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Saturday, April 07, 2007

Lead Ft. Lewis Army Lawyer: Military Stacks Deck Against PTSD, TBI-injured Troops

Lots of articles, for good reason, coming out on the topic exploring the issue of troops not getting a fair shake when going through their disability claims processing; I recently was asked to contribute some background material on an upcoming piece for the Tacoma News-Tribune. This latest piece, from Military Times, also concerns troops at Washington state's Fort Lewis:

The Army disability retirement system stacks the deck against injured soldiers by forcing them to prove they have post-traumatic stress disorder, demanding physical evidence for traumatic brain injuries, and restricting access to rules and regulations they need to make their cases, said an Army lawyer who helps soldiers appeal their claims. “I think the problems are systemic,” said Steven Engle, head legal counsel for soldiers going through the disability physical evaluation system at Fort Lewis, Wash. “The rules are inequitable.”

In some cases, he said, they may even be illegal.

And the cases that are coming to define the wars in Iraq and Afghanistan — traumatic brain injury, post-traumatic stress disorder and musculoskeletal injuries — are the ones most affected by unfair or unclear rules coming from the service’s top-level Physical Disability Agency, Engle said.

Click on 'Article Link' below tags for more...

Article quoted from extensively in the interest of education.


The rules undeniably keep soldiers’ disability ratings low, but Engle said he could not claim that as an intentional outcome. “I have no evidence to make that allegation,” Engle said. “Locally, I know they’re good and honorable people. I’ve never met anyone from the Physical Disability Agency.”

Engle, a civilian in charge of two Army reserve JAG officers who also assist soldiers through the process, said he is speaking out about the inequities because the Army’s legal command wants to fix the problems stemming from the fact that the Army “grossly oversimplifies” Defense Department guidance on rating disabilities.

Specifically regarding PTSD, one hurdle in getting a PTSD diagnosis is the need to relive the trauma by writing the required stressor letter; understandable that it is necessary, but I have been told by VA counselors that it can be difficult for many patients to get through. Some simply have a hard time remembering all of the details, a natural byproduct of trauma. Another hurdle:

The most troublesome cases involve injuries that can’t be proven with medical evidence, Engle said. One major issue: soldiers with PTSD must prove they witnessed a traumatic event.

In its guidance for preparing psychiatric reports on soldiers going through the physical evaluation board process, the Physical Disability Agency cites various ways soldiers can prove they have had a PTSD-level “traumatic stressor”: statements from a commander or from fellow soldiers, awards with citations, statements from the soldier’s family showing behavior changes, police reports and sworn witness statements.

“Where a data source includes information based only on what the soldier has related,” the guidance states, “you should not use this data source as supportive collateral information.” That seems to contravene the Army’s own regulations. AR 635-40 states that if there is no proof against a soldier’s claim, “reasonable doubt should be resolved in favor of the soldier.”

Engle said decisions on PTSD ratings should be based on the same information as all other mental disabilities — a psychiatrist’s formal diagnosis. Putting the burden of proof for PTSD on the soldier, he said, “is grossly unfair.”

In one case, he said, a soldier watched a buddy die in Iraq and has since suffered nightmares, played the event over in his mind continuously, and remains hyper-alert to possible danger. To help prove he had PTSD, the soldier was told to contact the family of his dead friend to get documentation that the friend had died. Then, Engle said, he was told to prove he witnessed the death.

“He just couldn’t do it,” Engle said.

And what about TBI?

Soldiers with traumatic brain injuries face a similar situation: If they can’t prove with medical evidence that damage was done, they may be rated as only 10 percent disabled, well below the threshold required to earn lifetime medical retirement. “Those cases are terribly under-rated,” Engle said. “I think there’s great confusion on how to rate it. There’s an inherent skepticism built into the rules if you can’t see an injury or measure it with a tool.”

A soldier whose brain scan shows signs of trauma can be rated to the full extent of his cognitive disabilities. But one whose scan comes out clean — even if he suffers daily migraines, can’t remember what he had for lunch, and has cognitive abilities well below his pre-deployment levels — cannot be rated higher than 10 percent, Engle said. That leaves badly injured soldiers with no disability retirement and health care.

Jeannette Mayer recently took her husband, Staff Sgt. DeWayne Mayer, to the Elks Rehab Hospital in Boise, Idaho, where he was diagnosed with traumatic brain injury in February. She said the injury should have been obvious much earlier to Army physicians, and that he should have been rated for it at his physical evaluation board.

Between May and October of 2005, DeWayne Mayer suffered at least five concussive head injuries, his wife said — three from being close to roadside bomb blasts, one when his Humvee flipped, and one when American troops blew up a downed U.S. helicopter that he was guarding before he had gotten clear. “There are times when he is totally confused,” his wife said. “He doesn’t understand what you’re saying to him. If you try to get his attention, he gets violent.”

He suffers migraines, slurs his speech, shuffles his feet, and has been diagnosed with short-term memory loss. As he recuperated at Fort Lewis, she said she asked doctors again and again if it could be a traumatic brain injury. She said he was never seen by a traumatic brain disorder specialist, and that his physical evaluation board gave him three disability ratings of 10 percent each for short-term memory loss, cognitive disorder and a neck injury.

“They told me the TBI program was not for people with short-term memory loss,” she said. “That was a different diagnosis.”

The devil, they say, is in the details -- something to worry about, if you can find them at all:

In another example of seemingly conflicting rules, the psychiatrists’ guidance for mental disorders says soldiers should be evaluated based on their ability to work in a civilian setting — even though the physical evaluation board’s stated task is to determine if soldiers are still fit for their military jobs.

The guidance tells doctors to determine if a soldier has an “acceptable level of attention and concentration” to allow them to be civil with co-workers, make simple work decisions, ask simple questions and request help. “My colleagues call it the ‘Wal-Mart greeter test,’ ” Engle said. “If you could be a greeter at a discount store, you don’t qualify for more than 10 percent.”

Engle also said getting Army rules, regulations and guidance from the Physical Evaluation Board is often difficult, and that those documents are not stored in a central location. “There are a bunch of Army documents for the process: some signed, some not,” Engle said. “Some are provided to counsel, and some are not. A person has a right to know what the rules are.” A soldier will not know what evidence to produce about his case if he doesn’t know how the board is evaluating him, he said.

In March, Engle said he received an e-mail from the PEB with disability ratings guidance for musculoskeletal issues and neurological and convulsive disorders — dated 2005. Engle did not know the changes existed.

A few stats:

Data provided by the Army shows that about 80 percent of injured soldiers at Fort Lewis accept the decision of their initial, informal evaluation board, while the remaining 20 percent appeal. About half of those who decide to appeal eventually choose not to follow through after consulting with legal counsel, the Army said.

That means only 10 percent of injured soldiers entering the disability system at Fort Lewis ever go before a formal evaluation board for their conditions.

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