Physical Evaluation Board Forum

Below is an article from this week's Army Times on the issue of guard and Reserve Members being denied access to the Disability Evaluation System. My comments are in italics. The Bottom line is that anyone on active duty order for more than 30 days is treated the same as any other active duty member in terms of eligibility for DoD disability benefits. However, guard and reserve members are all too often being denied these benefits becuase their units are not following procedures for referring them to the DES when they become sick or injured while on active duty.




Mike



Reservists confused about disability benefit eligibility



Many getting incorrect information about claims

It is not up to the service member to know the eligibility rules and processes for the Disability Evaluation System (DES). This is a command/medical responsibility. Service members do not and cannot apply for processing by the DES nor do they put in claims for DoD disability benefits. Only commanders, doctors or personnel commands can trigger entry into the DES which can lead to disability benefits.



By Kelly Kennedy - kellykennedy@militarytimes.com
Posted : April 07, 2008

While serving in Iraq, Army Reserve Sgt. Todd Kost, 41, jumped from a 5-ton truck and felt his legs go numb.

“I lost all feeling in my lower extremities,” he said.

He had ruptured a disc. Three months into his tour, he was sent to Madigan Army Medical Center at Fort Lewis, Wash., where he had back surgery, and soon after returned to his Reserve unit in Bismarck, N.D.

There, he was told he no longer met retention standards because of the back injury, but because he hadn’t been in the military for at least 15 years, he was ineligible for military disability retirement.

SGT Kost would not have been eligible for retirement had he in fact had 15 years of service. This is yet another area where guard and reserve units are confused. The 15 year retirement is only available to guard/reserve member who become unfit due to non service connect disabilities. SGT Kost’s back injury was definitely service connected. The law allowing for 15 year retirements is 10 USC 12731b below:
12731b. Special rule for members with physical disabilities not incurred in line of duty

(a) In the case of a member of the Selected Reserve of a reserve component who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for purposes of section 12731 of this title, determine to treat the member as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member has completed at least 15, and less than 20, years of service computed under section 12732 of this title.



(b) Notification under subsection (a) may not be made if—

(1) the disability was the result of the member’s intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retention established by the Secretary concerned; or



(2) the disability was incurred during a period of unauthorized absence.


Army officials chaptered him out on an administrative discharge — wrongly. They missed the “unless you’re on active duty” clause.

The reserves administratively discharged him under procedures that are used for individuals who become unfit due to disabilities that did not incur while entitled to basic pay. SGT Kost’s disability was injured in a war zone while on active duty.

“There’s no way I should have come off a spine injury in Iraq and not gone” before a medical evaluation board, Kost said.

That was in 2003, but Kost did not find out about the error until a few months ago, when his wife was on the Internet and found several cases just like his.

And it’s not just the Army Reserve. Across the blogosphere, dozens of current and former reservists are just now finding out they should not have been taken off active-duty status after injuring themselves while on active duty — and should have received benefits for the injuries.

For some reason, that information isn’t making it to all the reserve-component troops. In the Army, active-duty officials say it’s a reserve-component issue; Reserve officials chase it back to the regular Army.

“That’s the bureaucracy of the government,” Kost said. “The left hand doesn’t know what the right hand is doing.”

Randal Noller, a spokesman for the Army National Guard, called the issue a “gray area.”

“If they’re injured on active duty, that’s an active-duty issue,” Noller said. “But once they’re off [active duty], where do they go?”

The rule itself is fairly simple: Troops injured on active duty are eligible for medical benefits for their injuries. If their command determines they are medically unfit for duty because of that injury, they must go to a medical evaluation board.

Commanders/doctors/personnel commands must refer a member to the DES if they fail to meet retention standards. It is the role of the physical evaluation boards to determine if a member is unfit. If the member is unfit, the PEB determines if and how to compensate the disability. These reserve and guard members are being denied disability benefits by being denied access to system that grants the benefits. 10 USC 1201-1222 codifies the requirements.

