Download pdf - Delivering the goods - Skadden...merchant marine. Joshua Smith, interim director of the American Merchant Marine Museum at the U.S. Merchant Marine Academy in Kings Point, N.Y., said

Volume 161, No. 221

BY JAMIE LOOLaw Bulletin staff writer

Passing ammunition to a NavyArmed Guard unit on the deck ofa ship, 16-year-old Earl McClainhad bigger things to worry aboutthan his hearing.Without any armor to protect

him during World War IIgunfights on the Atlantic andPacific Oceans, he needed to stayalive.McClain made it through the

war and came home. But as aseaman with the Merchant

Marine, the federal governmentdid not recognize him as aveteran and, as a result, hecouldn’t collect benefits.As years went by, he started

losing his hearing until it wasnearly gone. The loud blasts andbooming echoes that surroundedhim during combat in his youthhad caught up to him.“There really wasn’t a major

intervening factor. He wasn’tgoing to loud rock concerts everyweekend for five years straight,and the type of work that he didin between just didn’t expose himto any loud noises,” said David M.Wagener, an associate withSkadden, Arps, Slate, Meagher &Flom LLP. When McClain found out that

the government had changed its

policy on merchant marinerswho served during World War II,it started what became a nearlydecadelong battle to prove hiscombat injuries and collectbenefits.Following an initial denial,

Wagener took McClain’s appealon a pro bono basis and workedon it for six years. The pair cele-brated victory over a steakdinner last month when McClain,88, received 100 percentapproval for his disability claim.He said it feels good to finallyhave a resolution.“The way they do things and

the way they done things over aperiod of time over several years,you know, it’s hard to believe thatfinally it came through,” he said.A long wait for recognition

Born downstate in Shelbyville,McClain grew up in southeasternMissouri. He left home at age 14and hitchhiked to St. Louis tolook for work. At age 16, McClainwanted to join the Marines andwent to a recruiting center. Butat 6 feet 3 inches tall and about133 pounds, the recruiter toldhim he was underweight.“So they sent me to the Navy

recruiting office which was nextdoor, and the Navy said yeah,they’d take me,” he said.But what McClain didn’t

realize was that the Navyrecruiter planned to send himinto training to become amerchant marine.Joshua Smith, interim director

of the American MerchantMarine Museum at the U.S.Merchant Marine Academy inKings Point, N.Y., said merchantmariners were civilian workersemployed by steamshipcompanies and were oftenmembers of labor unions. Beinga mariner was a career, somariners ranged in age from 16through 80.Merchant mariners who went

to war were volunteers andSmith said many young menthought that they were in themilitary because they receivedsimilar training such asmarching and saluting and woreuniforms with U.S. MaritimeService badges. Approximately290,000 civilian seafarers servedin the war.During World War II,

merchant marine ships in theAtlantic, Pacific and IndianOceans carried cargo and troops.These ships were not armored,Smith said, and the slow-movingfreighters were often the targetsof gunfire from enemy aircraft,boats, submarine torpedoes andmines.The ships were not heavily

armed, but the Navy ArmedGuard unit and seamen wereexpected to fight back, ifattacked. Since the ships werenot built for combat, there wasn’tmuch protection even on theinside of a vessel. In the SouthPacific, the ships usually traveledalone without military escorts.“It was a scary time to be a

mariner,” Smith said.

Copyright © 2015 Law Bulletin Publishing Company. All rights reserved. Reprinted with permission from Law Bulletin Publishing Company.

Attorney, Army vet takes onWWII seaman’s cause to gainrecognition and VA benefits

CHICAGOLAWBULLETIN.COM WEDNESDAY, NOVEMBER 11, 2015

®

Delivering the goods

Earl McClain (left) and Skadden, Arps, Slate, Meagher & Flom LLP associate David M. Wagenermeet in the hallway at Skadden’s office in Chicago. McClain served in the Merchant Marine oncivilian ships during World War II moving supplies for the war effort. Wagener helped McClainearn benefits for his wartime service after the federal government recognized merchant marinersas veterans. Ben Speckmann

