Why I’m Still on a Mission
I guess I should take a moment to tell you how in the world we got here. I began representing Denise on July 12, 2022. That put me at the ripe age of 23 then. By then, Denise had been litigating this case, continuously, for longer than I had been alive. She had been previously represented by some heavy hitters in the VA world. What I thought I could do better than them? I had no idea. I didn’t even have a paralegal, let alone umpteen attorneys on staff! As you read this, I hope to convey to you that the American Dream is alive and well. I don’t know who said it wasn’t, who said the little man can’t get ahead, because I am living proof. Denise is living proof. You are living proof. It’s just not true. I don’t have decades of experience, but in my short adult life, I have lived the American Dream. I have represented the best Americans this country has to offer, have helped change people’s lives, and have been able to make a living doing that. It just doesn’t get better than that!
That reminds me, how did I even get connected with Denise? I browse the Court’s recent rulings Monday-Friday. You have to if you claim to be “up to date” in any area of law, this one in particular. I noticed Denise had filed a Petition with the Court seeking action on what she called her “decades old” “egregious error”. I think God sometimes just puts people at the right place and at the right time. So, I sent Denise an e-mail asking if she wanted some help (in hindsight, there is probably some ethics violation there, soliciting clients, or something like that, but hey, I could tell she needed help!). We exchanged a few e-mails, spoke by phone, and agreed on representation. Quite honestly, the more Denise spoke, the more I was thinking yeah right. There is no way what she is telling me is remotely true. Someone would have put a stop to this by now. Well, to my shock, it was all true. Years and years of countless decisions, ignoring evidence, or just remanding the claim for something pointless to delay a final decision. My first order of business was to put the file in order. Everything that had happened from 1996 until the present. As of this writing, as best I can tell, there have been over sixty-three decisions concerning this case. I put them all in order and began reviewing them all. When I was done reading, disgusted would be a good adjective. By this time, Denise had already written a book on the VA appeals process, Stall, Deny and Hope They Die” – The VA’s Unwritten Policy: …The Story of One Widow’s 19-Year Battle with the VA.
Okay—now that you’re up to speed, it’s time to get to work. Denise came to me just after a Supplemental Statement of the Case (SSOC) had been issued. In VA speak, the Board had remanded her claim (by this point, it was obvious to delay on a final ruling). The Board wanted some records that they’d already been told didn’t exist due to the age of the records sought. Back in the day, when the Board remanded a case, the Regional Office would do whatever the Judge directed and make a new decision. If the decision was against the claim, you got a SSOC with a two-sentence statement on why it was still being denied. Then after 30 days, it would go back to the Board for a new decision. The Board could again remand, deny, or grant.
I got together an extremely thorough brief. It laid everything out, top to bottom. I want to share my opening statement.
“It is, however, regretful that this appeal has strayed so far from its original solemn meaning. That is, an American service-member died as a result of his faithful service to our county. Out of all the facts in this case, that is likely the only undisputed fact. Yet, it is the least discussed fact.”
To this day “Judge” Harvey P. Roberts has never acknowledged that. I use the term Judge very loosely. By this time, I had reviewed the entire file—years and years of litigation. I laid out every fact to the Board. This was crystal clear. I had laid out everything. No way they were escaping this.
Well, you haven’t met Judge Roberts. See, one of the problems that plagues the VA system is remands. A remand isn’t a final decision. It isn’t a final yes or no. Because of that, you don’t have the right to appeal a remand to the Veteran’s Court. What this means is that that the Board can theoretically (or
actually do given this case), keep you on the hamster wheel in perpetuity. That is just what happens here. Despite the evidence being clear, the Board remanded the case once again to obtain records from an old Court proceeding. Records the Board had already been told were destroyed long ago. It was a big let-down. I had put so much work into this brief. I really thought once they had all the evidence laid out, there would be no choice but to grant Denise’s appeal. Instead, the Board made up a reason to string things along.
