In January 2010, 4,300 veterans of Operation Iraqi Freedom and Operation Enduring Freedom received legal notices in the mail, notifying them that they might have been shortchanged during the evaluation hearings prior to their discharge from the military and may be eligible to join the lawsuit known as Sabo, et al v. the United States.
The notices were part of a deal struck between the Department of Defense (DoD), the U.S. Court of Federal Claims, and the nonprofit National Veterans Legal Services Program (NVLSP) to review thousands of cases in which disability ratings were likely scored too low.
The lawsuit was filed by seven veterans from the Army, Navy, Air Force, and Marine Corps who were discharged from service as a result of a physical evaluation board (PEB) finding that they were unfit for continued active-duty service due, at least in part, to post-traumatic stress disorder, or PTSD.
Tom Moore, program director for NVLSP’s Lawyers Serving Warriors Program – which offers pro bono legal work to Iraq and Afghanistan veterans – explains that the PEBs got these ratings wrong numerous times over the past several years.
“The service branches,” explains Moore, “are required to follow the VA Schedule for Rating Disabilities [VASRD], which is 38 CFR part 4. There’s a provision in the VA Schedule 38 CFR 4.129 that addresses mental disorders. And basically what that says is that for any mental disorder that’s severe enough to have someone be separated from the service and is caused by a highly stressful event, the member will be given a minimum 50 percent rating and then re-evaluated within six months to see if it should go up or go down.”
This requirement to follow the VASRD was made explicit by the Defense Authorization Act of 2008, but Moore says the position of Lawyers Serving Warriors is that case law has always required the service branches to follow it. “Which means,” he says, “they’ve always been required to give them at least a 50 percent rating for PTSD initially, and then they’re supposed to be re-examined six months after that. But under our understanding of that, they should never have been able to separate someone for PTSD with anything less than 50 percent.”
The seven veterans in the Sabo lawsuit claim PEBs violated the legal rights of any veteran who was separated from the service and assigned a disability rating for PTSD below 50 percent.
The court-approved legal notice, sent to veterans eligible to join the Sabo lawsuit, defined the parameters of eligibility. In order to join the suit, individuals must have
- served on active duty in the U.S. Army, Navy, Air Force, or Marine Corps;
- been found by a PEB to be unfit for continued service due, at least in part, to the individual’s PTSD;
- been assigned a disability rating for PTSD of less than 50 percent; and
- been released, separated, or retired from active duty after Dec. 17, 2002, and prior to Oct. 14, 2008, regardless of whether that release, separation, retirement, or discharge resulted in the individual’s placement on the Temporary or Permanent Disability Retirement List.
If the lawsuit is successful, veterans who opt in and have their rating increased may receive back pay of disability benefits, reimbursement for health care expenses that should have been covered by the military, and future benefits to which they and their families are entitled – potentially millions of dollars in benefits.
If the lawsuit is successful, veterans who opt in and have their rating increased may receive back pay of disability benefits, reimbursement for health care expenses that should have been covered by the military, and future benefits to which they and their families are entitled – potentially millions of dollars in benefits.
Veterans who have not received the legal notice, but who believe they meet the requirements for eligibility, should visit the plaintiffs’ informational website to decide whether they’d like to become a class member in the lawsuit, and learn how to do so. Simply click on “I DID NOT RECEIVE THIS LEGAL NOTICE.”