Disciplined in Sophisticated Defense and Insurance Litigation

SPOTLIGHT| Doug Berry | The Veterans Consortium Pro Bono Program

In your most recent pro bono case, you were able to get the decision of the Board of Veterans’ Appeals reversed on behalf of your client. Is that correct?

Yes.  Case was remanded back to the Board of Veterans’ Appeals (“BVA”) for further proceedings which is considered a victory; only on very rare occasions does the court actually award monetary benefits as part of a favorable decision. 

Briefly, virtually all of the records of his military service were lost.  What government records were available showed his discharge from the Army was “under other than honorable conditions.”  Since he was also AWOL for one or more extended periods of time (total 900+ days) after he returned from Viet-Nam (where he served honorably in the 101st Airborne as an infantryman), the BVA made the assumption at least one absence was in excess of 180 consecutive days which, under the law, precluded benefits.   The client, however, was in possession of original certificates of discharge (bearing the raised seal of the National Archives, which the VA views as conclusive evidence) which, because his records had been lost, he was understandably reticent to entrust his originals to the VA; however, the record demonstrated that he had offered to show them personally to the VA at one of its offices in New York City on more than one occasion.  The VA concluded the purported original discharge certificates submitted were not worthy of belief because they (copies of his originals) lacked the raised seal of the National Archives.   The VA has a statutory duty to assist a veteran with his or her claim.  The Court found that more assistance, in the form of a personal inspection of the original documents, could have been provided.  Additionally, inasmuch as the records of the exact dates and duration of his AWOLs were lost, the VA could not prove any single absence was longer than 180 days’ duration.  On remand, the BVA is to address these issues. 

Can you explain how your client’s claim for VA benefits got to the Court of Appeals for Veterans Claims?

He originally applied for a home loan guarantee in 2002 (!). Shortly thereafter, he also applied for compensation for diabetes mellitus based on exposure to Agent Orange, both of which were denied.  The VA has adopted a presumption that anyone who served either in-country or in the rivers or contiguous coastal waters of Viet-Nam has been exposed to Agent Orange and any of several enumerated diseases such diabetes and several types of cancer are presumed to be “service connected” as a result of that exposure and entitled to compensation, provided his or her service met minimal other criteria, one of which is that his or her discharge not be based on an unauthorized absence of 180 days or longer.  In 2007 (before my involvement), the Court remanded the case back to the BVA for additional proceedings, mainly to have the Army further research its records.  It was then returned to the Court in late 2011 with an unfavorable decision which is when I was asked to assist. Thirteen years later he really doesn’t need the home loan guarantee; therefore, this case is about monetary compensation for diabetes, presumably caused by exposure to Agent Orange, in the form of a disability rating and pension.

How did you come to be involved in the claim?

An Annapolis classmate and fellow Marine Corps officer and lawyer friend of mine became assistant general counsel to the Paralyzed Veterans of America when he retired from the Marine Corps (he is now the Chief Judge of  the Court of Appeals for Veterans Claims).  PVA is one of several veterans’ service organizations (e.g., VFW, American Legion, National Veterans Legal Services Project) that formed the Veterans’ Consortium and its pro bono program. He helped organize the Consortium and recruited me around 1994 to assist on a pro bono basis.

Can any lawyer provide services to a veteran with a claim before the VA, Board of Veterans’ Appeals or Court of Appeals for Veterans Claims?

Yes. You have to be a member of the CAVC Bar but there is no exam or prerequisite other than be duly licensed in a state or the District of Columbia and pay the fee.   However, in order to practice before the VA or BVA, one must be “accredited” by the VA’s General Counsel, 38 U.S.C. §5901.  I have enlisted a lawyer who specializes in work before the BVA to assume his representation before the BVA.

What is the most difficult part of handling the pro bono appeals?

The area can be incredibly arcane and complex.   Fortunately, the Consortium provides the attorney with copies of statutes, rules and regulations governing the VA as well as a detailed manual explaining the process with case citations.   The two books together, soft cover, are probably 4-5” thick and over 1000 pp each.  The Consortium provides a review of issues of possible merit and a “mentor” who is a full-time veterans law practitioner in Washington with whom you can consult and get advice.

You are a retired Marine Corps Officer.  What impact has your own experience as an officer and Judge Advocate had on your pro bono work on behalf of veterans?

In many respects, I know everyone of these guys, having served with and alongside them in Viet-Nam and elsewhere.  With respect to veterans of more recent conflicts, I knew their fathers and uncles; the names and faces change but the nature of their selfless service and commitment to the country and to each other don’t.  They don’t ask for much and for me, it’s not too much to try to apply some special skills in order to attempt to help them. 

 On the technical side, I know the administrative and judicial side of the military.  I saw hundreds of men return, get lost in the society they returned to and get caught on the wrong side of the process; I know how and why many of them ended up as they did.  Mistakes are made: Witness the lost records.  It’s not too late to try to help those who served in Viet-Nam and as they age, we’re about to experience a tsunami of veterans from Iraq and Afghanistan, many with devastating injuries which would have been fatal in earlier conflicts.  Sadly, this is a growth industry.

Butler donates any recoveries it makes for fees under the Equal Access to Justice Act.  How long has Butler done that and what prompted the decision to do so?

The Equal Access to Justice Act (“EAJA”) 28 U.S.C. §2412(d), provides that if you prevail in asserting a claim against the U.S. Government for taking  a position which was not “substantially justified,” the successful litigant is entitled to a reasonable attorney fee.  Among the decisions which may not be “substantially justified,” is a denial of benefits.  EAJA was legislatively applied to the CAVC in 1992, thereby overruling Lincoln-era legislation which limited fees for assisting a veteran to $5.00 (later raised to $10.00) and opening the way for meaningful assistance to those with meritorious claims.

As a condition for representation, the Consortium requires the veteran client assign to his or her counsel the right to any fee which might be awarded.  Having prevailed in that a remand for further proceedings was obtained, we were entitled to a reasonable fee (there is a very complex formula which adjusts fees based on locale and a 1996 statutory benchmark with produces the current figure $200.14/hour for attorneys in the Tampa/St. Petersburg area).  We negotiated the fee claim to $10,000 and donated it back to the Consortium.  This is the fourth or fifth time we have won at CAVC and donated the fee.  It only seems appropriate since we undertook the assignment “pro bono” – that is, without the expectation of a fee.  The fee was a windfall and the donation allows the Consortium to continue its good work.

What would you recommend lawyers do to get involved in pro bono work for veterans?

Recognize it’s a significant commitment – The Record Before the Agency was over 540 pages and I had over 60 hours in this over about 16 months – in an area most know little or nothing about unless they participated in a veterans’ law clinic in law school (several are popping up in schools now). Thus, it can be frustrating in that you don’t know what you don’t know but you do know there are about 2000 pages of manuals and statutes, etc., you haven’t fully assimilated.

Be sure the program provides a mentor or other experienced practitioner to oversee and assist. Just because it’s pro bono, doesn’t mean you are exempt from a malpractice claim.

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