Veterans Benefits in the United States
Disability benefits for veterans
By Dashka Slater. She is the author of six books, for both children and adults. Her latest is Dangerously Ever After.
The Center for Investigative Reporting has found that a backlog of more than 815,000 veterans are waiting for decisions on claims; their average wait is nine months. Nor does this slow pace guarantee accuracy: In 2011, the Board of Veterans’ Appeals found that VA staffers had made errors in 73 percent of appealed cases.
Those veterans (vets) who hope to use the courts to challenge the VA’s errors and delays are handicapped by a series of procedural barriers: a veterans’ appeal court in which they have no power to subpoena witnesses or documents; a law severly restricting lawyers from charging fees to represent veterans; and something called the Feres doctrine, an exception to the 1948 Federal Tort Claims Act waiving the U.S. government’s sovereign immunity. The doctrine was created during the Cold War, when the U.S. Supreme Court held that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” (Feres v. United States, 340 U.S. 135, 146 (1950).) Over time, courts have expanded the principle to the point where the families of two off-duty sailors who drowned while rafting on a Navy-led recreational trip were prevented from suing for damages. (Costo v. United States, 248 F.3d 863 (9th Cir. 2001), cert denied, 534 U.S. 1078 (2002).) (…)
A History about veterans disability benefits
Albert Maxwell was sick and traumatized for the rest of his life. He and Jackie had five children together, but four of them died in infancy due to congenital heart or lung defects. When Erspamer met him, Maxwell had multiple myeloma, a cancer of the blood marrow. But the VA had denied his claim for medical and disability benefits, on the grounds that his Army service record didn’t show an assignment to Hiroshima.
Maxwell needed a lawyer to challenge the decision, but he couldn’t hire one: A Civil War-era statute bars veterans from paying more than $10 to an attorney representing them in a quest for service-related benefits. And so he became the lead plaintiff in a class action Gordon Erspamer filed challenging the fee limitation itself. The case went on for twelve years. After a district court judge held that the fee restriction violated soldiers’ right to due process and issued a nationwide preliminary injunction, the VA appealed to the U.S. Supreme Court. There, Justice William Rehnquist issued an opinion reversing the lower court, with Justice John Paul Stevens penning a vigorous dissent. (See Walters v. Nat’l Ass’n of Radiation Survivors [NARS], 473 U.S. 305 (1985).)
Gordon Erspamer and his clients amended their complaint and went back before the district court. In that seven-week retrial, he attempted to show how complex the claims process could be for several large classes of veterans, including those exposed to ionizing radiation and the defoliant Agent Orange, those with post-traumatic stress disorder (PTSD), and those who, like Maxwell, had been prisoners of war. The strategy required him to delve deeply into the workings of the VA, understanding not just the agency’s legal underpinnings but also the functioning of its bureaucracy, as well as such highly technical matters as levels of radiation exposure.
“Gordy is a scorched-earth trial lawyer,” says Keith C. Wetmore, Morrison & Foerster’s chairman emeritus, who headed the firm at the time. “He is dogged. And that doggedness is fueled by a courage of conviction.”
Erspamer’s bulldog nature served him well as the case unfolded and the Veterans Affairs (VA) and several other government agencies did everything they could to torpedo the suit. In one 1987 episode worthy of a spy thriller, Erspamer received a letter from an anonymous VA employee listing specific documents he should request. Shortly after he filed the request for their release, he received another letter from the same source: The VA was now in the process of destroying the requested documents. By the time the department was formally served with a restraining order, it had shredded more than three million potentially relevant pages. A furious Judge Marilyn H. Patel of the Northern District Court of California issued stinging sanctions and appointed a special master to supervise discovery, citing the VA’s “willful or grossly neglectful efforts.” (NARS v. Walters, No. 83-CV-1861.)
To Gordon Erspamer, the episode confirmed a principle that would guide him throughout his legal career: Documents don’t lie; people lie. “I’m a doubler-upper, if that’s a word,” he says. “If you push me, all of my instincts are to work even harder and push even harder. If you withhold documents from me, I’m going to go after them and I’m going to get them.”
