Yin and Yang: The Human Faces of Veterans Law
Anna Kapellan*
“All stories have two kinds of characters.”
– Daniel Albright
Half an hour. That’s all there was to cross the street into a snooty restaurant where waiters were serving pizzas on white linen tablecloths meant to match the jacked-up prices and deliciousness of pizzas strategically arriving just in time for lunch-time patrons to take one bite of this cheesy, stringy goodness and then carry the remainder to their offices where all this deliciousness would congeal into a sad cheesy rubber. Since the only practical use of these lunches was limited to bad cholesterol and a verification that daylight continued to exist, the real reason for these outings were, but of course, the chats: first while crossing the street and then while waiting for pizzas. Put a year of pizza and chatting together, and you might end up with a life-long friendship.
Matt, a walking encyclopedia of all things military (unless he has an urge to debate obscure wrinkles of micro- and astrophysics) was a connoisseur of snooty pizzas and my frequent lunch companion. Even after a year with the Board, that is, the Board of Veterans’ Appeals (since why I would bother acknowledging that any other Board exists in this world?), I was still floundering in the maelstrom of military terminology and the realities of military service pouring out of my cases each time I turned my laptop on. It is easier to learn a whole new area of law than all military acronyms well described by Danny DeVito’s Renaissance Man character as, “Can I buy a vowel?” Fortunately, Matt did not mind my civilian ignorance; in fact, he even looked pleased with my educational endeavors when, waving hands in an effort to convey the illusive concepts as unknown to me as life on Mars, I was trying to explain another “something” in the hope that Matt’s clairvoyant abilities would decipher what I had in mind, and he would tell me how it actually worked in real life.
“Matt,” I waved my hands, “I know that, for two decades, you were in combat arms; you said, ‘including Airborne Infantry, Light Artillery, and Special Forces,’ so you might not even know anything about court-marshalling… But, if you know something, assume that someone had been convicted by a court-martial and discharged, and the conviction stayed, but he eventually got a not-dishonorable discharge and is now claiming that his PTSD is from that court-marshalling… is it still considered service if a court-marshaling is underway? All I know about court-marshalling is from A Few Good Men, and my dire suspicion is that it’s not exactly how it works in real life.”
“Well, one thing I know for sure,” said Matt, and his face that had always been lit with a fleeting smile as if he was mildly amused by all silly things in this civilian existence, suddenly got cold and frozen. “I know that this guy blew the one thing that could have been the best thing in his life… and now he would get all benefits… educational, housing loans… unfair.” He stopped at that, noticing that I was looking at him in shock since Matt had always talked only pro-veteran. “Wowww,” I swallowed an odd pause. “I thought that you subdivided this world into… well, veterans and taxpayers, the good guys and the bad guys, and no veteran could ever be wrong in your book.” “Not if it’s unfair,” smiled Matt, and the mild amusement by silly things in this civilian existence returned to his eyes, “veterans are taxpayers too.”
Four years have passed by since that summer lunch. The pandemic devoured the snooty pizza place and many, many others. I left DC for good and even learned not to be terrified of military acronyms. A lucky veterans medical center lured Matt away from the Board, and my colleagues, over eight hundred attorneys like me, plus more than ten dozen Veterans Law Judges, and about 300 members of the support staff, are scattered around the country as they have always been. However, resistant to the tides of time, the Board remains a universe of its own, and even though I now see Matt only by a videoconferencing app, he is still a dear friend, same as many others who shared my pre-pandemic year at 425 “Eye” Street, and even those whom I met only online: because the “Boardverse” is far more real and personable than the Metaverse. But, while the Board has its internal blog about veterans law, and there are many external blogs for veterans and their families, the “adjudicators” and “consumers” of veterans law meet rarely and mostly during Board hearings when everyone plays an official role, and all emotions feel out of place. Thus, there is no modern counterpart of the Athenian Agora where denizens of the veterans-law world, that is, adjudicators, attorneys, professors, students, and – but of course – veterans, may drop by to share a vignette or two about their emotions of writing or reading veterans law, and the human faces behind the dry pages of judicial decisions often get lost. But maybe, just maybe it is finally time to change that.
