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Veterans Legal Clinic to Offer Paid Summer 2018 Internship to Wake Forest Law Students

In collaboration with the Equal Justice Works Veterans Legal Corps – AmeriCorps JD Program, the Wake Forest Veterans Legal Clinic is excited to announce a paid internship position for Summer 2018. More information can be found on the Program Description Flyer. Interested students should complete and submit an application  no later than Friday, March 16, at 5 p.m.

Please contact Chris Salemme, Clinic Fellow, with any questions.

The Veterans Appeals Improvement and Modernization Act of 2017

By Sabrina Rodrigues (JD ’18)

Approximately 470,000 veterans are waiting for appeals decisions on their disability ratings, which could take at least six years to get through, according to the Department of Veterans Affairs. Recent legislation has been passed by Congress and signed by President Trump to facilitate this appeals process for veterans. The Veterans Appeals Improvement and Modernization Act of 2017 was signed into law on August 23, 2017, and was designed to “streamline the lengthy process that veterans undergo when appealing their claims for disability benefits” with the Department of Veterans Affairs. By facilitating the appeals process for veterans, the Act aims to cut down on the notoriously lengthy timing of the process.

Normally, when a veteran files a claim for disability caused by their military service, they receive a decision that either grants or denies that claim from the VA. However, they may appeal this decision. The issue with this is that the VA appeals system is severely flawed as it currently stands. According to Representative Phil Roe, Chairman of the House Committee on Veterans’ Affairs, the VA’s current appeal process is broken. Between 2015 and 2017, the number of appeals increased from about 380,000 to 470,000, an alarming 20% increase. This shows that the amount of appeals is extensive and out of control, thus in dire need of reform and change. The high number of pending appeals is especially problematic when we consider the individuals who are requesting the appeals: disabled veterans. Veterans who are disabled are in more of a need for a timelier appeals outcome than other veterans. Thus, this Act will, in theory, expedite the appeals process, and resolve these issues that have been backlogged for quite some time.

The Act provides a structure for the appeals process, by creating three possible avenues for appeals for veterans to choose from, depending on their specific situation. The first lane a veteran may choose is the Local Higher Level Review Lane, in which the adjudicator considers the same evidence from the decision that is being appealed, and the veteran waives a hearing. The second lane is the New Evidence Lane, in which the adjudicator considers new evidence submitted for review with a hearing. The third lane is the Board Lane, in which an appeal may be moved to the jurisdiction of the Board of Veterans’ Appeals, and thus skip the intervening authorities within the VA. The Act provides a test period in which veterans who are involved in pending appeals may opt into the system. The Act allows for two dockets, one “specifically for an expedited review for veterans who waive the hearing and chance to submit new evidence.”

Veterans who have been disabled as a result of their service deserve a reformed and expedited appeals process, especially when their disabilities are taken into account. They bravely served this country, and at the very least, should not have to wait 5+ years for their appeals decision. If this Act serves the purposes it purports, then veterans with disabilities will no longer have to wait astronomical amounts of time for a decision.

Post-Service Self-Employment: Jumpstarting a Business with BunkerLabs

By Marisa Stern (JD ’18)

When veterans are discharged from service, they look to new resources of income. Historically, a large number of veterans end up working for another corporation. More recently, however, veterans have started to self-employ in hopes of creating their own businesses. Specifically, 25% of the people leaving the military want to start their own businesses. BunkerLabs, a non-profit organization, is helping entrepreneur veterans take ahold of their future. BunkerLabs is a membership-based organization that aims to help veterans whose dreams are to be successful in their own ventures. BunkerLabs understands the various obstacles that veterans face because the organization is primarily run by veterans; the CEO, Todd Connor, is a U.S. Navy veteran.