Retired Army Lt. Col. Mike Parker, who closely monitors the disability retirement system and has offered free help to many troops with claims, explained it further: A person with a pre-existing injury may be shipped home from active status within 25 days of deploying. But that does not include anyone who gets sick or injured while on active duty.

Kost is re-submitting all his paperwork and requesting a change to his discharge. But he only happened upon the rule by chance — just in time for a second back surgery.

“I’m sure there’s a lot more out there like me,” he said.

Kerry Baker, legislative director for Disabled American Veterans, worries about getting the word to other reservists who have fallen through the cracks.

“I don’t know how you find the people throughout the country,” he said. “I don’t know how you reach out to all of them.”

Part of the problem seems to be ignorance; reserve units deal with medical disability retirement cases so infrequently that they don’t know the rules. But Kost wondered why he left Madigan, one of the Army’s largest active-duty medical facilities, without being sent to a medical board.

“I honestly don’t know what went wrong,” he said.

Former Army Capt. Jason Perry used to work as a military attorney within the disability retirement system and is now a civilian lawyer specializing in that area. He has a Web site for people unsure about the process at Physical Evaluation Board.

Go, Jason, Go!

There, Perry has worked with several reservists who missed the opportunity to go through the retirement process, or who are receiving bad information.

An Army National Guardsman was told to go directly to the Veterans Affairs Department, as they would take care of his service-connected disabilities.

The VA rated him 60 percent disabled, but he’s still in the Guard, waiting for his physical evaluation board. He was wrongly told he had to be in for at least 15 years to qualify.

“There seems to be a consistent issue with people getting different advice,” Parker said.

In one case, Parker helped California National Guard Sgt. Gordon Holmes, 52, contact the Wounded Soldier and Family Hotline to report a problem.

“It came up dry,” Parker said. “They sent it back to the people who we’re having the problem with in the first place.”

Holmes was supposed to deploy with a unit to Iraq. But four days into training at Camp Shelby, Miss., he realized he could no longer see the target while trying to zero his M4 in 93-degree heat with 90 percent humidity.

His uniform became sweat-soaked. His tongue went numb. A VA doctor ultimately determined Holmes had suffered a heat stroke that caused brain damage that now leaves him with fierce headaches. Rather than processing him for his injury, his unit sent him home and said he was no longer fit for deployment.

“They just take you off orders, send you home and don’t do anything,” he said.

SGT Holmes should have been assessed by medical authorities to determine if he could recover and return to his unit or if he needed to be placed in a medical retention unit for further treatment and potential DES processing. These procedures are clearly laid out in the Army G-1’s Personnel Policy Guidance for Contingency Operations in Support of GWOT. Having a heat injury victim immediate clear the base, taken off active duty orders and flown home alone without any follow-up medical care or support is absolutely the wrong answer.

He has no paperwork stating that it was a line-of-duty injury, so he can’t use Tricare benefits. Since last June, he has tried to get that status, but when he and Parker called the hot line, Holmes said his unit threatened him with nonjudicial punishment for going outside his chain of command.

And the hot line — as well as the Camp Shelby Inspector General’s office — told him to go back to his unit to re-do his paperwork. He’s now working on that — and asking for a transfer to another unit.

This is not an action for SGT Holmes to initiate and complete. His command is responsible for conducting the line of duty investigation as well as referring to him to the DES as he has a condition that fails to meet retention standards per AR 40-501.

In most cases, if a person is injured while still in uniform, they should request a medical evaluation board. But if they have already processed out, their only recourse may be to apply for a correction of military records.

Parker said the military needs to reach out more to the reserve components to make sure they’ve gotten the benefits they deserve.

In the meantime, his advice to reservists injured on active duty is: “Don’t take an administrative discharge.”

It is not like they have a choice. All they can do is fight it and try and educate their chain of command on the proper procedures before it is too late.

