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Veteran shot in Iraq fights for benefits
Sgt. Joe Baumann is battling a military ruling that he does not qualify for a disability benefit or healthcare.
By Rone Tempest, Times Staff Writer
March 21, 2007
FT. LEWIS, WASH. — A sniper shot Sgt. Joe Baumann on a Baghdad street in April 2005. The AK-47 round ripped through his midsection, ricocheted off his Kevlar vest and shredded his abdomen.
The bullet also ignited tracer rounds in the magazine on his belt, setting Baumann on fire.
Almost two years later, the 22-year-old California National Guard soldier from Petaluma, walks with a cane, suffers from back problems and has been diagnosed with post-traumatic stress disorder that keeps him from sleeping and holding a job.
"He can't even go to the grocery store by himself," said his wife, Aileen, also 22.
The question pending before a military review board at this big Army post south of Tacoma is whether to grant Baumann a military disability pension and healthcare or simply cut him an $8,000 check for his troubles.
It is a tense bureaucratic triage faced by thousands of wounded American soldiers as they negotiate their return to civilian life. If they are rejected by the military disability system, they can try their luck with the overwhelmed Department of Veterans Affairs, which means another lengthy process with uncertain results.
A 2006 analysis by the federal General Accounting Office showed that for National Guard members and reservists, the process takes much longer and is less likely to result in full disability benefits.
Baumann's case remains very much in limbo — despite the extraordinary assistance of two of his former commanders, who took time from their civilian careers to come to his aid.
In a preliminary ruling last month, the three-officer Physical Evaluation Board that is reviewing Baumann's case decided for the severance check, rating his disability at only 20% and characterizing his post-traumatic stress disorder as "anxiety disorder and depression."
If he accepted the $8,000, Baumann still would be eligible to apply for Veterans Affairs disability benefits. But VA benefits do not include retirement pay, family healthcare, and military post exchange and commissary privileges. In what many soldiers regard as the ultimate Catch-22, if he were accepted by the VA, he would have to pay the Army's $8,000 back.
"The Army acts like they just want you to get out the door as fast as possible at the lowest possible cost without taking into account how you are going to live for the rest of your life. Here's your $8,000; just go," Baumann said.
Maj. Jesse Miller, one of Baumann's former commanders, who in civilian life is a San Francisco tax litigator for the international law firm of Reed Smith, is acting as Baumann's attorney, commuting regularly from his high-rise office to the dilapidated brick building at Ft. Lewis where the Army Physical Evaluation Board hearings are held.
"Look, I love the Army," Miller said. "I wouldn't do this if I thought he were gaming the system. But from Day 1 in this case, I've felt that the system was stacked against getting a just and fair hearing."
Capt. Kincy Clark, a Silicon Valley software executive who was Baumann's company commander in Iraq, cut short a business trip to Italy to testify at a Feb. 28 hearing. Both men have dipped into their own pockets to help their former soldier. At Miller's urging, Reed Smith contributed its resources pro bono.
"The system was designed for a peacetime Army to ferret out malingerers," Clark said, "but they haven't updated it to accommodate the huge influx of wounded soldiers. Sgt. Baumann is no longer physically or, at this point, mentally fit to go to war. I believe he deserves the full retirement."
Staccato bursts of small-arms training fire sounded in the distance as Baumann discussed his case recently over lunch in a diner outside the Ft. Lewis gate. Baumann, who watched a soldier get shot on the same street where he was hit, said gunfire still made him jittery.
"If it hadn't been for Capt. Clark and Maj. Miller, I would have just taken the check like everyone else," Baumann said.
Instead, Baumann is one of a small percentage of wounded soldiers who have taken their case to a formal board hearing where they have the right to counsel.
As recent congressional testimony revealed, the fates of wounded and injured soldiers like Sgt. Baumann are in the hands of overwhelmed Army Physical Evaluation Boards, or PEBS, located at Ft. Lewis, at Ft. Sam Houston in San Antonio and at Walter Reed in Washington, D.C. Navy, Marine and Air Force evaluations are handled separately.
After lengthy review by a Medical Evaluation Board to determine if the soldier is still fit for service, the Physical Evaluation Board sets the degree of disability for each soldier, from 0% to 100%. A rating of 30% or higher means that the soldier can receive military disability retirement. Anything under 30% is settled with a check or nothing at all.