BunkerLabs was first announced in June 2014; shortly after that, in 2015, the first North Carolina location was launched in Raleigh-Durham. The Raleigh-Durham (RDU) location, like all other BunkerLabs locations, offers an array of resources to veterans to further their business goals. Among the resources is a weekly “Braintrust session.” A Braintrust session is an open forum for all veterans, members, and thought leaders to share ideas and connect with each other. Each session revolves around a different topic or set of topics that are relevant to starting a business. “The program features: curated demonstrations, business pitches by Bunker members, skills-awareness presentations by Bunker mentors, interviews with thought leaders and successful entrepreneurs.”[1]

Additionally, BunkerLabs understands that networking is a key aspect of starting your business and as such uses their membership events and veteran-based relations as a way to facilitate the making of connections. Thus, BunkerLabs has a monthly “Bunker Brews” event. This is a meeting or happy hour in which the BunkerLabs community can network with each other to further develop their business. This environment allows veterans to grow alongside other veterans, and even more so, it allows for veterans to mentor each other. Furthermore, if a veteran specializes in a specific field or starts a particularized business, then that veteran can use this meet up as a way to advertise their business out to the BunkerLabs community. This allows more people to be aware of a new business and to help it prosper by either transacting with the business themselves or by referring the business to friends, family, and other points of contact.

Another program that the RDU BunkerLabs runs is called the “Launch Lab” (previously known as the “Entrepreneurial Program for Innovation and Collaboration,” or EPIC). Launch Lab is an intensive, in-person 12-week program for veterans who have a busy life, but would still like to take classes to learn the rules of the trade. It runs like a traditional educational program, for it requires participants to watch instructional videos and gauges their progress through regular assignments and assessments. Furthermore, there is a laboratory aspect to the program in which participants can experiment with their business concepts and ideas. Thus, this allows participants to figure out what works for them without sacrificing their business or future.

For persons residing outside of a BunkerLabs area, or for persons who are unavailable during scheduled events, BunkerLabs offers a “Bunker in a Box” program. This program is an online platform that allows for an individual to learn the ins-and-outs of entrepreneurship and business at a self-scheduled pace. The program is developed around the three themes of Inspire, Educate, and Connection and takes the learner through “14 missions” aimed at learning the information and actively participating in BunkerLabs community discussions.

Overall BunkerLabs is a great resource for veterans, whether you are starting your own business or would just like more insight into the corporate rule. It also provides veterans with a support group because the members come from similar backgrounds and can share their experiences. BunkerLabs is also highly accessible, it is available both online and in-person, and it is only continuing to grow. If you are looking for a way to start your entrepreneurial dream, it seems as though BunkerLabs can provide you with the tools to do so, without consuming all of your time.

 

Team RWB: A New Mission for Veterans and Communities

By Philip Jones (JD ’18)

“To enrich the lives of America’s veterans by connecting them to their community through physical and social activity.” This is the mission of Team RWB (which stands for red, white, and blue), a unique service organization that was created in 2010.

Team RWB’s program focuses on races, sporting events, and service projects. The emphasis on physical activities and service projects is aimed at rekindling the experiences of hard work and camaraderie that veterans share from their service. Arthur Snodgrass, a soldier with the Army’s 82nd Airborne Division, experienced health issues that sidelined him from his duties in Afghanistan and led to dramatic changes in his weight. Returning home from overseas, Arthur vowed to get back to his pre-deployment level of physical fitness, and he reached out to his local Team RWB chapter. After several months of involvement with the chapter, Snodgrass said, “Now, when I have a conversation with my soldiers regarding life after the military, I talk to them about RWB and the benefits that it can have to belong to a community that understands what they have gone through and appreciated their sacrifices. My involvement with RWB has made me decide to try new things and even re-explore some of the activities I used to enjoy. “

One particular upcoming event is the Old Glory Relay, which is a relay running event that involves teams carrying an American flag 4,600 miles from Seattle, Washington to Tampa, Florida over the course of 62 days.

In addition to scheduling physical and social events, Team RWB has a 36-month leadership program designed to enrich veterans’ lives and provide for both the veteran and local communities.

Team RWB also works to bridge the gap between the military and civilian communities. Less than 1% of the population has served in the military, and it can be difficult for veterans to “understand” their civilian neighbors, friends, and coworkers. Team RWB brings both sides together in fun and challenging events in order to lessen that divide. Because there is such an emphasis on connecting veterans with civilians, there is no requirement that one be a veteran to join Team RWB. The local community is encouraged to join as a way to support their neighbors who happen to be veterans.

