Editor: Please tell us something about your professional experience.
Bragg: I am a member of the FDA healthcare group and work with a variety of pharmaceutical, medical-device and bio-technology companies on FDA and healthcare compliance issues. Prior to joining King & Spalding in 2003, I was with the Food and Drug Administration's Office of Chief Counsel. One of the most exciting things I have been involved with at King & Spalding is our pro bono program, and specifically our partnership with the Disabled American Veterans ("DAV").
Smith: I joined DAV in 1989 after spending nearly five years with the Department of Veterans Affairs. Speaking of DAV, perhaps an overview of the organization is in order. It was established in the 1920s, following World War I, to represent veterans and their dependants with respect to claims against the United States government for disability benefits. Although chartered by Congress, DAV is a private institution and receives no governmental funding whatsoever. We have a budget of approximately $150 million, 1.3 million members and employ nearly 1,000 people. Among other things, we are engaged in congressional legislative activities to improve healthcare for veterans and to enhance the benefits available to service personnel wounded in wartime. Our administrative headquarters is located in Cold Spring, Kentucky, and our Washington, DC headquarters houses our service department, volunteer services department, and lobbying activities. We have, in addition, at least one office in every state in the country and offices wherever Veterans Administration regional offices are located.
Editor: And the King & Spalding partnering arrangement? What brought the two of you together?
Smith: This was King & Spalding's doing, so let me ask Miss Bragg to tell you about it.
Bragg: An associate at King & Spalding, Ehren Halse-Stumberg, was instrumental in getting this project off the ground. After hearing a number of Washington Post stories about unfortunate conditions at Walter Reed Army Medical Center, he took the initiative to contact a number of organizations, including DAV, to see if there were ways in which the resources of the firm might be put to work on behalf of the men and women in uniform. That led to discussions with DAV and a partnering arrangement that draws on the considerable strengths of both organizations. We take a great deal of pride in our relationship with DAV and our joint commitment to help meet the needs of our servicemen and women.
Editor: What are the needs? Many Americans are asking why our disabled servicemen and women would need legal representation today.
Smith: Good question. DAV has National Service Officers who represent soldiers before each of the Army's physical evaluation boards, which are located in Washington, DC, San Antonio, TX, and Tacoma, WA. This representation concerns veterans seeking disability compensation as well as soldiers who have been injured in the line of duty and seeking disability retirement benefits. For some time we had been receiving complaints from our representatives to the effect that these boards seemed to be underrating the disabilities of soldiers seeking benefits or compensation. In response, we took on several cases here in Washington, and those cases confirmed what we were being told by our people in the field. We increased our staff as a consequence. It was at this juncture that we were approached by King & Spalding. The timing could not have been more fortuitous. We have been introduced to a number of very enthusiastic, and extremely able, King & Spalding attorneys, and we have already held an initial orientation on the process in which we are engaged.
Bragg: We believe that each of these soldiers should know that he or she has an ally, someone who will represent their interests at a very difficult time in their lives. Most of these people have been through harrowing experiences, and many are a long way from family and friends. Confronting a huge, faceless and seemingly indifferent bureaucracy is difficult at the best of times, and this is a particularly daunting challenge for those who have seen war and suffered the consequences of war, in some cases grievously. At the very least, we believe that they should be given personal attention and that their rights should be protected to the fullest extent possible.
Smith: Let me try to give you some idea of what these soldiers are up against. Under the statute, 10 USC 1201, the military is required to follow the Department of Veterans Affairs schedule for rating disabilities. Our experience is that they are not, but rather that they have taken it upon themselves to modify the schedule. These modifications have dramatically, and adversely, affected the soldiers being considered for disability retirement. If they are rated less than 30 percent disabled, for example, they are not retired on disability but rather given a one-time severance payment and discharged. Their dependants are likewise denied all of the dependants' benefits that come with disability retirement. Some of these cases are simply outrageous. We have recently taken on the case of a soldier whose injuries from a roadside bomb in Iraq would be rated a 100 percent disabling condition under the VA rating system. The military has rated him 10 percent disabled and discharged him - no disability retirement, no medical care for his children. He has since been adjudicated incompetent in state court and made a ward of his mother.
