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Cases and Projects
1. Edgewood Chemical Warfare Appeal
The Clinic worked on this appeal before a Decision Review Officer with Lehigh County Veterans Affairs Office Director Tom Applebach. The Clinic won a large back pay award for this client and 100% service-connection going back 23 years.
The veteran first filed a claim for blurred vision in the left eye, blindness in the right eye, floating migraines, headaches and personality changes. His claim was denied, and he tenaciously appealed and reopened the claim several times. During Chemical Warfare testing by the Army, CIA and VA, at the Edgewood Arsenal Facility on the Aberdeen Proving Ground in Maryland, the client was injected with the lethal toxin, VX, and three other toxins. VX was used by North Koreans, in 2017, to assassinate individuals with a mere drop of VX on the skin. In June 2017, Clinic student, Tiffany Kernen, was the first person to identify VX as a toxin given to the veteran in the Edgewood service medical records. Tiffany researched the effects of VX and the three other toxins given while working with expert witness, Robert S. Brown, Jr., M.D. the Clinic was able to render this expert due to the generosity of funding from the Veterans Consortium Pro Bono Program.
Clinic students reviewed and summarized the military and medical records and the claim file, and also reviewed 2,000 pages of medical research and expert opinions. The students located 62 medical research articles to support the appeal due to the number of different injuries the client had sustained from the toxins. The expert testimony was submitted in the class action styled Vietnam Veterans of America v. Central Intelligence Agency, Case No. CV 09-0037-CW, where the U.S. District Court for the Northern District of California recognized the possible long-term effects of the chemicals tested on human veteran subjects by the Army, CIA and VA at Edgewood from 1955-1975. The Court ordered those three entities to notify the Edgewood participants of the long-term effects, and ordered the Army to provide medical care to those harmed. Based upon the research and medical expert testimony filed in the class action, and his review of Edgewood and other medical records and research, Dr. Brown opined that (1) the veteran had both central nervous system and psychological effects from participating as a human subject in the Edgewood chemical warfare testing in 1965; and (2) the veteran’s dormant toxoplasmosis prior to service was aggravated by the toxins, VX and EA 3443 (BZ analog), injected during service at Edgewood. Those toxins caused immunosuppression which in turn caused the dormant toxoplasmosis to manifest as ocular toxoplasmosis after service, with complications continuing to the present. Dr. Brown met with Clinic students by telephone on numerous occasions to help to educate them about the medical science involved in the appeal.
Clinic students also met with Jack Vanden Heuvel, professor of molecular toxicology at Penn State to better understand the toxicology expert opinion filed in the class action.
2. Acute Myeloid Leukemia Appeals and Claims
The Clinic won a substantial back pay award for a 4-year period and a 100% disability going forward for a Vietnam veteran with acute myeloid leukemia (AML), a disease not on the presumptive list of Agent Orange diseases. This veteran and retired PSU professor was the first client of the Clinic. The Clinic filed a legal argument with favorable medical research and treating and expert opinion evidence to support service-connection in a BVA appeal in late 2015, and attended a BVA hearing with Mr. Slaney in July 2016, leading to an award of service-connection in Oct. 2016. Clinic students filed multiple documents in the summer of 2016 to expedite the BVA appeal due the veteran’s diagnosis of soft tissue sarcoma. During the fall of 2016, students wrote a legal argument with appendices that summarized medical records from 2008 to the present, favorable medical research, and BVA and CAVC case law, and obtained two treating physician medical expert opinions, to support a cumulative staged rating of 100% disability during the entire time period of the claim. That filing was made in Dec. 2016 with a request to expedite the ratings’ decision due to the client’s health. Students monitored the progress of that ratings’ claim in early 2017, and the RO adopted the students’ recommendation for a 100% rating during the claim period. In March 2017, students helped to verify the proper award was made, and informed the client of the benefits that come with a 100% disability rating.
