So let me ask all of the experts on here, this question. What if you are a combat wounded veteran that underwent the a MEB and was granted a rating of over 30%, but was still given the wrong rating for your PTSD condition? Here's my situation:
I was injured in Iraq during my tour in 2004. I was retired 05, November 2006 without having undergone any kind of medical evaluation board by the U.S. Army, despite having a combined total rating of 60% from the Dept. of Veterans Affairs, at the time. It took years of appeals to finally get the Army to agree to let me undergo a Physical Evaluation Board (PEB) in Sept.-Oct. 2008. In Nov. 2008, the PEB ruled that I would only be granted 0% for my PTSD and 20% for Chronic Cervical Arthritis. I hired legal counsel and had my PEB appealed.
In Jan. 2009, while I was undergoing a reevaluation with the PEB, the National Defense Authorization Act (NDAA) of 2008 (Pub. L. 110-181) changed the way that the Department of Defense (DoD) rates certain medical conditions, by requiring it to apply the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). The Department of Veterans Affairs Schedule for Ratings Disabilities (VASRD), section 4.129, provides information regarding mental disorders due to traumatic stress. Specifically, it states that when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six-month period following the veteran’s discharge to determine whether a change in evaluation is warranted. The 2008 NDAA, section 3.1, effective 28, January 2008, provides that in making a determination of a member's disability rating the Military Department shall, to the extent feasible, utilize the VASRD in use by the Department of Veterans Affairs.
In Feb. 2009, my attorney and the PEB came to an accord, and without standing before a formal PEB hearing, they ruled in my favor. This time I was granted 30% for my PTSD and 30% for my Chronic Cervical Arthritis for a combined rating of 50%. Even though my attorney argued with the PEB to grant me a rating of 50%, under the new guidance granted by the NDAA, the PEB refused. Under the advice of my attorney, I agreed to the proposed rating of 30% for the PTSD, against my better judgment. He informed me that if we appealed the ruling a second time, that my ruling would be held up for an unspecified period of time, and that the PEB could possibly grant me a lower percentage rating. Keeping in mind, I do not have an issue with the rating for the Chronic Cervical Arthritis, just the PTSD, which by the letter of the law should have been the 50% rating. I believe now, that due to this ruling, my original retirement orders are based on a mistake of the law as I was only granted an evaluation of 30 percent.
On 17, July 2009 another memorandum, this time from the Office of the Under Secretary of Defense (Personnel and Readiness), directed that as a matter of policy, all three BCMRs will apply VASRD Section 4.129 to PTSD unfitting conditions for applicants discharged after 11 September 2001 and, in such cases where a grant of relief is appropriate, assign a disability rating of not less than 50% for PTSD unfitting conditions for an initial period of six months following separation, with subsequent fitness and PTSD ratings based on the applicable evidence. It would be inequitable to treat PTSD unfitting conditions differently than any other unfitting conditions. Therefore, as a matter of equity and policy, provisions of Department of Defense (DoD) or Army regulations or guidelines relied upon by the PEB will not be considered by the ABCMR to the extent they were inconsistent with the VASRD in effect at the time of the adjudication in all cases in which the applicant was discharged on or after 11 September 2001.
On December 18, 2009, the United States Court of Federal Claims ordered that a legal notice be sent to me and all other veterans of the U.S. Armed Services who may be eligible to join a class action lawsuit known as Sabo, et al. v. United States. The Sabo lawsuit was brought by seven veterans from the U.S. Army, Navy, Marine Corps, and Air Force. The seven veterans were discharged from military service as a result of a finding by a Physical Evaluation Board ("PEB") that they were unfit for continued active duty service due, at least in part, to Post Traumatic Stress Disorder ("PTSD"), and were assigned a disability rating for PTSD of less than 50%. I was supposed to have received the Court-approved legal notice because government records indicated that myself -- like the seven veterans who filed the Sabo lawsuit --were discharged from the Armed Services between December 17, 2002 and October 14, 2008, were found unfit for continued active service due, at least in part, to PTSD, but were assigned a disability rating for PTSD of less than 50%.
With this new information I attempted to ‘Opt-in’ to this class action lawsuit, sending all of my supporting documentation and opted-in (Approximately Oct.-Nov. 2009 timeframe). I fell into the category of plaintiffs whom were discharged for PTSD (30%) and placed on the PDRL. After approximately a month, in Dec. 2009 I was contacted by a legal counsel representing this case. I was informed that I was ineligible due to the fact that my PEB and Medical Retirement weren’t based solely on a military discharge due to PTSD. I was also discharged for an additional disability (Chronic Cervical Arthritis). I informed the legal counsel that I wasn’t seeking to change this rating for the additional disability. I was merely seeking resolution for the improper rating granted for my PTSD. They turned down my request and I was denied the opportunity to join the class-action lawsuit.
A year later, in Dec. 2010, I sent a written request to the Army Disability Rating Review Board, informing them that my PEB ruling and retirement orders were based on a mistake of the law as I was only granted an evaluation of 30 percent for the PTSD. I provided evidence which, by due diligence, was presented during the PEB, before the retirement decision was rendered, but was either overlooked or ignored. In effect, I requested that the ADRRB consider my request to review the percentage of my rated disability. I received a response two months later, informing me that the ADRRB refused to overturn the PEB’s ruling of 30% for the PTSD, and that if I wanted a higher rating for this disability that I would have to take it up with the Department of Veterans Affairs. I was very frustrated by this point. DoD is still refusing to follow the law. Instead, the PDBR still upheld the illegal rating decision, and DoD continues to cheat a disabled service member (me) out of legally due disability benefits.
On December 22, 2011, Judge Miller granted final approval for the Sabo Settlement Agreement. Copy of the ruling:
http://ptsdlawsuit.com/sabo-12-22-2011-order-approved-settlement.pdf
Now I am still trying to seek out legal representation once again, to file another appeal with the Army Disability Rating Review Board. I’m at my wits end, as I personally feel very betrayed by my former military branch. First I was denied the appropriate rating of 50% for the condition of PTSD, under the letter of the law, then I was denied (despite evidence to the contrary) that I was eligible for the appropriate percentage that should have been granted to me in the first place, and finally, being denied to join the Class Action lawsuit due to a technicality. My family has suffered both mentally and emotionally, and not to mention the significant financial burden we have had to endure since I was first released from the military in November 2006! That is a significant portion of monetary compensation that my family has been denied, going on five plus years! All I'm asking for is the right to a fair and equitable evaluation from the military review board. I don’t know who else to turn to or who would be willing to represent me. Since my overall disability rating with the Army is over 30%, I do not qualify for the special Disability Board of Review that was set up by the DoD. I know my options are limited, but I wanted to known if there are any other avenues in which I could approach this legal matter. Not to mention I am rated at 90% disabled by the VA, and I am currently pending a 100% disability rating under IU, since I have not worked since January 2010, and I am collecting SSDI.
If anyone has any comments, suggestions, anything...would greatly appreciate it!
Sincerely,
Zachariah S. Wooten
US Army (R)
OIF 2 Vet & Purple Heart Recipient
