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Jerry Shipman and the Thirteen Days (a veteran poorly served by the Department of Veterans Affairs)
“There were no skid marks. He ran straight into the tree. ‘Must have been a seizure. He had a history, you know.” I thanked the officer for his time and hung up.
A historian should have interviewed Jerry Shipman. Jerry piloted the US Navy “whale boat” carrying the first boarding party to inspect the first Soviet controlled vessel stopped during the 1962 blockade of Cuba, the Marucla. The Marucla was Panamanian owned, registered from Lebanon, bound for Cuba under a Soviet charter and, ironically, a WWII era liberty ship built in America.
I did not see Jerry smile often. Most of those were at greeting or parting and reflected nothing more than courtesy. He did not have a lot to smile about. One genuine grin accompanied relating his memory of the trip toward the freighter; “They talk about ‘eyeball-to-eyeball’ and who ‘blinked first’. I’ll tell you one thing, those officers weren’t thinking about blinking. They were about to crap their pants.” Jerry went on to explain that no one on board the whale boat had any idea what type of reception they would receive; gun fire, welcomed then taken hostage, no idea at all.
Jerry’s service connected disability claim had been initially denied by the Indianapolis Regional Office, appealed at that level, again denied, and appealed to the Board of Veterans Appeals in Washington, DC before I met him. He became a regular visitor in the Monroe County Veterans Affairs office, each visit checking on the status of his BVA appeal. Jerry usually stopped by monthly, arriving about a half-hour after we opened. The timing was another demonstration of his courtesy. I would make calls, discover nothing new, we would talk briefly, and Jerry would take his leave before I moved on to the next veteran. I can’t recall he last time I saw him although I know it was in 2001. All the visits were so similar. All were so melancholy.
About a year after the Marucla boarding, Jerry went to the wrong bar while on liberty in Naples, Italy. He was about five feet, seven inches tall and slightly built. Wrong bar, indeed. Jerry was hit on the top left side of his forehead with a pipe. As he pointedly observed decades later, photographs showed a “baby faced” Jerry Shipman at the time of his enlistment into the Navy; “Look at that picture. ‘Not a mark on me!” The Jerry I grew to know had a disfiguring dent and scar. He also had a calcified aneurism which pressed upon his brain in such a way as to cause unpredictable seizures. Jerry had been awarded non-service connected pension because of being unemployable. His Armed Forces Expeditionary Medal for service during the Cuban missile crisis satisfied the war time service requirement for the needs-based (low income, low net worth) pension.
I never saw Jerry’s original service connected disability claim or the initial Indianapolis denial. He had appointed the Disabled American Veterans as his representative organization. Deducing from what happened . . well, I don’t think the original claim was of the best possible quality. The senior DAV service officer in the Indianapolis office, whom I remembered from the late 1970s, had just retired and an aggressive young service officer assumed the lead role. ‘Thought he knew about everything. Maybe he did, but his office didn’t do a good enough job for Jerry. Sometimes it seems “The VA” gets initially locked into a negative position and will not budge thereafter unless forced to do so. It’s as though they want to sustain their coworkers’ earlier decision, and as if they’ve forgotten their own regulation to resolve cases of reasonable doubt in favor of the veteran1.
One day there was news. The Board of Veterans Appeals made an almost-decision: the Board did not outright reverse the Indianapolis Regional Office, but rather remanded the case back to Indy to reconsider. The new senior DAV service officer assured Jerry he would get the service connected disability rating quickly. The service officer told Jerry he had “never seen the Regional Office not take the remand hint from the BVA”, as though he had seen scores of such remands.
Jerry resumed his monthly visits, now waiting on the Regional Office reconsideration. He was always patient, sitting quietly until his turn. Thinking back on his subdued behavior, I wonder if decades of seizures had taught Jerry to avoid becoming upset or even to avoid moving quickly. I never noticed him reading any of our magazines. His clothes were always clean and presentable. Jerry lived with his eighty year old widowed mother in her small frame home several miles outside of town. He borrowed her car to drive in to see us. I once asked him – thinking about my wife, son, and daughter who were sharing the road with a driver who had unpredictable seizures – if he was “legal to drive”? Jerry gave me another courtesy smile and said he was. I’ll never know what that meant. Perhaps he just didn’t tell the Indiana Bureau of Motor Vehicles about his disability. You can do that in Indiana, or at least you could in 2000.
Although polite, Jerry was also a proud man who had a hard time hiding his frustration these years into his claim. He wanted to marry his girlfriend, she had agreed, but he refused to do so on his limited non-service connected pension income. Jerry was fifty-nine years old and did not want to bring his wife home to live in a room of his elderly mother’s home. All of his hopes were contingent upon gaining the service connected compensation. With the roughly three times his small pension income he could move into a cheap apartment, get married, provide (CHAMPVA) health care for his wife, and feel – well, independent and more like a man. His compensation with spouse in 2002 would have been $2,287 per month. Not a large income. At this point the VA had spent many thousands of dollars of staff time to deny Jerry this benefit.
