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Originally published November 3, 2012 at 3:01 PM | Page modified November 4, 2012 at 11:11 AM

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Iraq war veteran challenges military on injury benefits

The Defense Department is being taken to task over a rule that an injury during combat training doesn't qualify a veteran for the enhanced benefits provided for combat injuries.

McClatchy Newspapers

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WASHINGTON — Tanya Towne was wearing her full "battle rattle" when she was injured preparing for war. Now the Pentagon must explain why that injury should be treated differently from a combat-related injury.

What happens next will put the Defense Department on the spot. It also could mean a lot to veterans other than Towne, who served 17 years in the New York Army National Guard before her 2009 medical discharge.

"She represents a lot of folks who were called up for Iraq and Afghanistan and who got hurt," Towne's attorney, Scott MacKay, said in a telephone interview.

In a recent ruling, the U.S. Court of Federal Claims wants the Defense Department to justify a Bush administration-era decision that an injury during combat training doesn't qualify a veteran for the enhanced benefits provided to those who are injured during combat. While the Pentagon's distinction between training and combat sounds clear-cut, it seemingly conflicts with another part of federal law.

But the distinction saves the government money.

"In my opinion, (the Defense Department) did what they did strictly from a financial perspective," MacKay said.

MacKay knows about such things. A West Point graduate, he's the vice president and general counsel for Lockheed Martin Information Systems. He's representing Towne pro bono, and he said many injured veterans could be in similar circumstances.

Though precise numbers are elusive, the Disabled American Veterans organization estimated in 2008 that "countless thousands" would lose out on potential benefits because their training injuries weren't considered combat-related. Towne figures she knows some of them.

"I am sure that there are many more cases (like mine) behind the scenes," Towne said Thursday in a telephone interview.

Justice Department officials, defending the Pentagon, counter that the military has acted reasonably.

"The ... determination that Ms. Towne is not eligible for enhanced disability severance pay because she incurred her training-exercise injury outside the performance of duty in combat-related operations is supported by substantial evidence and applicable statutes and regulations, and is neither arbitrary nor capricious," Justice Department attorney Ryan Majerus wrote in a legal brief.

Now 37, Towne recently opened a sporting-goods store in the upstate New York town of Fort Plain. It's about 110 miles from Fort Drum, where in June 2004 she was preparing with the Army National Guard's 42nd Infantry Division.

Trained as a radio-repair specialist, Towne was running through a house-clearing drill. She and her fellow soldiers, clad in body armor and bearing equipment that weighed about 50 pounds, had to climb on each other to enter through a window.

"It was a real-world scenario," Towne said.

She fell, landing awkwardly. Army doctors diagnosed a muscle injury, and the next January she deployed to Forward Operating Base Danger in Tikrit, Iraq. She said she was in constant back pain during her 10 months overseas.

Once Towne had returned to the United States, further medical evaluations determined she was physically unfit for active duty. In June 2009, she was honorably discharged with a 10 percent disability rating.

She also was caught in an apparent contradiction.

The Army medical board concluded Towne's injury was "combat-related" for the purposes of receiving a tax benefit. But at the same time, the board concluded the injury wasn't incurred "during performance of duty in combat-related operations." This cut her disability payments.

The medical board based its ruling on a Bush administration policy issued in 2008, which said combat-related injuries meant those incurred "as a direct result of armed conflict." Officials determined this ruled out training injuries, including those incurred during simulated combat preparations before deployment to a war zone.

The Bush administration policy narrowly interpreted a 2008 "wounded warriors" bill, intended to improve military and veterans care.

This interpretation, or at least the rationale behind it, came under question in the decision Oct. 25 in Towne's case by U.S. Court of Federal Claims Judge George Miller. Miller concluded the Pentagon "articulated no reason" for the narrow interpretation, and said it "lacks any explanation."

He directed the Army Board for Correction of Military Records to reconsider Towne's case and to ask the Defense Department for a better explanation of the combat-related benefits policy.

This is far from a final victory for the training-injured veteran because courts often defer to the rationales given by government agencies. At the least, though, Towne and others like her could get one more shot at help.

"I really haven't had high hopes," Towne said.

"After 17 years in the Army, I have learned to take things the way they dish them out."

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