BEWARE- An Alarming AF Trend: Improper Use Of Legacy Disability Evaluation System

Discussion in 'Physical Evaluation Board System Overview' started by Jason Perry, Apr 12, 2017.

By Jason Perry on Apr 12, 2017 at 3:07 AM
  1. Jason Perry

    Jason Perry Benevolent Leader Site Founder Staff Member PEB Forum Veteran Registered Member

    May 15, 2007
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    I have an important advisory and issue of great importance for Air Force Reserve Component Members (Air Reserve and Air National Guard members).

    A few weeks back a colleague of mine called me and asked whether I had heard of ARC/ANG members being processed through the Legacy Disability Evaluation System (LDES). My friend shared a story of a client who was an AF Reserve member who was referred to the MEB and then the PEB notified his client that he was being processed by the PEB as an LDES case. The client had a current VA rating that was higher than the PEB decision. I was asked what I thought of this and I said that this made no sense and seemed patently illegal. I thought this was just an error or an aberration- until the next day when a prospective client, and ANG member called me and related that while in the MEB process, he was asked to "elect" the LDES process by his PEBLO because his case would be processed faster. My opinion is that this is a patently illegal processing of cases. It is very disturbing to me that this improper use of LDES processing is essentially a policy action by the AF PEBs for ARC/ANG members. Both cases are still processing and there is no definitive answer as to the resolution of this issue, but, I wanted to alert folks about this and let folks know not to agree with LDES processing in cases where they should be processed by the Integrated Disability Evaluation System (IDES).

    Here is a quick overview of the history and differences between the systems. The "traditional" of LDES system is what was in place for all cases prior to about 2008-2009. The LDES is where members are reviewed by the PEB, which determines both a members fitness and the disability rating assigned for any unfitting condition. After many complaints about the PEBs assigning low ratings for conditions that were then found by the Department of Veterans Affairs (VA) using the same rating criteria to warrant a higher rating, Congress, in 2008 directed that a joint program was authorized where the PEB would continue to make fitness determinations but the VA would provide the ratings for all service connected conditions and the Military Departments would apply the VA ratings to the conditions found unfitting by the PEB. This program was initially called the "Pilot Program." Here is a reference that discusses this: Documents/NDAA_08_Section_1612c-REPORT.pdf
    After the rollout of the Pilot Program, which happened over several years, it was in about 2011 that the Program was used in almost every case. The result was that members were given higher ratings and retired more often than in the past. This new Pilot Program eventually became known as the Integrated Disability Evaluation System.

    In 2014, the DoD published three regulations, DoDI 1332.18, DoD Manual 1332.18 Vol. 1 and Vol. 2. The regulations provided for all new cases to be processed via the IDES program with a few exceptions. This is an excerpt from DoDI 1332.18:

    "b. The Secretaries of the Military Departments:
    (1) Will use the LDES process for non-duty-related disability cases and for Service members who entered the DES prior to the IDES being implemented at a given MTF.
    (2) Subject to the written approval of the USD(P&R), may also use the LDES process for Service members who are in initial entry training status, including trainees, recruits, cadets, and midshipmen. Secretaries of the Military Departments who enroll initial entry trainees, recruits, cadets, and midshipmen in the LDES must offer to enroll these Service members in the VA Benefits Delivery at Discharge or Quick Start programs.
    (3) Will use the EDES process for consenting Service members designated with a catastrophic illness or injury incurred in the line of duty.
    (4) May designate a Service member’s condition as catastrophic if he or she has a permanent and severely disabling injury or illness that compromises the ability to carry out the activities of daily living. Guidance for procedures unique to the EDES is available in Reference (u).
    c. Except for initial entry trainees, Military Academy cadets, and midshipmen entered into the LDES and catastrophically ill or injured Service members entered in the EDES, will use the IDES process for all newly initiated cases referred under the duty-related process (see Glossary). Guidance for procedures unique to the IDES is available in Reference (q). "

    It is apparent to me that the use of LDES processing for ARC/ANG members is patently illegal. By not processing members under the IDES, members miss out on getting a VA determined rating, by not having the opportunity to request a VA Rating Reconsideration Request (VARR) if they are not in agreement with the VA rating, and they also miss out on having a VA rating and decision that will be applicable once the member is retired or separated.

    In short, the use of LDES is generally not in the members' interest, denies the member important rights, and is contrary to law and regulations.

    Beware of PEBLOs or the PEBs trying to process you through the LDES when you should be going through the IDES!!

    (I will be challenging this new "policy" or development and will update folks on whether this issue is resolved going forward).
    1. eps17
      AND there is an open window between the PDBR eligibility dates and the termination of all the MEB/PEB cases processed under the legacy system before IDES was fully implemented.

      This has created a pool of decisions which were both processed under the old faulty system and which are not eligible for review.

      It happened to me.

    2. chaplaincharlie
      Wow! Who was the brain child behind this decision? He/she should be subject to charges under the UCMJ.
      eps17 likes this.
    3. ITSmeAF
    4. ITSmeAF
      I have a question and hope someone could help. I have been going through and Emmy be process and I was given A decision back in November saying I get military retirement from the Air Force then a case manager from FPE be submitted documentation illegally and falsely representing me without my knowledge Nor my lawyers knowledge and it has caused my rating to draw from 30% to 20% and also now I'm being military separated with severance. So I was instructed by my lawyer to contact congressmen and senators to look into my case which I have done and nothing has seemed to help if anyone has any other ideas that will help please let me know I'm getting screwed
    5. eps17
      That doesn't make any sense. If you were given this decision you had a choice to accept or deny it. I'm not sure what a case manager for FPE is.

