The Service Connection - September-October 2016, Veterans' Law Newsletter

Veterans’ Law Newsletter

Volume 1, Issue 2

Considering VA Reconsideration

By Stephani Bennett

In recent years, a “Request for VA Reconsideration” has become a hot button issue at the VA. The VA has begun to recommend that veterans who receive a denial on their initial claims submit a request for reconsideration. It sounds reasonable enough, so veterans do it. There are three problems with this: 1) there is no such thing as a request for reconsideration, 2) reconsideration never yields a different decision, and 3) the time spent waiting for reconsideration does not suspend the one-year time limit the veteran has to appeal.

When I say, “There is no such thing as a request for reconsideration,” I mean that the request for reconsideration does not appear in any law or regulation. It is not an official path for appeal. The importance of this cannot be overstressed. Reconsideration is not an official path for appealing your claims. When a reconsideration comes back negative, there are no procedural guidelines to follow. No higher authority takes your claim. At best, you will wind up back at square one preparing an appeal the exact same way you would have before the reconsideration. At worst, you’ll be re-filing your claim because the time for appeal lapsed, as discussed below.

Why does the VA pretend to have a quasi-appeals process at all? While this answer can only be provided through speculation, it seems the goal is keeping claims out of the official appeals process. As a result of recent media attention, the claims process at the VA has been cleared out so that it takes mere months to get a decision back on new claims. In sharp contrast, the appeals process is more backed up than ever. In asking for reconsideration, it seems that the VA is trying to keep claims at the lower level and refrain from adding to the appeals backlog.

Imagine this scenario:

You experience chronic neck pain as a result of a car accident. When you see a doctor, he diagnoses you with a sprained ankle, ignoring your neck entirely. You leave the office confused and frustrated. But instead of going elsewhere for a second opinion, you turn around and walk right back into the same office to see the same doctor. Will you be surprised when he provides another inaccurate diagnosis? Asking the VA for reconsideration is no different.

When you move into the appeals process by filing a Notice of Disagreement, you are effectively ignoring that first doctor and going to see a specialist (in this case, the Board of Veterans’ Appeals).

After receiving a Rating Decision, you only have one year to submit a Notice of Disagreement to appeal your claims. That might sound like a lot of time, but it tends to slip away quickly. Requesting reconsideration wastes that time and does not reset the one-year time limit. For this reason, a cynical person might say that “reconsideration” is the VA’s way of making sure appeals never get filed at all. The claimant, unaware that the reconsideration is eating away at their time for appeal, might miss the deadline for filing a Notice of Disagreement. They might even incorrectly believe their claim is already on appeal.

You cannot file a Notice of Disagreement and also request reconsideration. Veterans who tried were asked to withdraw their appeals so reconsideration could move forward. These veterans were faced with a relatively obvious choice: risk losing the ability to appeal by asking for reconsideration or taking a claim to the BVA by submitting a Notice of Disagreement.

While the VA has tried to expedite the claims process and clear its backlog, it struggles to follow through on its plans. If you have been denied or granted an inadequate disability percentage, an experienced VA claims attorney can help you navigate your way towards receiving the benefits you’ve earned through service.

Taps for Leland Brumley

By John Stevens Berry Sr.

It is a bittersweet moment to meet with an old comrade in arms you have not seen for years, bringing one another up to date, knowing you will never meet again, though in the Army you never say goodbye.

Two years ago, Margaret and I stopped in Houston to visit Lee and Karen Brumley. He had suggested that if, after 45 years, we were going to get together, it had better be now, before his cancer rendered him incapable of eating, drinking, or going out for a good time.

Yes, it had been that long. Summer, 1969, there was a photo, front page above the fold, of Captain Berry in a joyful handshake/embrace with Captain Brumley, Major Thomas Middleton, and Captain Bob Marasco, in many newspapers across the world. Charges of murder and conspiracy to commit murder of a double agent had been dismissed!

The case itself must be the subject of a future column. It started out ominously. My boss, LTC Robert Jones, told me to get my jeep and driver and head over to USARV Headquarters at Long Binh. I usually enjoyed such visits. Air conditioning and flush toilets! There I met with a senior colonel, who ordered me to report immediately to the USARV Installation Stockade (also known as the Long Binh Jail, or the LBJ) and to ask for a prisoner whose name he would not disclose, but who was to be identified as “prisoner number six.”

So we drove to the Installation. I cleared my weapon by dry-firing it into the sandbucket and checked it in at the gate. I asked for number six. Rather than having him brought to the shack where we always met with our clients, I was escorted to a steel box, where, closeted under the murderous sun, I met Leland Brumley, and learned that the CIA had ordered officers of the Fifth Special Forces the task of “termination with extreme prejudice” of a Vietnamese national they believed to be a double agent.