* * *
“Deny till you die.” Alex, my then-next-door neighbor, told me about this phrase. Actually, Alex and I never lived next door: he lived and still lives six hours away from the Big Apple and, same as Matt, is a veteran. But new Board hires are required to work their first year in DC, and that’s how Alex became my neighbor: our offices were door to door. In addition to his eternal cigarette (Alex lights one up the moment he walks outside and keeps chain-smoking until the last indulgent puff right before he walks in), he is also partial to coffee (I bet Starbucks sends him a get-well card when he does not show up there at least three times a day) and fruity marmalade squares that have the same effect on Alex as honey on Winnie the Pooh. Therefore, strategically, I keep a dish with marmalades on my desk to entice Alex to stop by and share one of his pre-Board memories when he was just a veteran rather than a Board attorney. “Deny till you die,” repeated Alex. He took a marmalade square and sat on an arm of my armchair to hint that he would not stay. “When I applied for VA benefits, that’s how it felt: ‘deny till you die,’ so veterans had to apply and reapply, and appeal and reappeal… and if they lived long enough… well, then they could eventually get something.”
He said it matter-of-factly, as people talk about bad weather. But, to me, his “Deny till you die” sounded surreal. The equipoise standard governing the bulk of veterans law is the most lenient on this side of the Milky Way and beyond. If the evidence “for” and “against” are equal, the veteran wins. And if this equalness is inexact, and only 49 percent or even 48, and perhaps even just 47 is “for,” and 53 is “against,” the veteran still wins. This burden of proof is so unique that, when I told about it to an administrative judge from a different federal Board, that judge thought I was pulling his leg. “You gotta be kidding?” he asked, “But how can anybody lose?” “Well, apparently, some still manage,” I said, “since it does not seem like the Board would go out of business any time soon.”
Because of this leniency of the equipoise standard, I chalked up Alex’s “deny till you die” to his instinctive subjectivity: after all, we are all human. But then, two years later, I got a case where a veteran had a severe head injury during a parachute jump. He served in the mid-60s and, when he helped another paratrooper to jump, the veteran got sucked out by a blast of air, hit his head against the plane, went unconscious, and survived only because his chute opened automatically, and his persistent sergeant kept searching for him until, still unconscious, he was found in a forest. The veteran braved through the remainder of his service but began experiencing vertigo. After his discharge, when vertigo got completely out of control bad, the veteran filed a claim with VA, and two doctors (one a major medical star who diagnosed the veteran with paroxysmal vertebral artery insufficiency) opined that the cause of his vertigo was, undoubtedly, that parachute-jump injury. But VA still denied the veteran’s claim.
He appealed to the Board in 1966, and a then-existing committee of two attorneys and one “genius” physician’s assistant denied the veteran’s appeal because the “genius” declared that he was not fully convinced. It was not a valid legal standard back then and it is not now, and it has never been at any point in between. But there was no right to appeal beyond the Board at that time, and the veteran ended up reapplying again and again, all in vain: his reapplications kept being denied for the lack of new and material evidence since the veteran had put forth such a strong case the first time around that there was pretty much nothing left for him to add. Therefore, for over half a century, he did not get even a penny from VA. In 2014, already old and stricken by Parkinson’s, the veteran refiled his claim once again, still hoping against hope.
Six years passed by, and when the veteran’s case came to me, the sole thing I could think of while scrolling through pages of his 60-year-long file was Alex’s, “Deny till you die.” It turned out that Alex’s memories were terrifyingly true, and I was naïve. It took me less than a day to draft a proposed decision recommending a grant of the veteran’s claim. But the sense of guilt stayed with me long after the decision on my draft was issued: since adjudicators cannot go back in time, and all they can do is to make amends for the past through changing the future, even in cases where veterans were truly abused by – or became true abusers of – the system… because all stories have two types of characters.