Mike,

Thanks for posting this! It is great that this issue continues to get coverage. It is absolutely pervasive that Guard and Reserve members are being denied access to the disability evaluation system. I see both the administrative discharge and the LOD processing being the most likely culprits systemically. I suspect that much of this comes from a lack of knowledge on the subject, but whatever the cause, it puts reservists in the position of having to fight to get into a system they have a right to in the first place.

What a load of crap! As a former Army prosecutor, I can't imagine a charge that would fit. Whoever threatened him should be ashamed (and probably relieved from duty).

I actually spoke with the reporter, Kelly, last week after this story was finished. It looks like they will be doing additional stories in the near future on military disability process. Good news as far as getting the word out about Servicemembers rights!

__________________
Jason

Physical Evaluation Board Forum Administrator
New Members- Read OVERVIEW OF MEB/PEB PROCESS

Kudos to Jason and MAParker for this contribution. The LOD process is not weighted in favor of the soldier which is a sad testimony. If a soldier has an accident or injury and is not provided the opportunity to have an LOD then is seems to me they are denied due process. I have seen many RC commands where the leadership is less than proactive in this regard due to ignorance or apathy. Whatever the reason, the Guard and Reserve Component chiefs should be called to task explain these failures. This is just one of the many issues that plague the system. I guess that's why they canned the Army of One slogan. Which One?

D

__________________
Duty is the sublimest word in the English language.
Robert E. Lee

fdmckeever,
you are defffinately corrcet on the LOD process. luckily that was the only problem that i did'nt have through this point of the DES.
jason and maparker are truely hero's. with advocates like them, i realy believe that the system will improve. it's just like the saying "we/i fight so our childer will not have to.", they fight for us so others won't have to. i look at what my dad and father-in-law went through fighting w/the VA for many, may years to get where they have and when i get pi$$ed off @ "the system", i sometime feel bad.

__________________
"you are your only advocate". stay strong!!!

out,
tucci


"Do not yield. Do not flinch. Stand up. Stand up with our President and fight. We're Americans. We're Americans, and we'll never surrender. They will."
John McCain

tucci,

Don't let the system wear you down. When you win we all win.

D

__________________
Duty is the sublimest word in the English language.
Robert E. Lee

thanks,
you are correct on that one.

__________________
"you are your only advocate". stay strong!!!

out,
tucci


"Do not yield. Do not flinch. Stand up. Stand up with our President and fight. We're Americans. We're Americans, and we'll never surrender. They will."
John McCain

Tucci,

Thank you for the kind words, but I don't think my efforts are heroic. Those who are injured in service to our great country are heroic for their willingness to serve and sacrifice. I feel this work is more akin to a duty I have to share the knowledge and help Servicemembers access the benefits promised to them.

I don't disclaim, however, the heroic and tireless efforts of LTC Parker (maparker) in this regard. He has been at this for many years and took up this fight well before anyone was aware of the issues. Testifying before Congress, giving briefings to Military Service Organizations and getting the word out about the deficiencies in the system, not to mention directly helping others navigate this system, is a credit to him. He also has been instrumental in publicizing many developments here, including posting and forwarding to me many of the Directives and regulations that he accessed earlier than generally publicly available. For that, I thank him for his efforts.

All of you can help as well by passing this site to those who might benefit and simply by being part of this community. I thank all of you for that, as well.

__________________
Jason

Physical Evaluation Board Forum Administrator
New Members- Read OVERVIEW OF MEB/PEB PROCESS

I'm an individual mobilization augmentee (IMA) reservist. I suffered a traumatic injuries while traveling to perform inactive duty reserve training. I've had multiple surgeries and was given an "in the line of duty" finding. My reserve command placed me on active duty orders almost three months after my injuries, retroactive to the day of my accident in July 2008. My physician placed me in what the Air Force calls a 4 profile (not fit for duty) in October 2008 which listed all my restrictions (no running, no standing greater than 10 mins, no situps, pushups, etc.). In his doctors notes, he stated I'm able to do "sit down work only."

