Physical Evaluation Board Forum

This story caught my eye because the paper is from near where I grew up and it has commentary from maparker. Way to go, Mike, on continuing to get the word out on this subject. It seems like this Marine got shafted, I hope he is going to appeal.

Iraq Vets Battle for Benefits

By David Perry, The Lowell Sun
Article Last Updated: 04/06/2008 05:48:04 AM EDT


Sunday, April 06
Four years ago, Chuck Millard joined the U.S. Marines to make himself better and make his son proud.
They made him a rifleman and sent him to Iraq. He suffered a spinal cord injury on a night mission.
More than two years after surgery, he is a 30-year-old lance corporal who suffers chronic back pain he will likely endure for the rest of his life.
From the sidelines, he watched his unit arrive home to a hero's welcome. Unable to fulfill the physical duties of a rifleman, he was shuffled to other units.
Last fall, a Physical Evaluation Board found Millard "unfit" for service. He leaves this month with a single severance check. It's a far cry from the monthly payments and lifetime health care of full medical disability.
Medical records say he qualifies for a medical disability retirement. But Millard has been rebuffed twice by Naval boards, without explanation.
Millard says he is owed more, based on the military's own injury ratings system. Fearful of losing what he'd already been promised, Millard gave up on a third, "formal" hearing in Washington on March 20. He would have been represented by a Naval Judge Advocate General (JAG) lawyer
to plead his case before three high-ranking officers.

A war in Iraq was enough. Why fight one in Washington, too?

The men and women who serve their country in wartime are finding the bridge to life at home peppered with unexpected twists and turns. It has been especially difficult for some servicemen and -women, such as Millard, to be fairly compensated for injuries sustained in the line of duty.
A chorus of critics contends that the disability ratings system is being used against veterans to save money. Wounded warriors are being shuffled back into the civilian world without the full measure of compensation they deserve, they say.
Inconsistencies abound. Some rated too low for disability retirement by their service branch get higher ratings from the Veterans Administration. Both boards use the same documents.
In a February hearing of the House Subcommittee on National Security and Foreign Affairs, Chairman John Tierney, a Massachusetts Democrat, says a year of investigations revealed an "archaic, adversarial, and burdensome disability evaluation process."

Retired Army Lt. Col. Michael Parker knows the system.
Parker, 46, has dedicated his voice to fighting for fair disability ratings, lobbying lawmakers and the Veterans' Disability Benefits Commission. He has voluntarily led "about 100" servicemen and -women through the maze of applications and appeals.
"It's one of those things that's not about me," he said from his home in Alexandria, Va. "When people like Chuck go over a wall in Iraq not knowing what's on the other side and they do that to him, people like me get really mad."
Parker was diagnosed with reactive arthritis, which is painful and causes his joints to swell. He discovered inconsistencies in the treatment of military veterans. And he retired after putting in his 20 years.
Parker says the number of wounded and injured has soared during the war in Iraq. Yet in 2000, there were 102,435 disabled retirees and 89,510 in 2005. The budget to pay them has hovered around $100 million.
Parker is convinced that the military is saving money by denying lifetime benefits that its soldiers, sailors and Marines deserve. The military has consistently denied that.

Born in Worcester, Millard grew up in Milford, N.H., Pepperell and Townsend. He fathered Tyler, now 6, with a former girlfriend.
While living in Manchester, N.H., he walked the streets with time to think: "Is this the man I want to be for my son?"
On April 12, 2004, Millard, 26, joined the U.S. Marine Corps.
He found hard work, a common mission and camaraderie. He hoped it would become a career.
A year in, he was injured on a night mission in Iraq. It led to extreme pain, surgery and reassignment.
Millard wrote daily to his girlfriend, Kristin Lee of Maynard, about how much he loved boot camp, the physical and mental baptism into the few and the proud, the service branch one never really leaves.
They made him a rifleman, assigned to the Third Battalion, Second Marines, Kilo Company.
The unit shipped out on Feb. 15, 2005, for seven months in Iraq. In April, his unit was on a night mission. Millard carried 50 pounds of gear and wore night-vision goggles.
He reached a stone wall. He vaulted over it and dropped about 15 feet, landing on his feet. Pain shot up his legs to his back. He toughed it out for six weeks.
During a five-mile run one day, the back of his right leg felt weak, then numb.
He told his lieutenant hours later. The lieutenant replied: You're such an idiot, how come you let it go?
Two days later, Millard was horizontal in a doctor's office. The doctor had a Q-Tip and a needle. Tell me when you feel something, said the doc. Millard waited a couple of minutes.
"OK," the doc said.
Millard flipped over. Blood was running down his leg. He felt nothing.
Millard was shipped to other bases for surgery, first Iraq, then to Landstuhl, Germany, and to the National Naval Medical Center in Bethesda, Md.
Lee, 28, his girlfriend of four years, says she had never seen him so down in the 13 years they have known each other.
His medical records were lost between Iraq and the United States, and officials thought he was a civilian who had snuck onto the base for free medical care.
They sent him to Camp Lejeune. He waited for an open appointment for an MRI. And waited for six weeks.

