Upcoming Congressional Hearings

[maparker]

This upcoming week there will be a couple of Congressional hearings of interest on the Wounded Warrior front. The times and details of these hearings are below. I sent the message below to select members of these committees in hopes that they would address these issues at these hearings. I also sent it to my POC’s at DoD so that they could be prepared to address these issues and in hopes that it might spur them on to take more actions in getting them fixed.

Unfortunately, I will not be available to attend these hearings in person but I do plan to watch or listen to them via C-SPAN TV/Radio or webcast or by any other means available.

Mike

Joint Senate Armed Services/Veterans Affairs Committees

MEETING DATE/TIME 02/13/2008 9:30AM

LOCATION 216 Hart Senate Office Building

MEETING TYPE Hearing

AGENDA To receive testimony on improvements implemented and planned by the Department of Defense and the Department of Veterans Affairs for the care, management, and transition of wounded and ill servicemembers

NAME TITLE ORGANIZATION TESTIMONY

Chu, David Under Secretary of Defense for Personnel and Readiness

England, Gordon Deputy Secretary Department of Defense

Geren, III, Preston Secretary Department of the Army

Mansfield, Gordon Deputy Secretary Department of Veterans Affairs

Schoomaker, Eric Surgeon General of the United States Army



House Armed Services Personnel Subcommittee

Friday, February 15, 2008 – 10:00 am – 2212 Rayburn – Open

The Military Personnel Subcommittee will meet to hear testimony on the status of the implementation of the Army’s medical action plan and other services’ support for wounded service members.

Witnesses:

Lieutenant General Eric Schoomaker, USA
Surgeon General
U.S. Army

Brigadier General Michael Tucker, USA
Assistant Surgeon General for Warrior Care and Transition
U.S. Army

Vice Admiral Adam Robinson, USN
Surgeon General
U.S. Navy

Lieutenant General James Roudebush, USAF
Surgeon General
U.S. Air Force



Message to the Committees:

My name is Michael Parker and I am a retired Army Lieutenant Colonel. For the past two and a half years I have been a very active advocate trying to fix the Defense Disability Evaluation System. This work has lead me to help countless military members receive their due defense disability benefits. It has also lead me to work with and brief various Congressional entities, the Veterans Disability Benefits Commission, The Dole /Shalala Commission, The Independent Review Group, The DoD, the military Services, The Joint Staff, The Veteran’s Administration and numerous veterans’ service organizations.

While much progress has been made on fixing the Defense Disability Evaluation System, much work remains. I would like to suggest that the four topics below be discussed with the panel at your hearing to further these issues to their proper resolutions.

Thank you for your time.

Michael Parker
LTC, USA (Retired)


1. DoD/Congress must stop the Department of the Navy’s practice of administratively separating individuals due to service connected disability. The Navy PEB’s are finding members fit for duty despite the severity of their service connected disabilities. These members’ commands are then administratively separating them because their disabilities prevent them from performing their duties in all operational environments. This procedure ends up avoiding the payment of legally due disability benefits. The Department of the Navy is basically limiting PEB fitness to the specific MOS requirements vice MOS and common military requirements as required by DoD policy.

Kevin Stein is a good example. He had 14 years of service and developed a neurological condition and other ailments. His PEB found him fit for his MOS but his command found him unsuitable for operational service and administratively separated him without disability benefits. The VA then rated him at 80% for these conditions. An article about him appeared in the Army Times last year. A copy of the article is below.

DoD has a list of conditions they do not consider compensable disabilities for DES purposes. These conditions are listed in Enclosure 5 of DoDI 1332.38 and includes issues such as bed wetting, personality disorders and sleep walking. When one has such a condition, they are not vetted through the Disability Evaluation System, rather they are administratively discharged. The list of noncompensable conditions is required to be approved by the SECDEF. However, the Department of the Navy is adding to this list, on an individual basis, any condition the PEB finds fitting but the command finds operationally unsuitable. This is despite the fact the condition is on the list of condition requiring DES vetting and is compensable if found unfitting and service connected. Again, this maneuver It is just another way around paying disability benefits.