Indeed, right before the case of the veteran with vertigo, I had a case of another veteran who sought a TDIU rating, that is, a total disability rating based on individual unemployability that lucratively pays at a 100 percent rate. The veteran claimed that he was entitled to a TDIU since his PTSD was rated at 70 percent and, technically speaking, he had been unemployed for two years. However, the veteran’s file showed that he spent these “unemployed” years obtaining two master degrees by taking 20 credits a semester, plus worked pro bono as a Congressional aid, and – to top it all off – that he also had two gaming stores in two states that he alternated between to rule his employees with an iron fist, all while getting his third master’s degree, this time in literature: since, as he put it, he was planning a career of “writing bestsellers.” It was one of the easiest proposed denials that I drafted because all I had to do was to think of Matt’s “veterans are taxpayers too” – I was drafting on behalf of the Board and all those veterans who counted on law to be just.
And then there was a case of a single mother who had been receiving $150 a month from VA in apportionment of her estranged veteran-husband’s benefits, that is, until he divorced her. When their divorce came through, she and her ex’s attorney notified VA, but VA still kept paying her. Eventually, she was overpaid $3,867.50, and while this amount would not be much for some, it was truly a fortune for her. Since she had no money to repay this debt, VA began foreclosing her house where she lived with her preschooler son from another relationship that also did not work out. VA was not vicious, not at all; rather 38 C.F.R. § 1.910 obligated and still obligates VA to collect all debts “aggressively.” Desperate, that single mother appealed to the Board pleading for “mercy on [her] house” since that old house, already subject to many liens, was her sole possession and the only thing that was saving her and her kid from homelessness. Law is a peculiar form of literature, and I could not write anything about what I felt reading the record and preparing my draft recommending to nullify her debt. But I always mention her case when training new attorneys in my group. The only thing I don’t mention is that I have to dig my nails into the palm of my hand as hard as I can when I am talking about her: so that my voice would not tremble with tears.
And then there was a case of a veteran who received $141,770 in VA pension by claiming that he, his wife, and their two sons were devastatingly poor, year after year. But, in reality, the veteran had 134 acres of land registered in the name of one of his sons back when the kid was still small: it was done to conceal the veteran’s ownership. In addition, the veteran ran an illegal cockfighting pit complete with food vendors, entry tickets, fees for the owners of the birds destined to fight to the death, and even bouncers for unruly spectators. The pit was eventually discovered by the state, and the veteran ended up behind bars, but he also concealed the pit and the imprisonment from VA, and I found out about it all accidentally when, trying to make sense of his case, I began searching court records. In addition, when VA found out about his 134 acres of land, the veteran swiftly sold the land at a loss but for cash, with all proceeds disappearing immediately. And when VA inquired about the proceeds, the veteran stated that everything had to be spent to the penny to cover the debts of his son in whose name the land was registered. But not a single name of these mysterious creditors surfaced, no matter how many times VA asked. To top it all off, public records showed that the allegedly indebted son had been killed many years prior: he was killed in a shooting seemingly related to the illegal pit. And while, plowing through the thickets of financial and court records, I eventually made sense of everything, one thing I still could not understand: how could the veteran put the memories of his dead child through all this mud?
