DES Outrage of the Week #5 – DoD Abuses the Appeal Process to Deny Disability Benefits

In my past DES Outrages of the Week, I covered how the DoD’s Disability Evaluation System (DES) continues to cheat wounded warriors out of DoD disability benefits. This week and next I will cover the appeal boards available to these wounded warriors so they can challenge their disability determinations. I will also cover how DoD and the Services have manipulated these boards to further deny DoD disability benefits. When the appeal boards fail them, wounded warriors have to go out of pocket to the federal courts to fight for their DoD disability benefits. Very few wounded warriors have the strength, knowledge and resources to fight errant DES decisions in court. This is a great business model for DoD to use to avoid paying disability benefits. DoD and the Service’s simply deny benefits until a court forces them to do so.

The key appeal boards available to wounded warriors to challenge DES determinations are:

The Board of Corrections for Military/Naval Records (BCMR) under 10 USC 1552

The Discharge Review Board under 10 USC 1553

The Disability Review Board under 10 USC 1554

The Physical Disability Board of Review (PDBR) under 10 USC 1554a

This week I will cover the BCMR and how DOD and the Services have manipulated this board in order to do the least possible for the wounded warrior and to avoid paying disability benefits.

The BCMR is the broadest board in scope. They basically can accept all comers with any complaint of error or injustice. My experience and focus on the BCMRs deals with how they handled disability related appeals. In short, the BCMRs have an abhorrent track record in adjudicating disability cases. Key passages from 10 USC 1552, which established the BCMRs, state:

(a) (1) The Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. Except as provided in paragraph (2), such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department. The Secretary of Homeland Security may in the same manner correct any military record of the Coast Guard.

(b) No correction may be made under subsection (a)(1) unless the claimant or his heir or legal representative files a request for the correction within three years after he discovers the error or injustice. However, a board established under subsection (a)(1) may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice.

The BCMRs have several aspects that make them the ideal board for denying disability benefits. First, BCMRs presume that the government acted correctly and it is up to the appellant to demonstrate error or injustice. Second, BCMRs rarely grant personal appearance by the appellant and their counsel to present their case. Third, if a federal court rules the BCMR process is flawed, the BCMR continues to use the flawed process. At best, only the case under court review will be fixed while future cases will revert back to the flawed process. This keeps disability payments down as every affected wounded warrior must file their own separate appeal in federal court to get the same flawed process fixed for their case. The BCMR cases discussed below will clearly demonstrate this problem.

To better understand the abuses of the BCMRs in disability cases, a little background is in order. Throughout the years, DoD and the Services avoided paying disability benefits by using their own disability ratings criteria which resulted in lower ratings. Title 10 requires Physical Evaluation Boards (PEBs) to rate unfitting conditions per the Veterans Administrations Schedule for Rating Disabilities (VASRD). Throughout the years, the federal courts have backed up that law with several rulings that affirm that PEBs must rate unfitting conditions per the VASRD. A passage from McHenry v. US (367 F.3d 1370, Fed.Cir. 2004), does an excellent job of summarizing key federal rulings on the VASRD rating requirement. It states:

The statute mandating the creation of the VASRD requires only the Secretary of Veterans Affairs to apply the guidelines, see 38 U.S.C. § 1155 (2000),[7] but 10 U.S.C. § 1201 requires that disability ratings by the Secretary of the pertinent military department be based on the VASRD schedule. Section 1201 provides: Determinations [that a service member is unfit for duty because of a physical disability] are determinations by the Secretary that . . . the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination . . . .” 10 U.S.C. § 1201(b) (emphasis added). Section 1204(4)(B), involving disability retirement for service members not covered by section 1201, Similarly requires that disability ratings be based on the VASRD schedule, using the same language as section 1201. See also 10 U.S.C. § 1203(b)(4). In Thompson v. United States, 195 Ct. Cl. 468 (1971), our predecessor court held that section 1204(4)(B) requires the Secretary to apply the VASRD in rating disabilities. Id. at 477; see also Hordechuck v. United States, 144 Ct. Cl. 492, 495 (1959). The court noted that the statute “requires by specific reference, that the rating of disability be made ‘under the standard schedule of rating disabilities in use by the Veterans Administration.’” Thompson, 195 Ct. Cl. at 477 (quoting 10 U.S.C. § 1204(4)(B)).[8] “[T]here [is] no authority for reducing percentages beyond those found in the schedule itself.” Wolf v. United States, 168 Ct. Cl. 24, 32 (1964). Although the armed forces must use the VASRD guidelines when the service member’s disabilities “come within” them, the Secretary may make upward departures from the VASRD guidelines in particular cases. Id. at 31-32; see also Finn v. United States, 212 Ct. Cl. 353, 356 (1971).[9] These same rules apply to the identically-worded section 1201 involved in this case.