Also part of the problem was an existing DoD policy that stated non deployability could not be the sole reason for finding a person unfit. In December 2007, DoD removed this policy and will now allow PEB’s to find members unfit because they cannot deploy. Had this policy been in effect a couple of years ago, Kevin Stein may have been found unfit and awarded disability benefits. They question remains how will the Services employ this new policy if at all? Will it truly prevent the Department of the Navy from administratively separating individuals like Kevin Stein in the future?


2. DoD/Congress must allow service members who have been medical discharged access to the Discharge Review Board to seek relief. The Discharge Review Board is provided under 10 USC 1553:

1553. Review of discharge or dismissal

(a) The Secretary concerned shall, after consulting the Secretary of Veterans Affairs, establish a board of review, consisting of five members, to review the discharge or dismissal (other than a discharge or dismissal by sentence of a general court-martial) of any former member of an armed force under the jurisdiction of his department upon its own motion or upon the request of the former member or, if he is dead, his surviving spouse, next of kin, or legal representative. A motion or request for review must be made within 15 years after the date of the discharge or dismissal. With respect to a discharge or dismissal adjudged by a court-martial case tried or reviewed under chapter 47 of this title (or under the Uniform Code of Military Justice (Public Law 506 of the 81st Congress)), action under this subsection may extend only to a change in the discharge or dismissal or issuance of a new discharge for purposes of clemency.

(b) A board established under this section may, subject to review by the Secretary concerned, change a discharge or dismissal, or issue a new discharge, to reflect its findings.

(c) A review by a board established under this section shall be based on the records of the armed forces concerned and such other evidence as may be presented to the board. A witness may present evidence to the board in person or by affidavit. A person who requests a review under this section may appear before the board in person or by counsel or an accredited representative of an organization recognized by the Secretary of Veterans Affairs under chapter 59 of title 38.

A soldier I advocate for, CPT Wollman, was discharged without disability benefits because his PEB ruled his condition existed prior to service and was not further aggravated by service. This decision was wrought with errors and injustices. CPT Wollman and I, with the help of the The American Legion, filed for a 1553 Discharge Review Board and the Army Review Board Agency granted him this board. However, last October, two weeks before the board was to commence, ARBA withdrew the board and stated their interpretation of the law was that Discharge Review Boards were not empowered by Congress to review medical discharge cases. When I did a online search of past DRB’s, I found past cases in recent years where DRB had in fact reviewed medical separation cases for EPTS and cases involving separation due to disability ratings less than 30%. ARBA has been unwilling to share any details for their decision to deny CPT Wollman a Discharge Review Board. As you can see from the law above, the only types of discharges not eligible for review by this board are those done by a general court martial. He and other medical discharge cases are entitled by law to a Discharge Review Board and should not be denied access to justice.


3. Ensure all service members with qualifying medical conditions are evaluated by the DES to determine their fitness and disability benefits due. Many service members, (especially activated Guard and Reserve members), with qualifying disabilities, are being discharged from active duty without being evaluated by the disability evaluation system. This is a violation of DoD policy and results in members being denied legally due disability benefits.

I have been notified by several guard and reserve members who have had this problem. These specific individuals’ situations have been reported to the appropriate authorities and it appears that proper action may be under way to resolve their situations. However, I am not confident at all that the military is actively trying to find other service members who were improperly discharged. This has been an ongoing problem for years and it should not be up to the service member who was improperly discharged to discover the truth by happenstance. DoD knows who was discharged under these circumstances and they should notify them that they may be eligible for disability benefits and how to apply for relief.


4. The DoD VA joint evaluation pilot program is under way. Section 4.2 of the DoD pilot program policy allows DoD to ignore the VA service connection determination for EPTS cases:


4.2. For the purpose of the DES Pilot and under the authorities granted by 10 USC, 113, 3013, 5014, and 8013, the Military Department Secretary concerned will use the DVA disability ratings awarded to each of the military unfitting conditions to determine combined DoD disability rating for all military unfitting conditions. As an exception to the above and in accordance with DoDI 1332.39, paragraphs 6.1.3 and 6.11, the Military Department Secretary concerned may adjust the DVA disability ratings awarded for conditions that result or are aggravated as a consequence of the Service member’s non-compliance with prescribed treatment or for conditions that existed prior to service (EPTS).

