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Penn State Veterans Clinic Wins Disability, Back Pay Awards for Pa., NJ Veterans

Posted on Penn State News
December 6, 2017
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UNIVERSITY PARK, Pa. — The Penn State Law Veterans and Servicemembers Legal Clinic has won several disability and back pay awards for veterans since its inception nearly four years ago, all while providing students hands-on experience with administrative law, pretrial litigation and appellate advocacy skills.

One of the clinic’s most recent and substantial victories was on behalf of Lehigh County veteran Allen Blose, who applied many years ago for benefits from the U.S. Department of Veterans Affairs stemming from his service as a “volunteer” for chemical warfare testing. Blose was injected with four different toxins, including the nerve agent VX. Just a few drops of VX rubbed on the face of a North Korean in an airport incident in 2017 was fatal.

From 1965 to 1975, the U.S. Army, CIA and VA conducted chemical warfare testing at the Army’s Edgewood Arsenal facility located in the Aberdeen Proving Ground in Maryland. The government exposed soldiers to chemicals to test the short-term effects without regard to the long-term health consequences. Blose was 24 years old when he was exposed to the nerve agent.

Clinic students worked closely on Blose’s case with Tom Applebach, director of Lehigh County’s Office of Veterans Affairs. His expertise and close relationship with the VA’s regional office, combined with the students’ scientific knowledge and work with an expert, helped Blose to receive a 100 percent disability rating with back pay for 23 years. A VA “rating” reflects the severity of a veteran’s disability and determines the amount of monthly compensation a veteran receives for service-related conditions.

Serving those who served their country

Third-year Penn State Law student Tiffany Kernen worked on Blose’s claim for more than a year. The payoff for her in terms of experience was as huge as her client’s victory. Kernen interviewed Blose multiple times, attended a hearing with him, and examined many VA decisions looking for errors to appeal, and she was the first person to notice VX was given to Blose. The effects of VX have caused a series of medical issues for the veteran.

Kernen had help from fellow third-year students Ashley Clasen and Kyle Russell, who gathered scientific evidence from a successful class-action lawsuit filed by Edgewood victims against the government. Clasen and Kernen asked Jack Vanden Heuvel, professor of molecular toxicology at Penn State, for help with understanding the scientific evidence and medical expert testimony. The clinic then hired its own expert, Dr. Robert S. Brown Jr., using donations from other veterans. Brown showed the connection between the VX injection and Blose’s ocular toxoplasmosis, a parasitic eye infection, and other conditions. Brown found that the VX produced immunosuppression and central nervous system damage.

Melba Saunders v. Robert Wilkie, Acting Secretary of VA

Forensic Psychiatry Commentary:  The Saunders v. Wilkie decision, which is unlikely to be overturned by the veteran friendly Supreme Court, will add a new component to the adjudication of VA service-connected disability.  The new step in the process will be to consider the veteran’s complaint of pain, whether it developed during or was caused by or aggravated by military service.  Pain without a specific diagnosis or identifiable pathology will be considered a condition that may be capable of causing disability, and it then must be determined in what ways the complaint of pain affects overall function and the ability to work.  Dr. Brown July 2018

Melba Saunders v. Robert Wilkie, Acting Secretary of VA

United States Court of Appeals for the Federal Circuit, April 3, 2018

When pain is a condition without a diagnosis what should the VA do?  There were 3 issues on appeal from the United States Court of Appeals for Veterans Claims in the matter of Ms. Saunders claim for benefits. The 1st concerned whether the Court of Appeals for the Federal Circuit had jurisdiction to hear the appeal, and it did. The 2nd was whether pain can constitute a disability without a medical diagnosis under, 38 U.S.C., 1110, and 3rd, if so, what would be the remedy.

Ms. Saunders served on active duty in the Army from November 1987 until October 1994. She did not experience knee problems before entering military service. During the period of active duty service she sought treatment for knee pain and was diagnosed with patellofemoral pain syndrome (“PFPS”).  Beginning in 1994, Ms. Saunders applied for VA disability on the basis of knee, hip, and bilateral foot pain.  The VA denied her claim because “pain” could not suffice as a diagnosis for Saunders’s knee condition.  An examining physician went as far as to state that there was no pathology or diagnosis.

In rendering its decision, the court reviewed Sanchez-Benitez I &II, which had been previously decided by the Veterans Court and interpreted to mean that pain alone without pathology or a diagnosis to account for it could not be considered a “disability.”  In its decision, the US Court of Appeals for the Federal Circuit examined common dictionary definitions of disability, reviewed 38 USC, 1110, and determined that pain without a diagnosis could qualify as a disability because it adversely affects function and the ability to work and earn.  The decision of the lower court was reversed and remanded for further proceeding consistent with this opinion.