In the NARS case, he requested documents not only from the VA, but also from the Department of Defense, the National Institutes of Health, and eight other government agencies that were involved with radiation. The agencies fought him every step of the way, sometimes just by ignoring orders to produce responsive documents, sometimes by claiming that it would be impossible to find or collect what he asked for. Erspamer kept after them, eventually collecting six million pages of the surviving documents. And he read every single page. One night, while scanning through documents on microfiche, Erspamer came across a hundred pages of internal correspondence discussing the various agencies’ efforts to resist producing the documents he had requested. Erspamer took the evidence to Judge Patel, who promptly slapped the agencies with additional sanctions.
Albert Maxwell died not long before NARS went to trial the second time. Although the court upheld the fee limitation, Congress later changed procedures to allow “reasonable” fees (not to exceed 20 percent of the recovery) and authorized administrative review of fee agreements between veteran claimants and their counsel. (See 38 U.S.C. § 5904(a)(5) and (c)(3); and § 7263(d).) But what Erspamer had dredged up about the VA bureaucracy changed the way both Congress and the public thought about the agency. “He drove the VA crazy,” says Ronald Abrams, a former adjudication expert with the department who is now joint executive director of the National Veterans Legal Services Program. “He bored into their sanctum of sanctums, their holy places. It exposed the VA to congressmen, senators, the public. For that he should be in the hall of fame of people who have tried to help veterans.”
For years, veterans advocates had tried to persuade Congress to establish some form of judicial review for the VA – the only federal agency whose decisions could not be appealed to the courts. Yet time and again their efforts were blocked in the powerful House Veterans Affairs Committee, never reaching the floor for a vote. But in 1988 Congress finally passed the Veterans Judicial Review Act (Pub. L. No. 100-687), creating the first independent veterans court (38 U.S.C. § 7251). Although the entity was given no subpoena power (Erspamer calls it “Judicial Review Light”), many credit the NARS case with ending the logjam.
“NARS made the American public aware of the egregious failings within the VA system,” wrote U.S. Rep. Lane Evans (D-Illinois) in a declaration supporting a petition for attorneys fees in the case. “And once the public learned about these failings, the House was forced to pass judicial review legislation.” That same year, Congress also established a “presumptive link” between a veteran’s exposure to atomic fallout and the subsequent development of any of 13 different cancers. (38 U.S.C. § 1112(c).)
During the twelve years Erspamer spent litigating NARS v. Walters, his own mother’s claim for survivor benefits was effectively stalled. Acting on her behalf, Erspamer wrote more than 30 letters requesting action; however, with no ability to take the claim to an outside court, he had little recourse. But in 1990, Jean A. Erspamer v. Edward Derwinski, Secretary of Veterans Affairs was the very first case heard by the newly created U.S. Court of Veterans Appeals (later renamed the U.S. Court of Appeals for Veterans Claims (CAVC)).
Erspamer had filed a writ asking the court’s three-judge panel to compel the Department of Veterans Affairs to rule on his mother’s claim, which was by then more than a decade old. When Chief Judge Frank Nebeker asked the VA to explain why it had gone eleven years without making a decision, deputy associate general counsel Pamela L. Wood blamed Erspamer, huffing, “Each time he has written a letter, that delays the process further.”
Ultimately the court held that the delay had been unreasonable, but it declined to offer relief because the VA promised to issue a decision within six months. (Erspamer v. Derwinski, 1 Vet. App. 3 (1990).) Shortly afterward, the VA granted Jean Erspamer her benefits. But the case had far more lasting implications, establishing that the court had jurisdiction over pending claims. It remains one of the court’s most frequently cited cases.
Though the resolution meant relief for Erspamer’s mother, nothing much changed for the hundreds of thousands of veterans or their survivors whose cases were stuck in administrative limbo or had been wrongfully denied. One of these was a U.S. Marine named Phil Cushman, whom Erspamer describes as “the toughest guy I ever met.” Cushman had been badly injured in a bunker attack in Vietnam when a heavy sandbag fell on him. He endured four disk surgeries after the war, but eventually his back pain made him unable to work. Yet the VA said he was only 40 percent disabled, which meant he received just $128 a month in disability benefits. For the next 20 years, Cushman would survive on those partial payments and his wife’s salary, while trying in vain to challenge the VA’s award decision.
