untilafter a final decision by the Board of Veterans' Appeals. As of June,veterans can hire a lawyer as soon as they file a notice of disagreement inresponse to a department decision. "Now lawyers can be hired earlier in the process, and they can be much moreproactive in shaping the case," said Ron Abrams, a joint executive directorfor the National Veterans Legal Services Program who trains attorneys. Whether or not attorneys or law students support the war or the VeteransAffairs Department, they share a belief that their skills and experience inhandling complex matters, researching cases and advocacy will aid veterans. "For many of them, having a lawyer will be the difference between whetherthey succeed or not," said Sidley's Flagg. REPRESENTATION PAYS OFF Veterans who had some kind of representation got $6,225 more annually, onaverage, than those who didn't, according to a 2005 Veterans AffairsInspector General report. That principle held true in the first caseresolved by the University of Detroit Mercy School of Law clinic, begun thismonth. The clinic helped a Vietnam War veteran increase his monthlydisability compensation to $2,600 from $350 by helping him apply for abenefit related to his inability to work, said professor Joon Sung. North Carolina Central University School of Law started a veterans claimsclinic in January and is working on 30 cases, said Craig Kabatchnick, a lawprofessor overseeing the clinic. Henry, who has served in the Basra and Anbar regions of Iraq, and two fellowstudents at The John Marshall Law School in Chicago initiated a veterans probono program that this month won a $100,000 grant from the IllinoisDepartment of Veterans' Affairs. Students and pro bono attorneys working with the clinic will start trainingnext month and begin helping veterans file for disability and educationbenefits in January. Henry said he believes that the clinic's focus on initial filings willresult in fewer rejections for incomplete information and fewer appeals. "If we did this 10, 100, 10,000 times, we're going to know the ins and outsof it, whereas each individual veteran won't have faced the process before,"Henry said. "You can get lost in it very easily because there is a greatdeal of proof that needs to happen." The clinic will work with a network of lawyers being coordinated partly bythe Illinois Supreme Court Commission on Professionalism and with theVeterans Rights Project created in July by the Legal Assistance Foundationof Metropolitan Chicago. Abrams, who is conducting trainings in Chicago next month for the pro bonoprogram, as well as for attorneys who want to work for a fee, also is givingcourses this month at the University of Virginia Law School and an attorneygroup in Boston. Katten Muchin Rosenman has two of its lawyers signed up for the training inChicago, and they will, in turn, train other attorneys, said Jonathan Baum,that firm's director of pro bono work. "We are very glad to be involved in this, but we are very sad that somethinglike this is necessary," said Mike Summerhill, a former Marine and one ofthe Katten Muchin attorneys who will take the training. Womble Carlyle Sandridge & Rice attorney Tim McClain, who joined the firmlast year after leaving his post as senior legal officer for the U.S.Veterans Affairs Department, helped his firm build a veterans law trainingprogram that so far has educated about 70 attorneys, including some fromother firms, and 35 law students in Raleigh, N.C., and Washington, D.C. Athird session is planned for this month. Each of the classes was followed by a session during which veterans wereinvited to meet with the lawyers and students about cases. There's aparticular need in the North Carolina area, where the firm was founded,because of the many military bases there, said Craig Cannon, a seniorassociate in the firm's Winston-Salem, N.C., office. "We hope other firms will try to replicate this throughout the countrybecause it really helps veterans a lot," Cannon said. Ultimately, the Pro Bono Institute program will also seek to addresssystemic problems through legislation or litigation if necessary, Lardentsaid. Morrison & Foerster's Erspamer is already helping veterans take the moredrastic step. In July, Erspamer represented two veterans' organizations in their lawsuitsagainst the Veterans Affairs Department, claiming that the department has a600,000-claim backlog and sometimes takes more than 10 years to process aclaim. Veterans for Common Sense v. Nicholson, No. 07-3758 (N.D. Calif.).

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