After a service member is injured in Iraq or Afghanistan, the U.S. military must follow strict procedures to evaluate the member’s fitness for duty. If a Medical Evaluation Board determines that the member’s physical or mental condition falls below retention standards, the case is sent to a Physical Evaluation Board (PEB), which determines whether the member is fit for duty.
If the PEB finds the member unfit, it must assign a percentage disability rating to each illness or condition as delineated by the Veterans Affairs Schedule for Rating Disabilities (VASRD). If the total disability rating is 30 percent or higher, the service member is deemed medically retired, entitling him or her to lifetime monthly disability payments and free medical care, including spousal and dependent coverage. If the rating is below that threshold, the member is deemed medically separated and entitled to only a lump-sum severance payment.
The VASRD requires that if the PEB finds a service member unfit for duty due to posttraumatic stress disorder (PTSD), it must assign a minimum disability rating of 50 percent.
Army Sergeant Michael Sabo served two tours in Iraq and was constantly exposed to explosions, mortar attacks, gunfire, and improvised explosive devices (IEDs). After each deployment, he suffered violent mood swings, nightmares, and severe headaches. He was diagnosed with PTSD and post-concussive syndrome, but was assigned only a 10 percent rating for each condition and was deemed medically separated.
Juan Perez also served two tours in Iraq with the Army. During his first deployment, an IED exploded his tank, and during the second tour, he was severely injured. After both tours, he suffered insomnia, nightmares, irritability, and paranoia. He was diagnosed with PTSD and a traumatic brain injury, but the PEB assigned a 0 percent rating for his PTSD and less than 30 percent for his other injuries and deemed him medically separated.
Between December 17, 2002, and October 14, 2008, the Armed Forces assigned ratings under 50 percent for PTSD to approximately 4,300 service members. The inadequate ratings stopped after the Department of Defense issued a policy memorandum requiring that evaluators follow the VASRD disability ratings.
Sabo, Perez, and five other service members filed a class action against the United States, alleging violations of federal laws governing disability evaluations of service members.
The parties reached a settlement that included nine subclasses of members based on where in the process their claim is and whether the Department of Veterans Affairs gave them a rating different from the military’s PEB rating, among other things. Depending on what subclass the class members are in, they may be entitled to lifetime disability retirement payments, combat-related special compensation, lifetime health care, the opportunity to buy life insurance through the survivor benefit plan, or reimbursement for medical expenses. Members who were given disability benefits but were denied a 50 percent PTSD rating may be entitled to back pay.
The court has granted final approval.
Citation: Sabo v. U.S., No. 1:08-cv-00899 (Fed. Cl. Dec. 22, 2011).
Plaintiff counsel: Brad Fagg, James J. Kelley II, Charles P. Groppe, Barton F. Stichman, and Amy F. Fletcher, all of Washington, D.C.
