August 29, 2008 – In a letter going out to members of Congress next week, the directors of two major veterans’ groups say the Pentagon’s personnel chief has intentionally withheld benefits from wounded service members.
“We need your immediate assistance to help end the Defense Department’s deliberate, systemic betrayal of every brave American who [dons] the uniform and stands in harm’s way,” states the letter, signed by David Gorman, executive director of Disabled American Veterans, and Paul Rieckhoff, executive director of Iraq and Afghanistan Veterans of America.
Veterans for Common Sense note: VCS supports the letter written by DAV and IAVA. Please see the end of this article for the full text of the DAV – IAVA letter to Congress.
“Sadly, the 2007 Walter Reed scandal, which resulted mostly from poor oversight and inadequate leadership, pales in comparison to what we view as the deliberate manipulation of the law” by David S.C. Chu, undersecretary of defense for personnel and readiness, and his deputies, the letter states.
Kerry Baker, legislative director for Disabled American Veterans, said Chu sent out a memorandum in March redefining which injuries qualify as “combat-related.”
The definition is important because Section 1646 of the 2008 Defense Authorization Act said service members with combat-related disabilities no longer must pay back any disability retirement severance they receive from the Defense Department before they become eligible for disability compensation from the Department of Veterans Affairs, as has been the case under longstanding policy.
The policy affects service members who receive a disability rating of 20 percent or less from the Defense Department, and thus receive a severance payment rather than lifetime disability retirement pay.
Baker said he has seen cases in which, for example, a veteran receives a $30,000 severance payment from the Pentagon, uses it for medical care or education, and then, even if subsequently awarded a full 100 percent disability rating by VA, must pay the $30,000 back first before he can draw any VA compensation.
Baker said this leaves many veterans who may not be able to work in a quagmire of debt. DAV and IAVA think no veteran should have to pay back money he or she earned before becoming eligible for VA benefits, but they still see the new law extending such waivers to veterans with combat-related disabilities as a step forward.
Under a separate program called Combat Related Special Compensation, which eliminates the offset in retired pay required of some retirees who also receive VA disability compensation, “combat related” is defined as any injury or illness incurred in a combat zone or performing tasks related to combat, such as training for deployment or hazardous assignments like jumping out of airplanes.
But according to Chu’s memo, the definition of “combat related” for the purposes of the new severance pay waiver is limited only to those injured in a combat zone in the line of duty or as a direct result of armed conflict.
In June, Defense Department spokeswoman Eileen Lainez told Military Times that Chu did not remake the definition to save money, as Baker has charged.
“Saving money was not the driver in the implementation,” she said in an e-mail. “The statutory intent of [the law] clearly and appropriately focuses the ‘enhanced disability severance’ to those service members where the unfitting condition is a result of direct participation and participation of duty in the war effort.”
She also noted that the law on repaying severance money left it to the secretary of defense to define “combat related.”
But three lawmakers have told Military Times that their interpretation puts Baker in the right and Chu in the wrong — that they expected the Defense Department to adopt the existing definition used for the CRSC program.
“The Department of Defense appears to be interpreting this law in the most narrow and tightfisted way possible,” said Rep. Timothy Walz, D-Minn., a House Veterans Affairs Committee member. “I am disappointed that [the department] is implementing this policy in a way that makes as few veterans as possible eligible for the benefit.”
After Walz weighed in, DAV sent a letter to Chu asking for an explanation. William Carr, one of Chu’s senior deputies, responded in a letter dated Aug. 14 by saying the intent “was to direct the enhanced benefit to those hurt in combat.”
“Such an approach is consistent with our strong belief that there must be a special distinction for those who incur disabilities while participating in the risk of combat, in contrast with those injured otherwise,” Carr wrote.
But Baker, and the authors of the new letter, continue to insist that congressional intent was not to make a special distinction that leaves out service members hurt in activities defined as “combat related” under other programs.