The Clinic, due to its expertise with AML, recently helped a physician, and Vietnam veteran to make an initial AML claim. We reviewed his medical records, summarized them, interviewed the veteran, and worked to obtain an expert treating physician opinion for him. We conducted case law and medical research to prepare appendices to a legal brief submitted on his behalf. Similarly, the Clinic, assisted another Vietnam veteran to first make an initial AML claim, and then appeal the denial through RAMP. Students reviewed medical records, summarized them for an appendix, interviewed the client, obtained an expert treating physician opinion and wrote a brief in support. Both veterans won service-connection and a 100% rating with back pay awards. We worked with the Centre County Veteran Affairs Office on all of these AML claims.
3. CAVC Appeal
In this CAVC appeal referred to us by the Veterans Consortium Pro Bono Program, students reviewed appeal and remand documents between 1992 and 2016 to look for errors made by the Regional Office and/or Board of Veterans Appeals, to determine if evidence of radiation treatment had been missed in the VA’s review of medical records, and to determine if medical records were missing (to show the missing records could document radiation). The theories of error were complicated and not easy to discern or support, but through thorough and tenacious review of six students working as a group, with two students assigned to each claim, the Clinic was able to raise six legal errors in the Rule 33 statement, and achieved a remand because the BVA failed to address chemotherapy and therefore did not fully develop the claim.
On remand, Consortium funding helped us to hire an expert to review an appellate record containing nearly 4,000 pages, spanning 1978 through 2016. We also reviewed the record, summarized it for him, and provided him with medical research, including 1978 procedures for treating testicular cancer. The expert met with Clinic students by telephone on numerous occasions, and rendered an opinion that the client’s obstructive sleep apnea was service-connected to in-service cancer treatment.
4. CAVC and BVA Remand:
This case was the first CAVC appeal referred to us by the Consortium. In 2015, the Clinic won a CAVC remand to the BVA for three claims for a Vietnam veteran, for PTSD, cataracts and hypertension. In 2016, the Clinic represented the veteran on remand for these claims and an ischemic heart claim also pending before the BVA, and won 100% disability for him for an effective date in 2009, which was awarded in late 2016. He won over $300,000 in benefits. During 2017, the Clinic calculated the award of back pay due to the client to confirm that he was paid the correct amount, helped him to determine the life insurance benefits to which he is entitled, and helped him to initiate an audit for the back pay of previous prescription co-pays that should be returned to him for the entire period during which he was rated at 100% disability. The prescription back pay totaling over $2,000 was awarded in 2017.
5. Stomach Cancer Appeal:
We won a $40,000 back pay award for this veteran who served in Germany in 1954-1955 by showing that his stomach cancer was service-connected to an ulcer he had in service. He first made his claim in 2014. His service records were destroyed in the 1973 fire. A Clinic student gathered medical research and reviewed medical records to prove the connection. We obtained expert testimony and lay testimony to show that the veteran had a bacterial ulcer in service that led to the development of stomach cancer.
6. PTSD, Diabetes and Tinnitus Claims:
The Clinic won service-connection for PTSD at 30%, diabetes at 20%, and tinnitus at 10% for this Vietnam veteran. He resides in New Jersey, not far from the border of Pennsylvania.
7. Pension Claims:
The Clinic began a BVA appeal for pension benefits for two Korean Conflict veterans married to each other; we won an appeal for them at the BVA in 2016, and worked with the RO all through 2017 to ensure that a fiduciary was approved, and the correct payments were made pursuant to the award. The couple received over $40,000 in benefits.
The Clinic also represented a local resident’s father, a WWII veteran, and helped him to win pension benefits from the BVA on appeal in late 2016 in an amount exceeding $15,000.
8. Education Benefit Appeals
The Clinic helped two law students and one undergraduate student to win appeals when their education claims were wrongfully denied initially in 2016 and 2017.
9. CAVC Appeal
In 2016, the Clinic won a remand from a CAVC appeal to the BVA by successfully overturning a withdrawal of a claim that a VSO filed without the veteran’s permission. This CAVC appeal was referred to the Clinic by the Consortium.