As required, I emailed all the notes to my reserve command headquarters (in another State), and their response was I'm no longer qualified to be on active orders since I can "do light duty." (aka sit down work = light duty). I was removed from orders (orders=pay) with no warning, and told I could perform normal reserve duties (inactive duty training, annual tour) if I signed a waiver, which states I have little to no impairment even with a "not fit for duty" profile. (This email was sent to me in November after my orders expired in October). If I don't sign the waiver, I won't be allowed to any reserve work because of my medical profile and duty limiting conditions. They also said I could apply for incapacitation pay IF I could show a loss of civilian income. Since I'm unemployed, I cannot.

Problem is, I can't even take a step without extreme pain and have been diagnosed with "drop foot" due to damaged nerves in my leg. I can't even walk with crutches the football field length distance to my work area. No one on the base knows how I'm supposed to get continued medical treatment with the line of duty (LOD) in my hand. They only deal with active duty--not reservists. I've bought all my own medical supplies to include crutches, compression stocking, etc. and can't afford a wheelchair or a leg brace as my doctor prescribed. I'm in limbo status now and not sure where to turn.

So here I am. Disabled from a military line of duty injury. Wife quit her job to provide me 24 hour care four months ago. Living off credit cards. Unable to walk or work. Removed from orders because I'm presumed to be able to do light duty. Unemployed (was getting unemployment pay before accident but no longer qualify since you must be "able to work", I have no source of income. Don't know where to go to get treatment, can't call Tricare for appointments (not in the system). But, I've got this ticket called an LOD! Woohoo! Would someone please inform us what we're supposed to do with it and how to use it?

I saw a military physician today from an appointment I had made while I was still on military orders and in the Tricare system. This time he stated in his notes "not released to work." He is also recommending an MEB. From what I understand, the MEB will be done by the same Reserve Command in ANOTHER State, who will never see my face. I guess I can expect a letter in six months or so stating I'm "fit for duty"--however, "because of your lack of participation, failure to meet physical fitness standards, unsatisfactory performance in reporting for duty due to your inability to walk, you are being adminstratively discharged.

Disclaimer: I'm taking pain killers right now, unable to sleep, frustrated with the complete lack of organization and processes in getting needed help, and downright disappointed and ashamed the Air Force Reserves treats people like this. After 31 years--stick a fork in me.

VA jumper,

Are you able to perform drill? Did you sign the waiver? You can get INCAP pay for lost drill pay.

I also think there are issues with you being taken off orders. Especially since you are being MEB'd.

Have you applied for VA compensation? If not, do so.

__________________
Jason

Physical Evaluation Board Forum Administrator
New Members- Read OVERVIEW OF MEB/PEB PROCESS

I can't drill because I'm not fit for duty. I refuse to sign the waiver since it states to qualify, my condition must have "little to no impairment." I don't consider not being able to walk a little impairment. I can APPLY get INCAP pay, but to get it you have to show a loss of civilian income which I can't since I'm unemployed. I can't apply for VA compensation since I'm still a drilling reservist--even though I can't drill because my medical condition. The presumption is I will eventually improve and return to normal duty. However, based on the physician's comments I expect this to be a lifelong disabling condition.

You are right about there being issues with being taken off orders. But THEY don't care. I'm off their books and no longer a liability if off orders. In their minds, if you can make it to a desk and sit down to work, you're fit for duty and don't qualify to be on medical continuation orders. With their logic, someone with their legs gone after having returned from IRAQ can sit behind a desk doing drill and not be given the consideration of being paid until they've been administratively discharged for failing to satisfactorily complete a physical fitness test. This is the kind of situation that should make headlines on CNN and result in commanders getting grilled before Congress.

The only right thing to come out of this, is I applied for Traumatic Service Groups Life Insurance benefits and got it. Had it not been for that, I'd have been bankrupt a long time ago. It took over two months but that $25,000 check made all the difference.