War, Its Background and Context: Vital National

Health Care Systems — New Challenges

Extensive media coverage of the nation’s response to
Aftermath, and its obligation to furnish health care for service mem-
bers wounded in current overseas conflicts in Iraq and

U.S. Health Afghanistan has elevated public consciousness of the

importance of the U.S. military and veteran’s health
care systems to a level not seen since the end of the

Policy: Toward a Vietnam War.1 The number of casualties of U.S. mili-

tary engagements has varied in each specific conflict
and is a direct result of both the type of battle and
Comprehensive the military’s ability to handle battlefield injuries (see
Table 1).2

Health Program The sporadic overseas military operations in the

years following the fall of Saigon were of relatively
short duration and produced few battlefield casual-

for America’s ties. U.S. military and political strategy implemented

in the late 1970s and 1980s sustained a dominant U.S.
power-projection capability that achieved a remark-
Military able, albeit nearly silent, victory over the Soviet Union
to end the Cold War. The health policy significance

Personnel, of this peacefully secured Cold War outcome is not

widely appreciated. The number of potential casual-
ties from an open-ocean naval confrontation between

Veterans, and U.S. and Soviet fleets, and/or an all-out land and air
war in Europe or elsewhere (involving entire army
divisions and air wings), could have overwhelmed the
Their Families treatment capacity and resources of the Department
of Defense (DoD), other federal health programs, and
civilian health systems. Instead of having to face the
Michael J. Jackonis, aftermath of such a massive conflagration, the DoD
Military Health System (MHS) and the Department
Lawrence Deyton, and of Veterans Affairs (VA) Veterans Health Administra-
tion (VHA) were able to shift their focus in the 1990s
William J. Hess to support operations in regional conflicts in the Per-
sian Gulf, the Balkans, and Africa, thus improving the
quality and efficiency of each agency’s health care sys-
tems, developing and hardening response capabilities
in the event of acts of foreign and domestic terrorism,
and adjusting to the advent and rapid growth of pri-
vately purchased managed care arrangements.
Michael J. Jackonis, J.D., LL.M., Commander, U.S. Navy
Judge Advocate General’s Corps (Retired), is a former
Staff Judge Advocate for the National Naval Medical Cen-
ter in Bethesda, Maryland, and also served as Health Law
and Policy Counsel for the Surgeon General of the Navy.
Lawrence Deyton, M.S.P.H., M.D., is the Chief Public
Health & Environmental Hazards Officer, U.S. Department
of Veterans Affairs, in Washington, D.C., and is a Professor
of Medicine and Health Policy at George Washington Uni-
versity Medical Center, School of Public Health and Health
Sciences. William J. Hess, J.D., LL.M., Commander, U.S.
Navy Judge Advocate General’s Corps (Retired), is a former
Staff Judge Advocate for the National Naval Medical Center
in Bethesda, Maryland.

health care • winter 2008 677

S Y MPO SIUM
Table 1
Comparison of Service Member Fatalities by Conflict
Category WWII Korea
Total Deployed 16,112,566 5,720,000
Service Members
Deaths 291,557 33,741
Non-Battle 113,842 2,833
Deaths
Non-Fatally 671,846 103,284
Injured in
Combat
* From October 7, 2001 to June 2, 2007
More recently, both the MHS and the VHA have
been charged to execute the following: increase effi-
ciency and reduce costs within a federal government
no longer challenged with the need to counter a global
superpower;3 expand domestic health care delivery
systems for their beneficiaries; maintain military force
health readiness; and provide increasingly complex
casualty care in response to new worldwide opera-
tional requirements and the War on Terrorism. The
VA in particular, as the nation’s largest direct health
care provider, has achieved a remarkable transforma-
tion over the past 15 years driven by legislative changes
to VHA eligibility criteria4 with a simultaneous expan-
sion of primary health care services, the creation of a
comprehensive health benefit for eligible veterans,
increased diffusion of primary care closer to where
veterans live, and the implementation of a perfor-
mance-based quality assessment process linked with
a fully deployed electronic medical records system.5
These changes catalyzed a well-documented, rapid
expansion of enrollment of veterans into the VHA,
with significant improvements in the quality of care
as measured by multiple external benchmarks.6 Fur-
thermore, health care quality experts have for some
time looked to the VA’s remarkable success for signifi-
cant lessons applicable to the broader U.S. health care
system.7
Within the decade of VHA eligibility reform, expan-
sion of the number of veterans enrolled for health care,
and documented improvements in the quality of care
delivered, funding and capacity limitations of the VHA
system led to restrictions on access to VHA health care
to only those veterans meeting certain criteria.8 The
limitation of universal veteran eligibility for VHA care
may have significant implications for other federal
health care programs. Veterans, as a population, are
more likely to be homeless and to lack health insurance
or to be underinsured.9 Several factors contribute to
this, including difficulties encountered in transition-
ing from military to civilian employment, higher inci-
678 journal of law, medicine & ethics
Vietnam Gulf War 1 OEF-OIF*
3,403,000 694,550 1,400,000
47,424 147 3,086
10,785 235 806
153,303 467 27,122
dents of mental health and substance abuse problems
among veterans, and the lack of Medicaid eligibility
for single men. Thus, if VHA resources continue to be
restricted and are focused only on those veterans with
documented military service-connected health care
problems, then patients who use the VHA based solely
on low income will shift their health care needs to
other federal and state programs. VHA resources have
also been dedicated to programs to meet the health
care needs of returning warriors, including the under-
standing and treatment for those who have suffered
both severe and mild Traumatic Brain Injury (TBI)
and Post-Traumatic Stress Disorder (PTSD),10 the
need for prosthetics and burn care,11 and the increas-
ing health care requirements of young female veter-
ans.12 The increased reliance on National Guard and
Reserve combatant troops, and the increased near-
and long-term demands for their care, has added to
the challenges facing both the VHA and MHS13 and
may well have an impact on other federal health care
programs and the civilian health care system.
Although not widely appreciated, the availability of
appropriate health care for service members, veterans,
and their families14 is of vital matter to national secu-
rity, particularly in a nation that depends on voluntary
service.15 For this reason, assuring quality and har-
monization within the military and veteran’s health
systems, in conjunction with improved coordination
with other federal health care programs and the civil-
ian health care system, is now understood as a central
dimension of U.S. health reform.16 Indeed, the very
mission of President Bush’s Task Force on Return-
ing Global War on Terror (GWOT) Heroes17 included
evaluation of the adequacy of the delivery of federal
health care and other services to returning GWOT
veterans, identification of gaps in such services, and
filling service gaps through cooperative use of existing
resources, where possible.18
We review the essential structure of the military and
veterans’ health care systems and the major challenges
 Jackonis, Deyton, and Hess

facing each, including ongoing efforts at harmoniza-
tion and the significant opportunity for increased
coordination with the broader federal and private
health care systems on which the nation depends.
The Military Health System
The MHS has as its mission the concept of “Force
Health Protection,” which has been defined to
include:
All measures taken by commanders, super-
visors, individual Service members, and the
MHS to promote, protect, improve, conserve,
and restore the mental and physical well being
of Service members across the range of mili-
tary activities and operations. These measures
enable the fielding of a healthy and fit force,
prevention of injuries and illness and protec-
tion of the force from health hazards, and pro-
vision of medical and rehabilitative care to
those who become sick or injured anywhere in
the world.19
able in both military and Public Health Service (PHS)
facilities. CHAMPUS encompassed both in- and out-
patient care as well as pharmacy benefits that were
provided by civilian sources administered by private
parties under government contracts as a conventional
fee-for-service policy on a cost-sharing basis.
Following several demonstration programs con-
ducted during the 1980s designed to improve the
quality, efficiency, convenience, and cost-effectiveness
of providing health care services,26 Congress and the
DoD made numerous changes to CHAMPUS under
the authority of the CHAMPUS Reform Initiative
(CRI) of 1988.27 These changes grew out of the belief
that the system was “incapable of completing its dual
mission because it was not planned, designed or con-
structed to provide the care required.”28 The revised
program led to a series of reforms, implemented in
1993, whose purpose was to produce greater align-
ment of the MHS with the then-evolving concept of
managed care.
TRICARE, as the revised program was named,
incorporates the financial, practice management, and