      I've never heard of PEB provided counsel being helpless and encouraging their client to involve elected officials (which by law cannot change or influence any decisions.)

      Provide more information.
    6. ITSmeAF
      So I did except the offer but elected for reconsideration for my percentage to go up I didn't submit the documentation needed in time for the reconsideration so my lawyer just declined it and the case manager at Randolph submitted a reconsideration anyway without the knowledge of my lawyer or myself and the reconsideration package she submitted was my formal board package that I submitted to stay in the Air Force.and win the VA got the package they saw that one of my conditions was getting better and change my percentage but the VA should've never saw the package in the first place it was submitted illegally by the case lawyer submitted a document to have my percentage reinstated and rescinded but the VA refuse to do so in the Air Force is basing their percentage reduction by what the VA is rating me at.
    7. eps17
      File an IG complaint and make sure it is written clearly. Have someone look over your IG complaint and proofread it before you submit.
    8. ITSmeAF
      I have an IG complaint with my base and also AFPC already.
    9. eps17
      That's good. I think you still have appeal options either to their decision or to the SECAF or to the AFBCMR.
    10. oldgrumpybear
      Good afternoon,

      I have a high VA rating and have received the LDES brief given by staff at Ft. Gordon. Im still in the National Guard and will elect the LDES process. My reasoning is this:

      I have little chance of increasing my rating as Im near max, and I don't have some looming injury out there that gives me a single high rating or multiple other claims that would add up to the next bracket. Ive done the math many times.
      I have a greater chance of getting a lower rating if I use the IDES process, I know this process and the historical ratings of many people while I was staff assigned to the WTB. The IDES rating would adjust my current VA rating and could cause me to loose money I'm currently receiving.
      As long as I get 30% from the LDES process, I can retire with all the benefits early and still receive my full VA comp.

      Check me if I'm wrong on something here.
    11. Jason Perry
      Jason Perry
      Are you being given an "option"?
      Under the regs, you should not be. However, it wouldn't surprise me if they are not following the regs.
      I can't guess on the basis of your thoughts. Would need to know more about why you think this is.

      Again, not sure why you think this. It sounds to me that you may be thinking that the IDES unfitting rating would lower/disqualify your previously granted VA ratings. Not sure what your basis for your conclusions are, but, from what you have written, something is not adding up and I suspect you are not taking into account the full picture.

      No. If you get 30% from the Army, you will retire with military benefits. But, the latter part, about getting "full VA comp" would turn on whether you are qualified for CRDP or CRSC.
      eps17 likes this.
    12. SGTV
      Thank you for this post. I process a lot of packet to send SM cases to the MEB. Our state told us we're to counsel Soldiers on the LDES process and a 4856 is a required part of the packet. I really didn't understand the point of offering it.

      So, let me ask for clarification: Many Guard Soldiers are being paid by the VA already for their conditions. Some at very high percentages. Will LDES protect their VA rating? Thanks! V

    13. Jason Perry
      Jason Perry
      First off, let me say that I see no value or advantage for folks "electing" LDES over IDES. (And, I am engaged with a case currently where I am fighting whether such an election is even possible. That is, the regulations state which process is to be used in certain circumstances. I do not believe it is possible for a member to "waive" or "elect" a process that does not apply to them).

      Will LDES "protect" their VA ratings? No. The VA uses its own system for re-evaluating ratings when that is appropriate. There is no (let me state this cleary- no set of circumstances) where an LDES process is advantageous for a member. I tend to think it is contrary to regulation and law to have PEBLOs offering such an option and I can't see how it is not malpractice (absent circumstances I can't think of) for an attorney to suggest or offer that LDES is advantageous or acceptable.

      This effort to use LDES in inapplicable circumstances is complete garbage. In my view, just an effort to deny members their proper due processing and outcomes. Whoever thought of this tact should be ashamed (and likely fired).
      Florida850 and eps17 like this.
    14. Warrior644
      Indeed, very well said! ;) Don't every invoke any LDES offering! :eek: Take care!

      Thus, I quite often comment that "possessing well-informed knowledge is truly a powerful equalizer!"

      Best Wishes!
    15. eps17
      If you want to get "low balled" choose the LDES.

      That's why the PDBR was created and the I-DES was rolled out; to fix the broken LDES and help all those who got short changed on benefits.

      Two separate pots of money folks. The first one is the constrained military budget and the second one is the VA.

      Its easier to cut lossses, give a severance, and dump people on the VA versus retiring them, paying them, paying for their healthcare, and being on the hook for a lot more in the long run.

      LDES is garbage, unfair, and has no checks or balances with the VASRD during the adjudication processes prior to being discharged/retired. The I-DES does and people have far better outcomes.
      Jason Perry likes this.
    16. Sbliss79
      Jason could you PM I have some important questions regarding my Review from the PDBR and I think I have a great case.

      Sindy Bliss
    17. FTP
    18. FTP
      Mr. Perry represented me and won this case without me ever having to attend the FPEB. There is no better lawyer than Jason Perry do not waste your time with appointed counsel yes they are free but ask yourself this why do they care about you you are not paying them. I hired Jason and received my retirement with no worries.

      Carl Wolicki
      eps17 likes this.
    19. USMCJAG
      Jason--my case has been before the Navy PEB five times: 3 IPEBs and 2 FPEBs. I've been on TDRL for four years.

      The Navy PEB operates under the theory that when an IDES member transfers from TDRL to PDRL, they revert to LDES, so the PEB doesn't have to apply the VA ratings; the PEB is free to apply and interpret the VASRD as they choose, always to the detriment of the member.

      Where they get this theory remains a mystery, but that's what they're doing.

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