Even in seemingly similar cases, determinations vary.
Pfc. Jessica Lynch, the celebrated supply clerk who was taken captive during the initial invasion of Iraq in 2003, was granted 80% disability for her extensive injuries, including two spinal fractures and a shattered right arm. But her fellow prisoner of war, Spc. Shoshana Johnson, who was shot in both ankles, received a 30% rating.
According to the Army Physical Disability Agency, 90% of soldiers accept the boards' initial rulings, forgoing their right to a formal hearing.
U.S. Rep. Betty McCollum (D-Minn.), who sits on the House Oversight and Government Reform Committee, which heard some of the Walter Reed testimony, contends that soldiers who suffer from post-traumatic stress disorder or traumatic brain injuries may not be fully capable of making such a choice.
"Once they sign that document, they're making a fundamental decision that will affect them for the rest of their lives," McCollum said.
Other critics said soldiers are trained to follow orders, not to objectively review decisions made for them. Some veterans groups say that, faced with unanticipated high casualties, the boards are increasingly guided by budget considerations.
"The Army is shortchanging soldiers by assigning lower disability ratings than they deserve. In some cases, the Physical Evaluation Board misinterprets, reinterprets or even disregards the Medical Evaluation Board findings," said David E. Autry, deputy national director of communications for Disabled American Veterans.
Army officials acknowledge the increased wartime caseload, but say they are doing their best.
"Our cases are now tougher — they are more complicated — as a result of the types of injuries soldiers are sustaining from combat operations," said Brig. Gen. Reuben D. Jones, commander of the U.S. Army Physical Disability Agency.
Jones said the military disability agency is "currently reviewing how we do our business to better serve the soldier."
Lawmakers have introduced "wounded warrior" reform bills in the House and Senate that would increase the number of counselors who help guide soldiers through the system.
A Veterans Disability Benefits Commission that Congress created last year is expected to release findings on the Physical Evaluation Boards in October.
"Until we get that report, we have been reluctant to wade in," said U.S. Rep. Vic Snyder (D-Ark.), chairman of the House Armed Services Subcommittee on Military Personnel. "But we all know that it is a complicated system that needs work."
All of this is little solace to Baumann and others as they go through the process.
After the Feb. 28 formal hearing at which two psychiatrists testified by phone about Baumann's post-traumatic stress disorder and Clark testified in person, the board sent Baumann back to Madigan Army Medical Center for more evaluations.
Miller hopes that the medical review will boost Baumann's disability rating above the 30% he needs for full retirement.
"Things seemed to go well in the most recent medical examinations," Miller said. "I'm hopeful they will make the right decision."
But Steven Engle, an attorney who heads the four-man Office of Soldiers' Counsel at Ft. Lewis, is not so sure. Like civilian public defenders' offices, Soldiers' Counsel represents soldiers who do not have their own lawyers in the formal board hearings. Because of the Iraq war, Engle's office caseload has jumped from two to three hearings a week to an average of four a day.
The Army reservist and former Marine said the boards had been reluctant to grant disability in cases alleging post-traumatic stress disorder.
"I think the Army's disability system is overly skeptical of PTSD," Engle said. "They don't seem to understand that this is not the same Army it was in 2001."
Reservists such as Baumann may face particularly tough odds. The 2006 GAO analysis stated that "Army reservists were less likely to receive permanent disability retirement or lump sum disability severance pay than their active duty counterparts."
National Guard and Reserve soldiers also receive much lower severance payments than regular Army soldiers because the payments are based on "active duty" time and do not include the years that reservists spend as civilian-soldiers.
According to the GAO, reservists' cases also move slowly, with more than 36% taking more than 120 days, compared to only 13% for the regular Army.
All this puts Baumann and his wife in an anxious state as they wait for the latest word from the Ft. Lewis evaluators.
"We were hoping to start a family in about two or three years," said Aileen Baumann, who works at a Novato, Calif., Starbucks and attends community college.
"But that would have to be pushed back if Joe doesn't get disability. I would have to drop out of school. It would be a very hard transition."
Times staff writer Adam Schreck in Washington contributed to this report.