We believe the goal of an optimal care

and delivery system for our nation’s military or veterans is incomplete without
consideration of the health care needs of their families at the various stages of
military career or veterans’ status. We do not recommend the military or VA
health care systems assume total responsibility for the care of family members,
but we do strongly endorse increased communication and coordination among
the DoD, VA, and HHS care systems in order to assure continuity of care
and program coordination so that the needs of members of the military or of
veterans and their families are met.

The concept of health care as a legislatively autho-
rized benefit of U.S. military service dates to an Act of
Congress in 1884.20 Over time, the MHS developed
in parallel to the expansion of employer-sponsored
health care benefits and federal government-spon-
sored health care entitlement programs.21 In 1956, the
Dependents Medical Care Act22 authorized the DoD to
provide civilian health care to eligible dependents of
military service members.23 Following several amend-
ments to that act, the Civilian Health and Medical
Program of the Uniformed Services (CHAMPUS) was
established in 1966 for active duty family members,24
and later for retired service members and their depen-
dents.25 This federally funded health benefits program
provided supplemental care to that which was avail-
provider network aspects of managed care with most
health care delivered directly at military treatment
facilities (MTF) — augmented by contracted civilian
network providers organized and overseen by pri-
vate contractors, much in the way that a self-insuring
employer utilizes large health benefit services com-
panies as third-party administrators.29 Active duty
service members are automatically enrolled in the
managed care program (TRICARE Prime), while
other beneficiaries may either voluntarily enroll in
TRICARE Prime, use the Preferred Provider Option
(PPO) (TRICARE Extra), or rely on the traditional
fee-for-service option (TRICARE Standard, formerly
CHAMPUS) that provides greater choice at greater
beneficiary cost.30

health care • winter 2008 679

S Y MPO SIUM

Since its creation, TRICARE has undergone several veterans who are eligible and enroll for VHA health
restructuring initiatives, including the following: (1)
service. But for all veterans, that aspiration has
re-alignment of TRICARE contractor regions in order yet to be fully realized. While the VA may have
to improve coordination and delivery of services;31 dramatically improved the quality of its care, some
(2) Base Realignment and Closure (BRAC) changes estimate that almost 2 million veterans are without
based on a systematic evaluation of the need for, and private health insurance, along with 3.8 million
targeted closure of, DoD facilities (including MHS members of their households.41
facilities), in light of mission requirements and with Once discharged from active duty, individuals sepa-
a direct impact on access to care;32 (3) the addition rated from the service (and their dependents) no lon-
of TRICARE for Life benefits in 2001 for Medicare- ger have access to continuing care within the MHS
eligible individuals;33 (4) and expansion of program unless they are eligible for either medical retirement
eligibility to Reservists (and their dependents) sup- or longevity retirement status; they instead must look
porting the GWOT through TRICARE Reserve Select to other sources of care, including the VA. Although
in 2005.34 These changes have all placed additional all veterans honorably discharged are generally eli-
burdens on the MHS, whose shortcomings were dra- gible to enroll for VA health care,42 the law assigns
matically exposed by the February 2007 Washington eligibility priorities43 for enrollment because funding
Post series.35 Significant deficiencies at Walter Reedfor veterans health is subject to an annual aggregate
Army Medical Center were revealed, such as substan- cap.44 Unlike Medicare or Medicaid, the VHA oper-
dard living conditions, inadequate management of ates through an annual aggregate appropriation rather
outpatient medical care, insufficient resources, and than in accordance with an open-ended entitlement
poor leadership by the wounded soldiers’ chain of funding authority that can automatically grow as the
command,36 thereby emphasizing the ongoing need to need grows.45
improve the MHS, beyond the commendable efforts Significantly, in 2003, the VA suspended enrollment
to date,37 by optimizing effective coordination of cur-
of higher-income veterans with no service connected
rently available resources.38 disability.46 The effects of this restriction have been
somewhat mitigated specifically to
allow veterans who served in the
Regardless of whether care is provided to Iraq and Afghanistan combat the-
aters with access to VHA care for five
military and veteran populations directly years regardless of their enrollment
through the MHS, the VA, the HHS category.47 Nonetheless, the all-vol-
entitlement or grant-funded programs, unteer military draws on younger,
working-age persons who dispro-
or the civilian sector, the need for comprehensive portionately come from households
health insurance coverage or a comprehensive with lower family incomes, thus
health care system for military and veteran resulting in an over-represented
lack of health insurance coverage
family populations must be addressed now. among veterans48 no longer eligible
for MHS care. Many of them are
members of working families that
The Veterans Health System earn too much to qualify for programs such as Medic-
The primary mission of the VHA is “to serve the aid or VA health care,49 yet earn too little to be able to
needs of America’s veterans by providing primary afford private coverage. Furthermore, other barriers
care, specialized care, and related medical and to care include variable waiting lists at VA health care
social support services.”39 Perhaps its most eloquent facilities, co-payments for VA specialty care (required
proponent was President Abraham Lincoln who of some higher-income enrolled veterans), and sig-
emphasized the nation’s duty “to care for him who nificant geographic distance to a VA facility in their
shall have borne the battle and for his widow, and community.50
his orphan.”40 As it pertains to veterans’ health In sum, with a focus of the needs of the entire popu-
care, President Lincoln’s words are an expression of lation of veterans in the U.S. — the target of President
a national covenant with those who serve — long Lincoln’s pledge — and despite the comprehensive and
adopted as the VA’s motto. That motto remains high quality of care provided for those veterans who
the VA’s fundamental aspiration and has witnessed are enrolled, the VHA system has significant gaps.
dramatic improvements in recent years for those That system is neither designed nor funded to meet the