Since at least the 1959 Hordechuck decision, the federal courts have consistently ruled that PEBs must rate unfitting conditions per the VASRD. And, since at least 1959, DoD and the Services have ignored these federal court rulings and low balled ratings using their own ratings lowering criteria. One dividend of the Walter Reed press coverage was the exposure of the DoD rating scandal. Congress acted on this problem in the 2008 NDAA by making it explicitly clear that the VASRD is the standard for rating unfitting conditions. DoD immediately stated the 2008 NDAA only applied to future cases, again ignoring the law and the numerous federal court rulings to the contrary. The 2008 NDAA also established the Physical Disability Board of Review (PDBR). DoD attempted to allow the PDBR to use non VASRD rating criteria for past cases. Under Congressional pressure, DoD agreed to use VASRD criteria in all cases eligible for PDBR review. Two great articles on the PDBR rating issue can be found at:

http://www.military.com/features/0,15240,190478,00.html

and

http://www.military.com/features/0,15240,185783,00.html .

The PDBR now seems to be adhering to the VASRD rating criteria. Unfortunately, the eligibility for the PDBR expired at the end of 2009. Service members medically discharged after that date will likely have to appeal to the BCMRs. The problem is that the BCMRs to this day are still not enforcing the requirement to rate per the VASRD. A look back at historical cases will demonstrate they did not enforce the standard then and they don’t enforce the standard today. Despite the longstanding requirement in law, past federal court rulings, press coverage, the 2008 NDAA VASRD language and the admission by the PDBR that the VASRD is the sole standard for rating unfitting disabilities, BCMRs continue ignore the requirement to rate per the VASRD.

The case of SSG Christopher Rominger clearly shows the BCMRs’ broken attitude on the requirement to rate per the VARSD. The Army discharged SSG Rominger without disability retirement for a back condition, assigning a 20% disability rating. The VA rated the same back condition at 40% disabling effective the day he left service. He took his case to the Army BCMR arguing that he should have received a 40% rating for his unfitting disability and given disability retirement. The Army BCMR denied his claim using a passage they have used on an untold number of similar cases. The Army BCMR stated:

The applicant provided no evidence that his disability was improperly rated in accordance with VASRD or that his separation with severance pay was not in compliance with law and regulation. The rating action by the DVA does not necessarily demonstrate any error or injustice in the Army rating. The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating by the DVA does not compel the Army to modify its rating. The applicant’s contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.

The Army BCMR did not care that the VA rated the same back condition at 40%, after all they have always believed the Army is free to rate conditions any way they want under whatever criteria they develop. SSG Rominger then took the decision to federal court (Rominger V. US, United States Court of Federal Claims, case No. 05-742C). The court decision stated the Army BCMR decision lacked sufficient explanation for judicial review. They key passage from that decision stated:

Although courts afford great deference to the decisions of boards for the correction of military records, that deference is not absolute. Correction boards are obligated to “examine relevant data and articulate a satisfactory explanation for their decisions.” See Van Cleave, 66 Fed. Cl. at 136 (citing Yagjian v. Marsh, 571 F. Supp. 698, 701 (D.N.H. 1983)). In this connection, “correction boards are required to make rational connections between the facts found and the choices made.” Id. Where a correction board fails to support its decision with a reasoned explanation of an important issue, a remand is appropriate. Id. Tested by these standards, a remand is necessary in this case. Here, the ABCMR dismissed Mr. Rominger’s objections in three short paragraphs without any real analysis. After reiterating the undisputed factual evidence, the ABCMR did not provide any explanation for why the Army should not reconsider its disability rating based on the higher disability rating provided to Mr. Rominger by the VA for precisely the same diagnosis. Although the VA and Army have different standards for determining whether a service member is “disabled” or unfit for military service, “once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.” Army Reg. 635-40, App. B-3(a). “Congress has established the VASRD as the standard under which percentage rating decisions are to be made for disabled military personnel.” Id., App. B-1(a).

In SSG Rominger’s case, the federal court, once again, reemphasized that unfitting conditions must be rated per the VASRD and that the BCMR cannot ignore VA ratings for the same unfitting conditions. As mentioned above, BCMRs have used the same broken logic for denying an untold number of similar disability cases. One such instance involved the 2000 disability case of SSG Morris Shepard. SSG Shepard’s PEB separated him from the Army due to degenerative disk disease in his back and for degenerative arthritis in his right knee. The Army failed to cover his PTSD in his MEB and PEB. The Army PEB assigned a 20% disability rating using non VASRD rating criteria and separated him without disability retirement.

The VA immediately assigned SSG Shepard a combined 80% disability rating including a 50% rating for the two conditions his PEB found unfitting; 40% for his back and 10% for his knee. The VA also assigned SSG Shepard a 50% rating for PTSD, a condition his MEB and PEB ignored. All of SSG Shepard’s VA ratings went into effect the day he left service. SSG Shepard appealed his PEB rating to the Army BCMR. Just like the Rominger case, the Army BCMR blew off his appeal stating they were free to ignore VA ratings that are contrary to the PEB ratings. SSG Shepard’s Army BCMR decision stated:

The Board also considered the applicant’s contention that he was rated at 80% by the VA, less than one year after his separation from the Army. However, the rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its rating.