In 1997, Cushman went to the VA hospital where he’d first been seen in the 1970s and asked to see his file, hoping to find something that might bolster his case. As he thumbed through the pages, he saw a familiar document – the 1976 report from the examining physician that was the basis for his partial-disability award. But this version of the report was different: It stated clearly that Cushman was unable to work because of catastrophic injuries to his back suffered in Vietnam.
Cushman made a copy and compared it to the report he had at home. When he looked at them side by side, it was clear what had happened. Someone at the VA had added a clause that said Cushman could continue to work as long as he didn’t bend, stoop, or lift, and the doctored report had been used to deny his claim of full disability.
You might think that the dispute would end here, yet Cushman’s fight lasted another dozen years. Erspamer took the case in 1999, but justice for Cushman didn’t come until 2009. Ruling in a case of first impression, the U.S. Court of Appeals for the Federal Circuit held that Cushman had a due process right to a fair adjudication of his claim, and that the use of his forged medical record violated that right. (Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009).) The decision set a landmark precedent: It was the first time a court had ruled that veterans who apply for benefits have a due process right under the Fifth Amendment. Previously, the government had consistently argued that only veterans who were already receiving benefits had such a right.
“Gordy’s the only reason I won,” Cushman says. “Because he didn’t give up on it. But how many veterans have an attorney like Gordon Erspamer?”
When you represent veterans, victory is a relative term. The Cushman case was a victory, but it benefited only a single veteran after a 30-year battle. By last year, more than 1.1 million veterans were waiting for the VA to make decisions on their disability claims.
“I’ve done a lot of helping individual veterans, but that only gets you so far,” Erspamer says. “I could spend a thousand lifetimes, I could be a thousand lawyers, and still not scratch the surface.”
It was 2007 when Erspamer brought the suit that he hoped might turn the tide. The class action was filed on behalf of two veterans organizations – Veterans for Common Sense in Washington, D.C., and the Santa Barbara-based Veterans United for Truth – and the hundreds of thousands of soldiers who would seek treatment for PTSD and traumatic brain injury by the end of the wars in Iraq and Afghanistan. At the time, 18 veterans a day were committing suicide – many while waiting for treatment – yet the VA seemed either unwilling or unable to help. At the trial in San Francisco, Erspamer submitted declarations from the survivors of a dozen veterans who had killed themselves after being turned away from VA facilities. (One had hung himself from a tree outside the VA hospital in Menlo Park.) Meanwhile, the department had discharged more than 22,000 veterans who showed symptoms of PTSD, claiming that they had pre-existing “personality disorders.”
One internal email, sent by a VA psychologist to other mental health employees, seemed like a smoking gun: “Given that we are having more and more compensation-seeking veterans,” she wrote, “I’d like to suggest that you refrain from giving a diagnosis of PTSD straight out. Consider a diagnosis of Adjustment Disorder, R/O [rule out] PTSD.”
The plaintiffs’ goal was to compel the VA to improve its treatment of returning veterans, arguing that the department was failing to fulfill its statutory duties. But proving the VA’s failures would be easy compared with establishing that the courts could do something about them. Historically, the judiciary has been unwilling to intervene in veterans’ issues, maintaining that Congress clearly intended to limit the jurisdiction of other courts when it created the CAVC.
In July 2008, veterans lost the first round in the suit. After a two-week trial, Judge Samuel Conti ruled that although the situation at the VA was deplorable, he didn’t have jurisdiction to compel change. (Veterans for Common Sense v. Peake, 563 F. Supp. 2d 1049 (N.D. Cal. 2008).) But on appeal three years later, a three-judge panel of the Ninth Circuit found for the plaintiffs and ordered Judge Conti to hold hearings about fixing the problem. “The VA’s unchecked incompetence has gone on long enough,” Judge Stephen Reinhardt wrote. “[N]o more veterans should be compelled to agonize or perish while the government fails to perform its obligations.” (Veterans for Common Sense v. Shinseki, 649 F.3d 845, 851 (9th Cir. 2011).)
