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, 2010.  That 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 WendiGoodman1958@gmail.com.  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 .....

Let the journey begin

You know I've been watching the mailbox. Yesterday, IT finally came. The envelope from Sean Culliton, Esq. I had expected something much thicker and heavier, not this thin, lightweight letter. Mind you, it came in a standard legal size paper envelope. Numbers have never been my thing so the dimensions have slipped my mind at the moment. But you get the idea, don't you, Invisible Reader?

I looked at it for a few moments and then I put it down on my little table just outside my bedroom. I still was not yet ready to deal with it. Odd, I've been watching the mailbox since I got off the phone with Sean. Here I had it in my hands and I put it down to look at later. It doesn't make sense, does it?

I left it on the table and went online. I answered emails, poked around on Jim's Forum, Straight Talk for Military Veterans, watched a little television. Mostly the television was on for the noise. Not that I need tv for background noise. I live in a house with two young adults barely out of their teens, 11 birds and 5 dogs. There is plenty of noise in our house. Someone or something is always barking, screeching or yelling and it's usually an animal.

Finally I decided I was dragging it out just a bit too long ... sort of like this blog, eh, Invisible Reader? I went back in the house, grabbed the envelope and opened it. Inside were 16 pages of paperwork for me to go through. Just the thought of that was enough to make me break into a cold sweat. Part of my problem these days is that I have a very difficult time concentrating on any one task for very long. Often times, these blogs take me two or three days to write. Proofing them is a real bear because I have a difficult time comprehending what I've written. How about that, Invisible Reader? Half the time I can't even understand what I've written after I've written it. Blogging for me is blood, sweat and tears. It sounds cliche but I really do pour my heart and soul into each blog that I write.

The cover letter was easy enough to understand. Basically all it covered was a standard "Thank you for contacting my office ..." and then it listed the enclosures for me to review and sign. Those are:

Enclosure 1. Contract of Representation and Statement of Clients Rights: This was the longest of the documents and the most difficult for me to get through. I'm not stupid by any means. I'm college educated and some people even think I'm "intelligent." But as I explained two paragraphs ago, I have difficulties with concentration and comprehension these days. It's a combination of the medications I take and depression. I'm sure many of you can relate. I read through eight pages of the contract several times over, making notes about the parts I was having problems with. Then I went back to those parts I was having trouble with and read them again. I emailed Sean and asked him a couple of questions and he responded right away.

The contract itself covers everything from how much the attorney will be paid to how the attorney will be paid. It covers how expenses will be paid, what legal services are to be provided. It also addresses the responsibilities the attorney and client have to each other in terms of keeping the lines of communication open. (I like that part.) The contract gives the Department of Veterans Affairs the right the pay the Attorney directly out of the back pay if I win my case. It gives me the right to fire my Attorney but it tells me I have to pay him if I do. It says that there are no guarantees that the attorney will win this case for me.

That's the meat of the contract as I understand it. There's more stuff, of course, but in my opinion, those are the most important items.

Enclosure 2. Statement of Client's Rights: The title is self explanatory. A lot of legal terms explaining your rights. The introduction states. "This statement is not a part of the actual contract between you and your lawyer, but as a prospective client, you should be aware of these rights."

This document covered the fees a lawyer can charge a client, the time you have to cancel the contract, questions you have a right to ask when hiring an attorney. It states before signing a contingent fee contract, a lawyer must advise you whether the lawyer intends to handle the case alone or whether other lawyers will be assisting. (Good to know!) You, the client, have to right to consult with each lawyer who is working on your case. It covers how expenses are handled which is good to know. Are there adverse effects if your case is lost? You have the right to be told that as well. You, the client, have the right to receive and approve a closing statement at the end of the case before you pay any money. This must be in the form of a detailed statement. Of course, you have the right to know how your case is progressing! If a settlement is offered, you have a right to know about that and the decision is yours to make.

If at any time you believe that you have been charged an excessive or illegal fee, you have the right to report the matter to the (your state here) Bar, the agency that overseas the practice and behavior of all the lawyers in (your state here).

