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Insult to Injury
By Linda Robinson
US News & World Report
16 April 2007 Issue
New data reveal an alarming trend: Vets' disabilities are being downgraded.
In the middle of a battle in Fallujah in April 2004, an M80 grenade landed a foot away from Fred Ball. The blast threw the 26-year-old Marine sergeant 10 feet into the air and sent a piece of hot shrapnel into his right temple. Once his wound was patched up, Ball insisted on rejoining his men. For the next three months, he continued to go on raids, then returned to Camp Pendleton, Calif.
But Ball was not all right. Military doctors concluded that Ball was suffering from a traumatic brain injury, post-traumatic stress disorder (PTSD), chronic headaches, and balance problems. Ball, who had a 3.5 grade-point average in high school, was found to have a sixth-grade-level learning capability. In January of last year, the Marine Corps found him unfit for duty but not disabled enough to receive full permanent disability retirement benefits and discharged him.
Ball's situation has taken a dire turn for the worse. The tremors that he experienced after the blast are back, he can hardly walk, and he has trouble using a pencil or a fork. Ball's case is being handled by the Department of Veterans Affairs-he receives $337 a month-but while his case is under appeal, he receives no medical care. He works 16-hour shifts at a packing-crate plant near his home in East Wenatchee, Wash., but he has gone into debt to cover his $1,600 monthly mortgage and support his wife and 2-month-old son. "Life is coming down around me," Ball says. Trained to be strong and self-sufficient, Ball now speaks in tones of audible pain.
Fred Ball's story is just one of a shocking number of cases where the U.S. military appears to have dispensed low disability ratings to wounded service members with serious injuries and thus avoided paying them full military disabled retirement benefits. While most recent attention has been paid to substandard conditions and outpatient care at Walter Reed Army Medical Center, the first stop for many wounded soldiers stateside, veterans' advocates say that a more grievous problem is an arbitrary and dysfunctional disability ratings process that is short-changing the nation's newest crop of veterans. The trouble has existed for years, but now that the country is at war, tens of thousands of Americans are being caught up in it.
Now an extensive investigation by U.S. News and a new Army inspector general's report reveal that the system is beset by ambiguity and riddled with discrepancies. Indeed, Department of Defense data examined by U.S. News and military experts show that the vast majority-nearly 93 percent-of disabled troops are receiving low ratings, and more have been graded similarly in recent years. What's more, ground troops, who suffer the most combat injuries from the ubiquitous roadside bombs, have received the lowest ratings.
One counselor who has helped wounded soldiers navigate the process for over a decade believes that as many as half of them may have received ratings that are too low. Ron Smith, deputy general counsel for the Disabled American Veterans, says: "If it is even 10 percent, it is unconscionable." The DAV is chartered by Congress to represent service members as they go through the evaluation process. Its national service officers are based at each rating location, and there is a countrywide network of counselors. Smith says he recently asked the staff to cull those cases that appeared to have been incorrectly rated. Within six hours, he says, they had forwarded him 30 cases. "So far," Smith says, "the review supports the conclusion that a significant number of soldiers are being fairly dramatically underrated by the U.S. Army."
Magic Number
In an effort to learn how extensive the problem is, U.S. News spent six weeks talking to wounded service members, their counselors, and veterans advocacy groups and reviewing Pentagon data. At first glance, the disability ratings process seems straightforward. Each branch of service has its own Physical Evaluation Boards, which can comprise military officers, medical professionals, and civilians. The PEBs determine whether the wounded or ill service members are fit for duty. If they are, it's back to work. Those found unfit are assigned a disability rating for the condition that makes them unable to do their military job. The actual rating is key, and here's why: Service members who have served less than 20 years-the great majority of wounded soldiers-who receive a rating under 30 percent are sent home with a severance check. Those who receive a rating of 30 percent or higher qualify for a host of lifelong, enviable benefits from the DOD, which include full military retirement pay (based on rank and tenure), life insurance, health insurance, and access to military commissaries.