In essence DoD will reduce or deny DoD disability benefits because they will non concur with the VA’s service connection determinations. This has been an ongoing issue with DoD having non sensible service connection standards as reveled in the recent press coverage of the Walter Reed situation. DoD must be compelled to follow VA presumption of service connection standards as the Congress has clearly stated is their intent.



Fit but unfit, sailor shown the door

By William H. McMichael
bmcmichael@militarytimes.com


Six years into the second half of his Navy career, Electronics Technician 1st Class Kevin Stein developed nighttime breathing difficulties, nerve problems in both arms and several more perplexing maladies. He was put on limited duty and, in 2001, a Medical Evaluation Board found him unsuited for sea duty.

Yet a separate group, a Physical Evaluation Board, found him fit for continued military service.

Stein began a long, laborious series of exams and treatments in Portsmouth, Va., and at Walter Reed Army Medical Center in Washington. In September 2003, another PEB again found him fit for service. But a second MEB once again found him unsuitable for deployment.

By March 14, he was out the door — involuntarily separated “at the convenience of the government,” due to his condition.

Stein was given six months of Tricare medical coverage for his family, a one-time separation payment of $23,902.54 and an honorable discharge.

If he had been medically discharged with a disability rating of 30 percent or greater, or had more than 20 years of service, Stein would have gotten lifetime medical care and regular payments of a portion of his highest basic pay. Stein, however, served only 14½ years.

“I was relieved that it was finally over,” said the Hampton, Va., resident. “I could now go to the VA. But I felt that I had been wronged.”

Two months later, the Department of Veterans Affairs rated Stein 80 percent disabled.
Stein doesn’t understand how he could be fit for duty but not fit for his job.

Between Oct. 1, 2004 and July 31, 2007, the Navy administratively separated 1,466 sailors who were found “unsuitable for operational duty” or limited assignment, according to Navy spokeswoman Lt. Ligia Cohen.

It is unknown whether any had been found fit for continued naval service by a Physical Evaluation Board. The Navy does not track such separations based on PEB findings, she said.
Deemed unsuitable
Stein was one of the 451 sailors found unsuitable in fiscal 2004, and the handling of his case apparently followed Navy policy to the letter. A sailor who is found fit by a PEB but not considered to be “worldwide assignable” can be separated, according to Cohen.

But policies differ across the services, even though the Defense Department has directed that procedures for physical disability evaluation be “interpreted uniformly.”

MEBs, which are informal, are supposed to evaluate a service member’s ability to continue in a specific job. PEBs decide whether a troop is fit for continued overall service, period.

A PEB finds the member either fit or unfit for duty. If the finding is unfit, a formal PEB can place the member on the Temporary Disability Retirement List, or order a medical retirement and assign a permanent disability rating.

A PEB also can consider whether shifting to a different, perhaps less demanding job is feasible. The Navy limits this to whether the sailor is suited for certain hard-to-fill or critically short job fields. But most rates, the Navy points out, require a sailor to be assignable worldwide.

The Marine Corps follows the Navy instruction. Commanding officers also have the authority to decide that a Marine found fit by a PEB is unsuited for further service, said Corps spokeswoman Capt. Blanca Binstock.

An example, she said, would be a physical condition such as an allergy that is not defined as a disability.

In the Army, some injured troops can be evaluated in terms of ability to perform their job, and can be recommended for reclassification to a new job. But only soldiers with duty-limiting, but nondisabling, conditions can have their cases considered by a Medical Retention Board that will consider whether they are suited to stay in their current occupational specialty.



PEB finding of “fit” means a return to duty — the soldier cannot be separated solely for the condition in question, said Lt. Col. Kevin Arata of the Army’s Human Resources Command.