680 journal of law, medicine & ethics


needs of the entire U.S. veteran population nor is the
VA health care system authorized to adopt a veteran-
centric holistic view of integrated health care which
includes attention to the spectrum of family-related
health care issues that might have direct impact on
veterans’ health. In addition, the widespread lack of
private or employer-based health insurance coverage
among veterans as a population speaks to a troubling
inequity which may exist in veterans’ families: veter-
ans may have access to health care through the VA
system while their family members are un- or under-
insured. This inequity has likely increased as veteran
enrollment in the VHA for health care has risen in the
last 10 years. This increase has been fueled in part by
the VA’s response to its Capital Asset Realignment for
Enhanced Services (CARES) Decision Report,51 which
pointed out the need for a major increase in primary
health care capacity.52 Among other recommenda-
tions, the report called for an expansion of access to
care through Community-Based Outpatient Clin-
ics (CBOCs)53 — i.e., outpatient primary care access
points located in areas with a high concentration of
veteran populations, and within 1-2 hours from VA
Medical Centers. In response, the VA has increased
the number of CBOCs, now with over 850 such clinics
placed in many communities in the nation. However,
the report also recommended collaboration with other
federal health care delivery systems, with particular
emphasis on the use of contracting as a legitimate tool
for enhancing services and as a means of overcom-
ing access constraints; it also specifically addressed
improving access to care for persons with serious and
chronic physical and mental conditions.54 Despite
the increased penetration of VA health care in many
communities in the nation by the increased number
of CBOCs, the VA recently recognized that veterans
living in very rural or remote areas of the nation con-
tinue to lack the access to VA health care that they are
promised.55
Challenges in Health Reform
We identify several challenges in assuring that health
reform adequately responds to the needs of persons
who are members of the military or veterans and their
families. These challenges all point to the immediate
need to expand coordination among the DoD, VA, and
HHS health systems. This expansion would optimize
ongoing access to, and, as necessary, reintegration of
patients into, a continuum of comprehensive family-
centered care (to include oral and behavioral health,
and enabling services) in a quality-driven, technology-
enabled system that expands coverage and responds
to the chronic care needs of the unique military and
veteran patient populations, including those with
health care • winter 2008 681
Jackonis, Deyton, and Hess
complex medical and/or behavioral health conditions.
We are concerned that health system reform efforts
focused on providing only normative coverage will fail
to address the pressing need for comprehensive and
coordinated care owed those who have made great
sacrifices for the security of the nation. Importantly,
we believe the goal of an optimal care and delivery sys-
tem for our nation’s military or veterans is incomplete
without consideration of the health care needs of their
families at the various stages of military career or vet-
erans’ status. We do not recommend the military or
VA health care systems assume total responsibility for
the care of family members (more than already exists
in the current systems), but we do strongly endorse
increased communication and coordination among
the DoD, VA, and HHS care systems in order to assure
continuity of care and program coordination so that
the needs of members of the military or of veterans
and their families are met.
1. Reducing the Pervasive Number of Uninsured
Persons by Assuring Care for All Service Members,
Veterans, and Family Members
The conclusions of several recent studies and com-
missions56 support the need for greater collabora-
tion among the DoD, VHA, and HHS, with the goal
of expanding primary and specialty care, not just for
service members and veterans, but for all members
of their families (including family members who may
not qualify for coverage based on meeting eligibility
criteria, but nonetheless should be included in a com-
prehensive and holistic approach to family-centered
health care). Even the best military and veterans sys-
tems cannot cope with the present numbers of unin-
sured (non-eligible) family members and veterans
without limiting access to services and risking pos-
sibly lowered quality.57 Regardless of whether care is
provided to military and veteran populations directly
through the MHS, the VA, the HHS entitlement or
grant-funded programs, or the civilian sector, the
need for comprehensive health insurance coverage or
a comprehensive health care system for military and
veteran family populations must be addressed now.
We propose directing efforts at the Agency Secretary
level towards the goal of seamless delivery of compre-
hensive health care to those who serve, and the mem-
bers of their families, through significantly improved
coordination, communication, and harmonization of
current programs under the auspices of not just the
DoD and VA, but also by programs funded by HHS.
Eligibility for coverage of military dependents as cur-
rently defined58 does not necessarily provide cover-
age to all members of a service-member’s immediate
family, only eligible and enrolled dependents. And
S Y MPO SIUM

once a service member is discharged from military on Young Men Found Unqualified for Military
service, for the majority, family health care coverage Service. This study analyzed the underlying
ceases. To meet the growing health care demands of causes of the astounding 50 percent rejection
this population, a comprehensive integration of the rate among the young men drafted into the
existing resources is needed. This will necessitate military in 1962. It documented pervasive
development of new methods to coordinate delivery of evidence of treatable and correctable physi-
comprehensive preventive and primary care within a cal, mental, and developmental conditions,
seamless and accessible system for the individuals and and its findings influenced the course of Med-
their families who provide for our national defense. icaid legislation for children, particularly the
On a superficial level, there exists a multiplicity of comprehensive coverage available to children
health care and health insurance programs in which under the EPSDT60 program. This 1964 report
active duty service members, retirees, their families, remains relevant in a modern era of national
and veterans may participate. Yet this current patch- security concern and serves to underscore
work of various federal and state health care programs, Medicaid’s ongoing importance to children and
administered by separate agencies with varying eli- adolescents.61
gibility regulations and policies depending on age,
military or dependent status, income, geography and However, the availability of Medicaid coverage
other parameters, and the confusing plethora of ever- addresses only the lack of financing barrier to access-
changing rules and applications, leaves access to health ing affordable comprehensive health care. Without a
care fragmented and often impenetrable for many market of participating providers, insurance status is
members of military and veteran households. There irrelevant. In addition to the DoD and VA health care
is much more to be done to fulfill President Lincoln’s systems, the federal government also provides a health
pledge, and the DoD, VA, and HHS have significant care safety net based in part on Federally Qualified
existing capabilities and resources that can improve Health Centers (FQHCs) located nationwide in rural
access to care through improved collaboration. and urban Medically Underserved Areas (MUAs)
A number of military families rely
on Medicaid to supplement their
MHS benefits and need access to
Medicaid providers. Research has
Our obligation to sick or wounded military
verified personnel does not end with evacuation from the
battlefield. Rather, the goal must be to ensure the
Medicaid’s importance to chil-
dren in military families, all of
best continuum of care from the point-of-injury
whom have basic health insur- on the battlefield to reintegration into the civilian
ance coverage through TRI- community.
CARE. Medicaid covers one in
12 military children, and one in
9 military children with special
and Health Professionals Shortage Areas (HPSAs).62
health care needs. Compared to civilian chil-
There are approximately 1,100 such health centers
dren with special health care needs who have
serving 17 million people (6 million who have no
private health insurance, military children
health insurance) through 6,000 sites located in all of
are more dependent on Medicaid. Among
the 50 states, Puerto Rico, the District of Columbia,
the former group, 9 percent have Medicaid,
the U.S. Virgin Islands, and Guam.63
while among the latter; the figure stands at 11
Most FQHCs receive grants under Section 330
percent.59
of the Public Health Service Act64 from the Bureau
of Primary Health Care (BPHC) within the Health
From the national security perspective,
Resources and Services Administration (HRSA) of
HHS. These grants are intended to cover the other-
Medicaid has touched the lives of half of all of
wise uncompensated costs of providing comprehen-
the low income young adults of prime military
sive preventive and primary care (including oral and
service age. The roots of Medicaid’s unique
behavioral health services) and of enabling services
child health eligibility and coverage policies
(e.g., translation, transportation, case management).
can be traced to a seminal, 1964 government
Apart from federal grant funds, these facilities rely
study entitled One Third of a Nation: A Report