His unit returned from Iraq in September. Millard watched their welcome, the flags and hugs, from the sidelines.
A nonmilitary neurosurgeon fused Millard's spine in December, at Cape Fear Hospital in Wilmington, N.C.
Dr. Mark Lapp, a veteran spine surgeon with an office in Westford, performs "a few a week." Remove the thin plate of bone called the lamina to free up the nerves. Fuse the spine with screws and rods, so the leg pain subsides.
Millard is still in pain, "kind of like a really bad migraine," he says.
He can't run or work out, or work jobs he used to work. So he says he has been "pawned off on different units" and now serves with the School of Infantry Supply at Camp Geiger, which is in charge of arms shipments.
Last fall, Millard appealed to the Physical Evaluation Board, a trio of military officers, in hopes of receiving a medical retirement. He submitted paperwork noting that he can lean forward just 15 degrees from an upright position.
According to the military formula, that should result in a "40 percent rating," which includes a monthly check, plus medical care, for the rest of his life.
The board decided that Millard had a 20 percent disability rating. That equals a severance check and a few months of medical coverage.
He appealed. A new decision came back in December, unchanged and unexplained.
"I almost lost it," he said.
Parker reviewed some of Millard's documents after being interviewed for this report. He wrote the soldier a nine-page, unsolicited e-mail explaining to Millard his options. Among them: "Wounded warrior" provisions in The National Defense Appropriations Act, signed by President Bush on Jan. 28.
The new law means that any soldier with a 20 percent or less rating, beginning Sept. 11, 2001, can have his/her case reviewed within 90 days.
Physical evaluation boards may now use only the Veterans Administration Schedule for Rating Disabilities in making judgments. Previously, said Parker, the Department of Defense ignored court rulings that increased ratings.
"At first, I figured, this guy's getting screwed," Parker said. "The numbers showing his limited motion clearly were enough to qualify for full disability retirement. Why the hell doesn't the Navy pick up on this stuff?"
Millard scrapped his formal appeal last month. He had a hard time reaching his JAG officer to discuss his situation, and he heard the appeals board would look for "something new." He had nothing new, just the previous board's conclusion, which is inconsistent with the rating formula. And he feared the deal he was offered could evaporate.
Parker figures "this is the case of a guy who will clearly benefit by the change in the law that just occurred. ... I wouldn't be surprised if he ends up rated higher, at 40 percent or more," because of Millard's nerve damage and limited range of motion.
But there was a gamble. Had Millard pressed his case on March 20, the Department of the Navy could have found him fit for service, then administratively discharged him for not being "operationally suitable."
Millard might have left with only an honorable discharge — and no separation check.

Millard's son is somewhere in Florida with his mother. "I'm a lot different now than when I went in," Millard said.
He plans to study nuclear medicine, "CAT scans, bone scans." No heavy lifting.
He hopes to attend college in Boston on the GI Bill. Kristin is nearby, as is "what I hear is one of the best VA outfits, in Boston."
Millard is not bitter, but he wonders why he went through this.
"I don't hate the Marines at all. I had wanted to stay in. I hoped to become a sergeant and go to officers' training school. But I'm not able to do that. They're losing a lifer."
His original medical records were never found.
Sometime before May, Millard will be "involuntarily separated from active duty due to a disability." He will get a tax-free check for $23,389.20 and 120 days of medical coverage. And he will receive Veterans Administration care.

__________________
Jason

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

I saw the article last night on line. It is a good article but I sent the author the following clarifications:


Parker says the number of wounded and injured has soared during the war in Iraq. Yet in 2000, there were 102,435 disabled retirees, and 89,510 in 2005. The budget to pay them has hovered around $100 million.
Dropped to 87,230 in 2006. $100 Million a month or 1.2 Billion a year for disability retiree pay.

The new law means that any soldier with a 20 percent or less rating, beginning Sept. 11, 2001, can have his or her case reviewed within 90 days.

The 2008 NDAA provided for a new review board, the DoD Disability Review Board for those rated 20% or less since 9-11. DoD has 90 days to establish this board from the enactment of the 2008 NDAA which was 28 January 2008. LCPL Millard will have to apply for this review once DoD establishes the procedures for doing so.


Physical evaluation boards may now use only the Veterans Administration Schedule for Rating Disabilities, in making judgments. Previously, says Parker, the Department of Defense ignored court rulings that increased ratings.


No may about it! 10 USC has always required PEB’s to rate unfitting disabilities per the VASRD. The 2008 NDAA restated/reinforced this requirement and also requires DoD to follow VA Court of Claim rulings on the interpretation and implementation of the VASRD.


Mike

That is a difficulty with media coverage, it is great to get the word out to the public about the system, but you really want accurate coverage to tell the whole story.

This is a big issue, the lack of rationales for decisions. But in this case, I wonder if they issued a "new decision," or simply stated they were not revising the IPEBs findings. It sounds like this Marine never had a formal hearing, so it may be that the PEB was standing by the IPEBs findings and stating that the formal would be neccesary. In cases like this, the other concern I have is "waiver" of rights by accepting the decision of the PEB. Hopefully, he is able to appeal and correct what appears to be an erroneous decision.
I have written about this often, the lack of early legal representation by the JAGs. It appears he was entitled to a higher rating and I think he would have benefitted from good legal advice early in the process. Also, while the PEB would have considered something new, the way it is written makes it sound like the IPEB "needs to be overcome." In reality, it is a new hearing, with the earlier findings nullified and not binding on either the Servicemember nor the PEB. It is not unlike a "do over," although the IPEB's findings can give good insight into how the PEB is likely to view the case.

__________________
Jason

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

Here is what LCPL Millard was thinking:

The IPEB had his ROM which demonstrated his forward flexion was limited to 15 degrees which equates to a 40% rating under the DC he was rated under, 5237. The IPEB had this information yet rated him at 20%. He brought this issue up in his IPEB rebuttal yet the IBEP did not change the rating nor would they explain why. They just granted him a formal board.

He was being advised he could only be successful at a formal board with new information which he did not have. He was also being advised if he went to a formal board, he could end up with a worse deal than what the IPEB gave him, that being disability separation with separation pay. Complicating matters, his calls for advice from his Navy JAG counsel went unanswered. So, a few days before the formal board, he punted.