Representing a Navajo Code Talker Before the VA

George P. Parker Jr. and Teddy Draper Sr.
Representing a Navajo
Code Talker Before the VA
By George P. Parker Jr.
his 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 600word 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
T
George P. Parker Jr. is of counsel
to Bracewell & Giuliani LLP in San
Antonio, Texas. He can be reached at
[email protected].
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 70mile 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
Published in GP Solo, Volume 23, Number 5, July/August 2006. © 2006 by the American Bar Association. Reproduced with permission.
All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in
an electronic database or retrieval system without the express written consent of the American Bar Association.
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 serviceconnected 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 antidepressant. 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.
Published in GP Solo, Volume 23, Number 5, July/August 2006. © 2006 by the American Bar Association. Reproduced with permission.
All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in
an electronic database or retrieval system without the express written consent of the American Bar Association.