How wounded soldiers are short-changed on disability ratings

How wounded soldiers are short-changed on disability ratings
March 12th, 2007  
Team Infidel

Topic: How wounded soldiers are short-changed on disability ratings

How wounded soldiers are short-changed on disability ratings
Army Times
March 19, 2007
Pg. 8
Rank Injustice

By Kelly Kennedy
The Army and Marine Corps, which are bearing the brunt of the burden in Iraq and Afghanistan, tend to give their wounded troops lower disability ratings than the Navy and Air Force, according to Defense Department data.
The result: Soldiers and Marines receive an average of several hundred dollars per month less in disability retired pay than sailors and airmen.
Break those numbers down a different way, and the system shows another inequity: All services tend to grant officers disability ratings of 50 percent or higher at a significantly greater rate than enlisted members.
Critics say those figures support their contention that the Army, in particular, purposely tries to hold down costs by giving low ratings to enlisted soldiers who far outnumber officers going through the lengthy, convoluted system.
As of March 9, service officials did not have immediate answers for the data differences among the services, though Army officials suggested one factor might be that more young soldiers with less time in service, and lower basic pay, may account for lower average payments.
After digging through five years of reports from the Defense Department's Office of the Actuary, Military Times found the average payment for a disabled Air Force officer in 2005 was $2,604 per month, about $600 more than the Army's average. For enlisted airmen, the average payment was $926 per month, compared to an average of about $770 per month for enlisted soldiers. Enlisted Marines averaged $753 a month.
Military Times also compared the disability ratings of officers and enlisted members above 50 percent. From 2003, the year the Iraq war began, through 2005, the latest year for which data are available, the proportion of officers who received disability retirement ratings of 50 percent or more -- and the comparatively larger retirement checks that come with them -- significantly outpaced the proportion of enlisted members who received similar ratings.
The smallest gap was in the Marine Corps, where 30 percent of injured officers received disability ratings of 50 percent or higher from 2003 through 2005, compared to 20 percent of injured enlisted members, a difference of 10 percentage points.
The Army and Air Force had 12-point gaps. But.the difference was most stark in the Navy -- 39 percent of injured officers got ratings of 50 percent or higher, compared to 22 percent of injured enlisted members.
Those numbers may reflect a greater deference shown to officers going through the system, as well as the possibility that officers are more knowledgeable about the system and can better advocate for themselves.
Senior officers, however, lay the blame not on the people operating the system, but on the system itself. They say convoluted disability ratings charts and regulations combine to form a bureaucratic thicket that has forced soldiers recovering from war wounds received in Iraq and Afghanistan to fight a new war in Washington.
But those explanations don't account for what some troops believe were intentional decisions to leave them with lower disability ratings than they think they deserved.
And they don't explain why, as Army Chief of Staff Gen. Peter Schoomaker said, a "perfect" case took at least six months to get through the Army's medical and physical evaluation board processes even before the wars in Iraq and Afghanistan began, while the Navy completed processing most of its cases in just two months -- using the same disability charts and rules.
"At the end of the day," Army Vice Chief of Staff Gen. Richard Cody acknowledged in a recent congressional hearing, "it looks unfair, and quite frankly, we're being stingy as a nation."
A bureaucratic mess
In the wake of the Walter Reed Army Medical Center controversy -- which has exploded into calls for a review of the entire military health system and particularly its disability evaluation processes -- Sen. Carl Levin, D-Mich., chairman of the Senate Armed Services Committee, has proposed reopening all past military disability cases for review.
That could provide thousands of troops with the chance to increase their disability ratings. But in an already-overwhelmed system, the results could be disastrous -- and expensive.
"If they admit they're wrong, they've got thousands of cases to go through -- billions and billions of dollars," said Army Lt. Col. Mike Parker, who began sounding the alarm on the problems more than a year ago.
Yet the numbers seem to beg for a fresh look. For example, the Army had 5,500 more soldiers going through the physical evaluation board process in 2005 than in 2001 -- but only 79 more soldiers were placed on permanent disability retirement in 2005 than in 2001.
Cody said soldiers face a confusing bureaucratic mess for a variety of reasons, not least of which is that their disability ratings are based on the degree to which their injuries prevent them from serving in uniform, not the degree to which the injuries might prevent them from living a seminormal civilian life -- a distinction poorly understood among troops.
