New disability severance protection not retroactive

By Tom Philpott

Former Army Capt. Hunter Smart of Phenix City, Ala., an injured veteran of the Iraq war, expected to find new severance pay protection in the Wounded War Act section of the new 2008 defense authorization bill.

But when Smart took a close look this week he found a hole in the bill rather than an extra $35,000.

Smart was pleased to read a few months ago that a provision in the bill would help medically-separated veterans.  If their disability was incurred in a combat zone, or in combat-related operations, military disability severance pay no longer will have to be recouped by the government before the veteran begins to draw full disability compensation from the Department of Veterans Affairs.

With this change, Congress is embracing a recommendation of the Veterans’ Disability Benefits Commission.  When veterans see their careers shortened by combat-related injuries, it said, they should get to keep both their lump-sum severance pay and full monthly VA disability pay.

But Smart was disappointed to learn this week that the new severance pay protection will apply only to combat-related medical separations after the bill is signed into law.  That means VA compensation for Smart will be reduced over time by $35,000 in severance pay he received from the Army when he was separated as unfit last March.

“That this will not be retroactive is shameful,” he said.  “It should go back to cover at least all of the Iraq and Afghanistan war veterans.”

Lawmakers couldn’t apply severance protection back to 2001, a congressional staffer explained, for the same reason that 600,000 reservists who have deployed since October 2001 are ineligible for early reserve retirement under another provision of the bill, a circumstance explained in last week’s Military Update.  The culprit is “pay-as-you-go” budget rule that requires added spending for entitlements to be covered by a bump intaxes or by cutting other entitlements, actions Congress wasn’t ready to take.

“We were afraid we would lose the provision if we got into that, explained a Capitol Hill staffer involved in writing the legislation.

The defense policy bill now is HR 4986, renumbered after some modest changes in response to the president’s veto.  The severance pay language is in a section titled the Wounded Warrior Act, which is loaded with new initiatives to help service members injured in war, and their families.

It’s “the greatest reform in the law, relative to medical care for our troops, in more than a decade,” said Sen. Carl Levin (D-Mich.), chairman of the armed services committee.  It attacks, he said, substandard living conditions, poor outpatient care and bureaucratic roadblocks and delays.  It improves dramatically management of medical care, disability evaluations and quality of life for members recovering from illnesses.

One provision in the bill still could help Smart and veterans who already have been separated as medically unfit due to combat-related conditions.  It requires the Defense Department, within 90 days, to establish a board to review military disability rating of 20 percent or less awarded since 9-11.  The initiative reflects another concern raised by the disability benefits commission: that the services might have a cost motivate for holding down disability ratings.  A rating of 30 percent or higher, after all, qualifies a member for disability retirement, which means an immediate annuity and lifetime access to TRICARE, the military’s health benefit.

Smart, 26, regrets now that he didn’t appeal the Army board’s decision to separate him with a zero-percent disability rating, after finding that a back   injury reduced his range of motion enough to make him unfit for duty.  The VA later awarded Smart a combined rating of 70 percent: 10 percent for his injured back but it found seven other service-related conditions, from shin splints to strained ankles and knees to chronic dry eyes.

Smart led an infantry platoon in Iraq with 3rd Brigade, 3rd Infantry Division out of Fort Benning, Ga.  In June 2005 he was in Bradley Fighting Vehicle traveling “full speed” when the Bradley broke one of its tracks.  As vehicle commander, Smart was in the turret when the driver lost control.

“We did a double 360 [degree] turn and went off into a ditch,” Smart recalled.  “I got thrown around.  The gunner had to grab my legs so I didn’t fly out of the top.”

His lower back hurt but he soldiered on that day. Later, as the pain worsened, he sought treatment.  He no longer could wear the heavy gear or carry the ammunition of an infantryman.  He completed his year-long tour in Iraq behind a desk.  Back at Benning, Smart said he was shocked when a disability evaluation board confirmed that he was unfit but gave him only a 0 percent rating.  He considered an appeal.   By then, a scandal involving neglectful conditions for wounded at Walter Reed dominated the news.

Smart said he couldn’t find anyone to counsel him knowledgably on his options.  At the same time, he got an e-mail from his battalion commander, on Feb. 16, 2006, pressuring him to separate quickly. 

“If for some reason you are still around when we deploy [to Iraq again in March 2007], we may take you to support us in Kuwait,” he wrote. 

“It was just very non-supportive,” Smart recalled, sharing a copy of the e-mail.  So Smart quickly concurred with the Army board.

“I decided to take my chances with the VA.  Now I’m looking back and saying, ‘Man, I wish I would have non-concurred, because of TRICARE.  I missed out on that.”

Smart and other medically-separated veterans who have suffered combat-related injuries since 9-11 will get a second chance when the new Physical Disability Board of Review is up and running later this year.  

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