682 journal of law, medicine & ethics


in large part on Medicaid coverage for the patients in
their care.65 FQHCs are eligible for additional fund-
ing to provide care to targeted special populations,
including Health Care for the Homeless programs,
and through affiliations with other providers, includ-
ing academic medical centers.66
Comprehensive primary care (including oral and
behavioral health) has long been recognized as a foun-
dation of military readiness,67 and an essential compo-
nent of the MHS mission of Force Health Protection.
MTFs and VA facilities provide access to medical, den-
tal (though the VA’s dental benefit is limited only to
conditions directly related to those of military service),
behavioral and specialty care, as well as pharmacy, lab-
oratory, and imaging services in an integrated delivery
model to the distinct populations they serve. How-
ever, the import of that concept reaches beyond the
need to care for active duty members and dependents,
or veterans. Access to primary care thus has a direct
impact on the nation’s long-term ability to sustain a
capable fighting force because military families pro-
vide an important source of recruits.68 Many potential
recruits are influenced by the experience of veterans
in their families and communities — notably how they
were treated both in, and after, their service.69
The integration of comprehensive primary and spe-
cialty care with enabling social services for the elderly
has likewise received greater federal and state atten-
tion and support, including expansion of the Program
of All-Inclusive Care for the Elderly (PACE)70 program
for certain Medicare and/or Medicaid eligible benefi-
ciaries that offers a model for expanding outpatient
care and other services to elderly veterans.71 Addi-
tional collaboration among the DoD, VA, and HHS
to integrate community health centers as VA CBOCs,
VA long-term care and nursing home programs, TRI-
CARE Participating Providers (including TRICARE
Prime Remote), and PACE Providers, offers a con-
ceptual model72 for developing a truly comprehensive
system to deliver care to service members, veterans,
their dependents, and their otherwise non-eligible
family members. There is increasing support for such
efforts,73 encouraged by the fact that there are health
centers in or near all 59 priority locations identified in
the CARES Report for CBOC locations. The addition
of CBOCs through existing FQHCs would significantly
increase access to primary care for eligible veterans
consistent with the mission of FQHCs and President
Bush’s Health Centers Initiative.74
Expanding enrollment is an essential component
of VA efforts to develop and improve delivery of care.
According to the GWOT Task Force Report, “There
are approximately 24 million veterans living today
and about twenty-one percent of the Nation’s popula-
health care • winter 2008 683
Jackonis, Deyton, and Hess
tion — approximately 61 million people — is poten-
tially eligible for VA benefits and services because
they are veterans, eligible family members, or survi-
vors of veterans.”75 About 8 million76 eligible veterans
are enrolled for VA health care in FY 2007. However,
there are approximately 16 million77 not affiliated
with the VA. The numbers of military and retiree
household members without coverage and/or access
to adequate health care is unknown. We recommend
that the Centers for Disease Control and Prevention
(CDC) (and/or the VA/MHS) conduct surveillance for
health coverage of the military and veteran popula-
tions representing the eligible veterans coverage “gap,”
and the ineligible household members, to track them
and assure they have some kind of health care, either
through employers, Medicaid/Medicare, or enroll-
ment in an FQHC.
2. Assuring a System of Care That Can Coordinate
Access to Comprehensive Short- and Long-Term Care
for Persons with Serious and Chronic Physical and
Mental Health Conditions
The current conflicts in Iraq and Afghanistan present
new challenges for the MHS and VHA to transition
sick and wounded service members from active ser-
vice and then reintegrate them into civilian society.
Of the 837,000 service members deployed to Iraq and
Afghanistan who left military service as of November
2007, nearly 40% (324,846) have sought health care
from the VA. Of these, their initial VA visits include
health care utilization related to musculoskeletal issues
for 46% and mental health for 41%.78 An important
but small number of these returning veterans are seri-
ously injured with polytrauma and/or traumatic brain
injury which require intensive medical intervention
and long-term rehabilitation and social/family sup-
port. This is in large part because delivery of battle-
field care to the wounded has been extraordinarily
successful due to improvements such as the Joint
Theater Trauma system, state of the art evacuation
system, improved body armor, and the one-handed
tourniquet, with a survival rate of over 90 percent, the
highest in the history of warfare.79 But our obligation
to sick or wounded military personnel does not end
with evacuation from the battlefield. Rather, the goal
must be to ensure the best continuum of care from the
point-of-injury on the battlefield to reintegration into
the civilian community.80
The extraordinary successes in battlefield care
and evacuation have had unexpected consequences.
Because so many service members who previously
would have died on the battlefield can now be saved
and evacuated stateside, MTFs in the United States
quickly reached and exceeded their intended capacity
S Y MPO SIUM

to care for the wounded.81 In early 2007, the Walter
Reed Army Medical Center was receiving two dozen
soldiers each week, each of whom remained an aver-
age of 297 days (active duty members), and 317 days
(Reserve and National Guard).82 The large influx
of wounded placed a burden on the MHS it was not
prepared to efficiently handle. It quickly became
apparent that the system and implementing regula-
tions that were developed and put into practice before
the GWOT to facilitate non-medical and transition
support were inadequate. The bureaucracy, rules,
regulations, procedures, and paperwork simply over-
whelmed scores of wounded troops at a time of injury/
illness when they were most vulnerable and least able
to navigate the complex system. This resulted in frus-
tration and confusion at the national level.
In an all volunteer force, military personnel elect
to forego civilian careers and choose to make their
livelihood by service to country. Many are heads of
households, whose families have become accustomed
to military pay and benefits, including health care in
result is often confusion for service members and their
families.87
The DoD Disability Evaluation System reviews
medical documentation and professional perfor-
mance information to assess the impact of an unfit-
ting medical condition on the service member’s abil-
ity to reasonably perform the duties of office, grade,
rank, or rating.88 The member is provided a disability
rating for the unfitting condition(s) based on a fixed
point in time, expressed in terms of percentage of dis-
ability. The DoD disability rating, once determined
and assigned, does not change.89 This disability rating
is the key determinant of entitlement to DoD separa-
tion or retirement benefits: a rating of 30% disability
and above results in a medical retirement and lifelong
benefits associated with a longevity retirement from
active duty,90 while a rating of less than 30% disabil-
ity results in a one-time severance payment based on
grade and years of service and entitlement to care
from the VHA, but not the MHS. Wounded service
members who are processed through the DoD Dis-

The goal of providing seamless delivery of affordable

comprehensive primary health care (including behavioral and oral health
care), specialty care, and inpatient care to those who serve and have served,
and their family members supporting their service, is achievable through
improved coordination, communication, and harmonization of current
programs. The challenge is to facilitate successful integration of existing
capabilities, and expand the implementation of models to deliver a continuum
of comprehensive care to our nation’s heroes and their families.

the MHS. When faced with an injury that portends
to end their military career, they are understandably
apprehensive about pay and benefits in the civilian
sector, and they naturally want to ensure the maxi-
mum level of financial and other DoD and VA benefits
available. Unfortunately, the demands resulting from
the greater number of individuals in need of evalua-
tion and treatment for service-connected disabilities
have placed added strain on the MHS.83 Under cur-
rent law, the DoD and VA have two separate benefit
and compensation systems intended to accomplish
different objectives. Both are not easily understood,84
as each administers its disability evaluation program
under different standards and with different objec-
tives.85 Complicating matters further, both systems
express determinations in terms of “percentages of
disability” that are also calculated differently.86 The
ability Evaluation System have a strong incentive to
obtain at least a 30% rating.
In contrast, the VA rates any disabilities that resulted
from any diseases or injuries encountered as a result
of, or incident to, military service as a measure of the
reduction of civilian employability.91 The VA consid-
ers all disabling conditions, not just those that render
the member unfit for continued military service. If the
medical condition worsens after discharge, then the
VA rating, expressed in a percentage of disability, can
be raised. While both the DoD and VA use the Veter-
ans Administration Schedule for Rating Disabilities
(VASRD), the percentage of disability rating is often
different between the two systems92 with the VA issu-
ing higher average ratings at almost all levels. Within
the DoD, the Navy and Air Force tend to rate a higher
proportion of their service members at or above 30%

