NY Times, by James Dao: The year Leroy MacKlem lost his veterans disability compensation for a bad hip, gasoline cost 27 cents a gallon, a Yankee shortstop named Rizzuto was the American League’s most valuable player and President Harry S. Truman ordered production of the hydrogen bomb. It was 1950. He is about to get it back. All of it. In a case as much about government bungling as one man’s perseverance, the Department of Veterans Affairs said last week that it would end years of litigation and repay Mr. MacKlem, 88, for six decades’ worth of disputed disability compensation, about $400,000. “This case has been resolved, and Mr. MacKlem will receive V.A. disability compensation retroactive to April 1, 1950,” the department said in a statement. To which Mr. MacKlem, a World War II veteran from Portland, Mich., replied, “I’ll believe it when I get the settlement.” Mr. MacKlem’s case shines new light on a process, later disallowed by federal courts, that the department used in 2007 and 2008 to review large awards. The number of cases reversed under that process is not known, but Mr. MacKlem’s victory is sure to give hope to scores of veterans looking to appeal decisions from that period. The case is also a reminder of how disputes over veterans’ benefits can drag on for decades after wars end. Of the 850,000 disability claims currently pending before the department, more than 35,000, or 4 percent, are from World War II veterans. “MacKlem is now the poster boy for all these cases,” said Mike Viterna, Mr. MacKlem’s lawyer and president of the National Organization of Veterans Advocates, a nonprofit organization. He called the retroactive award one of the largest he had ever seen. Mr. MacKlem did not fight for his compensation after it was first rescinded, perhaps because he did not have the strongest of cases. He enlisted in the Army in 1943 at the age of 19 and participated in the invasion of Sicily that year, legal papers show. But he developed hip pain so severe that the Army evacuated him that November. Army doctors attributed his problems to a car accident that dislocated his hip in 1941, before he enlisted. Mr. MacKlem reported no pain during his initial Army physicals, but said he developed problems in basic training that worsened in North Africa. In 1944, he received a medical discharge and was assigned a 20 percent disability rating for service-connected arthritis in his hip, entitling him to disability compensation. Mr. MacKlem later went to work in a plastics factory in Detroit. But in 1950, the Veterans Administration, as it was then known, severed his compensation, saying that his pain resulted from the “natural progress” of his pre-service injury. His monthly payments of $105 ended. And there the case sat for 56 years. In 2006, Mr. MacKlem — for reasons his lawyer could not explain — decided to appeal, saying the department made a “clear and unmistakable error” in its 1950 decision. A regional office in Detroit rejected his argument, and he submitted a notice of disagreement. Then a curious thing happened. Mr. MacKlem received a letter in June 2007 saying that a review officer had concluded that the 1950 ruling was indeed wrong and that he should be granted retroactive benefits. Mr. MacKlem was not supposed to get that letter. But as it turned out, it was a lucky break for him that he did. A few weeks later, the department sent him another letter saying that the June notice was only a draft and that his benefits would not be restored. He appealed. And while his appeal was pending, a federal court ruled in 2009 that the department’s “extraordinary award procedure” for reviewing compensation awards larger than $250,000 or for retroactive payments dating back more than eight years was illegal. In 2010, the Court of Appeals for Veterans Claims ruled that the department had to reinstate Mr. MacKlem’s award because it had been reversed under that now illegal “extraordinary award procedure.” Even though the department might have had good reason to rescind his compensation in 1950, it would have to repay him all of it. This month, a federal appeals court upheld that decision. Mr. Viterna said that if the department had not sent Mr. MacKlem the June 2007 letter, he probably would never have known that he had been reviewed under the illegal procedure, and his case might have died. Mr. MacKlem has now asked the department to hurry up its payment because of his age. “I’ve always had the feeling that the government was hoping that I would die so they wouldn’t have to pay,” said Mr. MacKlem, a widower with no children. Disability payments to veterans with no immediate survivors are returned to the department, Mr. Viterna said. Asked if the Department of Veterans Affairs had dragged out the case to avoid paying Mr. MacKlem, a spokesman replied, “That is simply not true.”
Mr. Finkelstein is the Managing Partner of Finkelstein & Partners, LLP. He has become a noted consumer activist through his representation of injured individuals against corporate wrongdoers and irresponsible parties.
An accomplished litigator, Mr. Finkelstein has represented Plaintiffs in wrongful death and catastrophic personal injury cases. He has successfully handled dozens of multi-million dollar cases.