Some things are worth fighting for. The plight of a widow whose husband (a Marine veteran) died after a long battle with nasopharyngeal cancer is certainly one of those things.
The Vietnam veteran 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 cancer. It eventually went into remission after extensive treatment, but tragically returned. He died due to complications from the cancer in 2002.
The widow, facing extreme financial hardship, in large part due to her care for her husband, unsuccessfully—and repeatedly—applied for VA Dependency and Indemnity Compensation benefits. 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.
Fortunately, she found her way to Project Salute, a program within the University of Detroit Mercy School of Law’s Veteran’s Clinic. Project Salute had already partnered with Miller Canfield’s Pro Bono Committee to assist military veterans and dependents with VA benefit claims. Clinic staff trained a number of Miller Canfield attorneys in the rudiments of handling such claims.
Miller Canfield attorney David King took the fight in 2012, appealing her claim to the Board of Veterans’ Appeals (BVA) and digging in. First, he 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. Poring 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, 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, David transitioned the case to Thom Linn as David left the firm to serve as a law clerk. 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 the 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. Thom then obtained a supplemental letter from the physician that incorporated these findings, which the VA misplaced. Thom found out that the VA never received this supplemental letter a few days before the appeal deadline, and resubmitted it in November 2014.
On January 28, 2015, Thom’s efforts literally paid off and changed the 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.
The victory was truly a team effort, with administrative support from Lisa Bruci and Monica Parent spending countless hours supporting this case.
-Benjamin Ensroth, Robert Mathis, and Lynn Ingram contributed to this story.