Veterans Legal Clinic — Veterans Justice Project Representative Cases

The Clinic’s work crosses many boundaries and takes place in a variety of fora–both state and federal. Clinical law students play a central and leading role–conducting fact investigations, developing case strategy, counseling clients, authoring pleadings and briefs, presenting cases at hearings, trials, and appellate argument, and working with community organizations and advocacy coalitions–in all our work on behalf of veterans. To give you a flavor of our docket, the following is a representative sample of Clinic cases:

U.S. Court of Appeals for Veterans Claims and the Board of Veterans’ Appeals

The Clinic successfully represented an Army combat veteran of the Vietnam War in a case before the U.S. Court of Appeals for Veterans Claims.  The question in the appeal was whether the VA had properly rated the severity of the veteran’s PTSD.  Following full briefing of the issues in the case, the Court agreed with the Clinic’s arguments that the Board of Veterans’ Appeal (BVA) was clearly erroneous when it failed to adjudicate the issue of the veteran’s potential eligibility for Total Disability based on Individual Unemployability (TDIU) and when it failed to assist the veteran in obtaining medical records relevant to the case. The Court vacated the BVA’s decision and remanded the case to the BVA for a new hearing and reconsideration of the veteran’s disability claims.  The Court’s decision can be found at Froio v. Shinseki, 2014 WL 594096, U.S. Court of App. Vet. Claims (2014).

The Clinic successfully represented an Army combat veteran of the Iraq and Afghanistan Wars before the U.S. Court of Appeals for Veterans Claims. In a case of first impression, the Court held that the Servicemembers Civil Relief Act applies to administrative proceedings before VA and to proceedings on appeal to the Court. Relying on the Act, the Court permitted the veteran, in light of his military service and PTSD and the difficulties he experienced upon returning to civilian life. to proceed with his otherwise untimely judicial appeal. As part of the appeal, two Clinic students presented oral argument to a three-judge panel of the Court on the novel questions of law and fact raised by the case. The Court’s decision is reported at Ausmer v. Shinseki, 26 Vet.App. 392 (2013). The precedential decision will benefit countless other veterans who experience multiple deployments while their VA disability claims are pending or who fail to file a timely administrative or judicial appeal because of the aftereffects of military service. For additional coverage of the case, see http://today.law.harvard.edu/hls-veterans-legal-clinic-court-decision/.

The Clinic successfully represented a Marine veteran before the U.S. Court of Appeals for Veterans Claims challenging VA’s decision to deny her disability benefits for PTSD based on Military Sexual Trauma (MST).  The appeal turned on an issue common to many MST cases: the VA’s credibility assessment of the veteran.  VA adjudicators disbelieved the veteran’s statement that she had been sexually harassed and then raped by a fellow Marine.  In an extensive brief to the Court, the Clinic argued that VA’s adverse credibility determination was riddled with errors, including misstatements about the timeline of events for the harassment and assault and the failure to consider numerous evidentiary markers consistent with MST having occurred.  Counsel for the Secretary elected not to file a brief in opposition and instead proposed to settle the case in the veteran’s favor.  The case was resolved by a joint motion for remand that was approved by Court order.

The Clinic successfully represented an Army veteran before the U.S. Court of Appeals for Veterans Claims in a case challenging the disability rating assigned to him by the Board of Veterans’ Appeals for a grenade wound.  The veteran was a member of the 82nd Airborne Division when he was injured by a grenade explosion during a training exercise.  After full briefing, the Court agreed with the Clinic that the VA had erred in denying the veteran’s claim.  Among other things, the VA had clearly erred in failing to obtain clarification of the results of a medical exam, as required by Savage v. Shinseki, 24 Vet.App. 259, 270 (2011) and Carter v. Shinseki, 26 Vet.App. 534 (2014).  The decision can be found at Alvin v. McDonald, 2014 WL 7399264, U.S. Court of App. for Vet. Claims (2014).

The Clinic successfully represented an Army veteran before the U.S. Court of Appeals for Veterans Claims in a case challenging the disability rating assigned to him by the Board of Veterans’ Appeals for PTSD.  The veterans served as a infantryman in Vietnam and was decorated for his performance in combat.  The Clinic argued in the appeal that the Board of Veterans’ Appeals had unlawfully capped the veteran’s PTSD rating at 70% and failed to consider his eligibility for a 100% PTSD rating, in violation of AB v. Brown, 6 Vet.App. 35 (1993).  The case was resolved in the veteran’s favor by a joint motion for remand that was approved by Court order.

