Tagged: disability compensation

Purple Heart Awards Aren’t Enough to Secure Benefits for Fort Hood Victims

Posted by Debi Teter
militaryauthority.com_purple-heart-for-foot-hood-victimsOn Nov. 5, 2009, Majar Nidal Hasan launched an attack on fellow soldiers at Fort Hood, Texas. The Obama administration has finally acknowledged that those hurt and killed in the shootings were victims of terrorism and not “workplace violence,” as the attack had previously been described.

In 2012 a memo from the Department of the Army was released detailing its denial of the terrorist connection, even though the evidence showed Hasan was emailing the al-Qaida cleric Anwar al-Awlaki prior to the attack.”MAJ Hasan has been charged with criminal activity, but has not been adjudicated a terrorist. Therefore, the clear preponderance of evidence does not support that the injuries sustained were the direct result of armed conflict,” the memo stated. It went on to say that victims’ injuries were not caused by an “instrumentality of war” because Hasan’s “weapon was a private semi-automatic pistol. The Army did not issue this weapons to the soldier.”

The 2015 defense budget, known as the National Defense Authorization Act (NDAA), included language that meant Fort Hood victims were eligible for the Purple Heart honor because the attack was inspired by a foreign terrorist group. But now because of a narrow interpretation of the language, benefits requests to at least one solider are being denied. In a memo issued regarding SSG Shawn Manning, attacks motivated by terrorist organizations do not qualify as combat operations.

“Section 571 of the 2015 National Defense Authorization Act addresses both the awarding of the Purple Heart to service members killed or wounded in attacks inspired or motivated by foreign terrorist organizations and the Defense of Freedom Medal for those members and civilians killed or wounded during the Fort Hood attack on 5 November 2009.

“Nowhere in the act, however, does it offer combat benefits for service members permanently disabled in attacks inspired or motivated by foreign terrorist organizations. Although subsequent legislation and guidance may change, currently, the Board has no authority to award V1/V3 (service related) designation to soldiers disabled during the Fort Hood attack.”

Fox News contacted the Army on Manning’s behalf and was told by Army spokeswoman Cynthia O. Smith that “…all recipients of the Purple Heart Medal under section 571 of the NDAA 2015 will receive the benefits to which they are legally entitled. In the case at issue, no final decision has been rendered, and the Soldier will have a full opportunity to present evidence at a formal hearing.”

On follow-up by Fox News asking if the Army’s intention is to require all Fort Hood Purple Heart recipients to go through formal hearings to prove their injuries are combat-related as is the case with Manning, the Army declined to comment.

Veterans Administration Health Care – Creaking Under the Strain

Posted by Debi Teter

medical files xs“This is disgraceful!” thundered Representative Bob Filner, a Democrat representing California’s 51st district, immediately before a hearing on the tremendous delays American veterans face in receiving health care through the VA system. “This is an insult to our veterans. And you guys just recycle old programs and put new names on them!”

The VA health care system has never been a model of user-friendly efficiency. But the current backlog problems are getting insane, even by federal bureaucratic standards.

Consider:

Last month, according to the Department of Veterans Affairs, there were 870,000 disability cases pending. Of those, two out of three had been pending more than 125 days. The percentage of cases taking longer than 125 days to resolve had actually increased over the previous year. In some offices, such as Oakland, California, the average claims resolution time drags on for a year.

The VA’s stated goal is to resolve all disability cases within 125 days.

Jim Strickland, the manager of a website called VAWatch.org, isn’t very impressed.

“A delay to process a claim in 125 days or less is a system failure,” he wrote on his site. “No other business on the planet would be applauding itself to set a goal of only 60% of it’s [sic] work to be a failure.”

It’s not going to be easy.

As the military draws down in strength over the coming years, hundreds of thousands of servicemembers are going to transition from the military health care system to the VA. Meanwhile, the aging baby-boomers of the Viet Nam generation are now entering their retirement years, detaching from their employer plans and entering their peak years of health care consumption.

The result is a “perfect storm” that threatens to swamp the ability of Veterans Affairs officials to process claims.

Indeed, the storm is already upon us: Allison Hickey, the VA’s undersecretary for benefits, notified Congress that there had been a huge 48 percent surge in applications at the VA over the last three years. The VA has barely been able to tread water, despite bringing new computer systems online to speed claims.