“The law defines such disabilities as those caused by armed conflict, instrumentalities of war, hazardous service and conditions simulating war,” Gorman and Rieckhoff wrote. “The [Defense Authorization Act] did not change these definitions; in fact, it reinforced them, and it added disabilities incurred ‘in the line of duty in a combat zone.’ ”
The letter states that Chu “lacks the authority to change the will of Congress.”
In an interview with Military Times, Baker laid out cases of veterans already affected by the new memo. A female soldier in her 30s, who asked that her name not be used, dove for cover into a pile of rocks in Iraq during a mortar attack wearing full battle rattle — Kevlar and body armor that can weigh 20 pounds.
Afterwards, she suffered a fused spine and had to have her hips replaced, all of which her doctors said was directly attributable to her dive to safety.
“The rating was good, but they said it was not combat-related,” Baker said. “You can see Chu’s memo confusing the issue. This is a disease process that began in Iraq in the line of duty.”
In a second case, Marine Cpl. James Dixon incurred a traumatic brain injury from a roadside bomb on his third tour in Iraq. He has headaches, insomnia, short-term memory loss, hearing loss and post-traumatic stress disorder.
According to the Pentagon, “the disability did not result from a combat-related injury,” Baker said.
Dixon’s ruling was changed on appeal, but Baker said there should have been no question to begin with about whether his injuries were combat-related.
Army Sgt. Richard Manoukian served two combat tours, but when he was diagnosed with PTSD and bipolar disorder after he tried to commit suicide — as well as suffering a spine disability after a hard helicopter landing in Kuwait — the Defense Department called his injuries “not combat related,” Baker said.
“The list of cases like this is reprehensible and growing every day,” Gorman and Rieckhoff wrote in their letter. “Moreover, if cases like these are ruled not combat-related, then one can only imagine how many other less obvious cases are suffering the same fate.”
They asked Congress to look into how many cases have been ruled not combat-related under Chu’s memo and have them reviewed by a group independent of the Pentagon.
“Congress should then take immediate action to ensure DoD upholds the plain and unambiguous language of the law,” they wrote. “Most of these service members have no representation in the military disability evaluation system and are therefore unaware of the benefits stolen from them — they are depending on you.”
*** Text of Joint DAV / IAVA Letter to All Senators and Representatives ***
August 28, 2008
TO: Every Member of the United States House of Representatives and the United States Senate
Dear Representative/Senator:
On behalf of the Disabled American Veterans, nation’s largest organization of wartime-disabled veterans, and the Iraq and Afghanistan Veterans of America, comprised of the nation’s newest generation of veterans, we are writing you with grave concerns for the livelihood of thousands of brave service men and women. To put this bluntly, we need your immediate assistance to help end the Defense Department’s deliberate, systematic betrayal of every brave American who dawns the uniform and stands in harm’s way.
When Congress passed the National Defense Authorization Act of 2008 (NDAA), it included provisions important to military personnel separated or retired from service due to disability incurred “in line of duty in a combat zone or incurred during performance of duty in combat-related operations.” Those found unfit for service due to such disabilities may receive additional severance pay and are not required to repay those benefits from compensation subsequently awarded by the Department of Veterans Affairs (VA). Those medically retired instead of medically discharged are entitled to concurrent VA disability compensation and combat-related special compensation under title 10, United States Code.
These benefits were decades too late for many veterans. However, the global war on terror highlighted the overwhelming obstacles faced by countless disabled veterans during the transition back to civilian life. Congress therefore acted on behalf of these brave Americans. The events of 2007 at Walter Reed Army Medical Center brought these and other unfair practices to the public’s attention. Sadly, the 2007 Walter Reed scandal, which resulted mostly from poor oversight and inadequate leadership, pales in comparison to what we view as the deliberate manipulation of the law by the Under Secretary of Defense for Personnel and Readiness (the “Secretary”) and his Deputy Under Secretaries.
