New Physical Disability Board of Review for those Separated since 2001

[maparker]

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.
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(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,

Thanks for posting this! I think this is a really positive development in that it represents another opportunity to review decisions. It will be interesting to see if the BCMRs will start requiring appeals at the 1554a board before appealing directly.

[mgbemt]

This will definately be something to follow closely. I would really like to see the amount of soldiers who will have a change in rating/ retirement.

What's your thoughts on them going back and medically retire anyone who is 30 percent or over with the VA, but discharged with less than 30?

I am new to this site and wanted to give everyone a hello and wish all the best of luck in getting what is deserved.


Respectful,

Fellow medical discharged, 7 yrs 2 mos active duty/ zero percent

[Jason]

mgbemt,

I think that the opportunity for review is a good thing, but I don't see the DOD or Services suddenly handing out more retirements without a fight. One difficulty facing those at the Physical Disability Board of Review will be that the review will be focused on the Servicemember's condition when they were separated.

Greatly helping them will be the provisions of the 2008 NDAA directing the services to use the VASRD as interpreted by the Court of Appeals for Veterans Claims. For those who were clearly rated inappropriately under the VASRD and those with a VA rating at or above 30% issued at or around the time of discharge, it should be easier to get a fair rating. I still have reservation though about how DOD will react to VA pronouncements based outside of the actual text of the VASRD or its interpretation.
For example, there are administrative pronouncements made by the VA that are considered binding on the Board of Veterans Appeal but not on the VA itself (if you are interested, a case that discusses this is Splane v. West, 216 F. 3d 1058 (Fed. Cir. 2000)). These pronouncements include some VA Gen Counsel Opinions and parts of the Adjudication Procedures Manual. So, there is still wiggle room for DOD to deny the validity of a VA rating.

This is another chance to get a proper rating. But it will still take presenting good evidence and arguing the law correctly to get the best result. With the new laws and the necessity for implementing regulations, though, there will be many places for DOD to make legal error. This will also work to the Servicemembers advantage.

[mgbemt]

Thanks Jason !!!!

[Tom in DC]

Is it a sure thing that the VASRD will apply to the Physical Disability Board of Review?

The provision providing for the utilization of the VASRD states that it will be utilized "for purposes of this chapter." That provision, Section 1216a, is part of Chapter 61 - Retirement of Separation for Physical Disability. The Physical Disability Board of Review, Section 1554a, is part of Chapter 79 - Correction of Military Records.

Any thoughts?

Tom

[Jason]

I am certain that the VASRD will apply. That is the only rating scheme authorized, and even though you point that the Physical Disability Review Board (PDRB) resides in another chapter, the review is on the propriety of the decisions made by the PEB and the Service Secretary using the criteria from Chapter 61.

What I am less sure about (and anxious to see) is whether they will apply the rules as they existed before the 2008 NDAA, or give retroactive application to this law. Under normal rules, they would not give retroactive application, though I think there is an independent argument that the VASRD as currently applied should have been applied back then. Ironically, the passage of the 2008 NDAA may have actually undercut this argument, but this is mainly speculation on my part.

I am also curious as to the standards they will use: Presumption of regularity for previous proceedings, or de novo review (or perhaps some other standards). Will these be full boards, with an opportunity to appear and present evidence, or will these be "paper boards" with a review of submissions and the case file? (I think the latter is likely). But we will have to wait and see. This may end up being a great tool to get benefits wrongfully denied...or it may be more of the same.

[builtgypsy]

It says a lot that even with the 2008 NDAA it's still hard to paint a good picture for the DES.

[Tom in DC]

Thanks Jason, I hope you're right about the applicability of the VASRD. I agree that the standards to be applied remain a big question mark. I suppose that opting for review at the PD Board of Review will expedite the ability to exhaust administrative remedies and get into court. However, because giving up the right to seek relief at the BCMR is a significant consequence, it's going to be tricky advising clients about the costs/benefits of entering unknown territory, at least at the outset.

[Rangersigo]

Has anyone gone through the Physical Disability Board of Review process yet? Does anyone know the process or regulation to get started?

K