Team RWB has seen a lot of success in different areas. The following statistics come from the military news website Task & Purpose: Regarding the social connections to local community, 90% of RWB veterans report they have tightened their social connections with others in their local community after getting involved. 50% of RWB veterans feel less nervous, depressed, or hopeless while in the program. 40% of RWB veterans report generally feeling more comfortable in their home and work environments. Jared Rose joined the Marine Corps in 2006 and felt he had found his calling as a machine gunner. However, two separate IED blasts in 2009 gave him traumatic brain injuries. Once home from deployment, he felt lost and isolated. Rose joined up with Team RWB and said, “I found a new purpose in life when I joined Team Red, White & Blue. Team RWB has not taken away my problems, but it has given me a purpose, motivation, and the ability to serve as a leader right in my new community.”

Nationwide, Team RWB’s numbers are growing; over 187 chapters exist with more than 108,000 veterans involved. As more and more veterans return home from duty, they can rest easy knowing that they have a new “command” to report to in Team RWB, where they will be surrounded by fellow veterans and supportive members of the local community.

Separation from the Army under Paragraph 5-13: Personality Disorder

Written by Elliott Tomlinson (’17) – Wake Forest School of Law Veterans Legal Clinic Student Practitioner

Army Regulations 635-200, Paragraph 5-13 gives the Army the option to separate a soldier from military service based on a personality disorder. However, soldiers should be cautious and take the time to fully understand the implications of a separation under Paragraph 5-13. Although this may seem beneficial at the time, depending on each individual’s situation, this classification can have lasting residual effects that a soldier should be aware of.

Primarily service members should know that, if they are separated under this paragraph, it will be reflected on their DD-214 after discharge. The DD-214 will list the discharge as honorable unless an entry level separation is required.[1] However, the DD-214 will also list the separation authority as “AR 635-200, PARA 5-13” which a future employer, landlord, or anyone who reviews your DD-214 can look up to see this chapter is a separation for personality disorder. Also, the narrative reason for discharge shown on your DD-214 will be “Personality Disorder,” which may impact your chances of being hired or lead to more questions about your discharge.

Before separation proceedings may begin under this paragraph, a soldier must be formally counseled about the identified deficiencies and given an opportunity to overcome the deficiencies.[2] A soldier must also be advised that this diagnosis of a personality disorder does not qualify as a disability. Given this mandatory counseling requirement, a soldier being separated under this Paragraph should use this opportunity to clarify any questions.

How does a separation under this Paragraph work?

            Under Paragraph 5-13 a soldier who has less than 24 months active duty service as of the date separation proceedings are initiated, may be separated for a personality disorder. A qualifying personality disorder is one that “is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier’s ability to perform duty.”[3] It is classified as an inability to adapt to the military environment and not an inability or an inability to perform job specific tasks or requirements. Given the nature of this classification, the regulations call for documentation of behavior of specific deficiencies in the soldier’s personnel or counseling records. The regulations refer to this classification as a “diagnosis” which must be “established by a psychiatrist or doctoral-level clinical psychologist with necessary and appropriate” credentials.[4]

If you are serving or have served in an imminent danger pay area and have less than 24 months of active duty service at the time separation proceedings are initiated, then there are additional requirements to be separated under this paragraph. First, the diagnosis of personality disorder under this section must be corroborated by the MTF Chief of Behavioral Health. His or her decision is then forwarded for confirmation by the Director, Prepotency of Behavioral Health, Office of the Surgeon General. The regulations specifically require the diagnosing psychiatrist to consider “whether PTSD, traumatic brain injury (TBI), and/or other combined mental illness may be significant contributing factors to the diagnosis.”[5] If any of these are significant factors to a diagnosis of personality disorder, the soldier cannot be processed for administrative separation but will be evaluated under the physical disability system.

If you were separated from service for a personality disorder, and you believe that the separation was unjust, or that the personality disorder was inaccurately referenced as the reason for your separation, please contact our office.



[1] AR 635-200, Paragraph 5-13(h)

[2] AR 635-200, Paragraph 5-13(e)

[3] AR 635-200, Paragraph 5-13(a)

[4] Id.

[5] Id.