Fast forward a few months. Yet again, we are getting another SSOC. I was able to obtain a letter from the Clerk’s office that the Board had previously been mailed and e-mailed the same records they remanded the case again for. So, I submitted that as evidence to show that this game has to end at some point. The case worked its way back to the Board. I had thought a lot about filing a Motion to Recuse Judge Roberts off and on for some time. Denise had often mentioned it to me. I always wanted to just stick with the facts. Discuss the merits of the case instead of point fingers. Finally, I did it. I filed a Motion to have him recused and taken off this two-decade old appeal.
In November of 2023, I filed that Motion. The very next decision from the Board came in March of 2024. The appeal was granted. So, there you have the condensed version. I began this journey with Denise, one that she had already been on for decades, in July of 2022. In March of 2024, her appeal was, finally, granted.
This case is certainly one of my most memorable cases. Whenever I go to conferences, I usually have a few folks who want to hear the story. Every time I tell it, it sounds just as unbelievable as when I first got involved in this case. I am extremely thankful Denise allowed me to bring it to an end for her, and even more grateful for her diligence in advocating for what she knew to be right.
That may bring an end to this case, but I’m still on a mission. The truth is, there is no shortage of veterans, widows, and survivors who are wronged by the VA on a daily basis. There have been a lot of changes within the VA in recent years. The Legacy system, even with appeals still pending, hasn’t been in effect since February of 2019. Then there is the “AI Revolution” we have up and coming. The VA is implementing a lot of AI to help manage its caseload. However, I can say with confidence, at present, this is hurting veterans. Claims are being improperly closed. Employees are relying on AI to do their work instead of actually reviewing files. Things may be changing, but the system is still strained.
Let me put it to you like this. We have a whole generation of Vietnam veterans that are turning 70+. Rightfully so, those veterans are looking to the VA and filing claims for their end of life care. As time goes on, these veterans are being more and more disabled and they are turning to the VA to care for them by filing claims. I have had several Vietnam veterans who have filed their first ever VA claims within the past year. Then, we have the PACT Act which brought in over 1.3 million claims since August of 2022. Oh, by the way, did you know that we have also been at war since the early 90s? Anyone saying the influx of claims we now have is a surprise is “dead from the neck up”. Anyone could have seen this coming from miles away.
What this poor planning causes is longer wait times, poorer quality decisions, and more appeals. I guess I should also be clear on who I am blaming here. Like any organization, leadership has a top-down effect. The Regional Office employees I often deal with are great folks. I would wager to say that the majority of them want to help veterans. Heck, most are veterans, too. However, when they are being pressured to make x number of decisions in a week, instead of make x number of quality decisions in a week. That is a real problem. The results are people like Denise get left behind.
That’s why I am still on a mission. Our nation is the greatest nation on Earth, and we have so many to thank for that. One of the best parts about my job is the opportunity to represent so many ordinary people who have done such extraordinary things. These people are ordinary Americans, who grew up in ordinary homes, with ordinary parents, but they chose to do extraordinary things to protect our nation. Denise’s husband is one example among millions. If you are reading this and are a veteran, you are among those millions. We owe you a debt of gratitude beyond what words can describe. The government has promised veterans a square deal. We will take care of you in exchange for your protection of our country. Until that promise is 100% fulfilled, you will find me, still on a mission.
The Supreme Court first articulated the pro-veteran canon in 1943, stating that we must “protect those who have been obliged to drop their own affairs to take up the burdens of the nation”. See Boone v. Lightner 319 U.S. 561, 575 (1943). That couldn’t be truer today. We have millions of veterans who have dropped their affairs to take up our burdens. I believe I have had a unique opportunity to see the older Vietnam veterans age and recall their stories, while also seeing young men return from the war on terrorism. It gives a very unique perspective. Regardless of the generation, our nation has always been worth protecting and has always had those willing to “drop their own affairs”. That tells you we are living in a great place, despite what anyone on the news would tell you.
To every veteran reading this, I am eternally grateful for your commitment.
Godspeed.
Author’s Note
Yes, Denise has given me permission to share her name, book, and case details publicly. Additionally, I do not mean to disparage Judge Roberts. It is my genuine belief he had a personal bias against Denise, for whatever reason. Either that, or an inability to grasp the legal concepts and applicable law associated with her appeal. That is evident by my review of over sixty decisions in this case, which includes multiple Court remands. Regardless, I believe it speaks for itself that the very next decision following his removal from the case was a full grant.