684 journal of law, medicine & ethics


(entitling them to lifetime benefits) than the Army or
Marines.93
These differences are due to a variety of reasons.
First, the DoD Disability Evaluation System is con-
cerned solely with determining fitness for continued
service and thus rates only the unfitting condition. The
VA examines all disabilities encountered as a result of,
or incident to, military service whether they are ser-
vice unfitting or not. Second, the DoD endeavors to
compensate a member for the loss of a military career,
while the VA looks to the average impairment in earn-
ing capacity in civilian occupations. Finally, the medi-
cal evidence generated for the evaluation of percentage
of disability is derived differently by the two agencies.
In the VA, a highly structured compensation and pen-
sion disability examination takes place with the sole
objective of determining the correct evaluation. In the
DoD, various physicians who treat a service member’s
illness or injury during the entire period of service are
also responsible for producing medical evidence used
to rate the disability.94
The problems associated with the complexity and
variability between the competing disability evalua-
tion systems has been a topic of interest to a number
of high profile studies including the President’s Com-
mission on Care for America’s Returning Wounded
Warriors, the Veterans Disability Benefits Commis-
sion, the Department of Veterans Affairs’ Task Force
on Returning Global War on Terror Heroes, and the
Independent Review Group that was established
by the Secretary of Defense following the Walter
Reed Army Medical Center revelations. The average
wounded service member being processed through
the DoD Disability Evaluation System does not know
the reason for the differences in percentages of dis-
ability assigned by the DoD and VA. But he or she is
keenly aware that the VA percentage of disability rat-
ings are invariably higher than the military’s, and that
the military has an incentive to keep the disability rat-
ing below 30%.95
Unfortunately, these two systems developed sepa-
rately and have separate statutory foundations. Thus,
eliminating the frustration, confusion, and bitterness
created by the current dual-rating systems requires
significant revision of the statutes themselves. In an
effort to find solutions short of legislative amend-
ments, the DoD and the VA have begun a joint Dis-
ability Evaluation System (DES) pilot program96 for
disability cases originating at the three major military
treatment facilities in the National Capitol Region
(Walter Reed Army Medical Center, National Naval
Medical Center Bethesda, and Malcolm Grow Medical
Center). Their goal is to eliminate such confusion by
health care • winter 2008 685
Jackonis, Deyton, and Hess
instituting a single-source medical examination and
single-source disability rating.97
Under the DES pilot program, the DoD will conduct
comprehensive, DVA protocol-based, general medical
and specialty medical examinations that will serve the
needs of the Military Department Physical Evaluation
Boards in determining a service member’s fitness for
continued military service; it will also serve the needs
of the DVA Rating Board in determining the appropri-
ate disability rating to be awarded to a service member
for military unfitting and member-claimed medical
conditions incurred or aggravated as the result of mili-
tary service.98 As noted by Deputy Secretary of Defense
Gordon England, the pilot program takes “the Depart-
ment of Defense out of the disability rating business so
that DoD can focus on the fit or unfit determination.”99
However, problems remain. Although the DoD will
now accept the VA pilot program disability rating as
the basis for determining the service member’s final
DoD disposition (separation with disability severance
pay or disability retirement), once the service member
receives a rating for all claimed conditions, the overall
VA rating may well be higher than that assigned by
the military.100 Obviously, much more remains to be
done.
A Call to Action: Improve Alignment and
Coordination among Federal Resources
The U.S. Departments of Defense, Veterans Affairs,
and Health and Human Services have substantial
existing resources and health care delivery models
already in place to address the comprehensive health
care needs for active duty service members, retirees,
veterans, their dependents, and other immediate fam-
ily members. Those current programs require both
the leadership and authority to expand access to, and
improve the continuity and quality of, health care
delivery for these people. The goal of providing seam-
less delivery of affordable comprehensive primary
health care (including behavioral and oral health
care), specialty care, and inpatient care to those who
serve and have served, and their family members sup-
porting their service, is achievable through improved
coordination, communication, and harmonization of
current programs. The challenge is to facilitate suc-
cessful integration of existing capabilities, and expand
the implementation of models to deliver a continuum
of comprehensive care to our nation’s heroes and their
families. The secretaries of all three departments must
embark on a more ambitious effort at coordination of
their existing resources.
S Y MPO SIUM
Acknowledgements
The opinions expressed herein are those of the authors and do
not represent those of the U.S. Department of Defense, the U.S.
Department of Veterans Affairs, the U.S. Department of Health
and Human Services, the United States Navy, George Washington
University, or the law firm of Feldesman Tucker Leifer Fidell LLP.
References
1. See e.g., S. Vogel, “Overhaul Urged in Care for Soldiers: Dole-
Shalala Commission Wants Bush to Act Quickly,” Washington
Post, July 26, 2007, at A01.
2. Military Casualty Information, available at <http://siadapp.
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ited August 21, 2008).
3. Defense Base Closure and Realignment Commission, Final
Report, September 8, 2005, available at <http://www.brac.
gov/finalreport.html> (last visited August 21, 2008) [herein-
after cited as Final Report].
4. In 1995, the Veterans Health Administration (VHA) initiated
a groundbreaking and successful redesign of the veterans’
health care system with an overall goal of ensuring high-qual-
ity care throughout the system. See K. W. Kizer, “Prescription
for Change: The Guiding Principles and Strategic Objectives
Underlying the Transformation of the Veterans Healthcare
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5. Id.
6. Kaiser Foundation, “Background Brief: Military and Veterans
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8. See Department of Veterans Affairs, Office of Inspector Gen-
eral, Review of Access to Care in the Veterans Health Adminis-
tration, May 17, 2006.
9. According to the National Alliance to End Homelessness,
“Convergent sources estimate that between 23 and 40 per-
cent of homeless adults are veterans. The U.S. Department of
Veterans estimates that as many as 200,000 homeless people
are veterans, and that over the course of the year, approxi-
mately 336,627 veterans experience homelessness.” National
Alliance to End Homelessness, “Homeless Policy Focus Areas:
Veterans,” available at <http://www.naeh.org/section/policy/
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10. See Statement of Vice Admiral Adam M. Robinson, USN, MC,
Surgeon General of the Navy, before the Subcommittee on
Military Personnel of the House Armed Services Committee,
Update on Navy Medicine’s Efforts in Support for Wounded,
Ill and Injured Service Members, February 15, 2008; Assis-
tant Secretary of Defense (Health Affairs), Traumatic Brain
Injury and Post-traumatic Stress Disorder Quick Facts Infor-
mational Sheet for Military Members, July 2, 2007; United
States House of Representatives, Committee on Veterans
Affairs – Democratic Staff, Review of Capacity of Department
of Veterans Affairs Readjustment Counseling Service Vet Cen-
ters, October 2006.
11. Committee on Medical Evaluation of Veterans for Disability
Compensation Board on Military and Veterans Health, A
21st Century System for Evaluating Veterans for Disability
Benefits, Institute of Medicine of the National Academies,
Washington, D.C., 2007, at 48, available at <http://www.
vetscommission.org/> (last visited August 21, 2008) [herein-
after cited as Committee on Medical Evaluation]: “According
to the head of Disabled American Veterans, as of February
2007, there were 553 amputees from OIF/OEF who had lost
686 journal of law, medicine & ethics
one or more arms, legs, hands, and/or feet. Almost a quarter
[128] suffered multiple amputations [U.S. Congress, Sen-
ate and House of Representatives, Committees on Veterans’
Affairs, 2007a]. More than 400 OEF/OIF veterans had suf-
fered major burns by 2006 [Kupersmith, 2006].” See, e.g.,
Wounded Warrior Project, “Creation of Amputee Centers,”
available at <https://www.woundedwarriorproject.org/con-
tent/view/491/900/> (last visited August 21, 2008): “The
biggest problem currently facing the VA’s prosthetics program
is that there is no system-wide consistency and coordination
from medical center to medical center.”
12. Id. (Committee on Medical Evaluation), at 32 (“VA expects
the percentage of women veterans to double during the next
25 years, from about the current 7 percent to 14 percent in
2032.”); see e.g., R. Kaye and I. Estrada, “Female Veterans
Report More Sexual, Mental Trauma,” CNN.com, March 19,
2008, available at <http://www.cnn.com/2008/US/03/19/
women.veterans/index.html> (last visited August 21, 2008).
13. J. H. Pendleton, Testimony before the Subcommittee on
national Security and Foreign Affairs, “DoD and VA: Pre-
liminary Observations on Efforts to Improve Health Care
and Disability Evaluations for Returning Service Mem-
bers,” September 26, 2007, at 6 (GAO 07-1256T), avail-
able at <http://nationalsecurity.oversight.house.gov/docu-
ments/20070926135646.pdf> (last visited August 21, 2008).
14. For purposes of this article, we intend an expansive meaning
of the “family” to include individuals who may share house-
holds, but generally are not currently included within the
definitions of “eligibility” and/or “dependents” for purposes
of health care coverage (e.g., mothers and fathers-in-law,
stepchildren).
15. See S. Hosek and G. Cecchine, “Reorganizing the Military
Health System: Should There Be a Joint Command?” Rand
Corporation, 2001, available at <http://www.rand.org/pubs/
monograph_reports/MR1350/> (last visited August 21,
2008); P. Shin, S. Rosenbaum, and D. R. Mauery, “Medicaid’s
Role in Treating Children in Military Families,” Robert Wood
Johnson Foundation, October 2005, available at <http://
www.gwumc.edu/sphhs/healthpolicy/chsrp/downloads/Med-
icaid_military_102405.pdf > (last visited August 27, 2008).
16. See Task Force on the Future of Military Health Care
Final Report, available at <http://www.dodfuturehealth-
care.net/images/103-06-2-Home-Task_Force_FINAL_
REPORT_122007.pdf> (last visited August 21, 2008).
17. Report of the Task Force on Returning Global War on Terror
Heroes, April 19, 2007, available at <http://www1.va.gov/task-
force/page.cfm?pg=4> (last visited August 21, 2008) [herein-
after cited as GWOT Task Force Report]. The term “Global
War on Terror” generally refers to Operation Enduring Free-
dom (OEF) in Afghanistan, and Operation Iraqi Freedom
(OIF), among other operations worldwide. See “Authoriza-
tion for Use of Military Force” (Public law 107-40), September
18, 2001, which states “[t]hat the President is authorized to
use all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on
September 11, 2001.”
18. Id. See also Recommendation O-9, at 64: “Provide Outreach
and Education to Community Health Centers.”
19. DoD Directive 6200.04.
20. 23 Stat. 112 (directing that “Medical officers of the Army and
contract surgeons shall whenever possible attend the families
of the officers and soldiers free of charge.”).
21. See M. J. Jackonis, Jr., “Considerations in Medicare Reform:
the Impact of Medicare Preemption on State Laws,” Annals of
Health Law 13, no. 179 (Winter 2004): 182-195.
22. This expanded health care program for DoD dependents was
originally called “Medicare” until the Social Security Admin-
istration adopted the name for the federal health insurance
program for the elderly and disabled.
23. Eligibility is determined by regulations promulgated by the
Service Secretaries and requires enrollment in the Defense