Veterans Treatment Courts in North Carolina

Written by Adam Nyenhuis (’17) – Wake Forest School of Law Veterans Legal Clinic Student Practitioner

Veterans Treatment Courts are a relatively new development that are specifically tailored to the needs of veterans who are facing criminal charges.  In 2008, Judge Robert Russell of the Buffalo Drug and Mental Health Courts established the nation’s first Veterans Treatment Court in Buffalo, New York, to assist local veterans with substance abuse and mental health issues.[1]  Today, only six years later, there are over 220 of these special courts serving more than 11,000 veterans across the United States.[2]

Like drug and other treatment courts, veterans courts were created to help treat, rather than merely punish, veterans who suffer from substance abuse and/or mental health issues.  Judges, lawyers, and legal scholars have become increasingly convinced that treating people charged with crimes related to substance abuse or mental health problems is a more effective way of helping those individuals break the cycle of criminal behavior and substance abuse.[3]  This has led many states to create veterans-only courts to assist those who have served our country in the armed forces and whose substance abuse or mental health issues, such as post-traumatic stress disorder, are often directly or indirectly related to their military service.  Ultimately, these courts aim to ensure that veterans receiving treatment are able to successfully recover and leave the criminal behavior in the past, all while ensuring public safety and reducing recidivism rates.

These courts are veteran-only in part because of limited resources, but primarily to create a court that is tailored to the unique needs of veterans.  For example, the courts sometimes pair veterans with mentors who are veterans themselves and they enlist the expertise of local veteran organizations to help create the best treatment plan for the veteran seeking treatment.[4]  Further, the courts employ a system of strict accountability through regular meetings with the veterans court team.  That team usually consists of a judge, defense lawyer, prosecutor, and others (such as veterans organizations and mentors).

Though these meetings involve parties typically present in a criminal trial setting, the meetings themselves are not traditionally adversarial.  That is, their purpose is not to determine whether the veteran facing charges is guilty or innocent.  Instead, this process only involves veterans whose guilt is admitted, and the veteran meets with the court to help develop and participate in the best possible treatment plan.  The treatment plan can last from a few months to over a year, and it may sometimes involve other punitive measures beyond court oversight.  In the end, the veteran benefits through treatment and possibly through reduced or dismissed charges.

The first veterans court in North Carolina was established in 2013 in Harnett County; there are now two more existing courts in Cumberland and Buncombe Counties, with another court set to begin operation in Forsyth County soon.[5]  The jurisdiction of the North Carolina veterans courts falls under state district courts, which supervise the treatment program.[6]  The court can handle various criminal charges against veterans who fall within the district court’s jurisdiction.  The term “veteran” is defined broadly by the federal government, covering any “person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable.”[7]  The definition of “veteran” for the purpose of jurisdiction in North Carolina Veterans Treatment Courts can be even broader, requiring only that the defendant seeking treatment has prior military service, regardless of discharge status.[8]

Veterans Treatment Courts are new to North Carolina, but their success and expansion across the country indicates that North Carolina veterans will have increasingly effective avenues to treat and overcome substance abuse and mental health issues.

 



[2] VA Secretary Robert McDonald to Address Nation’s Veterans Treatment Courts, Global Newswire(July 23, 2015, 1:59 PM), https://globenewswire.com/news-release/2015/07/23/754663/10142953/en/VA-Secretary-Robert-McDonald-to-Address-Nation-s-Veterans-Treatment-Courts.html.

[3] See, e.g., Doug McVay et al., Treatment or Incarceration? National and State Findings on the Efficacy and Cost Savings of Drug Treatment Versus Imprisonment, Just. Pol’y Inst. (Jan. 2004),  http://www.justicepolicy.org/uploads/justicepolicy/documents/04-01_rep_mdtreatmentorincarceration_ac-dp.pdf.

[4] See, e.g., Michael Hewlett, Forsyth to open a veterans treatment court in fall; would be the fourth in North Carolina (Aug. 15, 2016), http://www.journalnow.com/news/local/forsyth-to-open-a-veterans-treatment-court-in-fall-would/article_f505879f-1fbc-5411-82ee-1e0f6e1770de.html.

[5] Id.

[6]  See N.C. Gen. State Ann. § 7A-272(e), (f) (West 2010).  A veterans court is most likely considered a “therapeutic court,” as the court is collaborative and non-adversarial. See Jamie Markham, Veterans Treatment Court, U. North Carolina Sch. of Gov’t (Nov. 12, 2014, 12:35 PM), http://nccriminallaw.sog.unc.edu/veterans-treatment-court/.

[7] See 38 C.F.R. § 3.1(d).

[8] See Jamie Markham, Veterans Treatment Court, U. North Carolina Sch. of Gov’t (Nov. 12, 2014, 12:35 PM), http://nccriminallaw.sog.unc.edu/veterans-treatment-court/.

