GPSolo Magazine - July/August 2006

Representing a Navajo Code Talker Before the VA

This story began on November 6, 1943, when Teddy Draper Sr. quit the tenth grade and enlisted in the Marine Corps. He became a Code Talker—a new human weapon in the Marine’s arsenal, whose task was to fool the Japanese with an unbreakable communication code.

The Code Talkers developed a 600-word vocabulary, using Navajo words for military terms. Many of the code words were not literal translations because some English terms did not exist in the Navajo language. For example, a “bomb” was an “egg,” a “fighter plane” a “hummingbird,” and a “submarine” an “iron fish.” The code was so indecipherable that even Navajo soldiers who were not Code Talkers could not understand it.

The Code Talkers were deployed throughout the South Pacific, where they transmitted military communiqués via telephone and radio, with one Code Talker at each end of the transmission to instantly convert English into the code and the code back into English. The Japanese never broke the code, and many military experts credit the Code Talkers with turning the tide in the war with Japan.

On February 19, 1945, Teddy was part of the assault forces that invaded the Island of Iwo Jima. This battle raged for 36 days and was one of the most horrific in modern warfare, with more than 21,000 Japanese soldiers and nearly 7,000 U.S. soldiers killed. On the second day, a mortar shell exploded near Teddy, knocking him unconscious and causing temporary blindness and deafness. An official record of the incident either was not made or was lost.

In 1946, after his military discharge, Teddy applied for Department of Veterans Affairs (VA) disability benefits for hearing loss. His claim was summarily denied, even though his induction physical showed perfect hearing and his discharge physical noted hearing loss. Teddy repeatedly renewed his claim during the next 50 years, and finally, in 1997 and 2000, the VA awarded him partial benefits. Teddy appealed the award as inadequate.

In June 2002, my wife and I saw a notice in a Telluride, Colorado, newspaper that Teddy would be speaking about the Code Talkers at the Anasazi Heritage Center in nearby Dolores. We made the 70-mile drive and, for more than two hours, were spellbound as Teddy spoke about the Code Talkers and his military service at the Battle of Iwo Jima. We could see the pain and anguish Teddy was still experiencing, and his words touched our hearts.

When Teddy finished speaking, his friend, John Renbourne—a guitar repairman who had been representing Teddy before the VA—spoke to the audience and told us how for almost 60 years Teddy had been seeking his VA benefits and the Purple Heart for his injuries at Iwo Jima. Moved by John’s plea for help, I gave him my business card and told him to call me if he needed help.

Three months later, the call for help came. My law firm, Bracewell & Giuliani, put its full resources behind the effort, and with the help of paralegal Penny Robinson, I launched into the case. I had practiced labor and employment law since 1968 and knew virtually nothing about VA law, so I had to get up to speed fast. Fortunately, I found Ron Abrams at the National Veterans Legal Services Program in Washington, D.C.—a nonprofit that provides pro bono help to veterans. Ron sent me the 2,000-page Veterans Benefits Manual he had co-authored and guided me through the complexities of VA law.

My first chore was to obtain records from the many medical facilities Teddy had visited since his discharge. Then I tried to convince the VA that Teddy’s hearing loss was worse than they had diagnosed and that his heart problems were connected to his military service, but both maneuvers led to dead ends for lack of supporting medical evidence. Then, it occurred to us—maybe Teddy has service-connected post-traumatic stress disorder (PTSD) from the atrocities at Iwo Jima.

I learned that one of Teddy’s sons is a clinical psychologist. He told us that he had diagnosed his father as having PTSD many years ago, and he provided us with a written report that not only cited examples of his father’s PTSD-linked behavior, but tied it to his experiences at Iwo Jima. I next obtained a sworn declaration from Teddy recounting the stressful events at Iwo Jima. He had seen Marines blown apart on the beach; he carried the blood of one of his buddies on his uniform throughout the battle; he saw and smelled the bodies of rotting Japanese soldiers; and then in 1968, when he was finally permitted to tell people what he had done in the war, the Navajo medicine man told him he had committed the Navajo equivalent of a Christian sin by using the Navajo language to kill people.

Armed with this evidence, I filed a claim for PTSD with the VA. In August 2003 the VA agreed and awarded Teddy full disability benefits, which meant an increase of more than $20,000 a year.

But our work was not over. I noticed that Teddy’s claim to increase his hearing loss benefits in 2000 mentioned “stress” and stated that he was taking an anti-depressant. Relying on the VA’s “inferred claim” doctrine, we argued that even though Teddy had not formally filed a claim for PTSD, this entry was sufficient to raise the issue and Teddy’s new benefits should be retroactive to 2000. We also filed a brief with the VA, arguing that they committed a “clear and unmistakable error” in 1946 when they first denied his hearing loss claim.

While the VA was considering these new issues, I began work on Teddy’s Purple Heart, which is awarded by the Marine Corps, not the VA. Because there was no record of Teddy’s injury, Marine Corps regulations required us to produce sworn statements from two eyewitnesses. With Teddy’s help, I tracked down two of his buddies at Iwo Jima, and they provided the needed statements.

On Christmas Eve 2003, more than 58 years after Teddy was injured by enemy fire at Iwo Jima, good news arrived from the Marine Corps: Teddy was being awarded the Purple Heart. A few weeks later, the VA made Teddy’s PTSD benefits retroactive to 2000 and his hearing loss benefits retroactive to 1973 (the first date he had a ratable hearing disability). Teddy received more than $80,000 in additional retroactive benefits.

Rather than presenting the Purple Heart to Teddy in a ceremony, the Marine Corps mailed the medal to him, causing him further disappointment. In May 2005 the Navajo Nation scheduled its own ceremony at their capital, Window Rock, Arizona. It was a grand event, with a congressman, a retired marine general, and honor guard, and congratulatory letters from President George W. Bush and Senator John McCain. I was privileged to be one of the speakers, along with Joe Shirley Jr., president of the Navajo Nation.

My reward from this case cannot be measured in dollars (there was no fee, and we absorbed all costs). Rather, my reward came from the satisfaction of knowing I had helped an 81-year-old World War II hero and had changed his life. This point was driven home by one of Teddy’s sons, who told me that before I met Teddy he was languishing a disillusioned and defeated man, and after I took his case and we won he was rejuvenated and once again was planting crops on his family’s ancestral land in Canyon De Chelly. Pride welled up when one of President Shirley’s staff members told me I am now “part of the landscape of the Navajo Nation.”

Postscript: In 2004 I took one more pro bono case for a World War II Navajo veteran. Nelson Tsosie operated a searchlight in the South Pacific searching for enemy aircraft, and he participated in the Battle of Luzon Island in 1945. He was subjected to loud noises from bombs, gunfire, and a generator that powered the searchlight, back when hearing protection was unheard of. In 1989 he became deaf in both ears and had to quit his job as a teacher and interpreter in the Navajo schools. The VA denied his repeated claims for hearing loss benefits. With the help of two hearing specialists, we convinced the VA that Nelson’s hearing loss was service connected. In 2005 the VA awarded him full benefits. Although I did not meet Nelson until his case was over, when we did meet (for dinner in Chinle, Arizona), it was like a homecoming of old friends.

 

George P. Parker Jr. is of counsel to Bracewell & Giuliani LLP in San Antonio, Texas. He can be reached at george.parker@bracewellgiuliani.com.

 

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