Eligibility Enrollment System (DEERS). DoD Directive
1341.1. Retirees and dependents eligible for MHS care are
transferred to Medicare as their primary coverage at age 65.
24. October 1, 1966.
25. January 1, 1967.
26. H.R. Rep. No. 99-718, at 237 (1986).
27. GAO, “CHAMPUS Reform Initiative: Unresolved Issues,”
GAO T-HRD-87-4, March 12, 1987, available at <http://
www.gao.gov/docdblite/info.php?rptno=T-HRD-87-4> (last
visited August 21, 2008).
28. S. Rep. No. 99-331, at 243-44 (1986).
29. TRICARE Program, 10 U.S.C. Chapter 55; 32 C.F.R. §
199.17(a)(6)(ii).
30. TRICARE Program, 10 U.S.C. Chapter 55; 32 C.F.R. §
199.17(a)(6)(ii).
31. See <http://www.tricare.mil/tma/AboutTMA.aspx> (last vis-
ited August 27, 2008).
32. Title II of the Defense Authorization Amendments and Base
Closure and Realignment Act (Pub. L. 100-526, 102 Stat.
2623, 10 U.S.C. § 2687 note), or the Defense Base Closure and
Realignment Act of 1990 (Pub. L. 100-526, Part A of Title
XXIX of 104 Stat. 1808, 10 U.S.C. § 2687 note). See Final
Report, supra note 3.
33. Section 712 of the Floyd D. Spence National Defense Autho-
rization Act for Fiscal Year 2001.
34. 10 U.S.C. § 1076b (TRICARE program: TRICARE Standard
coverage for members of the Selected Reserve).
35. D. Priest and A. Hull, “Soldiers Face Neglect, Frustration at
Army’s Top Medical Facility,” Washington Post, February 18,
2007, at A01.
36. Statement of Subcommittee Chairman Vic Snyder, Military
Personnel Subcommittee Hearing on Walter Reed before the
House Armed Services Committee, June 26, 2007.
37. See Statement of Lieutenant General Eric. B. Schoomaker,
MC, Surgeon General of the Army, before the Subcommittee
on Military Personnel of the House Armed Services Commit-
tee, Army Medical Action Plan, February 15, 2008. care facility.
38. At the core of any viable health system is the ability to sustain
access to affordable qualified health care providers. This is
particularly true for the MHS, which relies heavily on a direct
care delivery model using Military Treatment Facilities. This
system must be able to attract, recruit, and retain providers,
which can often involve a significant service obligation com-
mitment. While beyond the scope of this article, the effect on
provider recruiting and retention from the demands placed
on the MHS system must be considered in any comprehensive
reform proposals. U.S. military operations in support of the
GWOT have created — and will continue to create — addi-
tional challenges to ensuring access to primary and specialty
care services. See L. M. Colarusso and B. Bender, “Pentagon
Fears Healthcare Costs Will Erode Readiness: Aging Popula-
tion Is Driving Up Fees,” Boston Globe, March 5, 2007; M.
Croasdale, “Military Doctor Recruiting Takes Wartime Hit: A
Sharp Decline in Medical Students Accepting Army and Navy
Scholarships Sparks a New Recruiting Campaign,” American
Medical Association News, August 28, 2006; T. Philpott, “Sur-
geon General: Looming Doctor Shortage,” Stars and Stripes,
July 13, 2006; J. W. Crawley, “Navy Going Civilian for Its
Medical Conversion: 3,643 Positions to Be Eliminated by
2011,” San Diego Union-Tribune, August 9, 2004.
39. U.S. Department of Veterans Affairs, available at <http://
www1.va.gov/health/AboutVHA.asp> (last visited August 21,
2008).
40. President Lincoln’s second inaugural address (1865); see
<http://www1.va.gov/opa/feature/history/history1.asp> (last
visited August 21, 2008).
41. S. Reinberg, “Almost 2 Million U.S. Vets Lack Health Insur-
ance,” HealthDay Reporter, October 30, 2007 (citing Steffie
Woolhandler, M.D., associate professor, medicine, Harvard
Medical School, Boston, and Greg Scandlen, founder, Con-
sumers for Health Care Choices, Hagerstown, Md.).
42. 38 U.S.C. § 1705.
health care • winter 2008 687
Jackonis, Deyton, and Hess
43. Veterans’ Health Care Eligibility Reform Act of 1996 (Act),
Pub. L. 104-262, § 104, codified at 38 U.S.C. § 1704 et
seq. See 38 USC § 1705 and 38 CFR § 17.36. See generally
<http://www.va.gov/healtheligibility/> (last visited August 21,
2008); Federal Benefits for Veterans and Dependents (2006
Edition).
44. See VA Budget Formulation and Reporting, September 2006,
GAO-06-958.
45. See VA Budget Formulation and Reporting, September 2006,
GAO-06-958.
46. VA Health Care Fact Sheet 16-3, April 2006.
47. National Defense Authorization Act of 2008 (P.L. 110-181).
48. See Reinberg, supra note 41.
49. According to the U.S. Department of Veterans Affairs Web
site, the financial income threshold is $27,790 for a veteran
with no dependents and the range graduates upward to
$38,948 for four dependents.
50. See Reinberg, supra note 41 (citing Steffie Woolhandler,
M.D., associate professor, medicine, Harvard Medical School,
Boston, and Greg Scandlen, founder, Consumers for Health
Care Choices, Hagerstown, Md. in the October 30, 2007 issue
of American Journal of Public Health online).
51. U.S. Department of Veterans Affairs, The Capital Asset
Realignment for Enhanced Services Report, available at
<http://www1.va.gov/caresdecision/> (last visited August 21,
2008) [hereinafter cited as CARES Report].
52. See also Department of Veterans Affairs, Office of Inspec-
tor General, Review of Access to Care in the Veterans Health
Administration, May 17, 2006, at i-ii.
53. See CARES Report, supra note 51, at 2-6.
54. VHA Directive 2004-060, October 28, 2004, at A-1.
55. h tt p : / /w w w. r e u t e r s . c o m /a r t i c l e /p r e s s R e l e a s e/idUS
157508+18-Aug-2008+PRN20080818 (last visited August 27,
2008). VA Secretary Peake has announced a series of pro-
grams and initiatives targeted to increase access and care for
veterans who live in rural areas remote from any VA health
56. U.S. Department of Health and Human Services, Oral Health
in America: A Report of the Surgeon General, May 25, 2000,
available at <http://www.surgeongeneral.gov/library/oral-
health/> (last visited August 21, 2008); see CARES Report,
supra note 51; Report of the President’s Commission on
Care for America’s Returning Wounded Warriors, July 2007,
available at <http://www.pccww.gov/> (last visited August
21, 2008 ).
57. See Institute of Medicine, Insuring America’s Health: Prin-
ciples and Recommendations, Institute of Medicine of the
National Academies, Washington, D.C., 2007.
58. 32 C.F.R. § 199.17.
59. See Shin, Rosenbaum, and Mauery, supra note 15.
60. The Early Periodic Screening, Diagnosis, and Treat-
ment (EPSDT) Program is the child health component of
Medicaid.
61. S. Rosenbaum, D. R. Mauery, P. Shin, and J. Hidalgo,
National Security and U.S. Child Health Policy: The Origins
and Continuing Role of Medicaid and EPSDT GW Depart-
ment of Health Policy, Robert Wood Johnson Foundation,
April 2005, available at <www.gwumc.edu/sphhs/health-
policy/chsrp/downloads/mil_prep042605.pdf > (last visited
August 27, 2008).
62. National Association of Community Health Centers & Asso-
ciation for Community-Affiliated Plans, “The Impact of
Community Health Centers & Community-Affiliated Health
Plans on Emergency Department Use,” April 2007, avail-
able at <http://www.communityplans.net/ResourceCenter/
tabid/60/Default.aspx> (last visited August 21, 2008) [here-
inafter cited as National Association].
63. Health Resources and Services Administration (HRSA),
available at <http://www.bphc.hrsa.gov/about/> (last vis-
ited August 21, 2008); National Association of Community
Health Centers (NACHC), available at <http://www.nachc.
S Y MPO SIUM
org/about-our-health-centers.cfm> (last visited August 21,
2008 ).
64. 42 U.S.C. § 254b.
65. See National Association, supra note 62.
66. Public Health Service Act Section 330(h).
67. DoD Directive 6200.04; see e.g., K. T. Rhem, “Marine Com-
