Ed,
You provided in your post above the following:
Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB). Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.
I don’t disagree that in order to trigger a MEB the member has to have a condition that does not meet retention standards (or calls into question his medical qualification to serve). However, once the MEB is triggered, all medical conditions are required to be covered with full clinical data. And per DoDI 1332.38, conditions that are not triggers for a MEB can still contribute to overall unfitness. The 14 OCT 2008 DoD DTM states that conditions that contribute to unfitness must be rated per the VASRD even if they are not independently unfitting.
E7.1.2. The Department of Veterans Affairs Schedule for Rating Disabilities
(VASRD) shall be used in making ratings determinations for each of the medical conditions determined to be unfitting independently or due to combined effect, to include in combination with an independently unfitting condition. If more than 1 military unfitting condition exists, the VASRD will be used to determine a combined disability rating for each unfitting condition. For purposes of establishing a rating, the VASRD will be used in relation to the Service member's physical disability at the time of the evaluation. If use of convalescent ratings and/or other interim ratings (i.e prestabilization ratings) applies, the Service member may be placed on the Temporary Disability Retired List (TDRL) for reevaluation purposes.
Therein is the rub. If the MEB does not properly cover all medical conditions, and the NMA does not specifically delineate what conditions are impacting duty performance, how can the PEB properly assess the impact of the condition on fitness? It a trash in, trash out problem.
I understand that the BCMR’s operate on the presumption of Government regularity. And the responsibility is on the applicant to show the error. But he should only have to demonstrate a condition contributed to his overall unfitness, based on the fitness standards in DoDI 1332.38, to be successful. If that hurdle is completed, the conditons needs to be rated per the VASRD and combined to his overall military disability rating.
My bigger issue with the BCMRs, and the ABCMR in particular, is this often used passage in their decisions:
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.
Absolutely the overall VA rating can be higher than the overall PEB rating as the PEB rating is limited to conditions that contribute to unfitness. However, when it comes to the rating for the same unfitting condition at the same time, the ratings should be the same as both the military and VA are required to rate per the VASRD.
If the VA rates the condition deemed unfitting, effective the date of separation, higher than the military, the ABCMR needs to explain why the Army rating is correct in light of the VA rating as one of the two agencies in wrong. The Rominger v. US case brought this out in spades when it ruled:
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).
The Rominger ruling dates to 2005 and yet since that time the ABCMR decisions continue to use the passage above to explain away why the higher VA for the same exact condition is not an issue.
Mike
