HOLES IN DISABILITY BILL PUZZLE SOME VETERANS -- 01-27-2008 #4

[Jason]

"That this will not be retroactive is shameful. It should go back to cover at least all of the Iraq and Afghanistan war veterans."

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[Jason]

Two stories here: 1) The non-retroactive nature of this bill. 2) That there is a need for better information regarding the military disability evaluation system.

[maparker]

CPT Smart, like others who received separation level ratings from their PEB's, should file for a DoD Disability Review Board (10 USC 1554a). Many of those who received separations level ratings were given low balled ratings and actually should have been rated at 30%+ and thus granted disability retirements.

The disability review board was established by the 2008 NDAA in response to findings by the VDBC that demonstrated marked diferences between the ratings given by the DoD and the VA to an individual for the same condition. Both departments are required by law to use the same VASRD crieria to rate disabilities. However, the DoD and the Services (especially the Army) have modified the criteria to lower the ratings below 30%. (The 2008 NDAA also restates the fact that DOD is require to rate per the VASRD.)

The new DoD disability review board is only available to those rated below 30% since September 11, 2001. The new law is below:

SEC. 1643. REVIEW OF SEPARATION OF MEMBERS OF THE ARMED FORCES SEPARATED FROM SERVICE WITH A DISABILITY RATING OF 20 PERCENT DISABLED OR LESS.

(a) BOARD REQUIRED.—

(1) IN GENERAL.—Chapter 79 of title 10, United States Code, is amended by inserting after section 1554 the following new section:

§ 1554a. Review of separation with disability rating of 20 percent disabled or less

(a) IN GENERAL.—

(1) The Secretary of Defense shall establish within the Office of the Secretary of Defense a board of review to review the disability determinations of covered individuals by Physical Evaluation Boards. The board shall be known as the ‘Physical Disability Board of Review’.

(2) The Physical Disability Board of Review shall consist of not less than three members appointed by the Secretary.

(b) COVERED INDIVIDUALS.—For purposes of this section, covered individuals are members and former members of the armed forces who, during the period beginning on September 11, 2001, and ending on December 31,2009—

(1) are separated from the armed forces due to unfitness for duty due to a medical condition with a disability rating of 20 percent disabled or less; and
(2) are found to be not eligible for retirement.

(c) REVIEW.—

(1) Upon the request of a covered individual, or a surviving spouse, next of kin, or legal representative of a covered individual, the Physical Disability Board of Review shall review the findings and decisions of the Physical Evaluation Board with respect to such covered individual. Subject to paragraph (3), upon its own motion, the Physical Disability Board of Review may review the findings and decisions of the Physical Evaluation Board with respect to a covered individual.

(2) The review by the Physical Disability Board of Review under paragraph (1) shall be based on the records of the armed force concerned and such other evidence as may be presented to the Physical Disability Board of Review. A witness may present evidence to the Board by affidavit or by any other means considered acceptable by the Secretary of Defense.

(3) If the Physical Disability Board of Review proposes to review, upon its own motion, the findings and decisions of the Physical Evaluation Board with respect to a covered individual, the Physical Disability Board of Review shall notify the covered individual, or a surviving spouse, next of kin, or legal representative of the covered individual, of the proposed review and obtain the consent of the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual before proceeding with the review.

(4) With respect to any review by the Physical Disability Board of Review of the findings and decisions of the Physical Evaluation Board with respect to a covered individual, whether initiated at the request of the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual or initiated by the Physical Disability Board of Review, the Physical Disability Board of Review shall notify the covered individual or a surviving spouse, next of kin, or legal representative
of the covered individual that, as a result of the request or consent, the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual may not seek relief from the Board for Correction of Military Records operated by the Secretary concerned.

(d) AUTHORIZED RECOMMENDATIONS.—The Physical Disability Board of Review may, as a result of its findings under a review under subsection (c), recommend to the Secretary concerned the following (as applicable) with
9 respect to a covered individual:

(1) No recharacterization of the separation of such individual or modification of the disability rating previously assigned such individual.

(2) The recharacterization of the separation of such individual to retirement for disability.

(3) The modification of the disability rating previously assigned such individual by the Physical Evaluation Board concerned, which modified disability rating may not be a reduction of the disability rating previously assigned such individual by that Physical Evaluation Board.

(4) The issuance of a new disability rating for such individual.

(e) CORRECTION OF MILITARY RECORDS.—

(1) The Secretary concerned may correct the military records of a covered individual in accordance with a recommendation made by the Physical Disability Board of Review under subsection (d). Any such correction may be made effective as of the effective date of the action taken on the report of the Physical Evaluation Board to which such recommendation relates.

(2) In the case of a member previously separated pursuant to the findings and decision of a Physical Evaluation Board together with a lump-sum or other payment of back pay and allowances at separation, the amount of pay or other monetary benefits to which such member would be entitled based on the member’s military record as corrected shall be reduced to take into account receipt of such lump-sum or other payment in such manner as the Secretary of Defense considers appropriate.

