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Fix to obsolete law may cloud benefits process

Most everyone admits that the military disability retirement system is confusing, but Congress fogged the process even further by trying to fix a law that had already been fixed 30 years ago, and possibly making it harder for troops to get their benefits.

Those who are injured or fall ill on active duty are automatically eligible for disability benefits if they’re serving in good standing and the illness is not considered to have existed prior to their joining the military.

But Congress realized many injuries or illnesses labeled pre-existing by the military later are ruled service-connected by the Veterans Affairs Department.

Here’s why: VA requires “clear and unmistakable evidence” that an injury or illness existed before a veteran joined the military; absent such evidence, the injury should be presumed to be service-connected.

But the Defense Department generally requires merely a “preponderance of evidence” — a more lenient standard from the military’s perspective.

Lawmakers decided to fix this by changing a law that states members must have at least eight years of service before they are eligible for disability benefits for pre-existing conditions. The goal was to reduce that threshold to six months of service.

But in trying to do that, the legal eagles in Congress looked at the wrong statute — they “fixed” a 1946 law that said a member had to be in service for at least eight years to get medical care for injuries not directly related to duty. Under that law, if you had less than eight years and wrecked your car off duty, for example, you had to pay for your own care.

But Congress already revised that law in 1978 to say that troops are eligible for care for any reason as soon as they enter active duty, as long as they aren’t absent without leave or negligent when hurt.

Essentially, the 2008 “fix” now mandates that troops must have at least six months of service before they can get care for injuries or illnesses not incurred in the line of duty.

Mike Hayden, deputy government relations director for the Military Officers Association of America, said it looks as though the six-month rule will not apply because it changed a law that was already obsolete.

But still another “fix” is needed. In their recent action on the obsolete law, lawmakers also tried to revise the Defense Department standard requiring that for a condition to be labeled pre-existing, the ruling must be based on “well-established medical principles, as distinguished from personal medical opinion alone.”

Congress changed that to: “unless evidence or medical judgment is such to warrant a finding.” That may make it easier for the military to rule that a medical issue is pre-existing and thus not worthy of benefits — the opposite of the intent of the “fix.”

Hayden said Congress is waiting on a recommendation from defense officials on wording for the “clear and unmistakable evidence” issue, and will address the glitch in the 2009 defense authorization bill.