Shortly after Congress passed the groundbreaking wounded warrior legislation contained in the NDAA, the Secretary shocked the military and veteran community by literally mutilating the statutory definition of disabilities determined to be “combat related.” The law defines such disabilities as those caused by armed conflict, instrumentalities of war, hazardous service, and conditions simulating war. The NDAA did not change these definitions; in fact, it reinforced them, and it added disabilities incurred “in the line of duty in a combat zone.” Under the Secretary’s new, and we believe, unlawful definition, such disabilities are limited only to those incurred during “armed conflict.” The Secretary lacks the authority to change the will of Congress. The alternate provision, “or incurred during the performance of duty in combat-related operations,” has intentionally and unlawfully been read out of the law buy the Secretary. He must not be allowed to continue thumbing his nose at the will of Congress and the American people.
Hoping this was a mere oversight, the DAV wrote to the Secretary in April 2008 concerning this gross injustice. His response portrayed a shocking level of disrespect for those who stood in harm’s way. Not only did the Secretary attempt to defend his position, but he also invoked the President’s Commission on Care for America’s returning Wounded Warriors (PCCWW), better known as the Dole/Shalala Commission, as support. However, the PCCWW did not advocate for a shift in the longstanding statutory definition of “combat-related” disabilities. The PCCWW simply recommended special benefits for those with combat-related disabilities, such as the ones passed in the NDAA. Although, to digress, the PCCWW also advocated for changes in VA benefits designed solely for those with combat-related disabilities. The DAV, united with many other organizations, stood vehemently against such changes. In hindsight, imagine the results had we not done so. The DoD has undermined congressional authority by manipulating the definition of such disabilities. The result is unimaginable, yet reality nonetheless.
In order to understand the gravity of this situation, one must look no further than the lives of a minute number of combat veterans recently found unfit for service due to disabilities that the law defines as “combat-related.” For example: Corporal James Dixon suffered a traumatic brain injury from an improvised explosive device during his third tour in Iraq, resulting in headaches; insomnia; cognitive changes; hearing loss and tinnitus; and PTSD. The military initially ruled his injuries “not combat related.” Sgt. Richard Manoukian completed two combat tours, was exposed to numerous combat events, and diagnosed with PTSD and bipolar disorder following a suicide attempt. The military disregarded the PTSD. He also suffered a cervical spine disability following a hard helicopter landing in Kuwait during protection duty (flight duty is considered “hazardous service” and helicopters are an “instrumentality of war”). The military found his disabilities “not combat related.” One female soldier currently pending discharge was injured in Iraq while diving for cover during a mortar attack. Her disabilities were severe enough to require a major joint replacement and four fused spinal vertebra. The military ruled her disabilities “not combat related.”
The list of cases like these is reprehensible in length and growing every day. Moreover, if cases like these are ruled not combat related, then one can only imagine how many other less obvious cases are suffering the same fate. In every such case, our brave men and women in uniform are going without the benefits in which Congress mandated the government provide.
These men and women stood up for all of us. We are asking you now to stand up for them and put an end to this disgrace. Their livelihood depends on their leaders following the law, not making it up as they go in order to balance the bottom line. We call on Congress to use the full power of its oversight authority to determine exactly how many servicemembers have been adjudicated as unfit for service because of noncombat-related disabilities. Those disabilities should then be readjudicated under the correct standard of law with oversight provided by an independent body, one not comprised of DoD employees. Congress should then take immediate action to ensure the DoD uphold the plain and unambiguous language of the law.
The only way to prevent DoD continuing its pattern of abuse is to remove the limitation to combat-related disabilities for benefits provided in the NDAA; rather, those benefits must go to all servicemembers found unfit for service due to disabilities incurred in the line of duty. Most of these servicemembers have no representation in the military disability evaluation system and are therefore unaware of the benefits stolen from them—they are depending on you.
The legacy of this war is fast approaching. Let it not be that their civilian leaders turned against them in their greatest hour of need. Nothing could be more shameful.
Sincerely,
DAVID W. GORMAN, Executive Director, Disabled American Veterans
PAUL RIECKHOFF, Executive Director and Founder, Iraq and Afghanistan Veterans of America