Enclosure 3. VA Form 21-22a, Appointment of Individual as Claimant's Representative: This is an easy one, Invisible Reader. At one time or other, most of us have filled this out before. This is what gives those VSO's or other representatives the right to prepare our claims and represent us.

Enclosure 4. VA Form 10-5345, Request for and Authorization to Release Medical Requests or Health Information: I've filled these out more times than I can count. Every time I submit a claim and have to pull medical records from all the places that I've been treated (I've moved all over the United Stated since I retired from the Army in 1994), I have to sign tons of these. I'm sure you have too, Invisible Reader, if you have a gypsy soul like I do.

Enclosure 5. SF 180, Request Pertaining to Military Records How many of THESE have we all filled out over the years and sent them off to St Louis trying to pull medical records, 201 Files, DD Form 214's, awards and decorations? Most of us think of St Louis as the black hole. We send off requests for records and we never hear anything back or we get replies back that our records were destroyed in the fire. The only thing I've had success with is getting copies of my DD214. For that I use the eVetrecs Link. I've been using it for years and I can usually get a DD214 in 4-6 weeks. But, the lawyer wants a signed copy of the SF180 so he's getting it.

I have to point out that while I was sorting through all this paperwork I had the ABC Soaps on in the background. Yes, I admit it. I am a soap opera addict and I have been since grade school. I have stuck with the ABC soaps and have never wavered from them. Over the last few weeks I have been so wrapped up in all my doctor appointments and Veterans activities that even though they are on in the background, I haven't been paying much attention to the story lines. It won't take much to catch up. In soap time I've probably only missed a day or two. General Hospital was on and I happened to look up at the television in time to see two of the characters (I'm not even sure who they were but a quick peek to my favorite soap website will tell me) up to their necks in what appeared to be very cold water. It looked like they were on the verge of drowning but they were fighting to stay afloat and alive. In that one moment, that was how I felt as I sat there going through all those legal documents. Looking at them I knew exactly how they might have felt if what I was watching had been real. It was torture trying to keep it together and figure it out.

The final enclosure. HIPPA Release and Authorization: I think by now most of us now what "HIPPA" is, at least in concept. It's that law that means that I can't call the hospital anymore and ask how my best friend in bed number 4B is doing after her car accident. This release authorizes anyone to release information to or speak to my attorney about any or all of my health care issues.

Just as it took me several hours to decipher the letter from my attorney, it's taken me several hours to write the last few paragraphs. I'm sure I oversimplified much of the text of the documents, but you should have the basic idea of the contract. It seems to be a fairly straight forward contract. It spells everything out clearly enough once you get through the legal jargon. There are protections built into the contract for both of us. He gets paid if I get paid. If he screws me over and I'm smart enough to catch him at it (there's the catch, Invisible Reader), he's in for the ride of his life. I've signed the releases so he now has access to my entire military and medical history.

A very wise man said to me recently (& he knows who he is, Jim), I have to be able to let go of my claim and let Sean do the work. I was an Admin NCO in the Army. After the Army I managed high dollar businesses for a living. I even went into Army recruiting as a civilian for a while. I'm used to being in charge of details. I let go of my claim to the DAV. I trusted them and they screwed me. They failed to do the job I hired them to do. Letting go is something I will have to get used to. Trusting is something I will have to learn. (I'm drowning here.)

On another note. An anonymous poster left a comment on my last blog that I rejected. This anonymous poster said that while I sound, "literate and organized" (gee, thanks) he sees no reason why I cannot work. He said that he is 70% and works every day and he is sure there is some kind of work out there that I can do. He said that he would not request 100% IU and neither should I.

I rejected his post. I can't stand a coward. If you have something to say to me, at least have the guts to put your name to it. Thanks, I think, for your offhand compliment. I'm "literate and organized"? Ya think? What does that have to do with anything? If you are able to work at 70%, that's great, pal. More power to you. Congrats.

Guess what. I am not you. My guess is you are one of those VSO's out there who tells Veteran's like myself that it can't be done. You are one of those VSO's who won't work hard for a fellow Veteran. I make this assumption based on your statement about the "facts of my case" that you commented on. I'll tell you what, fellow, when you've walked a mile in my shoes .... oh, wait ... I can't walk one block ... never mind. Moot point.

Until the next time ....