Lisa: Well, this wasn’t the first time you’ve fought for veterans’ rights. In the past, you’ve also defended so-called “atomic veterans” and veterans subjected to secret government tests. How did you get involved working with veterans in the first place, Gordon?
Gordon: Well, it was kind of a fluke, really. Early on in my career I did some poverty law and I worked in that area. My father was at Bikini, the atomic bomb tests at Operation Crossroads, on the scientific vessel actually there, the USS Bowditch. He and quite a number of other people on that ship, because it was there the longest of any of the vessels, ended up getting cancer or leukemia.
When he was sick with leukemia, I just started to work with a local group here in the Bay Area that was an atomic veterans group. I got to know them and I got into that, and that’s how I got into the atomic test series cases. My dad died actually very early on in those years, but he’s been a symbol for me of what you should do for veterans. They deserve a lot more, and the way he was treated I thought was just ridiculous.
But along the way I handled my mother’s death claim for his death, and it’s kind of an odd thing in life the way that the ball bounces. But that claim ended up being the first case ever heard in the newly created U.S. Court of Veterans’ Appeals, which I testified before Congress about, the first time they provided judicial review of VA decisions. This was in 1990. It was the first case argued in front of the new court, and it was the first decision ever issued by the court.
Lisa: Your father’s?
Gordon: Erspamer v. Derwinski, 1 Vet. App. 3 (1990), the very first case, and it established the jurisdiction of the court. At that point, my mother’s claim had been pending 11 years.
Gordon: Eleven years. There was no remedy at that time. So that delay issue, I was very sensitive to that delay issue at the time, because you’d send a letter and four or five years would go by. Or you’d send a succession of letters. You’d never hear from them, just never hear from them. It would just go out into that great void. For a lot of veterans, it’s very frustrating, and it’s designed to make people give up. It’s just not right.
Gordon: It’s just not right to make them give up, make their families give up and make them do without.
But that was the first case. But I kept it on, and I’ve always had a few individual cases. I did a case for Phil Cushman, you probably don’t even know about, but was representing him for over ten years. He’s a Vietnam veteran who had a sandbag fall on the small of his back, during a bunker attack in Vietnam, and broke his back very badly and has a post in his back.
We fought for years, and I guess it was a year and a half ago that the Federal Circuit Court of Appeals in Washington finally decided the Constitutional issue in this case, and big huge due process win for veterans. The government argued veterans don’t have a property interest in the receiving disability compensation, even though the standard of law, Goldberg v. Kelly, many, many years ago – 45 years ago – that welfare recipients have a property interest in receiving welfare benefits. But the veterans don’t?
Gordon: They’re the ones that this is service connected disability benefits. Well, the panel on the D.C. Circuit was not very impressed with that argument. Then the Cushman case, even though it was an individual claim, became a very important precedent decision for veterans’ rights. It was actually cited in the PTSD, the recent PTSD case decision in the Ninth Circuit.
Then I did a couple of others. I did one for an African-American soldier in World War II. It was really an example of discrimination in the military, which was very institutionalized at the time. But he was hurt at the local base where he was being trained, and they took him over to the main hospital. Was it Letterman? I forget. They refused to treat him. They refused to treat him – whites only at this hospital.
Lisa: And they stated that?
Gordon: Yep. So his buddies took him back into the hospital, and they found a closet and they stuck him in a hospital bed. They found a hospital bed and they stuck him in a closet, and they treated him from the back of the hospital. He developed all kinds of problems as a result of the lack of treatment that had plagued him his whole life. Things you don’t like to talk about, like incontinence.
We won that case in the Court of Veterans’ Appeal. So what struck me then and still strikes me is how underserved the veteran population is, particularly with respect to a lot of these major cases that affect lots of veterans. The things that they do, that the VA does, they just change the rules in the middle of the game and they just issue a letter. They call them fast letters. They just issue them, and suddenly everything changes and then a lot of claims get denied.
It’s crazy. A really good example, if a veteran has a certain degree of disability – I think it’s 70% minimum, based upon actual problems – and is unemployable and there’s a test for that, you can get total disability based upon individual unemployability, which means you get 100% rather than 70% or 60% or whatever the minimum is.
Well, the new administration came in. They looked through and they said, “We’ve got to get all these . . . there are too many veterans on the rolls.” As if they were welfare rolls. So they went through and they sent a letter around to all the regional offices around the country: “You’re granting too many of these total disability claims. Take a closer look at them, and we’re going to require that we approve every one you grant in Washington first.”
Well, the grant rate went down 97% overnight. Suddenly they’re not granting them. Subtlety is not their forte.
Gordon: Adjudicators quickly discerned that they don’t want us to grant any of these claims, so they stopped granting them.
Filed Under: Unlinked