Still writing to Congress, seeking fairer treatment of disabled veterans
Oct 7, 2018 —
It may seem easy to get discouraged after all 3 bills to amend the financial penalty on "Chapter 61" medically retired disabled veterans didn't make it into the 2019 National Defense Authorization Act, but this is a marathon effort, not a sprint.
Recently, I wrote to the Senators on the SASC's Subcommittee on Personnel, again, and also to my local Congressional Representative since my Representative isn't on the HASC's Subcommittee on Military Personnel and the others refuse e-mails from "non-constituents."
This is what I wrote. It's long, but let it sink in, because I'm far from alone in facing these circumstances. Sadly, there are many disabled veterans who are far worse off than me, when you consider my privilege at having been a commissioned officer, and an attorney to boot, and as a result being treated more fairly by "the process." At any rate, this is what I wrote to Congress, and why I feel this is such an important issue:
I'm a retired Major in the US Air Force. I served on active duty from 2007-2018. I earned the Bronze Star Medal and other decorations such as the Meritorious Service Medal and the Air Force Commendation Medal for my service in Afghanistan and other assignments. I love America and I love the US Air Force. My heart was torn into pieces when I became disabled, ironically due to my service in Afghanistan. I was medically retired from the Air Force with a maxed out disability rating and placed on the Permanent Disability Retired List (PDRL). I was then rated 100% disabled by the Department of Veterans Affairs (VA). I've been trying to find work since March 2018 but so far haven't found any job that can accommodate my disabilities. I'm a licensed attorney but offered to do menial clerical work, yet I was still told by the state job center that my work goals were unrealistic because I cannot work more than about 4 hours a day or drive long distances. Multiple doctors have told me if I work at all, I should work from home, in the most flexible role possible. Let's just say "work from home" opportunities that aren't scams and that pay above minimum wage are few and far between.
I'm in constant pain every day of my life, suffer from crippling fatigue, and have a number of other nasty symptoms that make every single day a struggle. I'm also a husband and a father of 4, and I'll be damned if my family suffers because of my disability.
Last year, several bills were proposed to reform "dual compensation" for military retirees who are also rated as disabled by the VA. None of them made it into the final National Defense Authorization Act, presumably due to budgetary concerns. I propose to fix 10 USC § 1414's penalty on disabled, "medically retired" veterans by deleting subparagraph (b) in its entirety, or in the alternative to amend subparagraph (b)(2) to read as follows: (2) Disability retirees with less than 20 years of service.-Subsection (a) does not apply to a member retired under chapter 61 of this title with less than 20 years of service otherwise creditable under section 1405 of this title, or with less than 20 years of service computed under section 12732 of this title, at the time of the member's retirement, unless the disability retiree is eligible for veterans' disability compensation for a qualifying service-connected disability or disabilities rated either individually or cumulatively at 100 percent.
This would only affect a small subset of Chapter 61, medically retired disabled vets: those who need the most help, the 100% disabled. These are the veterans who are the least likely to be able to obtain alternate work after our military careers were cut short by disease or injuries. A 100% disability rating is not an easy thing to get: if the VA
finds the veteran has one disability rated at 60%, and a second rated at 50%, that veteran is not 100% (or 110%) disabled. Rather, s/he is 80% disabled. That is because a 60% disabled veteran is considered by VA math to be 40% “abled.” The second disabling condition, rated at 50%, comes out of the 40% “abled” part of the veteran that remains, leaving the veteran 20% “abled.” Now if that veteran has a third condition rated as 40% disabling, that must be taken out of the veteran's remaining 20% “abled” part, which leaves the veteran 12% “abled.” The VA rounds to 10% increments, so in this case, the veteran is 10% “abled” for the combined 3 conditions, or in other words, has a 90% disability rating. Want to guess how difficult it is to go from a 90% to a 100% disability rating? The rules are codified at 38 CFR § 4.25. In order to be rated 100% disabled by the VA, either for a single injury/disease or cumulatively for a combination of diseases/injuries, the veteran has already gone through an "ability to work" determination by the VA. Only disabilities deemed likely to interfere with the veteran's ability to work warrant a disability rating. See, 38 CFR § 4.1, Essentials of evaluative rating, which says "The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations."
100% disabled veterans are in a very difficult financial position, to say nothing of all our ongoing medical issues which are in and of themselves a huge source of stress and drain on our quality of life. Those of us fortunate enough to have served long enough, or to have been treated fairly enough by our branch of the military, to be medically retired under Chapter 61, are in a very bad financial situation because 10 USC § 1414(b)(2) prevents us from receiving both our military pensions and our VA disability compensation, even though these two forms of compensation and programs are completely different and based on different rationales. On the other hand, 20-year "normal" military retirees with 50% VA disability ratings can collect both payments, without offset, and they've been assessed by the VA as having the capacity to work--three paychecks! I don't begrudge them for this--they deserve it. They took an oath and served our country and put their lives on the line to earn their military retirements. And they became partially disabled and earned their VA disability compensation.
The same is true of us "medical retirees" too, though--we also put our lives on the line, we took the same oath, and we were simply less fortunate in that our disabilities were more severe and forced us out of the military rather than allowing us to continue serving until 20 years. I believe Chapter 61 medical retirees should be treated the same as 20+ year "normal" retirees, period, but if cost is a factor, please, at least end this injustice for those of us with 100% VA disability ratings. We didn't make the ultimate sacrifice for our country since we made it back from deployments alive, but in a way we still did make the ultimate sacrifice--slow death by disability, and loss of pride/ability to provide for our families/self-worth as a human being. Allowing those of us who the VA believes are incapable of working under normal circumstances to receive both our military pensions and our VA disability compensation would keep most of us off the streets, in homes, with our families.
Moreover, unlike our VA disability compensation, the full amount of our pensions would be taxable, providing revenue to local, state, and federal governments. This is an easy "win" that partisan politics shouldn't even factor into. It's keeping a promise to our veterans and doing right by them. Please vote to amend 10 USC § 1414 and end this unjust financial penalty we must suffer on top of the severe disabilities we already incurred in the service of this great nation.
Thank you for taking the time to read my story. I'd be happy to speak with you or your staff and provide more details about about my disability, my service, and/or my proposed change of law.
KEVIN Y. REINHOLZ, Major, USAF (Retired)
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