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LAWYERS CONTEND SOLDIERS ARE PUSHED THROUGH
ARMY DISABILITY SYSTEM -- Soldiers must argue
their case without knowing the rules by which
the board will size up their injuries.
Story here...
http://www.sunherald.com/
mld/sunherald/news/nation/16968480.htm
Story below:
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Lawyers contend veterans are pushed through
disability system
By Michael Gilbert
McClatchy Newspapers
TACOMA, Wash. - The Army is rethinking the way it evaluates wounded and
injured soldiers who are no longer fit for duty because of
post-traumatic stress disorder and certain other conditions.
But a board at Fort Lewis, Wash., continues to move soldiers with those
medical problems through the Army's disability assessment system, even
though the new guidelines have yet to be published, according to
attorneys who represent soldiers.
In effect, soldiers must argue their case without knowing the rules by
which the board will size up their injuries, say the three Army lawyers
who represent soldiers before the Fort Lewis Physical Evaluation Board,
or PEB.
Attorneys from the Office of Soldiers' Legal Counsel stated their
objections in a March 19 letter to the PEB president, Col. John
O'Sullivan.
"A soldier's statutory right to a full and fair hearing is fundamentally
violated if they are not provided the standards upon which they are to
be judged in advance of the hearing," they wrote.
Meanwhile, in a letter sent after visiting Fort Lewis several weeks ago,
the Army's top civilian lawyer raised concerns about a possible
"Wal-Mart greeter test" in determining whether soldiers are well enough
to be denied benefits.
The PEB board decides whether wounded and injured soldiers from across
the western United States should receive retired pay and military
benefits such as health-care coverage and base privileges, or one-time
severance payments with no benefits, or no compensation at all.
The three attorneys who wrote the March 19 letter are Maj. Damon D.
Gulick, Lt. Col. Ronda W. Sutton and Steven E. Engle, a civilian who is
the chief of office.
They said that until the new rules are distributed, the soldiers and
their lawyers "do not know what evidence to gather, marshal and present
that will be most relevant" to the board's decision-making in each case.
A board official and an Army Human Resources Command spokesman declined
to comment Friday.
The Army's Physical Disability Agency is in the midst of a rewrite of
the guidelines for rating the severity of injuries such as PTSD, lost
range of motion in joints such as the neck and shoulders, sleep apnea
and other conditions.
The revisions are apparently in response to complaints that have come to
light in the wake of the Walter Reed Army Medical Center scandal last
month. Since then, soldiers and their advocates have raised questions
about the fairness of the Army's system for determining whether wounded
and injured soldiers are fit for duty, and if they're not, how to
compensate them for their disabilities.
Fort Lewis is home to one of three Physical Evaluation Boards in the
Army. The others are at Walter Reed in Washington, D.C., and at Fort Sam
Houston in San Antonio. A fourth, mobile board is occasionally convened
to address case backlogs around the country.
Each PEB is made up of a senior line officer, a doctor and a personnel
expert. If they find a soldier is not fit to return to duty, they decide
if the disability is related to his or her service in the Army, and if
it is, the board sets a percentage rating to the disability.
Soldiers whose disabilities are rated at 30 percent or more generally
are entitled to be medically retired. They receive a percentage of their
base pay each month and continue to receive benefits including
health-care coverage and base privileges.
Soldiers who are rated at less than 30 percent disabled generally
receive a severance payment equal to two months pay for every year of
service, up to 12 years. They're released from service with no further
benefits.
In some cases, the boards find that a soldier's disability is due to a
condition that existed before he or she joined the Army, in which case
the soldier is entitled to no compensation.
Despite dramatic increases in the number of wounded and injured
soldiers, the number receiving medical retirements from PEBs had dropped
- from 642 in 2001 to 209 in 2005, according to recent reports in the
Army Times.
Soldiers have complained that PEBs unfairly discount the impacts of
injuries, often releasing them from the Army with modest severance
payments, no military medical coverage and a disability that makes it
difficult to find work as a civilian.
The Army's top civilian lawyer, Benedict S. Cohen, earlier this month
wrote a memo to senior Army officials to report several complaints he
heard from Fort Lewis staff "closely involved in the administration of
the PEB process."
During a Fort Lewis visit several weeks ago, Cohen reported, staff
members alleged that the PEB "routinely" misapplies Army regulations and
Department of Defense instructions "to evade reaching the 30 percent
disability threshold that triggers soldier eligibility" for medical
retirement and benefits.
"It was claimed that PEBs employed a `Wal-Mart greeter' test, whereby if
an injured soldier could function as a Wal-Mart greeter he or she would
receive a rating of 0 percent disability, as opposed to the outcome
mandated" by Army and Defense Department regulations, Cohen wrote.
"The staff cited as evidence of misapplication of relevant standards the
fact that despite the onset of the GWOT (global war on terrorism) and
subsequent dramatic increase in the number and severity of injuries,
findings of disability had held steady at 9 percent and more recently
had even fallen below that average," he wrote.
Cohen sent his memo to the assistant Secretary of the Army for manpower
and reserve affairs, the Army Inspector General and the Army Judge
Advocate General. He wrote that he had no way of knowing whether the
allegations were true, but that, "In my view, this information may
warrant further assessment."
An official with the Fort Lewis PEB said Friday he could not respond to
News Tribune inquiries about cases before the board. He referred a
reporter to the public affairs officer with the Army Human Resources
Command in Alexandria, Va., Lt. Col. Kevin Arata.
Arata did not return telephone and e-mail inquiries from The News
Tribune, but instructed the Fort Lewis PEB official not to speak with
the paper, the official said.
"He said we weren't to discuss the subject," said John Mills, the chief
adjudicator with the Fort Lewis PEB. "We can't talk about it."
The lawyers who represent soldiers before the PEB wrote that it was
unclear how the board would account for the new guidelines for PTSD and
other conditions in the cases it is currently hearing while the rewrite
is under way. The board hears up to four or five cases each work day.
It was unclear whether the new guidelines would be retroactive, or if
soldiers would have the chance to argue their case in another hearing.
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For more information on veterans and military health issues, see
McClatchy Newspapers' "Wounded Warriors" blog:
http://washingtonbureau.typepad.com/veterans/
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Larry Scott --