But then there was also a case of a veteran whom VA paid a pension while knowing he believed that it was a compensation, not pension, and he repeatedly asked VA to verify that the money was really his. After months of VA’s insistence that yes, it was certainly his, the veteran took the money and spent it on his family that was barely making ends meet: because he was receiving only a meager Social Security disability, and his wife was a blue-collar worker. But, in the midst of the pandemic, right after all VA monies were spent, it finally dawned upon VA that the veteran was not entitled to any VA pension. Moreover, when, after demanding remittance, VA began garnishing the veteran’s meager Social Security disability to recoup this wrongly created debt, the veteran’s wife, the sole breadwinner of his family, passed away from Covid, plunging him and their children into despair approaching Dante’s tenth circle of hell. Preparing a draft decision recommending nullification of this debt and remittance of the already-garnished funds, I kept dropping tears on my laptop keyboard until letters “b,” “n,” and “m” finally died. After the decision on my draft was issued, and I got a new laptop, I still kept thinking about this case and the veteran, hoping that he and the kids visited his wife’s grave to tell her that justice, a devastatingly belated but nonetheless justice, had finally come. After all, justice is in saving the world, one case at a time.
And then there was also the case of a veteran who was overpaid by VA more than 25 grand and notified that his monthly VA benefits would be withheld toward recoupment of that debt. By then, the veteran was residing with his family in Manila, Philippines, in a Manila counterpart of the Trump Tower laced with Renaissance frescos, fountains, a private shopping mall, and every amenity one could imagine. But the veteran still requested a waiver of the recoupment of his debt, claiming that he and his family would be in dire financial straits if the debt were recouped because they might be unable to continue renting an apartment in their luxurious building or, even worse, might have to part with their cook, or butler, or maid. Reading the veteran’s letters claiming that he was already poor since his sports car was almost two years old, I kept thinking of my other case where a veteran living in one of the poorest towns in Southern California was too shy to ask for a waiver of his less-than-two-grand debt: all he asked for was a lower rate of recoupment since his financials showed that the veteran’s family budget was $5 per person per day, that is, $5 for food, clothes, commute, school supplies, household goods, and everything else, short of the roof over their heads. Predictably, I recommended a grant of a waiver to the $5-per-day veteran and a denial to the Manila-palace resident. Whether Ecclesiastes’ “who increases knowledge increases sorrow” applies to veterans jurisprudence might be debatable, but this area of law surely teaches one both an utmost compassion and a hefty dollop of cynicism.
* * *
In a half-a-century-old Quo Vadis episode of M*A*S*H, Dr. Sidney Freedman, a psychiatrist, asked Captain Chandler, a patient with a psychiatric disorder who was claiming that he was Christ, “Is it true that God answers all prayers?” “Yes,” said Chandler, and a tear ran down his face, “sometimes the answer is no.” When I just started with my overpayment-and-waiver group at the Board, I got a case of a veteran living in a battered women’s shelter: she was beaten and robbed by her former boyfriend, and kept living at the shelter to save enough to rent a studio. But, when she had finally saved for the first month and the deposit, VA notified her that her monthly VA benefits would be withheld for half a year since, a decade ago, she had been paid a severance by the Department of Defense (DoD) when leaving service, and it meant that VA was required to withhold the amount equal to the severance and remit it to the DoD. Devastated, the veteran requested a waiver since her VA benefits were her sole source of income, and VA’s withholding of it meant that it would be another half a year of shelter or the street: because she simply had nowhere to go. But VA denied her claim, and she appealed to the Board begging “not to send [her] back to the shelter.”
However, VA could not waive the collection of her debt to the DoD: only the DoD could do that, and VA – being a mere collecting agent – was required to tell her “no.” It was my first recoupment-of-severance case and, going through research spelling doom to the veteran’s claim, I was refusing to concede my inability to help. I called Sarah, my colleague and a wizard of VA overpayment law, but Sarah confirmed that my research was right no matter how much I was hoping to be wrong. Having walked circles around my desk for a day, I finally clenched my teeth and wrote a short draft denying the veteran a waiver: it was short because there was nothing there that I wanted to write since, sometimes, in life and in law, the answer is no. For better or for worse, attorneys have no luxury of crying either in public or on the screen.