In 1944 and 1945, McClainserved on the S.S. F.J.Luckenbach, S.S. AmericanPress and S.S. W.B. Rogers,which he recalls as three smallcargo ships with crews of up to35 men and 10 U.S. Navy ArmedGuard members. During anattack, the armed guardsmenwould control the weapons whileseamen — like McClain — wouldpass ammunition to them.“Most merchant ships had to

run alone and we had very littlefirepower on them,” he said. “Wehad a 5-inch, 38 (-caliber)forward gun and a 3-inch aft,four machine guns. That wasabout it.” Aside from the Marines, no

other service suffered a highercasualty rate than the merchantmarines in World War II. Morethan 6,100 men died whileserving on merchant marineships — nearly 1 in 30 mariners. After the war, McClain

returned to Shelbyville andmarried. He later joined theMarines and briefly served in theKorean War before receiving adependency discharge to helpraise his five kids at home.In 2002, one of McClain’s

brothers was at a Marinesreunion when he heard thatoverseas World War II merchantmariners could apply for benefitsfrom the Department ofVeterans Affairs.The Department of Defense

designated this special veterans’status in 1988, following a federalcourt decision which found thatearlier denials to this group were“arbitrary and capricious.” Theseal of the U.S. Merchant Marineis included in the national WorldWar II Memorial in Washington,D.C. McClain reached out to a VA

office in Decatur in 2005 andstarted working with the MaconCounty Veterans AssistanceCommission. After claims weredenied by the VA, his case wassent to The John Marshall LawSchool’s Veterans Legal SupportCenter & Clinic.The veterans’ clinic reached

out to pro bono attorneys to findsomeone to take McClain’sappeal which led to a connectionwith Skadden Pro Bono andCommunity RelationsSupervisor Edward Houlihan.Houlihan thought it would be theperfect fit for Wagener, whoexpressed an interest inveterans’ cases. He took it as hisfirst pro bono case as anattorney in February 2009.Wagener, 37, served as an

infantry officer with the Army.

He was deployed with the82nd Airborne Division as aplatoon leader in Afghanistan in2003 and was a companyexecutive officer in Iraq in 2004.He later attended law school

at the University of Michiganand was a summer associate atSkadden before joining the firmafter graduation in 2008.The first thing to do was

create a record of McClain’sservice. Wagener said that if theycould show that McClain’shearing loss was attributed tocombat, then a lower standard ofproof would apply as theVA reviewed his claim.Normally, when

someone is dischargedfrom the military, theyreceive a DD Form 214 —a Certificate of Releaseor Discharge from ActiveDuty — that includesinformation such asdischarge conditions andcombat medals. Since marinerswere not considered part of themilitary or recognized asveterans, McClain neverreceived such a form.“The Merchant Marines were

at a big disadvantage becausethey essentially had to go create,out of whole cloth, thesedocuments and work with organ-izations to try to and track downinformation,” Wagener said.With help from associates and

research librarians, Wagenercombed through historicalrecords and accounts on the roleof mariners onboard the ships.He searched for combat citationsor medals that were given toMerchant Mariners or the NavyArmed Guard.The captains of merchant

marine ships and the NavyArmed Guard kept separaterecords, so they searched throughship logs looking for notes thatshowed when the vessels McClainserved on came under fire andwere engaged in combat.

Meanwhile, Wagener was alsohandling other pro bonoveterans’ benefits cases.Houlihan said other lawyerswere taking similar cases and, in2011, Skadden’s Chicago officestarted visiting places such as St.Leo Campus for Veterans onEmerald Avenue a few timeseach year to conduct mobileveteran clinics.As he worked on McClain’s

case, Wagener learned a lot

about the VA system andveterans’ records and startedsharing it over an internalresource platform at the firm tohelp other lawyers with their probono cases.The resources that Wagener

created were sometimes helpinghis colleagues finish their casesahead of him, Houlihan said. Butthe medical evidence and otherwar records that usually supportbenefits claims just didn’t existfor mariners like McClain. Thecase was taking years.“It was frustrating because

Earl is my client. We’d talk,and I’d have to give himupdates month aftermonth that I’m not reallygetting real updates,”Wagener said. “If it’s justin the queue, how manytimes over the years doyou really want to hearthat? It was tough, butthat’s the system.”

It also becomes more difficultover time to get hearing-lossclaims granted, Wagener said,because it’s an issue that can beattributed to aging. He wasupfront with McClain aboutsetting reasonable expectations.“Earl and I would talk a lot

about it, that this was not a claimthat we should assume is goingto be won,” he said. “We shouldassume that it’s not going to begranted.”


