Postwar vet is fighting battle for benefits
Forty-six years ago in Vietnam, Steve Lowery risked his life in a battle for Hill 1308.
Now he’s fighting his way up a paperwork mountain that the Department of Veterans Affairs has created, one that he says has barriers he didn’t see when he set out in 1994 to reach the reward at the top: the $1,551 per month he’s entitled to for shrapnel and bullet wounds and other injuries he suffered during his Marine Corps career.
After twice denying his claim, the Veterans Benefits Administration’s regional office in Reno finally admitted in December that scars from a “Chi Com” — Chinese Communist — grenade and those from an AK-47 bullet that ripped through his thighs are in fact related to his military service in Vietnam.
A physical examination that he underwent in early December at the VA Medical Center in North Las Vegas also determined that head and neck injuries he suffered from a vehicle accident while on duty in Hawaii in 1989 were service-connected as well.
That means, going back to when he filed his claim in 1994, the year after he retired as a major, the VA should owe him at least $372,355 in disability pay, not counting some $1,300 in compensation to cover most of December after VA officials reopened his claim.
It is that missing check from December that prompted him to write an open letter to VA Secretary Robert McDonald. In 15 pages he detailed his concerns with the way the VA bureaucracy operates. His concerns range from the seemingly endless loops veterans experience when calling a benefits hotline number for help to time-consuming hoops they must jump through to prove their compensation claims.
HITTING AN ICEBERG
After many frustrating hours trying to get the VA to fix the compensation pay debacle, he found out that McDonald is “the sole person … who ‘might’ possess sufficient authority to order immediate corrective action.”
“Shocking! Outrageous! Pathetic! … on so many levels!! Replacing a missing payment can only be accomplished by the Secretary himself??!!,” he wrote in his certified letter of Jan. 28.
“It’s obvious that the VA personnel manning the phones receiving calls coming in to report payment failures are unable, unwilling or incapable of connecting the stranded Veteran with those personnel,” who can award back pay, Lowery wrote.
“It’s as if the crewmen in the engine room of the Titanic were provided with no means to alert the bridge, ‘Hey, we’ve got a leak down here!’ — and even if they did, neither the Captain nor any of the Mates tasked with the responsibility for running the ship could be bothered to tell any of the crewmen to, ‘Man the pumps!’ ” his letter reads.
VA officials didn’t provide a response last week to a Review-Journal query seeking McDonald’s reaction to Lowery’s letter and his plans for addressing Lowery’s concerns.
On Thursday, Lowery said he probably will have to take the VA to court to resolve the larger, retroactive compensation issue going back to when he first filed his claim in 1994 after 27 years of honorable service in the Marine Corps.
“That’s the real frustration,” he said, adding that he’s confident he will prevail “if you jump through the hoops.”
“There are more mountains to climb,” he said. “It’s like they’ve put up artificial barriers of their own choosing.”
Those “barriers” include what he says is a deceptive practice the VA used to close his claim without his consent because he didn’t file an appeal within a year — or submit a letter of intent to appeal every year thereafter — when VA officials first denied it in 1995 and again in 2011 after he had reopened it based on new evidence.
“It’s clear to me they have a duty to mention that,” Lowery said. “There is nothing in the final decision that tells you that. There’s no mention of that in any pamphlet. It’s a critical detail that they don’t point out.”
Lowery contends he never closed his initial claim. Instead, the VA closed the claim on the agency’s own volition. He said he didn’t expect he would have to send his intentions to appeal in a letter to the VA every year.
“I would have done so had I known the requirement was there,” he said. “It’s a barricade requirement. It doesn’t change the facts of anything. It’s an impediment they put in front of you and don’t tell you it’s there.”
In an email last week, a VA spokesman in Los Angeles said Lowery’s claim was denied in 1995 because his medical file couldn’t be located. “We tried to get service treatment records from DOD but got a negative response.”
Lowery wonders how much effort the government agencies devoted to trying to find the missing records. But even after he provided the Veterans Benefits Administration’s Reno office with a copy of his personal medical file from the military, his claim was denied again after confusion about when and where he was supposed to report for a physical examination.
To conclude that his wounds weren’t related to his combat experience in Vietnam defies logic, he said, given that among the records in his file is a valor citation “for extraordinary heroism” on Hill 1308.
HOLDING THE HILL
Lowery, a 1964 Rancho High School graduate, led a 12-man reconnaissance team that was attacked March 5, 1969. Three of his buddies were killed and seven were wounded, including him. One of the dead, Pfc. Robert H. Jenkins Jr., was awarded the Medal of Honor, the nation’s highest valor award, for saving another Marine’s life by shielding him from an exploding grenade. Lowery received the second highest valor award, the Navy Cross.
“Corporal Lowery was seriously wounded in both legs by the intense enemy fire,” the citation reads. “Steadfastly remaining in his hazardous position, he boldly delivered accurate return fire and hurled grenades at the advancing enemy … killing several of the enemy and causing the others to retreat.”
VA spokesman Dave Bayard wrote in an email Thursday from Los Angeles that “we respect the fact Mr. Lowery is a true American hero. However, the claims you cite were denied and were not appealed.”
Regardless, without an appeal the VA reversed its stance in December and granted Lowery an 80 percent, service-connected disability rating.
Yet in his email, Bayard wrote: “There was no retroactivity since both his 1995 and 2011 claims were denied in accordance with regulation and no appeals had been filed.”
Lowery said under the circumstances, the VA’s position is “sort of laughable” because it doesn’t change the facts of the case in that he was wounded in 1969 and injured on duty in 1989 and has been a service-connected disabled veteran since the day he filed his claim in 1994.
Phil Cushman, a Vietnam War Marine veteran from Oregon who runs a nationally recognized nonprofit veterans rights advocacy group, noted that by law the Secretary of Veterans Affairs “may” provide “equitable relief” when administrative error leads to denial of a veteran’s disability claim.
He believes this law applies to Lowery’s case, but it remains to be seen if Secretary McDonald will grant him “equitable relief” as it allows.
“Bottom line, VA is a claims denial and delay mill reality,” said Cushman, who beat the VA system by winning a “due process” challenge in a federal appeals court that netted him $400,000 in compensation.
Contact Keith Rogers at krogers@reviewjournal.com or 702-383-0308. Find him on Twitter: @KeithRogers2.
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