JURIST Guest Columnist Devin Cohen from St. John’s University School of Law Class of 2016, is the first author in a twelve-part series from the staffers of the Journal of Civil Rights and Economic Development. Cohen discusses the problems surrounding Veterans suffering PTSD and their right to receive military benefits…Individuals who enlist in the US Army are fully aware that they are risking their lives for their nation. While they are voluntarily subjecting themselves to being in the crosshairs of fire, they are not waiving their rights as American citizens. One in every five soldiers suffers from post-traumatic stress disorder (PTSD); however the military has failed to properly care for those who suffer from the disease.
Individuals with PTSD constantly battle sleeplessness, anger, anxiety and a sense of isolation, making it extremely difficult to live what would be considered a normal life. Soldiers encounter countless traumatic incidents while in the line of duty, and hence many develop PTSD. The US Department of Veterans Affairs reports that 11 to 12 percent of veterans of the Iraq and Afghanistan war and about 30 percent of Vietnam veterans suffer from the disease. The correlation between PTSD and military tenure is indisputable and yet the military has failed to follow the laws that oblige them to properly care for the veterans who have been inflicted with the disease. 10 U.S.C. § 1201 requires the Army to retire and provide certain benefits to individuals who suffer from PTSD; the permanent nature and stability of PTSD qualifies the condition under § 1201, thus requiring benefits. The US Court of Appeals for the Federal Circuit held “if an individual meets section 1201’s requirements, payment of benefits is mandatory, not discretionary.”
Soldiers who incur physical or mental disabilities in the line of duty are subject to an official evaluation process by military authorities. If the evaluation board issues a disability rating of at least 30 percent, the member will be medically retired. The soldier will then receive 30 percent (or more) of his base pay and other important benefits, including free health care at a military hospital. However, if the soldier’s disability is rated at less than 30 percent, the physical examination board will recommend that he is separated from active duty. He will likely be awarded severance pay based on his time in the service and his current pay grade, but he will not receive free health care.
Beginning in 2001, there was a pervasive fear that many soldiers had their PTSD diagnoses reversed because of the high costs of treating the disease. Finally, in 2012 the Army responded by launching a review of its handling of PTSD and other behavioral evaluations. The review found that the original PTSD diagnoses for at least 290 soldiers were reversed after a presentation by Dr. William Keppler to staff members at the Lewis-McChord Army Medical Center in 2012. As the head of the psychiatry team, Dr. Keppler emphasized that every diagnosis of PTSD costs the military $1.5 million per veteran in health benefits and pension payments. The soldiers were subsequently diagnosed with personality disorders; such a diagnosis leads to an “Other Designated Physical and Mental Conditions Discharge” which precludes the military from having to pay for their medical treatment.
Veteran William B. Cowles’ tenure in the Army started when he served in the National Guard in 1974. On May 3, 2003, he was deployed to Kuwait and then to Iraq where he saw the remains of soldiers from the unit serving next to him; he also witnessed a soldier beat a Pakistani civilian to death with a rifle. Cowles’ emotional stress led to immense physical pain that ultimately caused him to lose consciousness. After reporting to a military psychologist who was unreceptive to his complaints, Cowles was separated from the Army with an adjustment-disorder. This is a condition where an individual is unable to adjust to his surroundings and did not qualify him for retirement pay and medical benefits under § 1201. As he continued to experience severe psychological symptoms, Cowles went to a Veteran Affairs Medical Center where he was finally diagnosed with “combat-related PTSD, now chronic.” Had Cowles been discharged correctly and initially on the basis of PTSD, he would have been medically retired and would have received appropriate medical attention.
Cowles went to the Army Board for Correction of Military Records to challenge his discharge status and demanded that the Army issue him a correct designation based on the fact that he suffers from PTSD, which he incurred while serving on duty; his request was rejected. Cowles’ incident is not unique, he is one of thousands of veterans who have been given an incorrect diagnosis and then have been refused correction upon appeal. Last year a class action lawsuit was filed in federal court “seeking relief for tens of thousands of Vietnam veterans who developed PTSD during their military service and received an other than honorable discharge.”
The veterans allege that the correction/discharge upgrade boards have been ineffective due to their impenetrable and unlawful evidentiary standards. The boards refuse to consider critical medical evidence of an incorrect diagnosis at the time of discharge. Without such evidence it is impossible for the veterans to prevail, thus violating their rights under § 1201.
One improvement that would enable Veterans with PTSD to obtain proper benefits would be to compel the Review and Correction Boards to consider post-discharge evidence. In September 2014, then Secretary of Defense Chuck Hagel issued a memorandum [PDF] for the secretaries of the military departments stating that review boards will fully and carefully consider every petition based on PTSD brought by each veteran, effective immediately. The memo’s main purpose called for the boards to consider a wider array of evidence. While Hagel’s memo provided several notable policy considerations, it lacked the ability to guarantee that boards will follow it because it lacked legal enforceability. Congress should pass a statute or the Department of Defense should adopt a new regulation mandating the consideration of more evidence including post-discharge evidence by review boards. These reforms would abide by the existing obligation under 10 U.S.C. § 1201 to provide proper benefits to veterans with PTSD.
The US Army’s wrongful stigmatization and denial of benefits to William Cowles and thousands like him is simply the latest example of the military’s unethical and illegal treatment of veterans. Only legislation can adequately remedy the injustices that have become so deeply entrenched in the military system. While defending their country, these veterans have developed chronic disabilities; failure to compensate them is not only morally wrong, but illegal.
Devin Cohen is a third-year law student at St. John’s University School of Law. He is currently a staff member on the Journal of Civil Rights and Economic Development and the Polestino Trial Advocacy Institute.
Suggested Citation: Devin CohenU.S. Military Deliberately Neglects PTSD-Inflicted Veterans: The Need for Reform, JURIST – Student Commentary, September 23, 2015, http://jurist.org/dateline/2015/devin-cohen-PTSD-rights.php.
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