AuthorStoflet, Benjamin Michael

TABLE OF CONTENTS I. Introduction 65 II. Background 66 A. Historical Blueprints: Disability And Employment Law In America 66 B. The Division Of America's Disabled Population 70 III. Discussion 73 A. Contemporary Legal Systems: Disability, Employment, And Adr 73 i. Americans With Disabilities Act 73 ii. Uniformed Services Employment And Reemployment Rights Act 75 iii. Workforce Innovation And Opportunity Act 76 iv. Alternative Dispute Resolution 77 B. Catalysts And Barriers To Reform 79 i. Disabled Veterans 79 ii. The Federal Government 81 C. Public Policy Prescriptions 83 i. Organizational Integration 83 ii. Longitudinal Data Collection 84 iii. Modernizing High Level Reviews 85 IV. Conclusion 86 I. INTRODUCTION

[M]alice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations. (1)

Since the country's founding, disabled veterans' (2) issues in the United States have been a Gordian Knot within the sphere of public policy. Historically, veterans emerged as a distinct caste within the country's disabled population at large, often being viewed as members of "the deserving disabled" (3) whom the federal government and public made a pact--expressly and impliedly--to support. (4) However, the federal government has frequently been criticized for failing to uphold its promises to disabled veterans, with the lion's share of blame being placed on the United States Department of Veterans Affairs (VA). (5) Disability and employment law advocates alike have blamed the VA for its incompetent administration of health care, disability compensation, and job training programs intended to benefit disabled veterans. (6) Further criticisms levied against the VA have denounced the organization for failing to notify disabled veterans of the benefits they are entitled to (7) (after denying them eligibility), while simultaneously directing them towards other federal disability programs. (8) Even the former United States Secretary of Veterans Affairs, David Shulkin, has expressed frustration with the confusing nature of the VA's disability benefit system: "[t]he VA's disability compensation structure is a patchwork resulting from decades of legislation that has created a system where veterans often become locked in a complicated and adversarial process to obtain benefits they have earned and need." (9) From within the broader lateral limits of veterans' issues generally, this paper contextualizes and focuses on disabled veterans as a subgroup within American disability and employment policy. Numerous examples show that disabled veterans historically were, and presently are, adversely impacted by social and public policies concerning disability care and employment, which also indicates a need for legislative and social reforms to address current gaps in organizing, funding, and implementing programs in both areas for veterans.

Part I of this paper considers the historical foundations, motivations, and evolution of veterans' disability and employment legislation in the United States. Utilizing disability and employment as its framework, Part II then defines, describes, and critiques contemporary policies for disabled veterans in the areas of federal employment protections and uses of Alternative Dispute Resolution (ADR) within the VA's disability decision review process. Part III discusses the roles played by disabled veterans and the federal government in policy reform, finding that both sides act as catalysts and barriers to legislative change. This paper concludes in Part IV, recommending legislation that integrates elements of disability care--currently under the auspices of the VA--into Medicare. Through this newly created insurance component, which this paper will call "Medicare Part V", disabled veterans will be eligible to access all hospitals and clinics currently accepting Medicare. This is anticipated to increase access to care in local facilities. Second, it is essential that the federal government devotes sufficient resources to conduct more longitudinal data collection studies, enabling a more comprehensive assessment of the transitional and employment resource needs of disabled veterans over time. Achieving a greater understanding of these needs may induce greater veteran participation rates in the labor force, benefiting employers and veterans alike. Finally, this paper calls for modernizing and optimizing the VA's claim appeals process by creating a secure online method of Alternative Dispute Resolution for appeals, specifically in Higher-Level Reviews (HLR's) of disability and compensation requests.


    1. Historical Blueprints: Disability and Employment Law in America

      "War is the most efficient means for creating disabled people." (10) Throughout history, when there exists a distinct and growing class of disabled veterans pursuing the benefits society deems them worthy of, they are likely to persuade policy change. (11) Accordingly, this next section discusses how the historical foundations for current disability and employment policy in the United States were laid.

      Virtually every country in history has provided some sort of benefit system for war veterans, disabled soldiers, and their dependent survivors. The current form of disability and employment benefits for veterans in Western countries is mainly derived from the creation of modern nation states in sixteenth century Europe. (12) Advancements in technology enabled massive standing armies--not seen since the dominion of Ancient Rome--to fight progressively more ruinous wars. (13) In turn, the numbers of disabled veterans seeking government compensation increased. Pensions, hospitals, and employment programs were provided to disabled veterans as gratuity for their service. (14) Although quite revolutionary in themselves, these forms of veteran's compensation trace their roots back thousands of years into history.

      Since ancient times, societies have acknowledged that those protecting the state from outside threats deserved reward. Examples of this ancient acknowledgement include the Pharaohs of Egypt granting plots of land to their veterans as far back as 3000 B.C.E. In pre-Hellenic Athens, the prominent statesmen Solon ordered wounded veterans to be "maintained" at the public charge, which included providing food subsidies and money to veterans with proven permanent injuries. (15) In Roman antiquity, granting newly conquered land to veterans (16) as a reward for their service became commonplace in the late republic after the Marian reforms. (17) However, in most cases, actual monetary compensation for disabled veterans was uncommon due to policy decisions usually being impulsively decreed by whoever ruled Rome; thus veterans benefit systems were often diluted with corruption and abuse. (18) Medieval Europe's (500 C.E. to 1500 C.E.) inability to compensate wounded veterans was caused by the use of hiring mercenaries to conduct the majority of combat operations instead of professional armies. However, this began to change around 1190 B.C.E, when King Phillip Augustus of France established a hospital to care for wounded veterans who had participated in the Fifth Crusade. (19) Although this particular act of charity by the French King did not have any long-term effect on national policy, the eventual return of wounded soldiers into Europe in the subsequent crusades would. Eventually, the French countryside found itself teeming with "a sullen army of beggars and vagabonds threatening to wreck the country's social order if their demands to be provided with 'the means to live at ease' for the rest of their lives were not met," which caused the country to develop policies that would placate the demands of its wounded veterans. (20)

      This habit of appeasing, appreciating, and caring for disabled veterans carried from Europe into pre-colonial America. The first policies involving disabled veterans were primarily influenced by British systems and can be traced back 150 years prior to the American Revolutionary War, (1775-1783 C.E.). In 1624 C.E., a law was passed (but not ratified) in the British colony of Virginia, promising "[t]hose that shall be hurte upon service to be cured at the publique charge; in any case be lamed to be maintained by the country according to his person and quality." (21) Virginia was not alone in this endeavor, as other colonies began to pass disabled veterans' benefits laws in hopes of increasing the enlistment numbers of soldiers to fight against Native American tribes. (22) In 1636 C.E., Plymouth Colony passed and ratified the first substantial law in America promising benefits to disabled veterans, which codified, "if any man shall be sent forth as a soldier and shall return maimed, he shall be maintained competently by the Colony during his life." (23) Pre-Colonial policy decisions regarding disabled veterans left lasting impacts on the Founding Fathers of the American Revolution in their later attempts to solve similar issues. (24)

      During the American Revolution, perhaps in part as an act of desperation on behalf of the fledgling American rebels, the Continental Congress passed laws liberally granting disability pensions to American patriots. (25) For the first time in history, benefits were authorized for low-ranking privates and non-commissioned officers, granted that they served honorably until the end of the Revolution. (26) The promises made by Congress were critical in recruiting and retaining the soldiers needed to continue fighting (and winning) the War. Ironically, this was also one of the first times that Congress (in the eyes of American veterans) failed to keep its promises, with many members of Congress citing...

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