In 2007, SSG Sheppard learned of the Rominger decision that stated the Army BCMR cannot simply ignore VA ratings and that they must justify a different rating. Using the Rominger case as newly discovered evidence of error and injustice, he refilled with the Army BCMR. The Army BCMR returned his application without action stating he was past his one year deadline for appealing his original Army BCMR decision. The Army BCMR refused to accept the Rominger decision as new evidence of error and injustice in SSG Shepard’s disability rating despite the fact that the two cases were virtually identical, especially in regards to the back rating issue. The Army BCMR hung SSG Sheppard out to dry refusing to admit mistakes and to apply federal court decisions that dealt with similar situations.

Unfortunately for SSG Shepard, more than six years have elapsed since his medical separation. As such, his ability to appeal to the federal court has apparently expired. Further, since his separation took place before 9-11-2001, he is ineligible for review by the PDBR. In next week’s Outrage, I will discuss how the Army Review Board Agency (ARBA), screwed SSG Shepard, and countless others, out of the opportunity to have their disability discharges reviewed by the Discharge Review Board under 10 USC 1553. ARBA is also responsible for Army BCMR. ARBA has certainly proven itself to be a henchman organization when it comes to the denial of justice for wounded warriors. Congress needs to tighten them up big time.

Without action, ARBA and the Army BCMR will continue to do whatever they want. Again, despite longstanding laws, numerous federal court rulings, the 2008 NDAA reiteration that PEBs must rate per the VASRD, the PDBR admission that they have to rate all cases per the VASRD, and all the negative wounded warrior press coverage, ARBA and the Army BCMR continue in their old ways. An Army BCMR case from last year (AR20090002079) clearly demonstrates they continue to improperly adjudicate disability cases by ignoring, without explanation, VA ratings that contradict PEB ratings.

In this case, an Army officer suffered from severe seizures which required brain surgery to remove a mass. In1997, his PEB placed him on the Temporary Disability Retirement List (TDRL) with a 40% rating. On his first TDRL review, his PEB stated he was unfit for service due to residual migraine headaches but that these migraines were only to be rated a 0% disabling. (See Outrage # 2 on how DoD and the Services abuse migraine ratings to deny benefits: http://www.pebforum.com/content/des-...conditions-31/ ). He appealed the findings to the United States Army Physical Disability Agency (USAPDA). To no surprise, his appeal fell on deaf ears.

The Army then medically separated this soldier and terminated his medical retirement and benefits. The VA, however, rated the soldier 100% permanently disabled for the same unfitting condition that placed him on TDRL and later resulted in a 0% DoD disability rating from his PEB. The effective date of the VA’s 100% permanent disability rating began while he was still on TDRL. The soldier appealed to the Army BCMR for disability retirement. The Army BCMR denied his request and based their decision on a 2009 advisory opinion from the United States Army Physical Disability Agency, the parent organization of the PEB that rated him at 0%. Talk about the fox watching the henhouse. The BCMR decision stated:

An award of a higher VA rating does not establish error or injustice in the Army rating. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's social or industrial adaptability. Accordingly, it is not unusual for the two agencies of the government, operating under different policies, to arrive at a different disability rating based on the same impairment.

This soldier’s VA rating was extensive. Below are the VA disability ratings that relate to his unfitting seizure condition.

- Scar, residual of frontal craniotomy surgical resection of arteriovenus malformation (50 percent);

- Maxillary and frontal sinusitis with cephalgia, residual of frontal craniotomy/surgical resection of arteriovenus malformation (30 percent);

- Post-craniotomy headache disorder, migraine, vascular and sinus (30 percent);

- Cognitive deficit/depressive disorder, residual of frontal craniotomy/surgical resection of arteriovenus malformation (30 percent);

- Loss of field of vision, residual of frontal craniotomy/surgical resection of arteriovenus malformation (20 percent);

- Seizures, residuals of frontal craniotomy/surgical resection of arteriovenus malformation (20 percent);

- Dizziness, residual of frontal craniotomy/surgical resection of arteriovenus malformation (10 percent);

- Scar, tender, residual of frontal craniotomy/surgical resection of arteriovenus malformation (10 percent);

- Loss of skull and pseudomeningocele, residual of frontal craniotomy/
surgical resection of arteriovenus malformation (10 percent);

- Overall or combined disability rating of 100 percent, effective 17 April 1997.

I guess the Rominger decision that BCMRs must justify ignoring VA ratings made it only as far as the Army BCMR’s shredder. The soldier also requested an in person hearing to present his case but the Army BCMR rejected that request out of hand.

Next week I will discuss the PDBR, the Discharge Review Board and the Disability Review Board. This will add even more illumination on how DoD and the Services have stacked the deck against the wounded warrior when comes to obtaining justice through the appeal process.




Michael A. Parker
LTC, USA (Retired)
Wounded Warrior Advocate