"If you're lower-enlisted, you'll probably fare better from the VA," Cody said.
But Parker and others argue the issue can be larger than that: Those with multiple injuries get disability ratings based on only one of those injuries -- and many say it tends to be the one that merits the lowest rating.
For example, Army Sgt. Michael Pinero is going blind. He must wear contact lenses not so that he can see, but to hold the shape of his eyes. "He's nondeployable because of the contacts," said Ron Smith, deputy general counsel for Disabled American Veterans.
Smith said the eye problems would have earned him a 30 percent disability rating, the level at which troops draw lifetime, tax-free medical retired pay and all other routine retirement benefits for themselves and their families.
But Pinero was rated as 10 percent disabled for an esophagus problem.
Smith said he knows of another soldier who lost the use of his arm, but was rated for a different, lesser disability. The loss of a limb is supposed to merit a disability rating of 70 percent, "no if, ands or buts," Smith said. "But these people just wouldn't do it. They fail to follow their own regulations."
"We had heard some of that in after-action reviews with the soldiers and families," Cody acknowledged. But again, he blamed the problems on the bureaucracy -- an explanation offered over and over at all levels during a blizzard of congressional hearings the week of March 5.
Cynthia Bascetta, director of VA and military health care issues for the Govemment Accountability Office, said all these problems have been raised to the Defense Department before -- multiple times.
In this arena, Bascetta said, "The systemic fixes don't seem to happen. There's no quality-assurance mechanism in place."
Fit for duty?
Col. Jerry Lechliter sued the Army when a physical evaluation board found him fit for duty -- even though he had 11 ailments, including injuries to his back, shoulder and elbow, as well as three surgeries on his feet.
In July, he won the right to an appeal through the physical evaluation board in U.S. Federal Claims Court, but instead settled for a 70 percent disability rating and $30,000 in back pay.
"When a physical evaluation board underrates ailments and denies disability retirement, the soldier and his family suffer for life," he said.
In his case, the Army cited a Defense Department regulation that states only those found unfit have the right to appeal a disability ratings decision. But the Army's own regulations states that any soldier may appeal an informal physical evaluation board. Lechliter said soldiers are not told about that.
March 12th, 2007  
Team Infidel
Parker said other issues include rating soldiers for limitation of motion based only on what physical evidence shows -- for example, in an X-ray.
"Pain doesn't show up on an X-ray, but the other services rate for it," Parker said. "But the Army creates its own policy for pain, and it caps out at a 20 percent [disability rating]. They're using a regulation that doesn't follow the law."
Parker said he feared that by focusing attention on convoluted rules and procedures, the Army will evade further inquiries into whether physical evaluation board members intentionally give soldiers low ratings.
Parker said a disability retirement budget that has remained steady at $100 million a month from 2002 to 2005 -- despite thousands more people going through the system in the Army alone, according to data from the Pentagon's Office of the Actuary -- suggests to him that defense officials have an idea of how much they want to spend on disability retirement.
In addition to the process itself, another controversial issue is the training and qualifications of the counselors helping soldiers through the medical and physical evaluation boards, who are often untrained, under-qualified and low-ranking, critics say.
Parker said these complexities may be partly why a comparatively larger proportion of officers get higher percentage disability ratings: They may be more likely to understand the regulations, to speak up for themselves if they feel they are being treated unfairly, and to ask detailed questions of the people handling their cases.
For his part, Schoomaker vowed to tackle the problems.
"We're deep into fixing it," he told lawmakers. "I'm turning my energy from anger into some results."
Disability Retirements, 2003-2005
An analysis of military disability retirement decisions from 2003, the year the Iraq war started, through 2005, the latest year for which data is available, shows that officers get higher percentage disability ratings -- and thus a higher percentage of their basic pay in retirement -- than enlisted personnel in every service, by a significant margin. The proportions of officers and enlisted members who received ratings of 40 percent and below, and 50 percent and above, by service, from 2003 through 2005:
40% and below -- Officer: 67%, Enlisted: 79%
50% and above -- Officer: 33%, Enlisted: 21%
40% and below -- Officer: 61%, Enlisted: 78%
50% and above -- Officer: 39%, Enlisted: 22%
Marine Corps
40% and below -- Officer: 70%, Enlisted: 80%
50% and above -- Officer: 30%, Enlisted: 20%
Air Force
40% and below -- Officer: 63%, Enlisted: 75%
50% and above -- Officer: 37%, Enlisted: 25%
Source: Defense Department Office of the Actuary. Military Times calculations

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