What’s behind the increase? Three factors:

A decision made two years ago to expand benefits to Viet Nam veterans who may have been affected by exposure to Agent Orange. This had a particularly profound effect on the VA’s claims processing capacity, because documenting these 40 year old claims – some 230,000 of them — was so difficult. A substantial number of VA administrators had to be assigned to process these cases – at the expense of newer claims. The VA states that it is nearing the end of processing those claims.

Second, a weak economy is driving some people to file claims for benefits who might otherwise have just toughed it out. A mild hearing loss due to military service is not devastating if you have secure employment. If you’re unemployed, it becomes tempting to file that claim for 10 to 30 percent disability. And you have time on your hands to file a claim (you’re gonna need it!).

Third, increased awareness of PTSD and traumatic brain injury, combined with aggressive post-deployment screening, increased the number of referrals to the VA system from Afghanistan and Iraq War veterans. While U.S. direct involvement in the Iraq War has come to an end, these veterans are now getting discharged and coming to VA offices in the tens of thousands for treatment of physical and psychological problems.


What has your experience with the VA been like in the last few years? Let us know in the comments below.

Disabled Veteran petitions Supreme Court over benefits in divorce

Posted by Debi Teter

US Supreme CourtIn a petition filed with the Supreme Court earlier this month, a disabled veteran in Oregon is seeking a reversal of a lower court decision to count his VA disability benefits as communal property in his divorce.

At issue is whether states violate federal law when they allow divorce courts to include disability pay in calculating spousal support. 

In the divorce of Peter Barclay, an Air Force veteran, and his wife of nearly 20 years, an Oregon district court judge included considered the value of Barclay’s VA disability payments when awarding spousal pay of $1,000 per month. Barclay’s only income is from VA benefits and Social Security Disability Insurance, a tax-free amounnt of slightly more than $4,400 per month.

Barclay suffers from PTSD from his role as a first responder during the 1995 bombing of the federal building in Oklahoma City. His PTSD made him unemployable and eligible to draw VA compensation at the 100% disabled rate.

Barclay and his attorney, Michael D.J. Eisenberg, have argued that Title 38 US Code, Section 5301(a), which makes VA disability benefits immune “from taxation, claims of creditors, attachment, levy and seizure” would also bar the inclusion of disability pay in spousal support calculations.

Eisenberg is arguing that disability pay is meant to compensate the veteran for loss of income due to a service-connected medical condition. If the veteran is married, VA compensation tables set payments higher. But that extra amount, given in recognition of the spouse’s sacrifice in living with a disabled individual, stops when the veteran gets a divorce. That should mean the spouse has no direct claim on the compensation anymore. Eisenberg stated, “It’s not like the veteran’s disability caused the spouse a military-related disability.” 

Barclay’s former spouse claims she has diabilities of her own, but Barclay and Eisenberg argue that she should receive help from state or federal programs, including Social Security Disability Insurance, rather than from VA disabiliyt benefits.

Oregon and most other states disagree, based on a 1987 Supreme Court decision which said the legislative history of the VA disability benefits shows that payments are meant to compensate both the veteran and his/her family. Further, the 1982 Uniformed Services Former Spouse Protection Act (USFSPA) allows courts to distribute “disposable” military retired pay as marital property or as alimony or child support. 

Barclay’s petition notes that the USFSPA excludes disability compensation from the definition of “net disposable income.” The petition also references a 1989 Supreme Court decision in favor of a retiree who sought to reduce his spousal support when he won a disability award from the VA. When the retiree began drawing VA benefits, it lowered his military retirement being shared with the former spouse. Barclay is a veteran but not a retiree, but still claims the protections of disability pay should extend to all veterans.

Barclay’s petition also points to three states which offer protections similar to the federal law. In Arizona, a recently passed law shields veterans’ disability benefits from alimony calculations. Texas and Vermont have laws whcih proclude VA disability benefits from being included in the division of property or in alimony calculations.

Eisenberg argues that it is time the Supreme Court addresses the states’ various interpretations and clarifies the law in favor of Barclay and other disabled veterans. 

At least four justices will have to agree to review the case. We will follow the petition and report back if the Court decides to hear arguments.

 

Which side of the argument do you agree with? Should disability compensation be solely for the veteran affected or for the spouse/family who also lived with the consequences of the disability? Let us know in the comments.