 

The Effect of Non-Judicial Punishment

Written by Matt Silverstein (’17) – Wake Forest School of Law Veterans Legal Clinic Student Practitioner 

An integral part of the military judicial system is its utilization of Non-judicial punishment to resolve many disciplinary issues.  This blog post will discuss how non-judicial punishment operates and why it should be taken seriously by members of the armed forces.

Non-judicial punishment is codified in Article 15 of the Uniform  Code of Military Justice (“UCMJ”).                           (https://www.law.cornell.edu/uscode/text/10/815)   Article 15 allows an officer to impose a variety of sanctions upon a service member under their command after the commanding officer has determined their guilt in the alleged offense.  (http://www.wood.army.mil/sja/TDS/article_15_fact_sheet.htm)   These sanctions can vary widely but usually involve the forfeiture of a certain percentage of pay for a period of time or confinement to quarters for a set number of days.  Non-judicial punishment is most often utilized to discipline soldiers for misbehavior that is relatively minor in scale.  Many of the behaviors that can be punished through non-judicial punishment can be prosecuted through court martial, but often a commanding officer has the discretion to offer non-judicial punishment in lieu of harsher sanctions.  In general, non-judicial punishments tend to be less harsh than punishments handed out by way of court martial, but in the setting of a non-judicial punishment a service member lacks the procedural protections that a court martial proceeding contains, as one is allowing your commanding officer, and not a jury, determine your guilt.

When a member of the military is offered non-judicial punishment in a disciplinary action, they can decide for themselves whether or not to accept this form of punishment.  They are fully able to reject it, which then can result in facing a court martial.  If you accept the non-judicial punishment, the record of the punishment can remain in your military file for up to two years, or permanently depending on your rank.  If the record is permanent, it can only be removed through an action to correct military records, which is often an expensive and time-consuming process.  Additionally, a record of non-judicial punishment may also subject you to being removed from the military itself.  As a result of its desire to downsize in recent years, the Army has instituted a Qualitative Management Program (“QMP”) to identify soldiers that it wishes to retain. (https://www.army.mil/article/153650/what_soldiers_should_know_about_the_qualitative_management_program)  The QMP program utilizes review boards that evaluate certain classes of non-commissioned officers to determine if they should be retained for future service in the Army.  Those with Article 15 non-judicial punishments are among those most vulnerable to being involuntarily separated from service.  If a service member is separated under these circumstances, they would receive an honorable discharge, but would lose the opportunity to continue their military service.

All of this simply serves as a warning to those who currently serve or are considering joining the armed services.  Non-judicial punishment is a fact of life in the armed services and, in many ways, may have a less severe impact in the immediate term in comparison to a court martial.  However, non-judicial punishments remain in service member’s military records and can adversely affect their ability to remain in the service.  Thus, service members should always be mindful of their behavior and be aware of the potential repercussions of certain kinds of decisions they make in the service that can expose them to this sort of discipline.

Regenerative Medicine for the Armed Services at Wake Forest University

Written by Charlee Fox (’17) – Wake Forest School of Law Veterans Legal Clinic Student Practitioner 

Winston-Salem is home to the Wake Forest Institute for Regenerative Medicine (WFIRM). The institute has multiple research projects including: cell and gene therapies, replacement organs and tissues, a bladder research center, and —relevant in the armed services context—a military application.

Regarding the military applications, WFIRM is currently working on six projects: 3-D printing, body on a chip, engineering muscle implants, genital injuries, oxygen-generating materials, and printing skin cells on burn wounds. It has received major funding contributions from the Armed Forces Institute of Regenerative Medicine II and Body on a Chip that total $99 million. Here is a brief overview of what WFIRM will be working on for armed service members as found on their website.

3-D printing will focus on head and skull injuries. The generation of replacement tissues such as bone, nerves, blood vessels, fat, and muscle will better enable scientists and doctors to mend wounds obtained in combat. It is thought that those soldiers suffering from blast or high velocity projectile injuries will especially benefit from this reconstructive technology.

Body on a chip will model a body’s response to chemical and biological agents. Human cells will be used to create organ-like structures mimicking the heart, liver, lungs and blood vessels. The tiny structures will be kept “running” on a two-inch chip and will be monitored to see what happens when faced with chemical toxins or biological agents. The information gained from this will aid in developing treatments.