The Clinic successfully represented an Army veteran before the U.S. Court of Appeals for Veterans Claims in a case challenging the disability rating assigned to him by the Board of Veterans’ Appeals for a degenerative condition in his spine.  The veterans had served on active duty in the Army for 20+ years.  The Clinic argued, among other things, that the VA decision to deny a higher disability was fatally flawed and in violation of Jones v. Shinseki, 23 Vet.App. 382, 389 (2010) because it relied on a speculative medical opinion regarding the severity of the veteran’s spinal condition.  The case was resolved in the veteran’s favor by a joint motion for remand that was approved by Court order.

The Clinic successfully represented the widow of a Vietnam War combat veteran before the U.S. Court of Appeals for Veterans Claims in a case challenging VA’s decision to deny her survivor’s benefits.  The veteran had fought in the Tet Offensive. His helicopter was shot down during a re-supply mission, causing the veteran to suffer a serious head injury.  Decades later, the veteran was diagnosed with service-connected PTSD.  The veteran eventually died from a brain tumor.  The VA denied the widow’s claim for survivor’s benefits based on the veteran’s cause of death.  After extensive briefing to the Court, the Clinic persuaded counsel for the Secretary that VA’s denial of the claim was wrongful because it relied on an inadequate VA medical opinion.  Counsel for the Secretary also agreed that the Board of Veterans’ Appeals (BVA) must obtain a new medical opinion.  The case was resolved in the widow’s favor by a joint motion for remand that was approved by Court order.  On remand, the widow was granted full survivor’s benefits.

The Clinic successfully represented a disabled combat veteran before the U.S. Court of Appeals for Veterans Claims on the question of his right to attorney’s fees as a prevailing party represented by a law school clinic.  The case raised important questions about veterans’ access to pro bono counsel to challenge adverse VA decisions.  The Clinic’s position, which the Court fully adopted, was supported by amicus briefs from a coalition of law school veterans clinics and veterans legal services programs and by the Clinical Legal Education Association.  The case is reported at Froio v. McDonald, 27 Vet.App. 352 (2015).

The Clinic successfully represented an Army veteran before the U.S. Court of Appeals for Veterans Claims in a case challenging VA’s decision to deny her disability benefits for PTSD based on Military Sexual Trauma.  The VA had denied the veteran’s claim, in part, because it concluded there was no corroborating evidence of an in-service sexual assault.  The Clinic was able to show that records existed documenting the veteran’s visit to a military hospital to receive emergency care following the sexual assault and that the VA had undertaken legally insufficient efforts, pursuant to it statutory duty to assist veterans, to track down the underlying medical records from the veteran’s emergency room visit.  The Clinic also persuaded Counsel for the Secretary that VA had failed to comply with the statutory presumption of soundness.  The case was resolved in the veteran’s favor by a joint motion for remand that was approved by Court order.

The Clinic successfully represented a combat veteran of the Vietnam War before the U.S. Court of Appeals for Veterans Claims in a case challenging the effective date VA assigned to a grant of disability benefits for PTSD.  Among other things, the Clinic persuaded counsel for the Secretary that the Veterans Law Judge who heard the veteran’s administrative appeal had failed to fulfill his duty under 38 C.F.R. § 3.103(c)(2) and Bryant v. Shinseki, 23 Vet.App. 488, 492 (2010) to advise the veteran of the evidence needed to substantial his claim.  The Clinic also demonstrated that VA had failed to fulfill its statutory duty to assist by neglecting to obtain relevant medical records regarding the veteran’s disabilities.  The case was resolved in the veteran’s favor by a joint motion for remand that was approved by Court order.

The Clinic successfully represented a widow of a WWII Army veteran in her appeal challenging VA’s decision to deny her survivor’s benefits for the cause of the veteran’s death. Following a successful appeal to the U.S. Court of Appeals for Veterans Claims and nearly six years after the widow first filed her claim with VA, the Clinic persuaded the Board of Veterans’ Appeal that the veterans’ loss of the use of his feet—caused by frostbite incurred during the Battle of the Bulge—was a contributory factor in his death and entitled his widow to survivor’s benefits.  The case involved a total of six expert medical opinions–three from VA doctors and three independent medical opinions obtained by the Clinic from outside experts.  More about the case can be found here.