A few days after the shelter case, I got another case, it was of a widow whose late veteran-husband had a DoD survivor benefits plan, SBP, a life-insurance-like benefit administered to the widow by the DoD as an annuity. But, if a surviving spouse receives VA’s disability and indemnity compensation known as DIC, and – in addition – an SBP, then the payments must be adjusted so that the survivor would receive only the larger one: because an unadjusted receipt of both results in an overpayment. However, the question of how much the widow was overpaid kept being remanded by the Board again and again, with VA increasing the amount of her alleged debt with each remand, until the widow began begging VA to leave her alone and not pay her any DIC, as long as VA stopped this alleged debt from mushrooming. But the widow’s pleas were in vain.
Before her case came to me, the Board had directed VA to obtain a DoD audit. Having received a dozen of pages of that audit, VA declared that it verified both: that VA’s calculations were correct and that the widow had an almost-30-grand debt. But when I tried to read this audit, starting from its first page, nothing there made sense. It is true that accounting is part art and part science, and each accounting style is as unique as that of a poet or artist. But – style or no style – this first page had no rhyme or reason, and the more I read it, the less sense it made to me. Having sunk two days into this cursed first page, I reached the rock bottom and began giving myself pep talks. After all, I thought, I have always been into math, and my undergrad was in economics, plus I have two MBAs, my accounting professor was brilliant, and I even took a forensic accounting class… then why, why can’t I get through this damn first page?
By the morning of the third day, I tossed the first page aside and went for the remainder of the audit. And then – a miracle! Everything suddenly was making sense, and it was showing that, both legally and mathematically, the widow did not owe VA anything. When I finished the rest of the audit and returned to the first page, I finally understood what happened: VA sent that nonsensical page to the DoD, and the DoD put it on top of its audit to convey that VA’s calculations were all wrong. But VA looked only on that top page and presumed that the DoD meant to say that VA was right. Therefore, VA did not even look at all other DoD’s pages and, instead, declared that the audit proved that VA’s calculations were correct. When I submitted my draft to Demetrios, an attorney who was the Acting Veterans Judge in the case, Demetrios wrote, “I have just signed your masterpiece” and added “the widow is truly lucky that this case landed on your desk,” making every second I sunk into that case worthy many times over. Small world: Demetrios lives just a few blocks away from my business school where I took that forensic accounting class. Perhaps all of it means that, both virtual and material, the Boardverse indeed exists, that denizens of veterans law complete each other as yin and yang, and it is finally time for them to meet, see each other’s human faces, and share their stories…
* The author would like to thank Editor-in-Chief Nivory Gordon, Executive Editor Anna Beavers, and Associate Online Editor Morgan Rushing of the Mississippi Law Journal for their invaluable editing and assistance with this online publication. Special Thanks to Executive Online Editor Tyler White for additional editing and online publication assistance.
Disclaimer: The views expressed in this article are the author’s alone and stated in her personal capacity as a citizen/legal scholar; these views have not been endorsed by the Board of Veterans’ Appeals, the Department of Veterans Affairs, the United States Government.
MEET THE AUTHOR
Anna Kapellan is Counsel with the U.S. Board of Veterans’ Appeals, Specialty Case Team, Overpayment and Waiver Group. Anna holds a Magna Cum Laude J.D. from Brooklyn Law School, LL.M. from New York University School of Law, a double-major Honors M.B.A from Baruch College, Zicklin School of Business, plus she did a Ph.D. law-and-economics research at the University of Leicester, U.K. Prior to her employment with the Board of Veterans’ Appeals, Anna was an Attorney Adviser with the U.S. Merit System Protection Board, an Assistant Township Attorney with the Township of Montclair, NJ, a Staff Attorney with the U.S. District Court for the District of New Jersey, a Mediator with the U.S. Equal Employment Opportunity Commission, Counsel with the European Union Commission, a litigation associate with Proskauer Rose, LLP, and a law clerk to the late Hon. Nicholas Tsoucalas, the U.S. Court of International Trade.