Topic: Take Care of Them
The Army disability retirement system stacks the deck against injured soldiers by forcing them to prove they have post-traumatic stress disorder, demanding physical evidence for traumatic brain injuries, and restricting access to rules and regulations they need to make their cases, said an Army lawyer who helps soldiers appeal their claims.
By Kelly Kennedy - Staff writer at Military Times
Apr 5, 2007 21:53:58 EDT
“I think the problems are systemic,” said Steven Engle, head legal counsel for soldiers going through the disability physical evaluation system at Fort Lewis, Wash. “The rules are inequitable.”
In some cases, he said, they may even be illegal.
And the cases that are coming to define the wars in Iraq and Afghanistan — traumatic brain injury, post-traumatic stress disorder and musculoskeletal injuries — are the ones most affected by unfair or unclear rules coming from the service’s top-level Physical Disability Agency, Engle said.
The rules undeniably keep soldiers’ disability ratings low, but Engle said he could not claim that as an intentional outcome.
“I have no evidence to make that allegation,” Engle said. “Locally, I know they’re good and honorable people. I’ve never met anyone from the Physical Disability Agency.”
Engle, a civilian in charge of two Army reserve JAG officers who also assist soldiers through the process, said he is speaking out about the inequities because the Army’s legal command wants to fix the problems stemming from the fact that the Army “grossly oversimplifies” Defense Department guidance on rating disabilities.
Military Times asked the Army Physical Disability Agency March 27 for comment on Engle’s charges. At press time on April 5, a spokesman for the agency said officials had been too busy to respond. They did, however, provide some statistics requested by Military Times.
The most troublesome cases involve injuries that can’t be proven with medical evidence, Engle said. One major issue: soldiers with PTSD must prove they witnessed a traumatic event.
In its guidance for preparing psychiatric reports on soldiers going through the physical evaluation board process, the Physical Disability Agency cites various ways soldiers can prove they have had a PTSD-level “traumatic stressor”: statements from a commander or from fellow soldiers, awards with citations, statements from the soldier’s family showing behavior changes, police reports and sworn witness statements.
“Where a data source includes information based only on what the soldier has related,” the guidance states, “you should not use this data source as supportive collateral information.”
That seems to contravene the Army’s own regulations. AR 635-40 states that if there is no proof against a soldier’s claim, “reasonable doubt should be resolved in favor of the soldier.”
Engle said decisions on PTSD ratings should be based on the same information as all other mental disabilities — a psychiatrist’s formal diagnosis.
Putting the burden of proof for PTSD on the soldier, he said, “is grossly unfair.”
In one case, he said, a soldier watched a buddy die in Iraq and has since suffered nightmares, played the event over in his mind continuously, and remains hyper-alert to possible danger.
To help prove he had PTSD, the soldier was told to contact the family of his dead friend to get documentation that the friend had died. Then, Engle said, he was told to prove he witnessed the death.
“He just couldn’t … do it,” Engle said.
According to the guidance for psychiatrists, even if a soldier proves he witnessed a traumatic event and afterward develops PTSD symptoms, it may not be PTSD, but rather strong emotional reactions to other stressors.
“It is easy (but could be wrong) to attribute symptoms to PTSD when the symptoms begin after witnessing horrifying events,” the guidance states, and then lists other possible causes for the soldier’s symptoms: contentious relations with his commander, marriage problems, financial difficulties, a history of poor job adjustment, significant personality problems or disciplinary action.
It also suggests a soldier may not remember being diagnosed or may have been told by his parents that he had a mental disorder.
“There may be situations where a soldier does not report any history of having been seen by any health care professional ... for any mental disorder,” the guidance states. “However, in taking the soldier’s history, it may become clear to you that the soldier’s current mental disorder began or existed prior to the soldier’s being on active duty.”
If that’s the case, the soldier is labeled with a disorder that existed prior to service, found unfit, and if he has been in for fewer than eight years, is discharged with no severance check, no medical benefits, and no access to care from Veterans Affairs.
In one case documented by Military Times, a soldier with a brain tumor was considered to have a pre-existing condition even though there was no medical evidence to prove it. Because he had been in for less than eight years, he received no disability benefits from the Army.
Soldiers with traumatic brain injuries face a similar situation: If they can’t prove with medical evidence that damage was done, they may be rated as only 10 percent disabled, well below the threshold required to earn lifetime medical retirement.
“Those cases are terribly under-rated,” Engle said. “I think there’s great confusion on how to rate it. There’s an inherent skepticism built into the rules if you can’t see an injury or measure it with a tool.”
