By Tom Philpott: CNJ columnist
More than 4300 Iraq and Afghanistan war veterans who were diagnosed in service as suffering from Post-Traumatic Stress Disorder, but got low military disability ratings, have won an agreement with the Department of Defense to upgrade those ratings retroactively to 50 percent. The higher rating will represent an important win for this group of veterans mentally scared by war. It will mean, from date of discharge, eligibility for disability retirement and access to TRICARE, the military’s triple health insurance option, for the veterans, spouses and dependent children.
Any out-of-pocket medical costs since discharge also could be paid retroactively, and these soon-to-be-designated disabled “retirees” will gain access to discounted shopping and recreational services on base.
Sparking the agreement is a class action lawsuit brought by the National Veterans Legal Services Program (NVLSP) which contends that the services illegally denied retiree status and medical benefits for years to these veterans who were diagnosed with PTSD then separated as unfit for service.
Service Physical Evaluation Boards (PEBs) would ignore the disability rating schedule used by the Department of Veterans Affairs, which requires a minimum 50-percent rating for PTSD victims, and routinely separate their members with ratings as low as 10 percent.
A board decision that keeps ratings below 30 percent lowers personnel costs. Instead of immediate annuity and lifetime TRICARE coverage, veterans rated below 30 percent get only a lump sum severance pay. Judge George W. Miller of the U.S. Court of Federal Claims agreed to stay a final ruling in the case of Sabo, et al v. United States after DoD agreed to cut a deal. Defense officials gave NVLSP the names of 4300 veterans who should be invited to apply to have their ratings reviewed and upgraded, but there could be more.
By October 2008, under pressure from Congress, DoD did revise its guidance to the services on rating PTSD to adhere to the VA rating schedule. Meanwhile, Congress ordered DoD to create a special board to review any service-generated disability ratings of 20 percent or less brought forth by veterans who were separated as medically unfit since Sept. 11, 2001.
Bart Stichman, co-executive director of NVLSP, said the deal with DoD forced by the court will expedite the rating review process for these PTSD cases upon application, and will guarantee those 4300-plus veterans a rating upgrade to 50-percent for at least six months. After that, the case will be reviewed again and the disability rating confirmed, increased or reduced.
A Class Action Opt-In Notice Form is being mailed to these veterans and must be returned either by fax or postmarked before July 24, 2010. Veterans who don’t get a notice by mail but believe they might be eligible can get more information http://www.ptsdlawsuit.com/
The deal will not benefit tens of thousands of veterans diagnosed with PTSD over the last 30 years, only those discharged with a rating for PTSD of less than 50 percent after Dec. 17, 2002, and before Oct. 14, 2008.