Physical Evaluation Board Forum

A good article but it does have a couple of errors. The most significant one was from the following passage:

He cited as an example the Army’s previous refusal to use what it calls “convalescent ratings.” According to VA, if someone develops a mental disorder because of a highly stressful event that happened in service and is harsh enough to cause the person to leave the military, he should be rated at least 50 percent disabled, discharged and then examined again six months later to see if the rating should be changed. Previous Army policy stated, “This is essentially a convalescent rating and will not be used.” Instead, the Army parked such soldiers on the temporary disability retirement list.

The Army was not parking these soldiers on the temporary disability retirement list. That is actually the correct action given the VASRD criteria. Rather the Army and other Services were rating most of these members below 30% and separating them.

Mike


Army drops rules, aligns with VA disability ratings


Change mandated by 2008 Defense Authorization Act
By Kelly Kennedy - kellykennedy@militarytimes.com
Posted : February 25, 2008

The Army will no longer use its own disability ratings rules in addition to the Veterans Administration Schedule for Rating Disabilities, according to guidance from Army Brig. Gen. Stephen Jones, commander of the Army Physical Disability Agency.

The policy change may even out some of the differences in ratings assigned by the Army and the Department of Veterans Affairs, which became a contentious issue in the wake of the Walter Reed Army Medical Center controversy last year.

The change was prompted by a provision of the 2008 Defense Authorization Act that states the services must comply with VA’s disability ratings schedule in assessing injured troops, said Col. Andy Buchanan, Army Physical Disability Agency deputy commander.

Under the new law, all the services will have to update their policies so that their own rules do not override VA’s ratings schedule. Buchanan said Defense Secretary Robert Gates will send guidance to all the services making the change retroactive to Jan. 28, the date President Bush signed the 2008 Defense Authorization Act into law.

Retired Army Lt. Col. Mike Parker, who has long supported equal ratings across the services and VA and has assisted many service members going through the disability evaluation process, said the change is “huge and long overdue.”

He said the fact that the services were allowed to use their own ratings rules was a major reason military disability ratings often have tended to be lower than VA ratings.

The new policy will change the way the Army rates soldiers for sleep apnea, narcolepsy, joint pain and mental health disorders.

“The Army is taking the most soldier-friendly approach we can within the law,” Buchanan said.

The Army is reviewing personnel separations in January and February to ensure those cases meet the new rules. “This is slowing our cases processing a bit, but it ensures are soldiers are better served in the long run,” Buchanan said.

A memo signed by Dennis Brower, legal adviser for the Army Physical Disability Agency, states that the new rules for rating strictly under the VASRD apply to cases that have not yet been decided or are on appeal. Brower also said “additional guidance” will be issued soon.

Service members repeatedly have charged that service policies superseding VA’s ratings schedule often lead to lower disability ratings — and lower payments.

Last April, Eric Christensen, of the Center for Naval Analyses presented a comparison of VA and military disability ratings by percentage from 2000 to 2006 to the Veterans’ Disability Benefits Commission. He found that VA tended to rate disabilities at least 7 percent higher — even though VA and the military use the same rating schedules and have the same legal mandates.

For mental health issues, the differences were even more pronounced. Christensen found that the military tends to hand out ratings of 10 percent for bipolar disorder, which the VA ups on average to 38 percent. The military also tends to award 10 percent ratings for major depressive disorder, which the VA ups to 34 percent.

Parker said part of the reason for the differences is that the military tends to add rules. For sleep apnea, for example, VA says anyone using a device to help them sleep should get a disability rating of 50 percent. Military guidance has been more stringent, requiring a person to have “considerable industrial impairment,” regardless of whether they use a device.

The Army policy change also kills a series of previous mental health guidelines that Parker said have been used to “sweep soldiers under the carpet” instead of rating their mental health issues fairly.

He cited as an example the Army’s previous refusal to use what it calls “convalescent ratings.” According to VA, if someone develops a mental disorder because of a highly stressful event that happened in service and is harsh enough to cause the person to leave the military, he should be rated at least 50 percent disabled, discharged and then examined again six months later to see if the rating should be changed.

Previous Army policy stated, “This is essentially a convalescent rating and will not be used.” Instead, the Army parked such soldiers on the temporary disability retirement list.

Critics also have claimed the military has tried to keep ratings low by diagnosing soldiers with “adjustment disorders” — non-ratable disorders that hinder a person in adjusting to military life, or personality disorders that existed before they joined the military.

In both instances, a member can be forced out of with no disability retirement benefits. But sometimes, as in several cases at Fort Carson, Colo., last year, soldiers with post-traumatic stress disorder or traumatic brain injuries received improper diagnoses.