(3) If the Physical Disability Board of Review makes a recommendation not to correct the military records of a covered individual, the action taken on the report of the Physical Evaluation Board to which such recommendation relates shall be treated as final as of the
20 date of such action.

(f) REGULATIONS.—

(1) This section shall be carried out in accordance with regulations prescribed by the Secretary of Defense.

(2) The regulations under paragraph (1) shall specify reasonable deadlines for the performance of reviews required by this section.

(3) The regulations under paragraph (1) shall specify the effect of a determination or pending determination of a Physical Evaluation Board on considerations by boards for correction of military records under section 1552 of this title.’’.

(2) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 79 of such title is amended by inserting after the item relating to section 1554 the following new item:

‘‘1554a. Review of separation with disability rating of 20 percent disabled or less.’’.

(b) IMPLEMENTATION.—The Secretary of Defense shall establish the board of review required by section 1554a of title 10, United States Code (as added by subsection (a)), and prescribe the regulations required by such section, not later than 90 days after the date of the enactment of this Act.

[Jason]

Mike,

I am hopeful that this is going to correct many injustices out there. However, what I am interested in seeing is what is going to be the standard of review.

The language of the bill suggests clearly to me the acceptance of new evidence at the Review Board.

(2) The review by the Physical Disability Board of Review under paragraph (1) shall be based on the records of the armed force concerned and such other evidence as may be presented to the Physical Disability Board of Review. A witness may present evidence to the Board by affidavit or by any other means considered acceptable by the Secretary of Defense.

The question is will the whole case be looked at fresh (de novo) with no presumption of regularity, or will the standard be that the Servicemember has to present sufficient evidence to overcome the presumption that the PEB did it right the first time.

This language has me greatly concerned:

(4) With respect to any review by the Physical Disability Board of Review of the findings and decisions of the Physical Evaluation Board with respect to a covered individual, whether initiated at the request of the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual or initiated by the Physical Disability Board of Review, the Physical Disability Board of Review shall notify the covered individual or a surviving spouse, next of kin, or legal representative
of the covered individual that, as a result of the request or consent, the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual may not seek relief from the Board for Correction of Military Records operated by the Secretary concerned.

I am hoping that this is not interpreted to mean, take your one bite at the apple- BCMR or Physical Disability Board of Review (PDRB). If it is interpreted that way, though, I think this will mean that by going to PDRB will result in opening the doors to the Federal Courts after, because at that point the Servicemember will have exhausted all administrative appeals.

Mike, do you have any insight on the above questions? I plan on taking a look at the Congressional Record to see what the debate was like, and also see if the legislative history sheds any light on this. But wanted to check to see if you had heard anything regarding this.

We'll have to see what shakes out.

[maparker]

Jason,

I believe it is a de nova review. I hope I am not being optomistic. The part that gives you one bite at the apple was added in conference and I believe it was done just for that purpose. Given I have no faith in the BCMR's, I rather have a look at the DoD level before moving on the courts in necessary. Remember, the ABCMR was run by an ex-USAPDA official. Seems like all the USAPDA decisions were fine and dandy to him.

Mike

[Jason]

Mike,

Thanks, yeah, I think all is good if it is de novo (from a "what-we-hope for" point of view). Another question, though, is who are the board members going to be? It makes sense that it will likely end up being their "subject matter experts." I.e., someone with history with the PEB, APDA/NCRB/AFPC, etc. So, as far as personnel, I think we may end up with the "usual suspects," anyways.

I am going back and forth on whether the one bite at the apple provision is going to be a good or bad thing, now that I think of it. It may expedite access to Federal Courts. And the way it is now, you have a nice sleight of hand that denies effective review of a lot of issues. The BCMRs, applying the "error or injustice" review to the cases now, get to punt on the underlying fact finding. Since that won't be disturbed by a Federal Court, absent an arbitrary and capricious finding (basically that the PEB could not possibly have found the way they did based on evidence in record), the PEBs never get meaningful review of factual findings. But with the Physical Disability Review Board, looking at facts, and the next level being the Federal Courts, I suspect you may have an easier time fighting out the facts.

Downside though would be that the Servicemember is not gaining an extra review, it will be an either/or thing. Plus with many cases already out there on BCMRs, it is easier for an attorney/advocate to know how issues are likely to play out after BCMR. Not so with a new system. (But the contra to the contra is this may give more avenues for potential arguments).


So much will depend on the implementing regulations, but I sure see a lot of areas to explore.

[maparker]

One of the positives of a DoD board is getting DoD involved in the oversight and awareness of the DES. Applying universal rules and regs to the Service PEB decisions such as the Army's mechanical basis requirement for ROM criteria to be appplied.


Mike

[TJarvi]

Because of language appearing in the National Defense Appropriate Act of 2008, Sect 1641, (requiring application of VA law, and regulations, as interpreted by the CAVC) I believe that the Super PEB will be bound to the standard of review utilized by the VA, i.e., "as likely as not."

Even better, it also appears from the DoDI 6040.44, paragraph 6(i)(3), that new evidence may be presented, including subsequent VA disability determinations. This is a very fertile opportunity.

Does anyone know who in the AF is putting the regs together?

Ted Jarvi