For many of our colleagues, the successful completion of a pro bono case can bring enormous satisfaction. Achieving a life-changing resolution for a struggling client upholds the highest ideals of our profession and great personal satisfaction. Recently several of our colleagues had such an experience handling a successful Veterans Administration (VA) appeal.
Several years ago, the Firm’s Pro Bono Committee undertook a partnership with the University of Detroit Mercy School of Law’s Veterans Law Clinic Project Salute to assist military veterans and dependents with VA benefit claims. Clinic staff trained a number of our colleagues in Detroit, Troy and Kalamazoo in the rudiments of handling such claims, which resulted in about six VA appeal referrals to the firm.
One such appeal was for the widow of a Vietnam War veteran. The veteran, a Marine in Vietnam, had extensive exposure to the herbicide Agent Orange. Upon his return from service he suffered from chronic headaches and sinus conditions, and was ultimately diagnosed with nasopharyngeal cancer. The cancer eventually went into remission after extensive treatment. It tragically returned, however, and he died due to complications from the cancer in 2002.
Survivors of veterans whose death resulted from a service-related injury or disease are entitled to VA Dependency and Indemnity Compensation benefits. Facing extreme financial hardship in large part due to her care of her husband, our client unsuccessfully – and repeatedly – applied for these and other benefits before he even died. The VA consistently denied her claims and subsequent appeals because it found that the medical documentation did not support a connection between his cancer and his exposure to Agent Orange. Our client was persistent, found her way to the Project Salute Clinic, who referred her case to David King in 2012 to undertake an appeal to the Board of Veterans’ Appeals (BVA).
David first obtained the veteran’s service and VA medical records that were scattered across the country, and undertook a comprehensive analysis to find a “service connection” between his cancer and his exposure to Agent Orange. David enlisted the aid of legal assistant John Gauthier, a veteran himself, to review the voluminous records, and John performed marvelously. Pouring through literally feet of unorganized and handwritten documents, John was able to isolate pertinent references linking the veteran’s Agent Orange exposure to his cancer, identify all of his treating physicians (dating back to the 1970s), and obtain their records for further review. This task, in large part due to difficultly obtaining the veteran’s records from the VA and the manner in which they were produced to us, took longer than a year and a half.
From there, David reached out to the veteran’s treating physicians in an attempt to bolster the administrative record. Most were either no longer alive or did not respond to repeated requests for help. But one such physician, the veteran’s Ear, Nose and Throat Specialist, fondly remembered treating him and agreed to provide an opinion letter linking his cancer to his Agent Orange exposure.
In the summer of 2013, and while the actual appeal was still waiting to be scheduled (It had been pending since early 2012), David transitioned the case to Thom Linn as David left the firm to serve as a law clerk to Chief Judge Gerald Rosen, E. D. Michigan. Thom had also undertaken the training and had even handled another case in the interim.
Thom submitted the physician’s opinion letter, as well as affidavits from the veteran’s family members regarding his health condition following his service to the Board of Veterans Appeals (BVA), and presented our client’s case to the Board by way of video-conference. After a number of months, the BVA denied the appeal on grounds that the physician’s opinion letter did not cite specific National Institutes of Health findings. So we obtained a supplemental letter from the physician that incorporated these findings, which the VA “lost.” Thom found out that the VA never received this supplemental letter a few days before the appeal deadline ran, and resubmitted it in November 2014.
On January 28, 2015, our efforts literally paid off and changed our client’s life. The VA granted her appeal and awarded her $150,000 in indemnity payments retroactive to 2003, along with a lifetime monthly stipend of more than $1,200 plus cost of living adjustments, all based on the physician’s supplemental opinion letter.
This victory was truly a team effort, with administrative support from Lisa Bruci and Monica Parent spending countless hours supporting us on this case. We couldn’t be prouder of our client, who has waited more than thirteen years for this result. She visited the Firm recently and was profusely thankful for Miller Canfield’s efforts on her behalf. The Project Salute people complimented us on one of the few victories obtained in cases of this type. We celebrated with our client the sweet victory with sweet cheesecake and sweet strawberry rhubarb crisp prepared by David (who has returned to the firm) and John themselves.