The old Army policy included a mandate that psychiatrists who diagnose soldiers with mental disorders had to check to see if the condition could qualify as an adjustment disorder, and, if not, they had to fully explain why they were “rejecting” adjustment disorder as a diagnosis.

Brower’s memo says the Army has stopped using the following regulations as of Jan. 28:

• The joint-motion rating in Army Regulation 635-40 which requires a mechanical basis for limited range of motion, rather than a service member saying, “That hurts, I can’t move my arm any further,” as the VA requires.

According to the Army’s previous rules, “joint pain resulting in loss of motion does not constitute a mechanical basis for restricted motion.”

• Defense Department Instruction 1332.39 pertaining to sleep apnea. VA says a person must be rated as 50 percent disabled if he requires the use of a breathing assistance device. The Defense Department exchanged “considerable industrial impairment” for that.

Parker has worked with service members who were found unfit for service or fit with stipulations because they used a breathing assistance device, but were still given a zero percent rating under the Defense Department instruction. Parker knows of at least one sailor who later received a rating of 50 percent from VA.

• The Defense Department instruction on narcolepsy. VA bases a disability rating for this condition on the average number of seizures a person has per week, month or year. Someone with one major seizure in the past six months, for example, would be rated at 40 percent. According to the Defense Department, troops are rated 40 percent disabled only if they have “considerable industrial impairment.”

• Army Physical Disability Agency Issues and Guidance No. 1, which also pertains to painful joint motion, and states: “Limitation resulting solely from pain is not ratable” — a violation of the VASRD.

• Army PDA Issues and Guidance No. 6, which pertains to muscle spasms and states: “The examining physician must reasonably conclude that the chronic muscle spasm is the medical cause of the limitation of motion and is not treatable.”

• Army Physical Disability Agency Policy Memorandum No. 7, which pertains to mental health issues, narcolepsy and sleep apnea. According to VA, narcolepsy is a neurological disorder. Until now, the Army classified “idiopathic” narcolepsy as a psychiatric disorder and said those with depression, boredom with duty, and substance abuse can be misdiagnosed with narcolepsy. It also stated that eating disorders begin in adolescence and are, therefore, pre-existing conditions.

I hope this pans out for the best.

Brig. Gen Reuben Jones is probably upset to find he has been replaced at the APDA (a slight joke, they named the wrong General in the article)...

I do not have faith, though that the Army will automatically adopt the VASRD as it applies to Veterans at the VA (as opposed to "as interpreted by the US Court of Appeals for Veterans Claims").

The way I see it, this can play out a number of ways.

The best scenario would be that not only the VASRD will apply, but also the protections offered by other statutes and regulations, such as the relevant parts of 38 USC, 38 Code of Federal Regulations, the VA Adjudicator's Manual, and VA Gen. Counsel Opinions.
Under this scenario, other presumptions from the body of VA law would apply, such as this part of 38 USC:

"(b) In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full.
38 USCS § 1154."

If they did so, then much of the disparities between VA and DoD compensation would disappear. But I have little faith that this is how DoD will apply the law (however, this may come to pass if the DoD / VA Pilot Program is extended to all cases).

Another plausible scenario, in my view, would be if they simply applied the VASRD and relevant case law regarding the rating of conditions. I think this is a fair reading of Congressional intent in passing the 2008 NDAA. But here is the rub. So many of the Court of Appeals for Veteran Claims opinions on particular ratings have little to do with the interpretation of the text of the VASRD. Instead, you will find that most opinions deal with review of Board for Veterans' Appeals decisions. And the majority of this has to do with the proper weight to be given certain pieces of evidence. This provision of the law dealing with VA claims has a huge impact on the fair adjudication of those claims:
"(b) Benefit of the doubt. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant."38 USCS § 5107. This rule is not in the VASRD, and is unlikely to be adopted by DoD. Without it, you end up with a very different result than at the VA. (Under the DoD system, the standard of review is first "error or injustice" in the record at the Board for Correction of Military Records, and then whether the decision was "arbitrary, capricious, or not based on substantial evidence" at a reviewing court. This makes the burden on the Servicemember much higher than for the Veteran challenging agency action.)

So, it may be that while the strict textual interpretation of the VASRD will be implemented by DoD, it is not clear to me that Servicemembers overall will be that much better off, except for those cases dealing with narcolepsy, painful motion, or sleep apnea (and I believe that under the old law, these practices would have been overturned, if challenged in Federal Court).

I hope this didn't sound too negative. I think this is a good step forward and provides further ammunition for challenging cases. But I do not think we will see an about face and fair ratings automatically.

Now this is very a interesting read.

I had a conversation with someone about two soldiers discharged with personality disorder . My impression is that their case may be under review. Interesting.