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Tuesday, September 21, 2010

Dept of Veterans Affairs Denied My Request for Same Sex Spouse Benefits

Greetings, Invisible Reader.  If you're a faithful follower of mine this will come as no surprise to you.  If you're a new reader, welcome to my world.  I hope you'll stick around and enjoy your time with me.  Come back often.  Things change rapidly around here.

I knew it would happen.  I said so in the blog I posted on June 14th, 2010That was when I made the huge announcement that I'd gotten married.  I told you that I was going to file a claim with the Department of Veterans Affairs requesting that my new wife be added to my VA award as my dependent/spouse.
My Beautiful Wife, Terri and our Dog, Rocco 

I admit I submitted this request more on principle than anything else.  I want what opposite sex couples get.  I served my country for twenty years.  My wife deserves whatever she has coming to her when I die. It isn't about the extra few bucks I'd receive monthly if my request is approved.  Nevertheless as I predicted my request was denied.  I received the letter just last week.  The letter states, and I quote, "We denied your claim to add Theresa Goodman as a spouse on your award.  According to 38 C.F.R. 3.50, a "Spouse" means a person of the opposite sex."

I wasn't surprised when the letter arrived.  I'd been expecting it from the day I mailed it.  This battle for benefits isn't just about Terri & I.  It's for all the same sex couples out there who haven't yet filed for benefits.  Someone has to start fighting for us.  I have the time to do it.  My wife agreed to join in the battle.  With her blessing how can I lose?  Without her blessing there would be no battle.  I wouldn't have started this without her okay since this may get very public.

The most interesting thing to me is the only evidence they used to decide my claim was a VA Form 21-686c, Declaration of Status of Dependents.  At no point did they request a copy of our marriage certificate, a copy of Terri's birth certificate or any other legal documentation.  It only took them three months to tell me "no".  On the other hand, my claim for Individual Unemployability has been pending for two years and they've asked for pages and pages and pages of evidence.  You figure it out.  Could Theresa Caldwell Goodman be a male?  How do they know she's not?  They assumed based on her name (and rightly so) that's she's female ... but still, Invisible Reader, on the off chance that she was a he ... than the denial would've been way off base.

This brings up another question.  How would the VA handle a request from a transgender couple?  What if you live in a state where your birth certificate never gets changed after SRS?  Let's say you're a M2F post-op Veteran.  You marry a woman.  Your birth certificate still reads you are biologically male.  Will the VA approve your new wife as your spouse?  How about if it's the opposite situation?  F2M TG marrying a woman or a man even?  If there are any transgenders out there reading this, I'd really like to discuss this with you.  You have my word I will keep your identity anonymous.  I'm very good at that and I have references if you want/need them.

So what's next?  You don't really think I'm going to stop here and give up, do you?  If so, you haven't been reading my blogs for very long.  I'm a fighter, Invisible Reader.  I went into this battle knowing I'd be denied.  I knew I was going to be hit with a bunch of denials and this was going to be a years-long battle.  I'm ready for it.  I really hope there are other Veteran same sex couples who will join me in this battle.  I will walk you through the process of applying for this benefit step by painful step if you want to jump on this bandwagon with me.  C'mon, Invisible Reader, why should Terri and I be the ones having all the fun?

This morning I completed step two.  I went to my local friendly post office and sent off my Notice of Disagreement (NOD) to the St Pete Regional Office.  It's a simple process to file a NOD.  I wrote a short, four paragraph letter to the VA Regional Office.  I referenced their denial letter, told them I disagreed with their decision, and why I disagreed with it, and asked for a Decision Review Officer (DRO) to review my claim and I asked for a personal hearing in front of the DRO. 

Did I mention why I disagreed with the denial?  You'll love this one, Invisible Reader.  I wish I could claim it as my own but I can't.  The credit for this goes to my friend and mentor, the master Advocate himself, Jim Strickland.  He had me write this, "I believe that to deny me such benefits are unconstitutional and violate the Fifth Amendment's equal protection principles."  That, Invisible Reader, is the basis of my disagreement with the denial.

So what's next?  Wait.  Again.  Wait for the next denial which I know will ultimately come.  There is no way the Code of Federal Regulations (C.F.R.) will change between now and when the DRO reviews my claim.  The law doesn't change that fast. Once I go through that denial I'll appeal to the Board of Veterans Appeals.  (BVA)

This will take years.  I'm not kidding myself, Invisible Reader.  I know I'll need a lot of patience for this one. I've heard horror stories of BVA appeals taking upwards of 5 to 10 years.  With a little luck, mine won't take that long because we all know it's going to be denied because of the definition of a spouse.  After the BVA denies it, that's when the real fight begins.  That's when we go Federal.

Yes, you read that right, Invisible Reader.  After the BVA loss, I'll be looking for attorneys to help me take this through the Federal Court system.  I plan to hit up all those attorneys who claim to like a public fight ... you know the ones I'm talking about ... to see if they'll take this case.  This could be a landmark case if you think about it.  Realistically I can see this going all the way to the Supreme Court.  No kidding, Invisible Reader.  Think about the long term effects this will have.  This is big.  Really big.  We're talking about civil rights here.  

So, I say again, if you are a same sex couple and you'd like to get in on this, please contact me at  Don't be afraid to file.  The VA can't hurt you.  You won't lose your benefits.  You're retired now.  You're a Veteran now.  You have nothing to lose and everything to gain.  By filing for it now you're establishing a claim date for back pay for when it is finally approved.  Trust me, Invisible Readers, it will be approved.  I believe this with all my heart.  It could take years.  It will take years.  I believe that, too.  What have you got to lose?  Not a damn thing.  What have you got to gain?  Everything.  Think about it, Invisible Reader.  

Until the next time .....

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