Word got out, the CIA denied involvement, and here we were! After visiting with Lee I decided there was no way in hell I would obey an illegal order, so I discovered the names and lawyers of Lee’s alleged co-conspirators, and we worked together to get the charges dismissed. How we succeeded is, as I have said, another story.

The guys all got on the same Freedom Bird going home, and the pilot stated, “Gentlemen, I am proud to announce the presence of the Green Berets formerly accused of murder!” Wild applause on the plane. I missed the media circus in San Francisco, of course. I was in-country for a few more months.

Lee went on to Fort Hood, later branch-transferred to Intelligence, was sent to the Pentagon where he served with one of the of the CIA agents who had lied during our Article 32 hearing. The guy told Lee it was “just part of the job.” Yeah, right.

Later Lee was assigned to MI6 in London. Everyone wore a regimental tie, so because Lee had served with the Eleventh Armored Cavalry Regiment, he wore a Blackhorse tie. At noon, they all went to Officers Mess and spent the afternoon drinking. No wonder the British have had such breaches in security, such as Kim Philby selling atomic secrets to the Soviet Union!

After retirement, Lee went into the boat business. He and Karen sailed from Galveston to the Bahamas and back. Lee was of the Chickasaw Nation in Oklahoma, and he told me that navigating by the stars was as easy on water as it was on land!

We talked about kids and grandkids, and our wives enjoyed each other. Lee gave us a tour of Galveston. We parted amiably.

Six months later, the cancer started to take hold. A few months after that, Lee was gone.

All of us look back on our old friendships, our old comrades in arms. We bow heads, share moments of silence, and remember the final words of “Taps”:

“Safely rest /
Soldier brave /
God is nigh.”

Rest in peace, old friend.

Nebraska National Guard Museum Honors Paratroopers

The Nebraska National Guard Museum in Seward celebrated National Airborne Day on August 16 by dedicating their new “Airborne!” exhibit, which includes a 30-by-10 foot replica of a C-130 Hercules. The Berry Law Firm, which sponsored the exhibit, was represented at the dedication by attorney John Stevens Berry Sr.

Berry, a Vietnam veteran, spoke about the importance of remembering those who served our country and the need to preserve military traditions and beliefs. He expressed the hope that his firm’s commitment to the new exhibit will promote a greater understanding and appreciation of the services our armed services provide for our society.

“Our principles will not only survive,” he concluded. “They will prevail.”

Lorraine’s Corner

Lorraine worked at the VA for 37 years before joining our team.

By Lorraine Chrastil

If you are in receipt of VA compensation based on individual unemployability or for dependents, the VA will periodically send a questionnaire to verify employment status or determine whether dependents still qualify for benefits. If the questionnaire is not returned to the VA within the prescribed time limit, the VA will then propose to reduce compensation and give you an opportunity to verify employment or dependent status within 60 days. If a timely response is not received, the VA will proceed to reduce your benefits. If you are uncertain about the nature of VA correspondence received, contact our office as soon as possible.

An Interview with Veteran Gary McLain

This month’s Veteran Spotlight is on Gary McLain. Gary served in Vietnam as a member of the 1st Infantry Division from 1968 to 1969, moving ammunition, fuel, and supplies between outposts in Dĩ An, Quâ’n Lơi, and Lai Khê. He was later awarded two Army Commendation Medals for meritorious service and, as he puts it, “working [his] tail off!”

Gary first filed for disability claims in 2006: “I went to a high school reunion and I was talking to a guy. He said, ‘You need to come see me. I work at the vet clinic in Seattle.’ So I went down there and they filled out an application.”

Echoing the experiences many veterans have filing initial disability claims, Gary says he “didn’t hear anything, didn’t hear anything, didn’t hear anything … It was denied.” He then went to the VFW to fill out another application, only to be denied again. “I never did hear from them. They didn’t ask for a follow-up or anything. I was quite disenchanted, of course.”

All of this took place before Gary hired an attorney. “I actually found you guys on Google,” he says. “I was impressed with your credentials and the fact that the Berrys had been in the military themselves. That led me to call.”

Today, thanks to the team at the Berry Law Firm, Gary is rated at 100 percent. “I started at 20. They kept appealing and coming up with new ammunition. They don’t quit, they keep going. They’re very encouraging.”

Gary still supports his fellow service members decades after his tours in Vietnam. “I belong to a veteran’s group,” he explains. “Berry sent me a bunch of brochures and I have given them to a lot of guys who have not been served satisfactorily.”

He sent information to a friend in Florida who had received a low disability rating from the VA. “After I gave him the brochure, he called. He was in tears because he was so grateful. I was grateful to Berry Law for taking care of him.”

After years of struggling with service-connected disabilities, Gary’s life has finally settled down. “I’m doing a lot better,” he says. “They have helped me so much that I can relax. It’s been a godsend for us.”