That triumph was short-lived. In 2012, an eleven-judge en banc court reversed the ruling, 10-1. (Veterans for Common Sense v. Shinseki, 678 F.3d 1013 (9th Cir. 2012) (en banc).) Addressing the problem of delayed claim decisions, the majority held, would require determining whether the delay in each individual claim was unreasonable, and only the CAVC could make decisions about individual claims. “As much as we may wish for expeditious improvement in the way the VA handles mental health care and service-related disability compensation, we cannot exceed our jurisdiction to accomplish it,” wrote Circuit Judge Jay S. Bybee. (678 F.3d at 1036.)
In her animated lone dissent, Senior Circuit Judge Mary M. Schroeder excoriated this reasoning. “The majority’s holding thus reduces itself to a Catch 22,” she wrote. “To challenge delays in the system, you must bring a systemic claim and not just an individual claim. But if you bring a systemic claim, it has to be treated as an individual claim and you must suffer the delays in the system.” (678 F.3d at 1042.)
In Erspamer’s view, it was the worst decision possible. The CAVC – powerless to adjudicate claims of systemic problems – can only affirm, deny, or remand decisions about an individual’s death or disability claim. The court offers no remedy at all for untreated medical conditions, nor does it address systemic problems such as discrimination on the basis of sex or race.
“The Constitution has to mean something,” Erspamer says bitterly. “It doesn’t mean anything if you can’t enforce a constitutional right.”
Although the U.S. Supreme Court denied review in January (133 S.Ct. 840 (2013)), the plaintiffs still feel that much was gained in the litigation process. “We may have lost the battle at the Supreme Court, but I think we won the war,” says Gulf War veteran Paul Sullivan, founder of Veterans for Common Sense. In the six years since the class action was filed, he notes, the VA created suicide-prevention resources such as a hotline, screening procedures, and coordinators for each regional facility. Yet a staggering backlog of claims remains: In 2012, nearly 20,000 families received retroactive disability payments for veterans who died awaiting a decision by the department.
Erspamer was still in trial for Veterans for Common Sense v. Shinseki in the spring of 2008 when he began getting calls from a Vietnam War veteran named Frank Rochelle. Rochelle (pictured on opposite page) phoned incessantly. He wrote Erspamer more than 20 letters. Finally, just as the trial concluded, the exhausted attorney came into his office to check on things before taking a few days off to recover. The phone rang and Erspamer picked it up. It was Rochelle. “I sent you a package,” he said. “Can we go over it?”
Erspamer stayed on the call for more than two hours. The story Rochelle told was a peculiar one, of young GIs being used as human lab rats over the course of five decades in a series of CIA mind-control and chemical-warfare experiments. It was the kind of story that might make you think you were talking to a lunatic. Unless, of course, experience had taught you not to be surprised by anything.
“My crazy factor used to be where everyone else’s was,” Erspamer says. “But I’ve been doing this for 30 years. I understand, this stuff does happen.”
Erspamer’s conversation with Rochelle launched him into his third major veterans class action. On behalf of six named plaintiffs and about 100,000 more veterans who were subjected to chemical weapons tests while stationed at the Edgewood Arsenal in Maryland and elsewhere, Erspamer and his cocounsel seek to compel the government to provide medical, disability, and death benefits to the so-called “test vets,” 98 percent of whom have had their claims denied.
The amended complaint opens with a quote from General George Washington: “When we Assumed the soldier, we did not lay aside the citizen.” The pleading proceeds for 74 pages and details a shocking set of facts, chronicling “a chilling tale of human experimentation, covert military operations and heretofore unchecked abuses of power by our own government.” (Vietnam Veterans of America v. Central Intelligence Agency, No. 09-CV-37 (N.D. Cal. fourth amended compliant filed Oct. 3, 2012 (ECF 486) at p. 2.)
The case is bewildering both in its complexity and in its seeming improbability. Many of the soldiers had volunteered to serve at Edgewood, thinking they would be testing new army equipment and clothing. Duties were light, they were told, and they could have their weekends off. But when they arrived at the arsenal they were greeted by people in white lab coats and exposed to a variety of toxic agents – notorious compounds like LSD, mustard gas, sarin, anthrax, botulism, dioxin, cyanide, and plague, and lesser-known ones such as BZ, VX, and tularemia. Sometimes, they got a mixture.