But the system is hideously complicated in practice. The military doctors who prepare the case for the PEBs pick only one condition for the service member's rating, even though many of the current injuries are much more complex. The PEBs use the Department of Veterans Affairs ratings scale, which grades disabilities in increments of 10-a leg amputation, for example, puts a soldier at between 40 and 60 percent disabled. The PEBs claim they have the leeway to rate a soldier 20 percent disabled for pain, say, rather than 30 percent disabled for a back injury. If rated at 20 percent or below and discharged, the soldier enters the VA system as a retiree where he is evaluated again to establish his healthcare benefits. Ball, for example, was found by the VA to be 50 percent disabled for PTSD.
Since 2000, 92.7 percent of the disability ratings handed out by PEBs have been 20 percent or lower, according to Pentagon data analyzed by the Veterans' Disability Benefits Commission, which Congress formed in 2004 to look into veterans' complaints (Page 47). Moreover, fewer veterans have received ratings of 30 percent or more since America went to war in Afghanistan and Iraq, according to the Pentagon's annual actuarial reports. As of 2006, for example, 87,000 disabled retirees were on the list of those exceeding the 30 percent threshold; in 2000, there were 102,000 recipients. Last year, only 1,077 of 19,902 service members made it over the 30 percent threshold (chart, Page 49).
The total amount paid out for these benefit awards has remained roughly constant in wartime and peacetime, leading disabled veterans like retired Lt. Col. Mike Parker, who has become an unofficial spokesperson on this issue, to allege that a budgetary ceiling has been imposed to contain war costs. A DOD spokesperson, Maj. Stewart Upton, said that the Pentagon "is committed to improving the Disability Evaluation System across the board and to ... a full and fair due process with regard to disability evaluation and compensation."
Other data reveal glaring discrepancies among the military services. Even though most of those wounded in Iraq and Afghanistan have been ground troops, the Army and Marine Corps have granted far fewer members full disabled benefits than the Air Force. The Pentagon records show that 26.7 percent of disabled airmen have been rated 30 percent or more disabled, while only 4.3 percent of soldiers and 2.7 percent of marines made the grade. Services engaged in close combat, experts say, could be expected to find more members unfit for duty and meriting full retirement benefits. Instead, the Air Force decided that 2,497 airmen fall into that category while the much larger Army, with its higher tally of wounded, has accorded those benefits to only 1,763 soldiers since 2000.
How many of these veterans' cases have been decided incorrectly? Nobody knows. These statistics show trends that are clearly at odds with what logic would dictate, but there has been no effort to discover how many of those low ratings were inaccurately conferred or to ascertain why the number receiving full benefits has declined during wartime or why there is such a discrepancy between the Air Force and the other services. But there is abundant anecdotal evidence of a process cloaked in obscurity and riddled with anomalies, and of ratings that are inconsistent and often arbitrarily applied.
DAV lawyer Smith, for example, took on the case of a soldier whose radial nerve of his dominant hand had been destroyed, the same affliction former Sen. Bob Dole has. Like Dole, the soldier was unable to write with a pen or to button his shirt. "There is one and only one rating for that condition, which is 70 percent disability," says Smith. The PEB gave the soldier 30 percent, the lawyer said, "which I found to be fairly outrageous." Upon appeal to the Army Physical Disability Agency, the entity that oversees that service's disability evaluation process, the rating was raised to 60 percent. Smith recently took on another case, that of Sgt. Michael Pinero, a soldier who developed a degenerative eye condition called keratoconus that required him to wear contact lenses. Army regulations prohibit wearing contacts in combat, which should have made him ineligible for deployment and therefore unfit to perform his specific military duties. But the PEB ignored the eye condition, which Smith believes merited a 30 percent rating or more, and rated Pinero 10 percent disabled for shin splints. Smith has asked the Army to clarify whether it considers the regulation on contact lenses binding or, as one board member alleged, merely a guideline. Disputes over such distinctions are common in the Alice in Wonderland world of disability ratings.
Controversy frequently surrounds decisions on which conditions make a soldier unfit for duty. Smith took issue with a recent statement made by the Army Physical Disability Agency's legal adviser, quoted in Army Times newspaper. The official said that short-term memory loss would not necessarily render soldiers unfit for duty since they could compensate by carrying a notepad. "Memory loss is a common sign of TBI," Smith said, using the abbreviation for traumatic brain injury, which has afflicted many soldiers hit by the roadside bombs commonly used in Iraq. "The rules of engagement are a seven-step process.... If a suicide bomber is coming at you, you cannot stop and consult your notepad," he added. "I find this demonstrative of the attitude that pervades the Physical Disability Agency," which is in charge of reviewing evaluations for accuracy and consistency.