Air Force MEBs consider fitness as it relates to the military environment, and airmen must be able to “reasonably fulfill” their jobs to stay on active duty.As such, the Air Force does not return members to duty if they are found unfit to perform their primary job, said Capt. Tom Wenz, an Air Force spokesman. Air Force PEBs can recommend reclassification, but can’t order it.

This has not been an issue in recent years. From 2002 through 2007, the Air Force Disability Evaluation System returned 10,850 members to duty. During that same period, no airmen with service-connected medical issues were administratively discharged because they were unfit for their job or for deployment, Wenz said.

All the services have other exceptions, particularly for those close to retirement.
Stein’s medical problems

Stein, 37, enlisted in 1988 and served six years before taking a two-year break in service, returning in 1995. He began developing medical problems while assigned to the destroyer Arleigh Burke: carpal tunnel syndrome, sleep apnea and motor tics, or involuntary twitching.

After the 2001 MEB found him unsuited for sea duty and the PEB found him fit for military service, he continued treatment. Epilepsy and Tourette syndrome were ruled out. Eventually, the time the Navy allowed for a possible recovery ran out, and a September 2003 MEB found him unsuitable for deployment. A neurologist scheduled a second PEB and that board found, in January 2004, that Stein was again fit for duty.

Stein appealed.

“I was looking for a finding of unfit [for duty] because the military was not finding me suitable for sea,” Stein said. “I knew if they found me fit, there’d be an administrative separation.”

In February, Navy Personnel Command made a final ruling: Stein was fit for continued duty, yet “unsuitable for operational duty and ... not worldwide assignable.”

The ruling noted that Stein had received therapy and treatment as “an opportunity to correct your physical conditions,” fulfilling Navy policy. The following month, he was separated without a disability rating, and no lifetime benefits.

Yet in May, the VA determined that he had a 50 percent disability for sleep apnea, 30 percent for motor tics, a total of 40 percent for his neuropathy problems and 10 percent for a hiatal hernia. Using the VA’s formula, Stein was awarded an 80 percent disability.
He is paid $1,571 per month, untaxed.

Stein wonders why the Navy didn’t think just one of those conditions — say, the motor tics — was sufficient cause for a medical disability retirement.

“Motor tics interfere with your ability to be an electronics technician,” he said. But the Navy gave him no explanation.

“ ‘You’re fit, case closed,’ ” he said.

Adding insult to injury, the Defense Department must recoup severance or separation pay when a member’s condition is not service-related and the member qualifies for VA disability. So Stein, married with one child, did not receive his initial VA checks until a year after he had left the Navy.

He called his Navy separation payment “more or less … an interest-free loan.”

Eventually, Stein landed a civilian desk job as a phone company troubleshooter. But he still is easily startled, and often experiences violent twitches. He has put off going to the VA for treatment while dealing with other family medical issues, but plans to see a neurologist soon.

“I’m sure I’m not the only one like this,” said Stein. “How many have been told, ‘You’re fit, you’re fine — but you’ve got to get out because we can’t deploy you?’ ”

He also noted that he has heard discussion about “a lot of veterans from the Iraq war who are being found unfit and being forced out.”

Stein thinks the Navy does this to save money, a charge also leveled by some other critics at disparities in the way the services handle such cases.

Navy and Pentagon officials did not respond to requests for comment by press time.

[Jason]

Mike,

Thanks for the heads up on this. Great letter, too!

I think that the Services and the US Government have often taken the postion (especially in arguing in front of various courts) that the Servicemember can address these situations with the various BCMRs. I tend to think this is "punting" the issue and has the effect of sometimes wearing down the Servicemember's will to continue to advocate for his or her rights.

These hearings are a great opportunity to educate members of Congress and the general public about the treatment given by the Services to injured Servicemembers. With proper Congressional oversight of these issues, hopefully it won't take Servicemembers having to fight for what is rightfully theirs. It is my hope that DoD realizes the mistakes and moves to correct them voluntarily, and Congress steps in to address what DoD does not. The differences between the solutions is the speed in which they are implemented, in my opinion.

I urge all readers to contact your Congressmen to voice your concerns on these issues.

Thanks again, Mike!