Engineering muscle implants will be a therapy for replacing diseased or damaged muscle tissue. Muscle cells are “preconditioned” to become better able to mimic already existing muscle cells in a human body. These cells will be implanted into the wounded area and have shown to promote the repair and regrowth of muscle tissue.

Genital and pelvic injuries have become more prevalent due to the devices used in the Afghanistan war. WFIRM is working to develop urologic tissues that could improve reconstructive procedures. These reconstructive procedures could provide wounded warriors with normality after such traumatic experiences.

Oxygen-generating materials will attempt to put oxygen into muscle tissue and keep it alive after a soldier is wounded. Scientists at WFIRM will use natural chemicals that generate oxygen to hopefully develop a quick and easy treatment that medics can apply to a wound immediately after it happens. This will thankfully give surgeons a better chance at reconstruction.

Lastly, WFIRM is working on printing skin cells on burn wounds. A tester printer has already been developed with the “ink” being skin cells. A scanner will determine the wound size and depth, then that data will be relayed to the printer which will “print” layers of appropriate skin cells over the wound. WFIRM is currently seeing if a kind of stem cell found in amniotic fluid and placenta is able to heal wounds. Hopefully, the printer will be available to soldiers within the next five years.[1]

You may reach the Wake Forest Institute for Regenerative Medicine at 336-713-7293. They are located in the Richard H. Dean Biomedical Building on 391 Technology Way in Winston-Salem, NC.



[1] See http://www.wakehealth.edu/Research/WFIRM/Research/Military-Applications.htm for source of above summaries.

 

The Military to Civilian Transition

Written by Elliott Tomlinson (’17) – Wake Forest School of Law Veterans Legal Clinic Student Practitioner

In 2011, the White House established the Department of Defense Credentialing and Licensing Task Force. Its goal–to oversee the execution of credentialing of Department of Defense Service, such as Army and Air Force experience, for service members when they return to civilian life. Each year, many individuals transition from military to civilian life with professional skills they gained during their time in the military, but unfortunately, that do not translate to equivalent civilian positions making it more challenging for service members to make that transition.

Congress has taken some steps in an attempt to resolve this problem and combat Veterans unemployment. Many Veterans retire with exceptional leadership skills, extensive professional training, and are generally reliable as a result of the training they receive while in the military. They are ideal employees. So what then is the problem? It all comes down to civilian professional licensing requirements which are state level, and not federal.

Professional occupation licensing is regulated on a state by state level making it a difficult problem for the federal government to solve directly. This issue is especially relevant in North Carolina, given the large population of active and retired military members. North Carolina regulates over 100 different professions.  This includes medical jobs, truck drivers, aircraft maintenance workers, EMTs and Paramedics, and automotive mechanics to name a few.

The federal government is taking steps to make the transition easier. Through legislation and initiatives intended to inform licensing boards on the military training process state boards are more likely to recognize that training for civilian jobs. Additionally, the Department of Defense is working to track the requirements and adapt military training where possible to meet the civilian training requirements. For example, Army and Air Force medics receive basic certification from the National Registry of EMTs upon the completion of their training according to a 2012 DoD Credentialing and Licensing report.  Nearly all state licensing boards recognize this certification, however many states also have additional requirements. The goal, as laid out in the 2012 DoD Task Force’s report is to make this process more seamless so that military training can translate directly to civilian roles, such as an Army medic to a civilian EMT.

In 2013, North Carolina enacted Session Law 2014-67 specifically addressing the issue of military service members obtaining professional licenses in North Carolina. The bill directs state licensing agencies (of which there are many) to issue a license or certification for a “military-trained applicant to lawfully practice the applicant’s occupation in this State” if certain conditions are met. [1] Licensing boards are required to notify applicants if their military training meets the standards for this section within 30 days.[2] The criteria or requirements that are satisfied by military training must be published on the licensing board’s website as well as the NC Division of Veterans Affairs website.

North Carolina and many other states are working together to lessen the credentialing burden for qualified veterans, but there are still challenges. As long as licensing requirements vary by state there will not be a simple solution, however, improvements are being made.