Trying to overturn a low rating can be a full-time job-and an exasperating one. Take Staff Sgt. Chris Bain, who lost the use of his arms but not his sense of humor. "They call me T-Rex because I have a big mouth and two hands and I can't do nothing with them," he jokes. He left the Army in February, but he still has plenty of fight in him. During an ambush in Taji, Iraq, in 2004, a mortar round exploded 2 feet away from him, ripping through his left arm and hand. A sniper's bullet passed through his right elbow. His buddies saved his life, throwing Bain on the hood of a humvee and rushing him to a combat hospital. Once transferred to Walter Reed, Bain refused to have his arm amputated and underwent eight surgeries to save it. That choice cost him. While an amputation would have automatically put him over the 30 percent threshold, the injury to his left arm was rated at 20 percent even though he cannot use the limb.
Bain was angry. A noncommissioned officer who had planned on 20 or 30 years in the Army, he knew his career was over, but he wasn't going to go quietly. "I wanted to be an example to all soldiers," he said. "My job was to take care of troops." He went to find Danny Soto, the DAV representative at Walter Reed he'd heard so much about. "Danny is just an awesome guy. He took great care of me, but he should not have had to," Bain says. Soto is a patron saint to many soldiers at Walter Reed. He walks the halls, finding the newly injured and urging them to collect documents for their journey through the tortuous-and, to many, capricious-system. Many soldiers are young, and after they have spent months or years recuperating, they just want to get home and are unwilling to argue for the rating they deserve. Even though he missed his wife and three children, Bain decided: "I've already been here two years, another one ain't going to hurt me. Too many people are getting lowballed."
With Soto's help, Bain gathered detailed medical evidence of his injuries and went to face the board. They gave him a 70 percent rating for injuries related to the blast except for his hearing loss, which was not considered unfitting since he had a hearing aid. Oddly enough, however, the board put him on the temporary disabled retirement list instead of the permanent list. "What do they think, that after three years, my arm is going to come back to life?"
A lifetime of adjusting lies ahead for Bain. "I can't tie my shoes, open bottles of water, or cut my own food," he says. "I have to ask for help." The 35-year-old veteran has found a new sense of purpose. He's decided to run for Congress in 2008, and fixing the veterans' system is his top priority. "I do not want this s--- to happen again to anyone. No one can communicate with each other. The paper trail doesn't catch up." It's a tall order, but the soldier says that he has "100,000 fights" left in him.
A systemic fix doesn't appear to be anywhere in sight. A March 2006 report by the Government Accountability Office found that Pentagon officials were not even trying to get a handle on the problem. "While DOD has issued policies and guidance to promote consistent and timely disability decisions," the report concluded, "[it] is not monitoring compliance." But the GAO report did spur Army Secretary Francis Harvey, who was forced to resign last month in the wake of the Walter Reed scandal, to order the Army's inspector general to conduct an investigation of the disability evaluation system. After almost a year of work, the inspector general's office last month issued a 311-page report that begins to pierce the confusion and opacity surrounding the process. While it does not determine how many erroneous ratings were accorded to the nearly 40,000 soldiers rated 20 percent disabled or less since 2000, it does make three critical points: 1) the ambiguity in applying the ratings schedule should end; 2) wide variance in ratings is indisputable, even among the three Army boards, and 3) the Army's oversight body is not doing its job.
Way Overdue
Army officials met with U.S. News to discuss the inspector general's report. "This is something that has been near and dear to our hearts for a long time, and it's probably way overdue as far as having someone go and take a look at it," says a senior Army official. The inspector general's team found that Army policy was not consistent with the policies of either the Pentagon or the Department of Veterans Affairs. It recommended that the Army "align [its] adjudication of disability ratings to more closely reflect those used by the Department of Veterans Affairs." For years, the Army has asserted that it has the right to depart from VA standards on grounds that it is assessing fitness for duty and compensating for loss of military career, not decreased civilian employability.