mandant Ties TRICARE to Military Readiness,” American
Forces Press Service, January 24, 2001, available at <http://
www.defenselink.mil/news/newsarticle.aspx?id=45116> (last
visited August 21, 2008).
68. D. Miles, “Face of Defense: Army Recruiter Offers Formula
for Success,” American Forces Press Service, November 6,
2007, available at <http://www.defenselink.mil/News/News-
Article.aspx?ID=48056> (last visited August 21, 2008).
69. D. Cave, “San Antonio Proudly Lines Up Behind the Military
Recruiter,” New York Times, October 7, 2005.
70. 42 C.F.R. Part 460.
71. “The PACE program is a unique capitated managed care ben-
efit for the frail elderly provided by a not-for-profit or public
entity. The PACE program features a comprehensive medical
and social service delivery system using an interdisciplinary
team approach in an adult day health center that is supple-
mented by in-home and referral services in accordance with
participants’ needs.” CMS, PACE Fact Sheet, available at
<www.cms.hhs.gov/PACE/Downloads/PACEFactSheet.pdf>
(last visited August 21, 2008).
72. We refer to such a proposed facility as a “Community Health
SuperCenter™.”
73. CARES report, at 2-7, 2-18, 2-22, and Appendix A (listing 35
“Promising VA/DoD Collaborations”).
74. Bureau of Primary Health Care Web site, President’s Health
Centers Initiative, available at <http://bphc.hrsa.gov/presi-
dentsinitiative/> (last visited August 27, 2008): “Raising the
profile of a much needed issue, Florida Association of Com-
munity Health Centers head Andy Behrman testified before
the House Veterans Affairs Committee in support of expand-
ing care to veterans through community health centers. Tes-
tifying on behalf of the National Rural Health Association,
Behrman outlined how the health centers are in many rural
areas with significant numbers of veterans. He also urged the
Committee to enhance the ability of the VA to contract with
health centers as they look for ways to expand access to care
for our expanding number of veterans.”
75. See GWOT Task Force Report, at 12.
76. C. Lee, “Study Finds 1.8 Million Veterans Are Uninsured: Fig-
ure Has Grown by 290,000 Since 2000, Professor Tells House
Veterans Panel,” Washington Post, June, 21, 2007, at A09
(citing Steffie Woolhandler, M.D., associate professor, medi-
cine, Harvard Medical School, findings presented to House
Committee on Veterans Affairs), available at <http://www.
washingtonpost.com/wp-dyn/content/article/2007/06/20/
AR2007062002161.html> (last visited August 21, 2008).
77. See GWOT Task Force Report, at 12.
78. Department of Veterans Affairs, Analysis of VA Health Care
Utilization among U.S. Global War on Terrorism Veterans,
Veterans Health Administration Office of Public Health and
Environmental Hazards, Washington, D.C., May 2008. It is
important to note that the data available for this analysis are
mainly administrative information and are not based on a
review of each patient record or a confirmation of each diag-
nosis. These data are important mainly for health care plan-
ning purposes. These data cannot be considered as confirmed
clinical diagnoses nor as epidemiologic research data.
79. In the Vietnam War, it took 21 days to evacuate a soldier from
the combat theater. In Iraq, the military is routinely evacu-
ating a soldier within 36 hours. See generally Statement of
Lieutenant General Eric. B. Schoomaker, MC, Surgeon Gen-
eral of the Army, before the Senate Armed Services Commit-
tee, Wounded Warrior Care, February 13, 2008; Statement by
the Hon. Pete Green, Secretary of the Army, before the Sen-
ate Armed Services Committee, On Care for and Treatment of
Wounded Service Members, February 13, 2008.
688 journal of law, medicine & ethics
80. Statement for the Record by The Honorable Gordon England
Deputy Secretary of Defense and The Honorable Gordon
Mansfield Deputy Secretary of Veterans Affairs Before the
Senate Committee on Armed Services 13 February 2008 Dis-
ability Evaluation System.
81. Statement of Lieutenant General Kevin C. Kiley, MC, Surgeon
General of the Army, before the House Armed Services Com-
mittee, Walter Reed Army Medical Center Outpatient Care,
March 8, 2007.
82. Statement of Lieutenant General Kevin C. Kiley, MC, Surgeon
General of the Army, before the House Armed Services Com-
mittee, Walter Reed Army Medical Center Outpatient Care,
March 8, 2007.
83. J. H. Pendleton, Testimony Before the Subcommittee on
National Security and Foreign Affairs, “DoD and VA: Pre-
liminary Observations on Efforts to Improve Health Care
and Disability Evaluations for Returning Service Mem-
bers,” September 26, 2007, at 6 (GAO 07-1256T), avail-
able at <http://nationalsecurity.oversight.house.gov/docu-
ments/20070926135646.pdf> (last visited August 21, 2008).
84. The DoD “rates” the disability based on the severity of its
impact on the member’s military duties, much as the Social
Security Disability system rates individuals based on their
ability to pursue substantial gainful employment (see 42
U.S.C. §§401-433). If a disability is severe enough, the mem-
ber is medically retired from the active service and receives a
monthly pension (and other benefits) based on the percentage
of disability assigned intended to compensate, in part, for the
lost military career. Once separated from service, the service
member must apply for care and benefits through the VA and
must undergo a separate evaluation by the VA to determine
the nature and scope of benefit eligibility (based on different
criteria). Note that DoD disability payments are offset by VA
benefit payments (i.e., they are not aggregated). Although VA
disability payments are exempt from federal income tax, mili-
tary disability pay is not.
85. Prepared statement of the Honorable David S. C. Chu, Under
Secretary of Defense (Personnel and Readiness) Before the
House Armed Services Committee Hearing on “Challenges
and Obstacles Wounded and Injured Service Members Face
During Recovery,” March 8, 2007.
86. “While both the [DoD] and the DVA use the Department
of Veterans Affairs Schedule for Rating Disabilities, not all
the general policy provisions set forth in the Rating Sched-
ule apply to the military. Consequently, disability ratings
may vary between the two. The [DoD] rates only conditions
terminating the [Service member’s] career. The DVA may
rate all service-connected impairments. Another difference
is the term of the rating. The [DoD’s] ratings are permanent
upon final disposition. DVA ratings may fluctuate with time,
depending upon the progress of the condition. Further, the
[DoD’s] disability compensation is affected by years of ser-
vice and basic pay; while VA compensation is a flat amount
based upon the percentage rating received.” Department of
the Army, Information Paper: Overview of the Army Physi-
cal Disability Evaluation System, April 11, 2007; see GWOT
Task Force Report, supra note 17, at 22.
87. Statement of the Honorable Gordon England Deputy Secre-
tary of Defense Before the Senate Armed Services Committee
and the Senate Veterans’ Affairs Committee, April 12, 2007.
88. Id.
89. DoD disability determinations may be reviewed by the vari-
ous Service Boards for Correction of Records per 10 U.S.C. §
1552(a)(1), and/or challenged in Federal Court per 28 U.S.C.
§ 1491 or 28 U.S.C. § 1346.
90. Medical retirees and their dependents receive lifetime retired
pay, health care, commissary privileges and all the other ben-
efits included in a military retirement based on longevity (i.e.,
based on 20 or more years of active service).
91. 38 C.F.R. Book C (Schedule for Rating Disabilities).
92. This dual disability rating process has led to considerable
confusion and inconsistency and has obvious and serious

