DoD Limits Law's Pledge to Wounded Veterans

Monday, 28 Dec 2009 07:43 AM

By Amanda Carpenter

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Veterans groups hailed the passage last year of the National Defense Authorization Act (NDAA), which made it easier for wounded soldiers to have their injuries rated and treated by the federal government.

But less than a year after President Bush signed the bill, the Defense Department interpreted the law in a way that reduced its scope and denied many veterans the benefits they thought they had been promised.

The Pentagon's interpretation, which veterans groups are challenging, is laid out in two memos written in 2008 by David S.C. Chu, who was undersecretary of defense for personnel and readiness.

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The effect of the memos, which have been obtained by The Washington Times, is to disqualify numerous soldiers who suffer from post-traumatic stress disorder from receiving medical benefits and to prevent others from receiving extra pay that the NDAA promised to veterans with combat-related injuries.

In drafting the NDAA, Congress relied on the recommendations of a bipartisan panel headed by former Senate Majority Leader Bob Dole and former Health and Human Services Secretary Donna E. Shalala.

The legislation permitted troops who were injured during training operations to receive extra pay, but Mr. Chu, in one of his memos, defined "combat-related operations" in such a way that troops injured during training or simulated conditions of war would not qualify.

Some lawmakers involved in enacting the 2008 law had expected differently. During debate on the Senate floor, Sen. Mark Pryor, Arkansas Democrat, said: "This addition expands the population that is eligible for the enhancement of disability severance pay to include injuries incurred during performance of duty in support of combat operations."

But Congress did not explicitly include in the bill a definition of combat-related operations, leaving it to the Pentagon to make that determination. The result was Mr. Chu's first memo, issued in March 2008.

Mr. Chu said that the injury must have been inflicted during "armed conflict," or in a combat zone, in order for the service member to receive the benefits authorized.

"The fact that a member may have incurred a disability during a period of war or in an area of armed conflict, or while participating in combat operations is not sufficient to support this finding [of a combat-related disability]. There must be a definite causal relationship between the armed conflict and the resulting unfitting disability," Mr. Chu wrote in a document attached to his March 2008 memo.

This excluded soldiers who were hurt while engaging in operations outside combat zones, including situations Mr. Pryor envisioned: conducting training exercises, jumping from helicopters in rough terrain or participating in other hazardous duties.

Officials maintain that the scope of the law was narrowed to ensure that combat-wounded soldiers would receive the bulk of the new benefits. Many veterans groups view it as an unwelcome cost-saving measure.

David Gorman, executive director of the Disabled American Veterans, wrote a letter to every member of Congress in August 2008 that said: "Sadly, the 2007 Walter Reed scandal, which resulted mostly from poor oversight and inadequate leadership, pales in comparison to what we view as deliberate manipulation of the law" by Mr. Chu and his deputies.

"He must not be allowed to continue thumbing his nose at the will of Congress and the American people," Mr. Gorman said.

Mr. Chu, who is no longer with the Defense Department, told The Times that an "enormous amount of confusion" has been associated with the memo and advised The Times to speak with William Carr, the acting deputy undersecretary for military personnel policy.

The Department of Defense did not make Mr. Carr available for an interview and instead issued a statement through Pentagon spokeswoman Cynthia O. Smith, who confirmed that the March 2008 memo was still in effect.

The 2008 NDAA also made it easier for soldiers dismissed from service because of post-traumatic stress disorder to undergo treatment and receive compensation. The law said veterans dismissed from service because of PTSD must be given a disability rating of 50 percent, high enough to ensure disability pay and health care for the soldiers and their families.

But a memo written by Mr. Chu on Oct. 14, 2008, added a catch: It said the policy should not go into effect until the date of the memo, nine months after the bill had been signed into law, leaving out any soldiers dismissed from service because of PTSD before that date.

Many soldiers with PTSD who were dismissed from service before the October deadline suffered severe physical injuries as well. They included long-serving, decorated soldiers regularly exposed to mortar fire and roadside bombs. Seven of them have banded together with the National Veterans Legal Services Program in a class-action lawsuit, filed in December 2008, seeking the 50 percent rating.

Bart Stichman, a lawyer handling the case for the veterans legal services program, said the military has a "history of lowballing" the ratings and estimates that there are "thousands who have been discharged before October 2008 that the military has done nothing about."

One of the soldiers suing is former Army Sgt. Juan Perez, who was discharged from the military in 2006 after being deemed unfit for further service because of a PTSD diagnosis.

During his first deployment to Iraq, he routinely carried out reconnaissance missions near the Syrian border. On one occasion, his Bradley fighting vehicle was hit with an improvised explosive device. But it was during his second deployment when he sustained an injury, as an industrial-strength bungee cord restraining ammunition lost its hold and snapped violently against his head.

"It hit me so hard it blew me back about 20 feet," Sgt. Perez said in an interview. "It knocked me out, completely out of it. It's just one of those freak things that happens."

The injury caused him to temporarily lose his eyesight, and he was flown to Germany for treatment. He then began suffering migraines and sometimes losing consciousness. He was sent later to the United States, where he began to experience PTSD symptoms, including insomnia, paranoia and extreme irritability.

He was later diagnosed with PTSD and traumatic brain injury. Because of the PTSD diagnosis, the Army officially declared him no longer fit to serve and dismissed him from duty in 2006, before any of the 2008 NDAA benefits became available.

"They didn't include my eye injury," he said. "They just said I was unfit to be a soldier anymore. And they gave me 0 percent for PTSD."

For Sgt. Perez, that means no lifetime disability pay and no health insurance from the military for his wife and children.

"They gave me a severance package, but that didn't even last three months," he said. "It doesn't cover medical bills for my kids. If I would have gotten a 30 percent rating, at least, I could have medical care for my wife and kids, but now I don't have that."

Sgt. Perez said he can see, but not as well as before the accident. He suffers from migraines and carries an oxygen tank to help alleviate the headaches.

He has received an Army Commendation Medal and a Combat Action Badge but said he doesn't feel like he's getting the treatment and compensation he's due.

"I shouldn't have to feel guilty about having any kind of disability that's going to take me out of the military," Sgt. Perez said.

© Copyright 2014 The Washington Times, LLC

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