Veterans' advocates argue that federal law requires the military to use the Veterans Affairs Schedule for Rating Disabilities as the standard for assigning the ratings. But over the years, Pentagon directives on applying the schedule have opened up a whole new gray area by saying the schedule is to be used only as a guide. And the services have interpreted them in different ways, engendering further discrepancies. Soto, the DAV national service officer at Walter Reed, says that inconsistencies are especially prevalent in complex cases of traumatic brain injury and post-traumatic stress disorder. "There is a saying going around the compound here," Soto says, "that if you are not an amputee, you are going to have to fight for your rating."
The inspector general's report calls for ending the ambiguities. "What we're saying is it shouldn't be left to interpretation; it should be clearly defined," says one Army official. "If there were a way to cut down on that ambiguity, I think that variance would decrease."
Finally, the report bluntly concludes that the system's internal oversight mechanism is not functioning. "The Army Physical Disability Agency's quality assurance program does not conform to DOD and Army policy," it says-the same conclusion the GAO came to a year ago. The inspector general's report adds evidence of just how little the watchdog is doing to ensure that cases are correctly decided. The agency is supposed to send cases to either of two review boards when soldiers rebut their rating evaluations, but from 2002 through 2005, the agency sent only 45 out of 51,000 cases to one of the boards. The other review board has not been used at all.
The inspector general's team made 41 recommendations in all, finding among other things that the Army lacks a formal course for training the liaison officers who are supposed to guide soldiers through the PEB process, that the disposition of cases lags badly, that the computerized information systems are antiquated, and that the two key medical and personnel databases are not integrated and cannot communicate with each other. The report has been forwarded to the action team that Army Vice Chief of Staff Richard Cody convened-one of many official groups formed since the revelations of substandard conditions and bureaucratic delays at Walter Reed.
Veterans' advocates are skeptical that the administration or the military bureaucracy will make major changes anytime soon. In testimony to Congress last month, Veterans for America director of veterans' affairs Steve Robinson recommended taking the entire ratings process away from the Pentagon and giving it to the Department of Veterans Affairs. "It's hard to ignore the fact that in time of war they are giving out less disability," he says. "Is it policy? I don't know. But it is a fact."
Congress has not responded to this problem. Says Rep. Vic Snyder, the Arkansas Democrat who chairs the House Armed Services subcommittee on military personnel: "This whole issue of disability ratings is very complex. It is not well understood by many people, including many in Congress. That is why we set up the [ Veterans' Disability Benefits] Commission in 2004. We are hoping it will help us sort this out."
A lot is riding on the commission. Its chairman is Lt. Gen. Terry Scott, who retired in 1997 and ran Harvard's Kennedy School of Government's National Security Program until 2001. After the Pentagon data on the disability process were presented to the commission last week, Scott said "we still don't understand the whys and wherefores" of the skewed ratings. The core problem, he believes, is that "the military was not designed to look after severely wounded people for a long time." The commission has not yet decided what changes it will recommend, but he said there is a general sense that "one physical exam at the end of service should be enough for both agencies, DOD and VA."
Cash and Staff
Any solutions that call for transferring more responsibility to the Department of Veterans Affairs will have to be matched by enormous infusions of cash and staff. Already, the VA is reeling under a backlog of over 600,000 claims from retired veterans, which the agency predicts will grow by an additional 1.6 million in the next two years. Harvard Prof. Linda Bilmes, an economist who has published two studies on the costs of the Iraq war and the associated veterans' costs, projects that as much as $150 billion more will be required to deal with the wounded returning from Iraq and Afghanistan.
Meanwhile, people like Danny Soto want to know who is going to stop the military boards from giving out ratings like the 10 percent given to one soldier for a skull fracture and traumatic brain injury, when the VA later assigned a 100 percent rating. Soto is also frustrated by a recent case in which a soldier whose legs had been severely injured in a blast in Iraq was given only a 20 percent disability rating for pain and by the treatment of a man who has a bullet hole through his eye and suffers from seizures. As Soto sat with that soldier in front of the board, he asked why he had been placed on the temporary list. "At what point do you think he is going to fall below 30 percent?"
Soto is unsparing in his criticism of the bureaucracy. "This system," he says, " is so broke." Old soldiers say the root of the problem is an Army culture that preaches a "suck it up" attitude. "If you ask for what you are due, you are perceived to be whining or trying to pad your pocket," says a retired command sergeant major. "If you're not bleeding, you're not hurt. That's what we were taught."