“[T]hey essentially had to gocreate, out of whole cloth, these

documents and work withorganizations to try to and track

down information.”

Earl McClain (left) and Skadden, Arps, Slate, Meagher & Flom LLP associate David M. Wagenerdiscuss the menu at Joe’s Seafood, Prime Steak, and Stone Crab during a celebratory dinner lastmonth after McClain was successful in appealing for veteran’s benefits. Wagener handled his casepro bono for six years. Ben Speckmann

As Wagener and McClain’sfamily gathered new informationfrom mariners and veterans’organizations, they began toapply for and receive servicemedals and ribbons.One that stands out to

McClain is the PhilippineLiberation Medal, given by thePhilippines to crew members onallied nations’ ships for their rolein liberating the islands in 1944and 1945.“It was very unexpected, really,

and a big surprise. I really ammore proud of it than I am theU.S. medals due to the fact that itwas sent to me,” McClain said. “Ididn’t have to really dig and fightfor it like the other ones.” The medals and ribbons are

displayed on a wall in McClain’shome in Findlay with photos ofhim in his uniform. It’ssomething that he shares withhis six children, 17 grandchil-dren, 26 great-grandchildren andone great-great-grandchild, andthe first thing that he shows tovisitors.Even if the appeal hadn’t gone

in McClain’s favor, Wagener said,he was glad to help get this recog -nition for his client and family.“It’s not just a trinket. It has

profound meaning behind it,” hesaid. “It tells a real story abouthis life and the lives of the peoplethat he directly or indirectlyhelped.”The separate search for the

Navy Armed Guard combatmedals yielded valuable evidencefor McClain’s claim.“It turned out that the naval

armed guard that served on theW.B. Rogers received a battlestar for the Battle of Okinawa,”Wagener said. “Right there, thatwas evidence that he was incombat because he was on theship with them, he was passingammo to these guys.” An honor to serve Around Veterans Day last

year, McClain had a videohearing with a Board ofVeterans’ Appeals law judge. Thejudge remanded the claim backto the local VA office and ruledthat VA medical staff had torecognize McClain’s combatinjuries and conduct anothercompensation and pension examfor benefits.Cautiously optimistic, they

awaited the next steps.“I think that the most

depressing part was when wehad to wait six months after we

had the hearing here before weheard again, and that’s after wehad wrote to people inWashington,” McClain said.The VA scheduled McClain for

his exam in late July. On Sept. 22,Wagener went to the VA office toget an update. Staff there onlytold him the claim was approved— but that he had to wait for anofficial letter for details on theamount.He called McClain immedi-

ately, who was driving to theairport with his wife Lynda topick up their granddaughter.“He looked at me like, ‘You’re

kidding,’ and I said ‘No, I don’tthink Dave was kidding, I thinkthis is true,’” Lynda said. “And hesaid, ‘I’ll be.’” When Wagener got the letter

at Skadden’s office the next day,he was in disbelief. The letterincluded a chart with dollaramounts dating back to theoriginal claim in 2006.The VA approved 100 percent

of McClain’s disability benefitsfor his hearing-loss claim andawarded more than $24,000 inback pay and a monthly entitle-ment of more than $3,000.“Dave is a determined indi-

vidual who is systemic with what

he does,” said Houlihan,Skadden’s pro bono supervisor.“Dave was never overwhelmed.He’s a veteran, he kept his headdown and kept going. He wasready to stand up to that task,and Mr. McClain was a greatclient. They were a good team.” Wagener said it was an honor

to help McClain and that, as afellow veteran, there is a deeperrelationship and trust thatthey’ve shared.McClain said he only feels as

closely bonded to one personaside from Wagener — ashipmate named James watchedover him like a brother duringthe war. After his first meeting with

Wagener over teleconference sixyears ago, McClain said he knewwas in good hands. At the time,he couldn’t believe that Wagener“was helping me, not knowingme, free of charge.”“You don’t run into people,

even the ones you know, butespecially the ones you don’tknow that has done so muchthat David has,” McClain said.“And it’s something that youcan’t give enough thanks or giveenough anything for, for thatreason.”
