Friday, January 09, 2015

A True Story Of Veterans Advocacy And Lawyering

"They said we made too much money."

Her husband had been an airman during World War Two. Afterwards they both had successful professional careers. They were accustomed to caring for others; they were community leaders who never needed public benefits themselves. But age had robbed him of the ability to speak or write; he required helped with every bodily function except shaking your hand; his grip was still extraordinarily strong and conveyed some of the dignity and power with which he had previously helped others.

Must they impoverish themselves and their families for help with the last part of his life?

"That doesn't seem right."

The staff at the VA Hospital were kind and helpful, but there were rules. They could give out application forms, but they could not fill them out. They must impartially administer the system, not advocate for getting you into it or for changing the rules.

"Our pensions go over the limit."

A volunteer from a Veteran Service Organization (VSO) had helped her with the eligibility form. VSOs are private entities (typically fraternal organizations such as Disabled American Veterans, the American Legion, or the VFW) that have a relationship with our government to provide services to veterans, such as filling out VA applications. It is usually a good idea to try a VSO first, since what they are good at, they can be very good at. However, as often happens in the military and veteran culture, if a situation is “outside my lane” the matter does not proceed.

In this case, the VSO staff had helped fill out the first page, which was all about income. Congress had set a limit for allowing entry into the system, and when the numbers were added up at the bottom the page, the sum of the pensions exceeded that limit. Everyone was sincerely quite sorry but nothing more could be done; here is your form back.

This was not callousness; it would be an error to think that the staff and volunteers don't care. Rather, in my observation this is a learned powerlessness in the face of the rules. When I first started volunteering I made that error, but eventually observed that it is generally painful to staff to have to deny or to delay. I see the usual reactions to chronic pain and believe it is part of my job to respect that pain (which of course can never be spoken of), while finding a way to solve each particular problem.

"Let's go through it in detail."

This was not the lawyering I had seen on TV. I was not battling opposing counsel before a jury; I was not pouring through West's Reporter; I was not even wearing a suit.

However, I was advocating. My client had a clear issue, the rules were well established, and it was only the facts as presented that were the problem.

I verified the facts with the staff that the client had contacted. Everyone agreed this was outrageous, but what could you do?

My next move should have been to do the paperwork de novo, and eventually I tried that. But because the situation seemed so excessive, and the guy was frankly dying, I escalated this case a little early. I met with the Veterans' Representative of the appropriate Congressman; he is often very helpful but in this case was stumped. I presented it to a couple of media types who had been quite useful with problems involving private parties taken advantage of a veteran (it is amazing how a reporter on the doorstep motivates a car dealer to do the right thing!); they were interested in the story but since the rules were set by Congress the client would be dead long before a media campaign would be effective.

Finally I did what I should have done first: I sat down with the couple and we filled out the forms from the start. They had already done this five or six times before; I could see that they were not hopeful but they were determined to get it done.

We went through the form in excrutiating detail and got roughly the same income numbers as everyone else, and collectively shook our head. Then we got to the bottom of Page 1, and I turned it over. It seems that this had not been done before. The income had been so high that there was no point.

But we kept on. Halfway down Page Two was Item Seven.

How much do you spend a month on medical expenses?”

The wife pondered. The assisted living facility was several thousand a month, and then there were medicines and doctor's visits. Easily five thousand, probably more.

Subtract Medical Expenses From Income”

I thought to myself “F**k Me!”

[My dear friends. If you work with veterans, you will have to get used to the work f**k. It does not mean what you learned in law school. It is a remarkably flexible word, and not really an obscenity. This of it as an emphatic “uhm” and you'll be o.k. Just don't use it yourself, you'll seem pretentious. That's why I never say it out loud.]

I looked at this dignified, hard-working couple and realized that they could have gotten into the system months ago if the people who had helped them fill out the form had just turned it over and filled out the f**king back side.

Once we did so and took it to Eligibility, the staff was obviously delighted to get them get them into the system. They immediately set up a battery of appointments for evaluations, check-ups and all that. The last year of this gentleman's life was spent getting the high-quality care that he had earned by his service.

Let me emphasize: the service this couple got once they were in the system was excellent.

Advocacy did not end with getting the veteran into the system; VAF's Direct Service Advocacy is wholistic. In this case, VAF volunteers often met the couple at the hospital entrance, pushed the wheelchair, sat in on conferences to help translate medical arcana to ordinary language and generally to navigate the network. Everyone has to set their own boundaries as to the level of service they provide, but it does not make any sense to help someone with their paperwork and then walk by them as they struggle in the parking lot.

As I read the above, I imagine my law school Ethics class crying “What of the ethical issues? What of the risk to your firm? What of malpractice insurance?”. I frequently tell my VAF clients: “Yes, I am a lawyer but no, I'm not your lawyer; I'm just reading the rules to you so you you can decide for yourself what you want to do. And I don't have any money so don't bother suing me.” This gets a laugh, and often the joke about the shark.

The thing about this population is that they are so used to getting scr3w3d over that they are very appreciative of any fool trying to help them out without getting paid for it. I can't imagine being sued, and were one to try, the reaction of their peers - oh my!

There are many places where lawyers can advocate for military and veteran members and families. Many of them are recognizably lawyering; I myself have handled a case before the Court of Appeals for Veterans Claims; this was straightforward lawyering of the sort I learned in law school, I enjoyed it very much, and my client won – what could be better? However I hope my little story suggests that there are also opportunities for ordinary volunteering where the skills and experiences you pick up in your law practice can be very helpful.

I suggest you start by joining an existing organization. For example, in addition to VAF, I'm a member of Disabled American Veterans' (Auxiliary). If you are not a veteran yourself, you can usually join the "Auxiliary" if you have a real interest in serving that population. Don't start off by playing the expert; spend most of your time listening, and you will soon have your pick of situations where your skills as a lawyer can get things done.

--- REW

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