Broken System: Despite 30-year battle, federal court victory, Vietnam veteran’s disability claim remains unresolved

By Ken Olsen

(Copyright 2011 / All Rights Reserved)

Leroy Comer in his garden, spring 2009. (Photo by Alicia Wagner Calzada)

A federal appeals court ruled in his favor two years ago, but Leroy Comer’s decades-long fight for less than $30,000 in VA disability benefits remains mired in the bureaucracy.

Comer, who started pursuing his case in 1988 with handwritten appeals penned in homeless shelters, received a partial settlement of $13,772 in November 2010, along with a note saying that the case couldn’t move forward without information Comer says he provided to VA years ago. In addition, VA withheld some of Comer’s past-due compensation to pay an attorney who withdrew from the case nearly four years ago.

It’s hardly a surprise to the Vietnam War veteran, who has endured years in limbo. He’s frustrated that delays continue even after a federal court ruled in his favor. “I’m tired of them,” Comer says. “I don’t believe they want to make it right.”

Dion Messer, one of two attorneys who represented Comer when his case finally reached the U.S. Court of Appeals for the Federal Circuit, shares his frustration. “I’m completely disappointed that his case hasn’t been resolved, despite the hard work and effort we put into this,” Messer says. “The disability-compensation system is broken. It’s really broken.”

Comer first suffered debilitating flashbacks after coming home from Vietnam in 1970, where he guarded an ammunition dump that was under frequent mortar attack. Unable to keep a job, he lived on the streets, used alcohol and drugs to numb his nightmares, and served time in prison for drug possession and robbery.

VA first diagnosed Comer with post-traumatic stress in 1988, but initially denied it was caused by his service in Vietnam. He spent more than

10 years battling to get the government to acknowledge that his illness was connected to his combat tour. He then spent most of another decade attempting to get VA to grant him a few hundred dollars in retroactive compensation for errantly denying the original PTS claim.

By the time he reached the U.S. Circuit Court in 2009, the last resort for veterans unless their cases are heard in the Supreme Court, Comer was seeking an additional five years of retroactive benefits because a VA doctor concluded in 2004 that PTS prevented him from holding a full-time job. That request failed because Comer didn’t realize he wasn’t filing the correct paperwork.

VA didn’t provide that detail, and convinced lower courts that it wasn’t required to provide such assistance.

Comer’s case caught the attention of Edward Reines and Dion Messer from the law firm of Weil, Gotshal & Manges in February 2008 when the beleaguered veteran handwrote one last appeal to the U.S. Court of Appeals for the Federal Circuit. Reines and Messer took on his case free of charge. In a January 2009 opinion, Appeals Court Judge Haldane Robert Mayer strongly rebuked VA.

“The VA disability-compensation system is not meant to be a trap for the unwary, or a stratagem to deny compensation to a veteran who has a valid claim but who may be unaware of the various forms of compensation available to him,” Mayer wrote. VA is legally required to tell veterans about every possible benefit, and then help them do what’s necessary to receive them – including informing a veteran when he isn’t filing the right paperwork. That sort of assistance is particularly needed in cases such as Comer’s, where “a veteran is afflicted with a significant psychological disability.”

At the end of the day, the government’s interest in veterans’ cases is not winning, “but rather that justice shall be done, that all veterans so entitled receive the benefits due them,” Mayer added. He sent the case back to the Court of Appeals for Veterans Claims.

At the time, Comer and his attorneys were optimistic about the precedent-setting decision. They believed his case would finally be resolved, even though they expected it would take some months for it to work its way back to VA’s regional office in Waco, Texas, for a final decision. In fact, the case still drags on.

Messer left Weil, Gotshal & Manges after it closed its Texas offices in fall 2009, and the case was assigned to Mark Davis, an attorney in the firm’s Washington office. Anish Desai, who is assisting Davis, says it’s been difficult to keep the case moving. “There’s no real clear avenue to speeding things up at VA,” Desai says. “In a case where there’s supposed to be expedited treatment, they should have specific dates by which decisions are made.”

From VA’s perspective, a substantial portion of Comer’s case was addressed by the $13,000 settlement. Beyond that, VA says it’s doing what’s necessary to accurately evaluate his case. “The responsibilities of the highly skilled staff members who process appeals at VA regional offices and the Board of Veterans Appeals include carefully evaluating the credibility, weight and probative value of the often extensive evidence that is submitted in support of appeals,” VA said in an e-mail response to questions about Comer’s lingering claim.

VA also said the $13,772 covers what Comer is owed for his retroactive claim, except for $3,443 in fees it withheld to pay a California attorney who represented Comer on his first appeal to the Court of Appeals for Veterans Claims. The attorney withdrew from Comer’s case after that appeal failed in 2007. The attorney’s firm, the Veterans Law Group, says it will return any payment from VA related to Comer’s case, in keeping with its long-standing policy to not accept fees in cases where it withdrew.

Weil continues to represent Comer pro bono, Desai says. In addition, the law firm was awarded $70,000 in attorney fees by the government for its work on the federal-circuit-court appeal. So it isn’t seeking a portion of Comer’s settlement for legal fees.

Meanwhile, VA also says it has done all it can until Comer provides “a complete history of employment, unemployment and incarceration” required to address the rest of his claim.

VA should have a clear picture of Comer’s work history, attorneys say. “The record contains document after document recording Mr. Comer’s inability to keep a job,” Messer says.

Desai agrees that Comer has provided his work history to VA before, but “it would take longer to figure out why they are asking for it than to give it to them.” That’s not as simple as it might seem, considering Comer lived on the streets for nearly 20 years after returning from Vietnam and hasn’t held a full-time job since 1975 because of his PTS.

For Comer, however, it’s just another day of fighting the bureaucracy. “I think they prolong and prolong and prolong,” he says, “until you get tired and say, ‘To hell with it.'”

This story originally appeared in the March 2011 issue of The American Legion Magazine.

Photo of Leroy Comer by Alicia Wagner Calzada, http://www.aliciaphoto.com/

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About Veterans' Voices

Veterans Voices is produced by Ken Olsen, a freelance writer and author who frequently writes about military families and veterans issues for national magazines
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