[1] N.C.G.S. §93B-15.1(a)

[2] N.C.G.S. §93B-15.1(a1)

Traumatic Brain Injuries and Discharge Upgrades

Written by Kristin Smith (’17″) – Wake Forest School of Law Veterans Legal Clinic Student Practitioner

As the United States military continues to become more and more involved in conflicts overseas, men and women returning from deployment continue to suffer from Post-Traumatic Stress Disorder, commonly known as PTSD.

Veterans often have physical wounds, but the ‘invisible’ wound of PTSD is often harder to recognize. Symptoms of PTSD range from having recurring flashbacks and nightmares to depression like personality changes and avoidance of things one used to enjoy.[1] Although symptoms of PTSD are often clear to the veteran and his or her family, diagnosing PTSD and determining its root cause for physicians is a more complicated endeavor.

Although this diagnosis is complicated, it is necessary for many veterans who are applying for discharge upgrades. A brief example of a client scenario will illustrate this necessity:

A 67-year-old Army veteran contacts our clinic seeking a discharge upgrade. He was discharged from the Army under “other than honorable” conditions twenty-three years ago. He had a good service record until he served a combat tour in Saudi Arabia during the first Gulf War. He comes back stateside, and begins having trouble sleeping, nightmares, and constant paranoia. In order to cope, he begins abusing narcotics. He is then administratively discharged from the Army and categorized as “dishonorable.” This characterization of discharge prevents him from getting VA benefits and medical care.

Under these facts, this veteran may be eligible for a discharge upgrade that would allow him access to additional VA benefits if he can prove that he developed PTSD as a result of his service to our nation.  The evidentiary issue becomes proving that he had PTSD years ago. It is understandably harder to prove you were suffering from a disorder back then without being able to go back in time and perform a diagnostic test with a physician on your younger self.

However, new clinical findings that show a link between traumatic brain injuries (TBIs) and PTSD might give veterans a new way to create this evidentiary link.[2]  “Traumatic brain injury usually results from a violent blow or jolt to the head or body. An object penetrating the skull, such as a bullet or shattered piece of skull, also can cause traumatic brain injury.”[3]

A study conducted by researchers at a Marine Corp base in southern California and the Veteran’s Affairs San Diego Medical center have concluded that “[e]ven when accounting for pre-deployment symptoms, prior TBI, and combat intensity, TBI during the most recent deployment is the strongest predictor of post-deployment PTSD symptoms.”[4]

This is an especially concerning conclusion given the increased occurrence of TBIs during combat in recent years.

Pervasive use of improvised explosive devices (IEDs), rocket-propelled grenades, and land mines in the Iraq and Afghanistan theaters has brought TBI and its effect on health outcomes into public awareness. Blast injuries have been deemed signature wounds of these conflicts, with an estimated 52% of deployment-related TBI cases caused by IEDs. Of Operations Enduring Freedom, Iraqi Freedom, and New Dawn service members, approximately 10% to 20% reported mild TBI or concussion, and nearly 60% of those reported exposure to more than 1 blast.[5]

 

If veterans have medical records that show they were subjected to explosions or concussions during their military service, these records can be used as evidence that they likely suffered from PTSD years ago after the traumatic brain injury occurred in petitions to discharge review boards. Even if a veteran’s petition has been denied in the past, this study could qualify the evidence as “new and material” evidence that would allow the petition to be reconsidered.

If you were denied a discharge upgrade for lack of evidence of PTSD that was service related, it could be beneficial to re-examine your medical records for evidence of a TBI.

 


[1] National Institute of Mental Health, Post-Traumatic Stress Disorder. February 2016. https://www.nimh.nih.gov/health/topics/post-traumatic-stress-disorder-ptsd/index.shtml#part_145373

[2] Jon Hamilton, War Studies Suggest A Concussion Leaves The Brain Vulnerable To PTSD, Sep 26, 2016. http://www.npr.org/sections/health-shots/2016/09/26/495074707/war-studies-suggest-a-concussion-leaves-the-brain-vulnerable-to-ptsd

[3] Mayo Clinic, Traumatic Brain Injury. http://www.mayoclinic.org/diseases-conditions/traumatic-brain-injury/basics/definition/con-20029302

[4] Yurgil KA et al., Association Between Traumatic Brain Injury and Risk of Posttraumatic Stress Disorder in Active-duty Marines, 71 JAMA PSYCHIATRY 149–157 (2014). http://jamanetwork.com/journals/jamapsychiatry/fullarticle/1785175

[5]Id. at 150.