Veterans file suit against government

By The Associated Press - 12/18/2008

BILLINGS — A 22-year-old Billings man is one of five Army veterans of the wars in Iraq and Afghanistan who filed a class-action lawsuit against the U.S. government on Wednesday.

Nicholas Wells and the four other veterans say they were found to be unfit for service because they were suffering from post-traumatic stress disorder, but then were denied disability benefits and free health care to which they were entitled under federal law.

The suit was filed in the U.S. Court of Federal Claims in Washington, D.C., by the National Veterans Legal Services Program. The class-action lawsuit was also filed on behalf of potentially thousands of other veterans in the same situation.

Wells' mother, Dawna Lynn Wells, a physician assistant at St. Vincent Healthcare, said her son is working on a North Dakota oil rig and did not want to comment on the suit. She referred all questions about the suit to the lawyers who filed it.

Barton Stichman, one of the attorneys, is also a joint director of the National Veterans Legal Services Program. He said Wells and the other four plaintiffs are all Westerners who underwent basic training at Fort Carson, Colo.

Stichman said they joined in the suit because when the legal services program established its Lawyers Serving Warriors project early this year and offered free legal services to veterans, those five were among the first to request assistance.

A preliminary statement that opens the complaint reads: "This case arises from the failure of the United States Department of Army to honor its clear and explicit duty — embodied by statute and regulation — that it not abandon its fallen or wounded soldiers or leave them behind." The complaint says the plaintiffs were all diagnosed with PTSD after their experiences in combat. The Army was required to assign each veteran a disability rating of at least 50 percent based on the PTSD diagnosis, which would have made the soldiers eligible for benefits and assistance, including health care for the veterans and their families, the suit says.

"In a deliberate disregard for its legal obligation, the Army instead rated these soldiers below 50 percent (and in most cases below 30 percent) in a transparent attempt to purge its ranks and eradicate its responsibility to care for its wounded soldiers," the complaint continues.

The lawsuit notes that the Defense Department on Oct. 14 directed the Army to begin assessing a minimum PTSD rating of 50 percent for all soldiers discharged with that ailment, but it says that the directive does nothing for the thousands of soldiers who were previously rated improperly.

Army regulations long required the 50 percent rating, and the 2008 National Defense Authorization Act specifically mandated such a rating, according to the lawsuit.

PTSD is a mental health disorder that used to be known as "shell shock" or "combat fatigue." It often makes it difficult for sufferers to adjust to work or maintain a job or to interact with others, and it can lead to feelings of estrangement and detachment. It can also bring on nightmares and sleep deprivation, memory loss and family or marital discord.

All disabled veterans are supposed to be assigned a disability rating from 0 to 100 percent, in increments of 10 percent. A retired service member rated at 30 percent or higher is deemed "medically retired" and is entitled to disability retirement pay for the rest of his or her life, according to the complaint. Such retirees also receive commissary and exchange privileges and free medical care for life, including spousal and eligible dependent coverage.

A veteran rated below 30 percent is deemed "medically separated" and receives a one-time lump sum disability payment and none of the other benefits available to a medically retired veteran.

Three of the veterans named in the suit, including Wells, received disability ratings of 10 percent. The other two had zero ratings.

The military careers of the five plaintiffs are described in some detail in the complaint. Spc. Wells joined the Army on Nov. 9, 2004, and was deployed to Iraq with the 3rd Brigade Combat team in the 4th Infantry Division, where he was a scout and a lead Humvee gunner. His squadron routinely came under small-arms fire as well as more than 20 attacks involving improvised explosive devices, according to the complaint.

Wells' tour in Iraq last about 12 months, and he began experiencing signs of PTSD during a leave at Fort Carson in March 2006. Although doctors told him he was suffering "normal" anxiety attacks, when he ultimately returned from Iraq in November 2006, "he was still subject to severe anxiety attacks and other symptoms of PTSD," the suit says.

He received intermittent treatment for two years, but it "was designed only to ready Spc. Wells for redployment to Iraq in late 2007," the complaint says. His redeployment orders were finally canceled in December 2007 and he was found unfit for continued service last May. It was then he was rated 10 percent disabled, rendering him "medically separated" from the Army and deprived of numerous benefits.

The complaint says the exact number of affected veterans is unknown, but that "thousands of individuals were evaluated and permanently separated from service by the Army" because of PTSD over the past six years but were rated below 50 percent disabled.

The suit asks the Court of Claims to order the Army to stop its practice of violating its own rules when rating soldiers with PTSD and to award the plaintiffs benefits to which they are entitled, as well as court costs and attorney fees.

Contact Ed Kemmick at ekemmick@billingsgazette.com or 657-1293.