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Big Law Firms Represent Service Members Navigating VA Disability System

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AP

Injured forces returning from Afghanistan and Iraq are going to get their own battalion of lawyers to represent their appeals to the military for health care and compensation.

According to the Disabled American Veterans, three major Washington, D.C., law firms have volunteered free legal representation for service men and women navigating through the disability and compensation system at Walter Reed Army Medical Center in Washington and the National Naval Medical Center in Bethesda, Md., the main U.S. hospitals receiving wounded soldiers off the battlefields.

DAV also handles appeals for the troops, but is finding itself under a growing backlog and not sufficiently equipped to take appeals through the federal court system.

DAV and other advocates have been complaining since the War on Terror began that seriously injured service men and women are being medically discharged because they are no longer fit for duty, but given such low disability ratings that they don't qualify for lifetime compensation and benefits, including health care coverage for themselves or their families.

"It seems that not only are they not receiving the compensation they are entitled to," but any further access for themselves and their families to military health programs and facilities is cut off, said Ron Smith, deputy counsel for DAV.

Smith said the backlog for discharging soldiers is long and the bureaucracy is often complex and loaded with pitfalls. Some soldiers wait more than a year to get out of "medical hold," the limbo between deployable active duty status and discharge.

"These people are at Walter Reed in Washington for sometimes more than a year, they are in many cases, alone," said Smith.

Danny Soto, a national service officer acting as an advocate for the soldiers and a liaison between DAV and Walter Reed, said much of the backlog is the result of an overload on the Physical Evaluation Board, which determines disability and compensation. The board plows through about 80 cases a week at Walter Reed alone, not counting the appeals.

On top of that, JAG officers, the military attorneys assigned to represent the soldiers, are overloaded and soldiers don’t often feel the attorneys are on their side, Soto said.

"They are getting to the point where they just want to get out," Soto said of the soldiers who have become leery and weary of the evaluation process and frequently end up taking whatever disability pay they can.

The law firms — which include, LeBoeuf, Lamb, Greene & MacRae, King & Spaulding and Foley & Lardner — will not only provide assistance to soldiers from the start of the process, but will assure the best interest of the soldier is well in hand, he said.

Some soldiers have already expressed newfound confidence since the announcement.

"This is something that could benefit soldiers on every single base, regardless of their branch of service," said Spc. Paul Thurman, 24, who is in medical hold at Fort Carson, Colo., and is awaiting discharge. Thurman has multiple head injuries from two separate training accidents — one at Fort Bragg, the other in Kuwait. He suffers primarily from frequent seizures and migraines.

"It can really take the burden off. They (the attorneys) can hunt down stuff and free up time for the (soldier) to get better," he said of the pro bono service. "I think it's needed more than anyone wants to acknowledge."

For its part, the military is acknowledging some of its shortfalls. Recent official reports, DAV investigations and personal accounts all suggest that the system appears to be unfairly stacked against individual soldiers, particularly in the Army. Defense Department officials say they are working hard to rectify the problem.

"The department is committed to improving the Disability Evaluation System across-the-board," as well as providing "a full and fair due process with regard to disability evaluation and compensation (and) care," a Pentagon official said in a statement to FOXNews.com.

But the stack against the soldier seems evident. According to the current evaluation process, even if a service member has more than one potential disability, the military assigns a rating from 0 to 100 percent to just one injury that renders the soldier unfit for duty. Anything below 30 percent affords the soon-to-be veteran a one-time severance check based on his or her rank and years of service and nothing else.

Anything above 30 percent provides the soldier and his or her family with lifetime care, plus a pension based on the member's active duty pay.

In April, the congressionally-mandated Veterans Disability Benefits Commission provided Congress with preliminary findings from its investigation into whether the military has been lowballing disability ratings, a charge denied by the Pentagon. Its analysis is based on thousands of disability records since the War on Terror began.

It found that 81 percent of all disabilities between 2000 and 2006 were rated 0 to 20 percent by the military. Out of 50,676 Army soldiers deemed unfit for duty, 27 percent received 0 percent ratings.

Advocates like to point out that soldiers who do not qualify for military health care and the pension, often go to the Veterans Administration to apply for benefits and health care. In 59 percent of those cases, according to the commission's early findings, the VA has given a 30 to 100 percent disability rating to the same soldier who earned a zero to 30 percent rating from the military.

Commission chairman, retired Army Lt. Gen. James Terry Scott, said that while a few technical reasons can explain the disparities, the most telling is that the military rates only one injury while the VA provides a combined rating for all a veteran's injuries. Scott testified to Congress in April the reason for the difference could be a simple explanation — the military has an incentive to offload the cost to the VA.

"It is … apparent that (the Defense Department) has strong incentive to assign less than 30 percent so that only separation pay is required and continuing family health care is not provided," Scott said during the April 12 hearing.

On top of that, Smith said, if a soldier receives a disability rating from the military above 30 percent, he or she gets a pension based on annual salary at the time of discharge. Despite rank, a 100 percent disability at the VA will get the veteran no more than $28,000 a year in compensation, and no family health care coverage.

Military officials say they recognize the inconsistency between the two institutions and are working with VA representatives to bring uniformity to the Disability Evaluation System. They admit that more oversight of the process is needed.

"The nature of the medical conditions and the tempo of the war have brought other issues to light that require department clarification to ensure consistency of standards and performance against those standards," a statement to FOXNews.com reads.

"Many service members who may not have survived in previous wars today benefit from advances in medical treatment (and transport)," it continues. "We will ensure that the DES can manage the volume of multiple injuries and complex recovery challenges."

Meanwhile, Smith said he hopes the new teams of attorneys will be able to set precedents in federal court and perhaps reform the system for all.

"Based on this announcement, I am confident that every solder who desires legal representation will now have it," Smith said, adding that the lawyers just want to "right some of these wrongs."