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Justice for Warriors Newsletter
April 2016
Government Wrongfully Deducts $78 Million From Payments To Disabled Combat Veterans, Senators Boozman And Warner Introduce Legislation To Right Injustice

NVLSP Discovers Wrongful Withholding, Boozman, Warner Seek to Protect Combat-Injured Veterans From Being Wrongfully Deprived of Full Severance
On March 17th, U.S. Senators John Boozman (R-AR) and Mark Warner (D-VA) introduced bipartisan legislation, the Combat-Injured Veterans Tax Fairness Act of 2016, to address the Government's practice of wrongfully withholding taxes from disability severance pay to veterans with combat-related disabilities.
Under federal law, veterans who suffer combat-related injuries and who are separated from the military are not supposed to be taxed on the one-time lump sum disability severance payment they receive from the DOD. However, NVLSP discovered that the DOD has wrongfully withheld taxes from approximately 14,000 veterans since 1991.

"Most troubling is that we learned the government had known about this problem for decades yet continued to take this money from thousands of disabled veterans. After exploring all legal options, we concluded that the only large-scale fix to this problem was through legislation, and we are so grateful that Senator Boozman and Senator Warner are sponsoring this bill. The sad truth is that the government essentially stole $78 million dollars from disabled combat veterans because of an accounting problem it's known about for years. To help undo the harm caused by this egregious oversight, we hope this legislation is passed quickly," Tom Moore, attorney and manager of the Lawyers Serving Warriors project at NVLSP, said.

Moore worked on the issue with the pro-bono assistance of Frederick Eames, a partner at law firm Hunton & Williams.

For more information on this legislative effort read the full press release here.
New Report Documents Wrongful Va Denial Of Benefits To Vets With Bad Paper Discharges

125,000 Veterans Excluded from Basic Veteran Services Post-9/11 Veterans Excluded by VA at Alarming Rates, Says Swords to Plowshares and NVLSP
Approximately 125,000 post-9/11 veterans with bad paper discharges are being wrongfully excluded from basic veteran services by the Department of Veterans Affairs (VA), says a new white paper issued today by Swords to Plowshares and the National Veterans Legal Services Program (NVLSP). The culprit is VA's own regulations, which do not match eligibility standards set up by Congress in 1944 in the original GI Bill of Rights.

The white paper, "Underserved: How the VA Wrongfully Excludes Veterans with Bad Paper," reviews the history of the VA's modern eligibility standard. It analyzes records obtained from the VA and the Department of Defense, as well as 23 years of decisions by the Board of Veterans' Appeals.  The report was prepared by the Veterans Legal Clinic at the Legal Services Center of Harvard Law School.

NVLSP Joint Executive Director Bart Stichman, said the military is kicking out many servicemembers who have underlying mental health issues without going through a lengthy medical evaluation board process that often results in an honorable discharge. That means more veterans are receiving administrative separations with a less than honorable discharge than in previous generations.
Recent Victory

SPC C enlisted in the Army in 2000, and served two tours of duty in support of Operation Iraqi Freedom. During his service, he experienced several stressful and disturbing events including exposure to small arms fire, close proximity to an improvised explosive device, and the loss of several of his fellow soldiers. In 2006, SPC C underwent a health assessment where he reported mental health issues including nightmares, feeling numb and detached from others, difficulty sleeping, irritability and being easily startled. SPC C was diagnosed with chronic post-traumatic stress disorder, obsessive compulsive disorder, depression, and insomnia related to a mental disorder. An evaluation by the Army Medical Evaluation Board concluded that he was medically unfit for duty, and he was assigned a 10% disability rating by the Physical Evaluation Board, and in 2007 was discharged with only a one-time severance payment, no retirement benefits, and no access to military health care.

In 2013 SPC C approached NVLSP's Lawyers Serving WarriorsŪ program for help. To be able to receive retirement benefits, he needed to file an application to the Physical Disability Board of Review (PDBR) for an increase in his military disability rating. Because the PDBR does not allow for appeals of its denials, the only way to appeal a PDBR denial is to file a complaint at the U.S. Court of Federal Claims. However, complaints to the Court must be filed within six years of discharge - a deadline that was quickly approaching for SPC C. If the PBDR had failed to increase his disability rating, SPC C would lose the opportunity to appeal the decision in court. To preserve SPC C's ability to appeal a possible PDBR denial, NVLSP, working with attorneys at Paul Hastings, filed a complaint at the Court of Federal Claims on SPC C's behalf and then stayed the proceedings in order to file his PDBR application.

The PDBR recommended that SPC C be granted permanent disability retirement, but the Secretary of the Army rejected this recommendation. NVLSP and Paul Hastings then amended the complaint at the Court by adding that the Secretary's decision to deny SPC C's permanent disability retirement was arbitrary and capricious. In October 2015, the judge ruled in favor of SPC C and ordered the Army to correct SPC C's records to reflect that he was permanently retired with a 50% disability rating, which entitles him to monthly disability payments, lifetime access to military heath care, and a military ID card that grants him lifetime commissary and military post exchange privileges.

NVLSP On the Hill

Rick Spataro, NVLSP Director of Training and Publications, recently testified before the House Veterans Affairs Committee on the VA's disability claim process relating to Gulf War Illness.

NVLSP has two main areas of concern with respect to the VA's disability claim process related to Gulf War Illness. First, the Department of Veterans Affairs (VA) repeatedly commits certain types of errors when adjudicating Persian Gulf War veterans' claims for disability compensation for chronic undiagnosed illnesses. Second, the VA should extend the end date of the period during which symptoms of a qualifying chronic disability must first manifest in order to qualify for presumptive service connection.

Equal Justice Works AmeriCorps Legal Fellow Joins NVLSP to Assist Veterans

Equal Justice Works awarded a one-year AmeriCorps legal fellowship to Ms. Bernadette E. Valdellon to assist veterans in obtaining disability benefits related to their military service through NVLSP's Lawyers Serving WarriorsŪ program.
Ms. Valdellon is working to identify veterans who need assistance with applications to Military Discharge Review Boards and to Boards for Correction of Military Records for discharge upgrades, for changes to narrative reason for separation, and for medical retirements.

Ms. Valdellon is also contacting Vietnam veterans identified by NVLSP as possibly having been wrongfully denied VA benefits for diseases related to Agent Orange exposure, based on erroneous findings that they did not serve on the land mass or inland waterways of Vietnam. 

For more info on The Equal Justice Works AmeriCorps Legal Fellowship Program, visit: equaljusticeworks.org

NVLSP is a proud sponsor of the 2nd Annual Veterans' Legal Career Fair, to be held on April 29-30, 2016 in Washington, D.C. This event-the only one of its kind in the United States-provides a unique opportunity for legal employers to interview lawyers who are veterans or active-duty service members preparing for a transition out of the military.

The career fair will arrange one-on-one interviews and informational sessions for veterans (including active duty JAG Corps members and reservists) seeking positions as lawyers, including with corporate legal departments, law firms, other private sector employers and government agencies. Spouses of active-duty service members and veterans are also eligible to participate.

For more information visit: Veterans' Legal Career Fair