The Indianapolis Regional Office turned Jerry down again. By this time I had been called to active duty with the Defense Intelligence Agency in Washington, DC due to the terrorist attack on September 11, 2001. One of the veteran assistants told me about the decision by email. The DAV promptly appealed to the BVA again and the Regional Office was forced to produce a Supplemental Statement of the Case2, obviously word-processed from the original and therefore easier to do. The Supplemental was sent both to Jerry and to the DAV. Jerry brought his into my civilian office and one of the assistants mailed a copy to me. I took time out from thinking about Afghanistan and reviewed it the evening it arrived.
As nearly as I could tell, the second Regional Office denial was based on a perception that Jerry’s misconduct contributed to his injury. The document had been cranked out so quickly that the reasoning expressed was hard to follow. There were sentence fragments and gaps in the text. It was embarrassing to see such errors in a document which meant so much to a human being. The primary author of the Supplemental obviously had a bias against enlisted sailors. He focused on the facts that Jerry went to a bar while on liberty and, if not an actual combatant in a fight, was certainly a victim.
I spent a few hours picking the regional office denial apart and developing a point-by-point rebuttal statement for Jerry’s signature. Among other criticisms, I mentioned that bars are where junior enlisted sailors go when in port on liberty. Not surprisingly, especially in Naples, some sailors are mugged. This does not constitute misconduct. Maybe bad judgment, certainly bad luck, but not a chargeable offense. There was no evidence on record that Jerry went to an “off limits” establishment or was on any duty status other than approved liberty at the time of his injury. Had the Navy found Jerry guilty of an offense which contributed to his being injured the VA would not have even initially considered his claim. That’s one of the purposes of “line-of-duty” determinations which are required after any injury. The VA had requested and received all of Jerry’s military personnel and medical records as the first step in adjudication. The medical records included details regarding his fractured skull. I wrote a cover letter to the DAV office which was preparing his second BVA appeal package, suggesting they have Jerry sign the enclosed statement and include it. I could not deal directly with the VA on Jerry’s behalf, I was not his representative. The DAV was. They didn’t include the statement. ‘Filed his second BVA appeal without – I’ll never know for certain but strongly suspect – ever showing Jerry the statement I prepared for him. I suspect our young service officer was still overconfident. Maybe he did not appreciate my presumption.
Jerry had to wait a few more months for the second, and final, Board of Veterans Appeals decision. At the time of Jerry’s appeal, we – the Disabled American Veterans, the Indiana Department of Veterans Affairs, my regional office friends, and I – all considered the BVA as the end of the line. None of us had any experience with the new United States Court of Appeals for Veterans Claims and we were all afraid of filing fees, representatives had to be approved attorneys, and – well, we were just ignorant. The veterans’ assistants told me Jerry resumed checking in every month.
The Board of Veterans Appeals decision arrived: Denied.
Less than a week later Jerry Shipman, the sailor who so professionally piloted the first boarding party in the blockade and helped avert World War III, drove straight into a tree in broad daylight.
There were no skid marks.
 Title 38, Code of Federal Regulations, Section 3.102:
It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships.
 Statements of the Case provide more in-depth information as to why the VA made their decision. The claimant and/or his representative organization might decide after reviewing the Statement that the VA is right and drop the appeal. Or, they might decide the decision still stinks and have a better handle on the VA’s mistake(s) or gaps in the information on record to support the claim. Constructively, the Statement of the Case is the VA “laying their cards on the table.” A good representative will build the appeal to address the weaknesses shown in the Statement.
However, the typically thirteen pages long Statement of the Case seems to be designed to intimidate appellants with boiler-plate legalese. Some give up, thinking, “I can’t deal with this! I can’t afford an attorney!” For as long as I have been involved in veterans’ appeals, service organizations and other veterans’ advocates have clamored for the VA to revise the Statement of the Case format. It should present information in such a way that it is readily understandable and useful to the claimant trying to decide whether to pursue the appeal or not, and if pursued, to logically compose the VA Form 9 (the next step in the process) entries and to prepare for the hearing. The most obvious improvement would be to clearly divide the Statement into labeled sections: 1) put the always-the-same, sent-to-every-traditional-appellant, twelve-single-spaced-pages-plus, pure-legal-boilerplate language pertaining to burdens of proof, statutory requirements, quality of evidence, etc., in a section labeled “Legal information you or your representative should review that applies to all appeal cases.” 2) Put the average half-page of language unique to the instant case that actually explains why the claim was denied in a section labeled “Specific information as to why your claim was denied.” Sticking the critical information at the tail end of pages and pages of generic and usually non-applicable filler is a disservice to the appellant who may agonize over every word, an insult to the value of their time, and reflects poorly on the Department. Please remember, 99+% of the appellants have never seen a Statement of the Case before. Most service organization representatives have only a high school education. Why continue to make Statements of the Case difficult to follow and understand if not to discourage?