Needless to say, we are very excited to be working with King & Spalding in an effort to turn this system around.
Editor: The story that you've just conveyed is absolutely appalling. Why would the military do such a thing?"
Smith: I do not have an answer. Approximately two years ago an article appeared in The Wall Street Journal in which a high-ranking Department of Defense official stated that if injuries continued to mount from the war on terrorism disability payments to injured soldiers would eventually undermine the country's ability to defend itself. Such a statement sends a certain message to the boards that make these decisions. It also contributes to a certain culture that has developed in recent years which is adverse to the interests of veterans. I can think of no other explanation for the fact that more soldiers were granted disability in 1998 - long before the fighting in Afghanistan and Iraq - than in 2005. This state of mind also tells us something about the increasing inability of the military to meet its recruiting targets.
Editor: How does the federal law's "benefit of the doubt" requirement work?
Smith: The benefit of the doubt is a fairly straightforward rule. It says that, in the determination of an issue of fact, if the evidence is evenly divided then that disputed fact should be resolved in favor of the soldier. What we find, for example, is a pattern where a private physician's opinion concerning the severity of a disability is discounted by a military physician's opinion. Since the courts have ruled that weight determinations are not reviewable, the rule does not help soldiers to the extent that Congress intended.
Editor: If what, in effect, is an administrative tribunal makes a decision, is there a way of getting that decision into federal court?
Bragg: Yes, we believe this is possible. After the administrative remedies have been exhausted, we think a claim can be brought in the United States Court of Federal Claims. There are a number of challenging procedural issues, but with the research skills of a group of dedicated attorneys brought to bear, we think our contribution to this initiative can be very meaningful.
In addition, this is precisely the kind of project that constitutes an opportunity to provide direct aid to those in need. There are few, if any, occasions more gratifying to a lawyer than one when, but for his or her intervention, that need would not have been met.
Editor: What is the status of the initiative now?
Bragg: We have had a terrific turnout from King & Spalding, with more than 30 attorneys participating from our Washington office. We have completed our preliminary training and are in the process of identifying the cases we wish to handle. They fall into two categories: the physical evaluation board hearings on behalf of individual soldiers, and appeals from those hearings to the Court of Federal Claims. We are identifying the key issues, and this is an important step in the process. The decisions made by the military at the physical evaluation board level do not have precedential value, but those of the Court of Federal Claims, in our view, do constitute precedent. And such decisions are reviewable by the United States Court of Appeals for the Federal Circuit. Accordingly, it is important that we focus on the right issues here.
Editor: I gather that the initiative covers Walter Reed and the Bethesda Naval Hospital. Any plans to extend it to other hospitals within the military system?
Bragg: King & Spalding has a large presence in Atlanta, and the lawyers in that office have already begun to reach out to partner with individual soldiers at the local VA hospital. This derives from our discussions with DAV here in Washington, but it is a separate undertaking at the moment. As this initiative matures, however, we anticipate that it will extend to other institutions within the military hospital system. And we certainly anticipate that any successes we have here in Washington will reverberate throughout that system.
Smith: We certainly agree with that. After we have developed experience here in Washington, DC, we will certainly consider extending the program to all of the sites where the physical evaluation boards sit. At the moment we are very close to making our first Walter Reed referrals to King & Spalding.
Bragg: The success of any arrangement like this is dependant on the caliber of people involved. Our firm is very fortunate to be partnering with an organization comprised of people who have demonstrated their commitment to doing the right thing, their integrity and their exceptional expertise in serving a group of men and women who deserve the best from their country. Participating in this initiative is a great privilege for King & Spalding.
Smith: I can assure you that DAV's admiration of King & Spalding is equally great.
Published August 1, 2007.