A soldier whose brain scan shows signs of trauma can be rated to the full extent of his cognitive disabilities. But one whose scan comes out clean — even if he suffers daily migraines, can’t remember what he had for lunch, and has cognitive abilities well below his pre-deployment levels — cannot be rated higher than 10 percent, Engle said. That leaves badly injured soldiers with no disability retirement and health care.
Jeannette Mayer recently took her husband, Staff Sgt. DeWayne Mayer, to the Elks Rehab Hospital in Boise, Idaho, where he was diagnosed with traumatic brain injury in February.
She said the injury should have been obvious much earlier to Army physicians, and that he should have been rated for it at his physical evaluation board.
Between May and October of 2005, DeWayne Mayer suffered at least five concussive head injuries, his wife said — three from being close to roadside bomb blasts, one when his Humvee flipped, and one when American troops blew up a downed U.S. helicopter that he was guarding before he had gotten clear.
“There are times when he is totally confused,” his wife said. “He doesn’t understand what you’re saying to him. If you try to get his attention, he gets violent.”
He suffers migraines, slurs his speech, shuffles his feet, and has been diagnosed with short-term memory loss.
As he recuperated at Fort Lewis, she said she asked doctors again and again if it could be a traumatic brain injury. She said he was never seen by a traumatic brain disorder specialist, and that his physical evaluation board gave him three disability ratings of 10 percent each for short-term memory loss, cognitive disorder and a neck injury.
“They told me the TBI program was not for people with short-term memory loss,” she said. “That was a different diagnosis.”
Engle said it may not have mattered. In another example of seemingly conflicting rules, the psychiatrists’ guidance for mental disorders says soldiers should be evaluated based on their ability to work in a civilian setting — even though the physical evaluation board’s stated task is to determine if soldiers are still fit for their military jobs.
The guidance tells doctors to determine if a soldier has an “acceptable level of attention and concentration” to allow them to be civil with co-workers, make simple work decisions, ask simple questions and request help.
“My colleagues call it the ‘Wal-Mart greeter test,’ ” Engle said. “If you could be a greeter at a discount store, you don’t qualify for more than 10 percent.”
Engle also said getting Army rules, regulations and guidance from the Physical Evaluation Board is often difficult, and that those documents are not stored in a central location.
“There are a bunch of Army documents for the process: some signed, some not,” Engle said. “Some are provided to counsel, and some are not. A person has a right to know what the rules are.”
A soldier will not know what evidence to produce about his case if he doesn’t know how the board is evaluating him, he said.
In March, Engle said he received an e-mail from the PEB with disability ratings guidance for musculoskeletal issues and neurological and convulsive disorders — dated 2005. Engle did not know the changes existed.
Engle said he thinks Army lawyers should be involved in the process earlier — at the medical evaluation board level. Medical boards determine which injuries or illnesses may make soldiers unfit for duty, and then physical evaluation boards determine if the soldiers should stay in the military or what disability ratings they should receive.
But if a medical evaluation board doesn’t document all of a soldier’s injuries, the physical evaluation board won’t rate them.
He also believes more soldiers need to challenge he system by appealing their initial, informal board decisions.
“Dozens and dozens” of clients have told him medical evaluation board members have said soldiers can be rated for only one disability, and that’s not true, he said. Soldiers should be rated for all injuries that affect their ability to work.
Data provided by the Army shows that about 80 percent of injured soldiers at Fort Lewis accept the decision of their initial, informal evaluation board, while the remaining 20 percent appeal. About half of those who decide to appeal eventually choose not to follow through after consulting with legal counsel, the Army said.
That means only 10 percent of injured soldiers entering the disability system at Fort Lewis ever go before a formal evaluation board for their conditions.
Engle said the recent media coverage of problems with the disability ratings process at Walter Reed Army Medical Center is already prompting changes, though whether they are good or bad for soldiers is unclear.
In late March, the Army issued a “tactical pause” for certain cases: PTSD, sleep apnea, narcolepsy, and range-of-motion joint issues — conditions Engle says are “chronically underrated” as disabilities.
The Army then lifted the “tactical pause” for all cases except sleep apnea and narcolepsy — two conditions for which the Army’s rating system differs significantly from Defense Department guidance, he said.
Engle has other suggested changes, to include lowering the time-in-service threshold for pre-existing conditions from eight years to three.
He also said the Army should more closely follow Defense Department guidance and policy in rating injuries.
Critics say the Navy and Air Force do so — which may be one reason why their average disability ratings and payments are higher than the Army’s, even though the Army has many more serious injuries coming out of the war zones.
“It boggles my mind to see higher ratings in the Air Force with so many traumatic injuries coming through the Army,” Engle said.
(shared by Lietta - found at Military Times)
Posted by SwanDeer Project
at 5:07 PM PDT
Updated: Sunday, 8 April 2007 5:42 PM PDT