By Lex Alexander
Greensboro News-Record

Oct. 8, 2006

Butch Kirkman, of Archdale, served eight years on active duty in the Air Force. He has spent half that long trying to get disability benefits from the Department of Veterans Affairs.

He isn’t done.

On Sept. 21, the Board of Veterans Appeals in Washington turned down his claim. It did so even though a regional office in Winston-Salem admitted misplacing his records and even though the department is required by law to give a veteran the benefit of the doubt in close calls.
Veterans often complain that the department can seem capricious and arbitrary in denying claims for benefits.

But many also say that the delay in getting any answer is a huge problem. If the veteran dies before his claim is decided, his claim dies with him. Veterans sardonically call this the “Delay, deny and hope that I die” policy. Kirkman’s case exemplifies some of the typical delays at the regional and national levels.

The News & Record last month contacted the department’s Winston-Salem regional office for this report; that office referred inquiries to Washington. The department did not return calls or respond to written questions.

James Michael “Butch” Kirkman seemed an unlikely candidate to seek disability benefits for post-traumatic stress disorder.
He had among the cushiest duties an American serviceman could have in Southeast Asia during the Vietnam era. In early 1973, he was posted for a year to an air base in Thailand, where he supervised telephone circuitry.

But at one point, as he was traveling to electronics school in Hawaii, his airport bus in Saigon was attacked. Two fellow passengers were wounded, although Kirkman escaped uninjured.

Then, on July 4, 1973, his air base was planning to shoot fireworks. Kirkman had agreed to swap some phone time to a Marine gunnery sergeant for a stint in one of two machine-gun nests on the base perimeter. He was planning to fire a .50-caliber machine gun during the fireworks.

“I wasn’t real bright,” he says now. “I didn’t stop and think about why the machine guns were out there.”

As he sat in the nest, six infiltrators slipped through the perimeter. Kirkman and a gunner in the other nest opened fire, hitting all six. One man he shot had pulled the pin on a hand grenade when the bullets, thick as a man’s thumb, struck him.

“If you’ve ever seen what a .50-caliber does to somebody …” he says, his voice trailing off.  Kirkman’s active duty ended in 1976. By 2000, he had become director of operations for a regional telephone company, making almost $125,000 a year.

Then he became depressed: anxious, suicidal, homicidal. He wouldn’t leave the house. He wouldn’t bathe. His employer laid him off in December 2000. He mortgaged his home for money to live on while he sought other work.

He tried other jobs but had to leave his last job, in March 2002, after a day and a half. His doctor certified him completely disabled. He and his wife, Myra, were forced into bankruptcy.
In mid-2002, Kirkman’s health insurance ran out, so he went to the veterans’ hospital in Durham. Doctors there advised him to seek service-related disability benefits. At 3 a.m. on Sept. 26, 2002, he sat down to do just that.

Almost a year later, Kirkman’s disability claim was denied by the department’s Winston-Salem regional office. Your symptoms, the office declared, don’t meet the official definition of post-traumatic stress disorder. But just a month prior, the department’s own doctors had formally diagnosed the disorder and classified him as completely disabled.

Regional offices are legally required to tell veterans what information or documents they need to include in their claims. But no one had told Kirkman exactly what he needed to prove a claim of PTSD, Myra Kirkman later wrote to the department.

Immediately, the Kirkmans sent copies of two letters from a psychologist at the veterans’ hospital in Salisbury. The first letter said that Kirkman displayed multiple symptoms of PTSD and recommended detailed testing. The second documented a formal diagnosis of PTSD.

Meanwhile, drugs weren’t helping Kirkman’s depression. In May 2004, he began electroconvulsive therapy — “shock treatment” — in Salisbury. He underwent 12 weekly sessions before experiencing a panic attack so severe that nurses thought he was having a stroke.

Kirkman used that treatment to try to have his case re opened. But in October 2004, his claim was denied again.

Veterans whose claims have been denied can ask for their claims to be examined by a decision-review officer in the regional office. The Kirkmans requested that in January 2005.

But they had another request: If the review officer could not overturn the denial, the couple wanted the case forwarded immediately to the Board of Veterans Appeals in Washington, D.C., without any additional documentation.

The Kirkmans took that step, Myra Kirkman wrote in a later letter to the board, because Butch Kirkman was willing to acknowledge that there were no formal military records of, or witnesses to, the events that caused his disorder.

In the meantime, Kirkman’s symptoms had become so severe that he spent six weeks in a special unit for PTSD patients at the Salisbury hospital.

At the hearing in May 2005, the decision-review officer told Kirkman his testimony was not reliable because no corroborating records or witnesses could be found — facts Kirkman already had acknowledged.
The regional office, rather than forwarding the case immediately to the Board of Veterans Appeals as the Kirkmans had asked, continued to seek nonexistent records from both them and the National Personnel Records Center in St. Louis in late 2005.

The Kirkmans didn’t get formal notification until May 12 — almost a full year after they had asked for their “immediate” appeal. About the same time, the Winston-Salem office acknowledged that it had “misplaced” the records it had borrowed from the records center in St. Louis.

Appeals normally are handled in the order in which they are scheduled with the Board of Veterans Appeals. But in light of the misplaced records, Myra Kirkman asked the board to hear her husband’s case early. Otherwise, the wait could have been years.

On Aug. 18, the board agreed to hear Kirkman’s case sooner. And it did: On Sept. 21, the board denied Kirkman’s claim.

Kirkman and his attorney, Craig Kabatchnick, plan to appeal the claim to the U.S. Court of Appeals for Veterans Claims. It will take Kabatchnick and the government months to get the case ready for the court to review. Once that happens, the court will take several months to rule on it.

If the court grants Kirkman’s claim, he will begin receiving benefits.
If it denies the claim, Kirkman can appeal to the U.S. Court of Appeals for the Federal Circuit, where a decision can take 12 to 18 months. And if, as frequently happens, it sends the case back to the regional office for additional fact-finding, the whole process starts over again.

Added: Oct 9, 2006 9:39 pm | Trackback URI |  Email This Post  | Print