Jason Perry
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I am aware of the class action lawsuit. Thanks for bringing it up, though. For those interested, I posted about it here: http://www.pebforum.com/va-news-fee...oper-benefits-ptsd-veterans-12-18-2008-a.html
I am very curious to see how this all pans out. I think there are some issues with the jurisdictional limit of $10,000. That is, the plaintiffs must show they are harmed in a sum of at least that amount for the Court of Federal Claims to have jurisdiction. The case seems to be focused on the issue of applying 38 CFR Section 4.129, which is the regulation that requires a temporary rating of 50% for those separated due to a highly stressful event, with a review of the rating not earlier than 6 months. A concern I have with the complaint is that it does not address the impact of the re-evaluation after 6 months, which is something I think the Court will need to address if they do rule for the plaintiffs, in whole or in part.
The jurisdictional money issue comes in, in my opinion, because some members, even if rated for 6 months at 50%, may not reach the $10,000 threshold. The second, related issue, though, is that some members will, on re-evaluation, be rated at less than 50% (or even at less than 30%, thus not qualifying for retirement any longer). The next issue is that the military has been applying this criteria for some time now (this is an issue that I worked to resolve on behalf of one of my clients, which I was able to discuss with Army Times with my clients' permission as part of our effort to overturn this policy: http://www.pebforum.com/ptsd/7789-army-times-article-rating-ptsd.html . Note that shortly after the article, the Army changed its position on this issue and awarded the correct 50% rating).
Why this is a bit of a concern is that this is a moot issue for those after the change in policy and also raises the issue of do the named plaintiff's of the members of the class have to pursue their administrative remedies before the ABCMR (I am not of the opinion that this is always required, but the military routinely states that the member does...this issue must be considered carefully in every case, though, I do not think it is clear that it is required...on this point, it is very important to consider the issue of pursuing administrative remedies, and if you do sue, to be prepared to address this issue). A bad outcome for the plaintiffs would be for the case to be dismissed as moot, with the BCMR as the remedy for those who were previously erroneously rated. I do not have an opinion on the likelihood of that, but it is something to be aware of as a possible (bad) outcome.
What I would like to see is the Court address head on whether the military was free to use substituted rating scheme different than the VASRD prior to the passage of the 2008 NDAA (I think they could not and ALWAYS have had to apply the VASRD). There are a number of ways that the Court could avoid deciding this issue if it finds against the plaintiffs for other reasons. But, as discussed below, I am glad this suit was filed.
A huge problem with this area of the law is that not enough members and Veterans pursue their rights. There are a lot of unsettled questions in this area of the law because unless people file suit, the courts do not have an issue to decide on and thus do not state rules that the military must follow. Because most Veterans do not pursue either administrative boards or file suit, the government gets to do many things that I think are not proper. It is very important, in my opinion, that the correct issues are raised at the administrative board level, BCMR/PDBR (because the courts often will not address in a lawsuit issues that were not raised at the administrative level) and that there is follow through in court. A related issue is the fact that suits must be filed within 6 years of the legal harm in order for the Court of Claims to have jurisdiction (power to hear the case; this is not always the date of separation though, keep that in mind when reading my comments, below). So, because many people wait too long, their valid issues are not addressed (that is another issue with the suit, it only helps those separated within 6 years of the lawsuit...those who fall in that window of before Dec. 2002 and after 9/11/2001, still may not get any help from this suit).
I have not viewed the Government's reply or any motions in this case, so some of these issues may have been raised or explored already. And, as always, remember, that none of the above is legal advice, just my take on some of the issues in the suit. All in all, it is a good thing to see a suit that may result in a determination regarding the proper application of the VASRD.
This area of the law is very important to me and I intend on fighting out as many issues as possible to secure the rights of all Servicemembers. I do think it is important to keep up with the law and developments in this area, which is one of the goals of this site. In the next few months, I anticipate making an announcement regarding some steps I am taking to address some of the problems.
Keep your heads up, sometimes it takes persistence, but those who demand their rights very often come up with a win. It does not always come soon, or easy, but being persistent is key. The corollary to this is that if you give up, you will lose. Just by reading this, you are taking a step in the right direction.
