Thursday, November 11, 2021
By Amy Kretkowski and Giovanna Deo

Since 2018, law students who have successfully completed Professor Amy Kretkowski’s fall course in Veterans Benefits Law have had the chance to join Kretkowski in an appellate advocacy independent study program during the spring semester.  

In addition to her law practice and teaching at the law school, Professor Kretkowski is a volunteer attorney with the Veterans Consortium Pro Bono Program in Washington, DC. As one of the consortium’s mentoring attorneys, she mentors volunteer attorneys around the country who are representing veterans for the first (or second) time on appeal to the U.S. Court of Appeals for Veterans Claims.

Because of her relationship with the consortium, her students are able to sign on as co-counsel on her pro bono consortium cases and get admitted to practice before the court under its student-practice rule.

The students gain experience in several areas like reviewing the decision on appeal, consulting with the client, reviewing the record (sometimes thousands of pages long), drafting a pre-briefing memo that outlines the legal arguments in the appeal, participating in the pre-briefing mediation conference with an attorney from VA’s Office of the General Counsel and the court, and, if necessary, drafting the brief.

To this day, all the cases worked on by students been successful and have resulted in hundreds of thousands of dollars in VA disability compensation benefits being awarded to their clients. Many students continue to represent veterans in their professional careers, whether it be their main focus or on a pro bono basis. 

Previous student cases include: 

  • Vietnam Navy veteran was denied VA disability benefits for prostate cancer because there was no evidence to support his assertions he was on special operations to Vietnam and Cambodia. A report in the veteran’s file from the Joint Services Records Research Center stated that his ship was involved in Special Operations on several occasions during his service. The student identified this evidence in the pre-briefing memorandum, and negotiated a remand during the court-ordered mediation conference. The court granted the Joint Motion for Remand – and VA has since granted service-connected disability benefits with a retroactive award of over $150,000.
  • Gulf War Navy veteran was granted disability benefits for tinnitus – and appealed for an earlier effective date based on a “pending and unadjudicated claim” from 1971. The student relied on several non-precedential court decisions to argue that the veteran’s 1971 hearing loss claim encompassed a claim for tinnitus. Based on this argument, the VA attorney offered a Joint Motion to Terminate the appeal with a stipulated agreement – and the veteran has since received his retroactive disability benefits . . . back to 1971.
  • Surviving spouse of Army veteran was denied VA benefits because VA determined that the cause of her husband’s death was not related to his service. This appeal was fully briefed and the students argued that VA failed to obtain a medical opinion, failed to obtain relevant private medical records, and improperly rejected the veteran’s lay statements prior to his passing. A judge returned this appeal to the Board of Veterans’ Appeals to correct these errors – and the widow was ultimately awarded service connection for the cause of her late husband’s death, resulting in a retroactive award of over $124,000.
  • Vietnam Army veteran was denied VA disability benefits for a respiratory condition – even though he was exposed to Agent Orange and his military and post-service medical records show ongoing respiratory complaints. Students fully briefed this appeal – and the Court, in a single-judge memorandum decision, remanded the appeal back to the Board of Veterans’ Appeals to obtain a new medical opinion and readjudicate the appeal.
  • Coast Guard veteran (service from 1982-1988) who was receiving service-connected disability benefits for PTSD, was denied benefits for multiple physical conditions because he failed to report for scheduled VA examinations without “good cause.” In a written brief, the student successfully argued that his written statements to VA indicate that his PTSD resulted in paranoia about attending these examinations. After reviewing the student’s brief, the VA attorney agreed to remand the appeal for the Board to consider whether the veteran’s mental state qualified as “good cause” – and schedule a new examination.
  • Vietnam-era Marine Corps veteran who consistently reported multiple injuries caused from a jeep accident while stationed at Guantanamo Bay, Cuba, was denied benefits because the Board rejected his credibility and, therefore, determined it was not necessary to obtain a medical opinion. In the pre-briefing memo and subsequent conference, the students successfully argued that the Board’s rejection of the veteran’s credibility was improper because it was based on the absence of evidence – which is not substantive negative evidence. The students participated in drafting a Joint Motion to Remand the appeal for the Board to obtain a medical opinion that considers his consistent lay statements and assesses the etiology of his injuries.
  • Vietnam Army veteran was denied benefits for chronic liver and gastrointestinal conditions – even though his in-service and post-service medical records show ongoing, chronic complaints of these conditions. The students fully briefed this appeal and the court, in a single-judge memorandum decision, remanded the appeal for the Board to reconsider the existing favorable medical evidence of record and readjudicate the appeal.
  • Marine Corps veteran with very brief period of service was denied benefits for a mental health condition – even though his service records noted mental health issues during basic training. The record in this case was unusually small – and the students successfully challenged the record and, through a Freedom of Information Act (FOIA) request, obtained his complete service personnel file. Upon seeing these records, the VA attorney agreed to remand the appeal for the Board to consider this evidence. 

Read more about this story in The Daily Iowan.