Massachusetts Department of Veterans’ Services and Division of Administrative Law Appeals

The Clinic successfully represented a disabled Army combat veteran of the Vietnam War in a state administrative appeal challenging a decision to deny him retroactive Massachusetts veterans’ services benefits and to recoup previously issued benefits. The Clinic prevailed in appeals before both the Department of Veterans’ Services and the Division of Administrative Law Appeals.

The Clinic successfully represented the widow of a veteran before the Massachusetts Department of Administrative Law Appeals to challenge the denial of state benefits for medical care.

The Clinic successfully represented a homeless Navy veteran in a state administrative appeal challenging a decision to deny him Massachusetts veterans’ services benefits on account of a prior criminal conviction.

The Clinic successfully represented an Army veteran in a state administrative appeal challenging a decision to deny him Massachusetts veterans’ services benefits on account of the character of service he received at discharge.

The Clinic successfully represented an Army veteran in an appeal before the Massachusetts Department of Veterans’ Services to challenge the denial of state benefits.

The Clinic successfully represented a Marine veteran in an appeal before the Massachusetts Department of Veterans’ Services to challenge the effective date assigned to his retroactive benefits.

Together with a coalition of veterans and legal advocacy organizations, the Clinic submitted comprehensive comments regarding proposed revisions to the regulations governing the veterans’ services benefits program.

Massachusetts Superior Court

The Clinic successfully represented an Army veteran in his appeal before the Massachusetts Superior Court challenging a Food Stamp overpayment premised on an inaccurate accounting of his veterans’ benefits.

The Clinic successfully represented a disabled Korean War Era Air Force veteran before the Massachusetts Superior Court in a case challenging the denial of state veterans’ benefits based on the character of his discharge. The Clinic advocated that, under the Department of Veterans’ Services governing statute and regulations, veterans with “other than honorable” discharge characterizations cannot be categorically denied because of that status and, in fact, may be eligible for benefits if the circumstances of their discharge were “not dishonorable.” The case was resolved in the veteran’s favor.

The Clinic successfully represented a Marine veteran in his appeal before the Massachusetts Superior Court challenging the state’s failure to provide him with an appeal hearing regarding his entitlement to Massachusetts veterans’ benefits.

U.S. Department of Veterans Affairs

The Clinic successfully represented a combat veteran of the Afghanistan War in his claim for a 100% disability rating for service-connected cancer.

The Clinic successfully represented an Army combat veteran of the Vietnam War in an appeal seeking a 100% disability rating for PTSD.

The Clinic successfully represented a female combat veteran of the Iraq War in her appeal seeking a finding of Total Disability based on Individual Unemployability (TDIU).

The Clinic published a groundbreaking report, Underserved, about VA’s denial of basic services to veterans with less-than-honorable discharges and submitted a Petition for Rulemaking to VA to enhance access to benefits for these veterans. More about this work, including the extensive media coverage of the initiative and our partnership with community organizations, can be found here.

Discharge Upgrades

The Clinic successfully represented a Marine veteran in his petition to the Naval Discharge Review Board to upgrade his discharge status from Other Than Honorable to General Under Honorable Conditions.  The veteran had received the Other Than Honorable discharge because of alleged misconduct that was in fact connected to his having been the victim of a sexual assault in service.  (DD-214).

The Clinic successfully represented a Marine veteran in his petition to the Naval Discharge Review Board to remove a stigmatizing and inaccurate psychiatric diagnosis from his military discharge records (DD-214).

The Clinic successfully represented a veteran discharged for being gay in his petition to the Air Force Board for Correction of Military Records to remove stigmatizing and inaccurate information from his military discharge records (DD-214).

The Clinic successfully represented a Vietnam War veteran discharged for being gay in his petition to the Board for Correction of Naval Records to remove stigmatizing and inaccurate information from his military discharge records (DD-214).

The Clinic successfully represented a combat of the Afghanistan War in his petition to the Army Discharge Review to upgrade his discharge from General Under Honorable Conditions to an Honorable Discharge.  The veteran had only received a General Discharge because of alleged misconduct that was in fact connected to his having suffered from PTSD following his combat deployment.