I am very curious to see how this all pans out. I think there are some issues with the jurisdictional limit of $10,000. That is, the plaintiffs must show they are harmed in a sum of at least that amount for the Court of Federal Claims to have jurisdiction. The case seems to be focused on the issue of applying 38 CFR Section 4.129, which is the regulation that requires a temporary rating of 50% for those separated due to a highly stressful event, with a review of the rating not earlier than 6 months. A concern I have with the complaint is that it does not address the impact of the re-evaluation after 6 months, which is something I think the Court will need to address if they do rule for the plaintiffs, in whole or in part.
The jurisdictional money issue comes in, in my opinion, because some members, even if rated for 6 months at 50%, may not reach the $10,000 threshold. The second, related issue, though, is that some members will, on re-evaluation, be rated at less than 50% (or even at less than 30%, thus not qualifying for retirement any longer). The next issue is that the military has been applying this criteria for some time now (this is an issue that I worked to resolve on behalf of one of my clients, which I was able to discuss with Army Times with my clients' permission as part of our effort to overturn this policy: http://www.pebforum.com/ptsd/7789-army-times-article-rating-ptsd.html . Note that shortly after the article, the Army changed its position on this issue and awarded the correct 50% rating).
Why this is a bit of a concern is that this is a moot issue for those after the change in policy and also raises the issue of do the named plaintiff's of the members of the class have to pursue their administrative remedies before the ABCMR (I am not of the opinion that this is always required, but the military routinely states that the member does...this issue must be considered carefully in every case, though, I do not think it is clear that it is required...on this point, it is very important to consider the issue of pursuing administrative remedies, and if you do sue, to be prepared to address this issue). A bad outcome for the plaintiffs would be for the case to be dismissed as moot, with the BCMR as the remedy for those who were previously erroneously rated. I do not have an opinion on the likelihood of that, but it is something to be aware of as a possible (bad) outcome.
What I would like to see is the Court address head on whether the military was free to use substituted rating scheme different than the VASRD prior to the passage of the 2008 NDAA (I think they could not and ALWAYS have had to apply the VASRD). There are a number of ways that the Court could avoid deciding this issue if it finds against the plaintiffs for other reasons. But, as discussed below, I am glad this suit was filed.
A huge problem with this area of the law is that not enough members and Veterans pursue their rights. There are a lot of unsettled questions in this area of the law because unless people file suit, the courts do not have an issue to decide on and thus do not state rules that the military must follow. Because most Veterans do not pursue either administrative boards or file suit, the government gets to do many things that I think are not proper. It is very important, in my opinion, that the correct issues are raised at the administrative board level, BCMR/PDBR (because the courts often will not address in a lawsuit issues that were not raised at the administrative level) and that there is follow through in court. A related issue is the fact that suits must be filed within 6 years of the legal harm in order for the Court of Claims to have jurisdiction (power to hear the case; this is not always the date of separation though, keep that in mind when reading my comments, below). So, because many people wait too long, their valid issues are not addressed (that is another issue with the suit, it only helps those separated within 6 years of the lawsuit...those who fall in that window of before Dec. 2002 and after 9/11/2001, still may not get any help from this suit).
I have not viewed the Government's reply or any motions in this case, so some of these issues may have been raised or explored already. And, as always, remember, that none of the above is legal advice, just my take on some of the issues in the suit. All in all, it is a good thing to see a suit that may result in a determination regarding the proper application of the VASRD.
This area of the law is very important to me and I intend on fighting out as many issues as possible to secure the rights of all Servicemembers. I do think it is important to keep up with the law and developments in this area, which is one of the goals of this site. In the next few months, I anticipate making an announcement regarding some steps I am taking to address some of the problems.
Keep your heads up, sometimes it takes persistence, but those who demand their rights very often come up with a win. It does not always come soon, or easy, but being persistent is key. The corollary to this is that if you give up, you will lose. Just by reading this, you are taking a step in the right direction.