implications for patients who risk the consequences of dif-
fering disability ratings whose elements and outcomes are
geared to each agency’s mission rather than the overall status
and future of the individual. Receipt of a less severe disabil-
ity rating from the VA can lead to the diminution of prom-
ised benefits as well as a personal sense of abandonment by
the DoD. In truth, the distinctions between the two rating
systems reflect their unique purposes (i.e., to measure fitness
for DoD service on the one hand, and the receipt of ongo-
ing care through the VA on the other), but the meaning of
these policy and administrative distinctions tends to fall away,
because they are so little understood. See Pendleton’s Testi-
mony, supra note 13, at 6.
93. Id.
94. Id.
95. Consider the stress a wounded service member faces when
returning from the battlefield with an unfitting injury. First,
there is the physical stress of recovering from a painful injury,
often while separated from family in an unfamiliar setting.
Next, there is the mental stress of the potential loss of liveli-
hood and a chosen career field, coupled with the knowledge
that once separated, military medical care eligibility ends with
a transfer to the VHA — an unfamiliar medical care system —
upon successful navigation of the complex bureaucracy of the
competing disability evaluation systems. It is small wonder
that the wounded service members and family members have
voiced their frustration.
health care • winter 2008 689
Jackonis, Deyton, and Hess
96. The DES pilot commenced November 26, 2007 and contin-
ues for one year. Under Secretary of Defense for Personnel
and Readiness, Policy and Procedural Directive-Type Memo-
randum (DTM) for the Disability Evaluation System (DES)
Pilot Program, November 21, 2007. While the VA will assess
initial disability ratings during the DES Pilot Program, Mili-
tary Department Secretaries will retain their authority on
dispositions relating to fitness, line of duty determinations,
noncompliance and existing prior-to-service findings.
97. Statement for the Record by the Hon. Gordon England, Dep-
uty Secretary of Defense, and the Hon. Gordon Mansfield,
Deputy Secretary of Veterans Affairs, Before the Senate Com-
mittee on Armed Services, February 13, 2008.
98. The disability rating awarded by the DVA Rating Board, spe-
cifically for the military unfitting medical condition(s), will
serve as the basis for determining a DES Pilot participant’s
final disposition (separation with disability severance pay or
disability retirement). The DVA Rating Board’s combined
disability award, for all medical conditions rated, shall be the
basis for determining disability compensation payments and
benefits administered by the DVA.
99. See supra note 98.
100. The Veterans Disability Benefits Commission believes that
differences in the number of conditions rated between the VA
and DoD accounts for the largest portion of the difference in
the overall ratings by the DoD and VA. See Committee on
Medical Evaluation, supra note 11.