“They sort of tricked you into it,” says Tim Josephs, who was just 18 when he got to Edgewood in 1968. He had volunteered for the Army at the height of the Vietnam War, and he was naïve enough to think that his government would never intentionally hurt him. “I was willing to die for my country, but not take these awful drugs,” he says now.
But he had little choice. His superiors at Edgewood told him that if he didn’t participate in the experiments, he would be imprisoned and dishonorably discharged. And so, with his heart racing, he let them inject him with an array of compounds whose names he was never told. “You never knew what you were going to get,” he says. “It was kind of a horror story.”
Near the end of his two-month stint at Edgewood, Josephs woke up with symptoms of Parkinson’s disease. He was hospitalized for several days, but the tremors continued to plague him on and off after he was discharged. Occasionally he would have numbness in his arms and hands; for years he had trouble sleeping. Finally, in 2004 he was diagnosed with Parkinson’s.
“I immediately thought of Edgewood,” Josephs says. “But it was 40 years later.”
For a while, Josephs went on as before. He had a real estate business; his wife Michelle was a nurse. They had health insurance. But as time went on, his illness got harder to manage. His tremors made him seem nervous – never a good thing when you’re trying to sell property. The drugs he needed to control his symptoms were expensive, and Michelle wondered if the VA would cover them. But the VA was anything but helpful, insisting that Tim didn’t have Parkinson’s at all.
Because of the Feres doctrine, the lawsuit won’t help the Josephs get any monetary damages from the government – all they can hope for is better medical care and the truth about what happened. “At the very least, you’d think they would take care of your medical needs over the years,” Josephs says. “It makes me very bitter.”
The Edgewood case is scheduled for trial this summer, but Erspamer won’t be arguing it (he will continue to volunteer his time to assist). It’s an awkward end to what has been a proud partnership with his former law firm. Since 1982, he has devoted as many as 1,500 hours a year to pro bono cases on veterans’ issues, while Morrison & Foerster spent roughly $30 million in legal fees, out-of-pocket costs, and administrative support. Erspamer is clear that there are few other firms where he could have pursued such complex legislation and received such unqualified backing. “I found a place, perhaps unique, where I could have the flexibility, when cases came along that were particularly important, that the firm would support them,” he says.
Michael J. Agoglia, managing partner for Morrison & Foerster’s San Francisco office, would say only that Erspamer’s was “an orderly departure” that came after he retired as partner and had finished “the customary period of time” as senior counsel. The firm remains committed to veterans’ rights litigation, and two of its star attorneys – James Bennett and Eugene Illovsky – are taking over the Edgewood case. “The firm’s commitment to veterans is unwavering,” says Arturo J. Gonzalez, MoFo’s head of litigation. “If we decide to take a case pro bono, we’re all in.”
All the same, losing Erspamer has been hard on the plaintiffs, who feel they have lost a friend as well as an advocate. “Sure, MoFo has great lawyers, but Gordy was really in our corner big-time. You don’t find a champion like that every day,” says Blecker of Swords to Plowshares.
“No one else could have the passion,” Josephs agrees.
As for Erspamer, he is taking a year off from the law to work on a novel about Edgewood, tend to his health, and figure out the best way to continue advocating for veterans.
After the movers depart, he shows this writer around his home – his meticulously pressure-mounted collection of Native American stone artifacts, his greenhouse full of ariocarpus cacti, his garden of saguaros, aloes, and agaves, now blanketed against the winter chill.
In Erspamer’s garage, the moving crew stacked the awards and plaques from his decades at Morrison & Foerster. He fingers a frame absently, recalling the frenetic pace at which he worked for all those years.
“I sort of glommed onto this one issue, and I do think I’ve made some change,” he reflects. “I do think litigation is a way to accomplish social change. Sometimes it’s the only way, when every other arm of government has failed you.”
Erspamer says he feels confident that the vets in the Edgewood case will finally obtain some form of justice, even though the government is immune from damages. “The plaintiffs will always have a special place in my heart and mind.”
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