Dept. of Defense and VA miss important deadline

[Jason Perry]

Yesterday came and went without the DoD and the VA meeting the July 1, 2008 deadline to make several improvements to the medical evaluation board (MEB), physical evaluation board (PEB), and to report to Congress on the advisability of consolidating the DoD and VA disability evaluation systems. These requirements were part of the 2008 National Defense Authorization Act and were passed into law as PUBLIC LAW 110-181 [H.R. 4986].
There are many important and vital rights that were granted by Congress in passing the law. Those rights depend on the DoD and the VA acting swiftly to publish regulations to improve processes, eliminate discrepancies between military and VA ratings, assign independent medical doctors to those members at the medical evaluation board, and to report to Congress.

I write this to draw attention to the fact that this has not happened yet, and to point out that those going through the physical disability evaluation system may have to demand their rights.


The following are several important rights that impact all those going through an MEB or PEB:

• Assignment to the Servicemember of an independent physician at the MEB to provide review of MEB findings, advice, and counsel.
• Setting time standards for processing of cases, setting a maximum number of cases heard at each MEB and PEB and the requirement to establish additional MEBs and PEBs when this number is exceeded.
• The requirement that the DoD and VA set up procedures that ensure the "elimination of unacceptable discrepancies and improve consistency" between military and VA ratings.
• Training and qualification standards for several key players in the process, including MEB physicians, PEB personnel (presumably including Board members), Physical Evaluation Board Liaison Officers (PEBLOs), and Judge Advocates.

Until they publish the required regulations, if going through disability processing, I would advise being aware of these important provisions, how they may impact your case, and demanding compliance when appropriate.


I have posted the complete text of Section 1642, below:

Sec. 1612. MEDICAL EVALUATIONS AND PHYSICAL DISABILITY EVALUATIONS OF RECOVERING SERVICE MEMBERS.
(a) Medical Evaluations of Recovering Service Members.--
(1) In general.-- Not later than July 1, 2008, the Secretary of Defense shall develop a policy on improvements to the processes, procedures, and standards for the conduct by the military departments of medical evaluations of recovering service members.
(2) Elements.-- The policy on improvements to processes, procedures, and standards required under this subsection shall include and address the following:
(A) Processes for medical evaluations of recovering service members that--
(i) apply uniformly throughout the military departments; and
(ii) apply uniformly with respect to recovering service members who are members of the regular components of the Armed Forces and recovering service members who are members of the National Guard and Reserve.
(B) Standard criteria and definitions for determining the achievement for recovering service members of the maximum medical benefit from treatment and rehabilitation.
(C) Standard timelines for each of the following:
(i) Determinations of fitness for duty of recovering service members.
(ii) Specialty care consultations for recovering service members.
(iii) Preparation of medical documents for recovering service members.
(iv) Appeals by recovering service members of medical evaluation determinations, including determinations of fitness for duty.
(D) Procedures for ensuring that--
(i) upon request of a recovering service member being considered by a medical evaluation board, a physician or other appropriate health care professional who is independent of the medical evaluation board is assigned to the service member; and
(ii) the physician or other health care professional assigned to a recovering service member under clause (i)--
(I) serves as an independent source for review of the findings and recommendations of the medical evaluation board;
(II) provides the service member with advice and counsel regarding the findings and recommendations of the medical evaluation board; and
(III) advises the service member on whether the findings of the medical evaluation board adequately reflect the complete spectrum of injuries and illness of the service member.
(E) Standards for qualifications and training of medical evaluation board personnel, including physicians, case workers, and physical disability evaluation board liaison officers, in conducting medical evaluations of recovering service members.
(F) Standards for the maximum number of medical evaluation cases of recovering service members that are pending before a medical evaluation board at any one time, and requirements for the establishment of additional medical evaluation boards in the event such number is exceeded.
(G) Standards for information for recovering service members, and their families, on the medical evaluation board process and the rights and responsibilities of recovering service members under that process, including a standard handbook on such information (which handbook shall also be available electronically).
(b) Physical Disability Evaluations of Recovering Service Members.--
(1) In general.-- Not later than July 1, 2008, the Secretary of Defense and the Secretary of Veterans Affairs shall develop a policy on improvements to the processes, procedures, and standards for the conduct of physical disability evaluations of recovering service members by the military departments and by the Department of Veterans Affairs.
(2) Elements.-- The policy on improvements to processes, procedures, and standards required under this subsection shall include and address the following:
(A) A clearly-defined process of the Department of Defense and the Department of Veterans Affairs for disability determinations of recovering service members.
(B) To the extent feasible, procedures to eliminate unacceptable discrepancies and improve consistency among disability ratings assigned by the military departments and the Department of Veterans Affairs, particularly in the disability evaluation of recovering service members, which procedures shall be subject to the following requirements and limitations:
(i) Such procedures shall apply uniformly with respect to recovering service members who are members of the regular components of the Armed Forces and recovering service members who are members of the National Guard and Reserve.
(ii) Under such procedures, each Secretary of a military department shall, to the extent feasible, utilize the standard schedule for rating disabilities in use by the Department of Veterans Affairs, including any applicable interpretation of such schedule by the United States Court of Appeals for Veterans Claims, in making any determination of disability of a recovering service member, except as otherwise authorized by section 1216a of title 10, United States Code (as added by section 1642 of this Act).
(C) Uniform timelines among the military departments for appeals of determinations of disability of recovering service members, including timelines for presentation, consideration, and disposition of appeals.
(D) Uniform standards among the military departments for qualifications and training of physical disability evaluation board personnel, including physical evaluation board liaison personnel, in conducting physical disability evaluations of recovering service members.
(E) Uniform standards among the military departments for the maximum number of physical disability evaluation cases of recovering service members that are pending before a physical disability evaluation board at any one time, and requirements for the establishment of additional physical disability evaluation boards in the event such number is exceeded.
(F) Uniform standards and procedures among the military departments for the provision of legal counsel to recovering service members while undergoing evaluation by a physical disability evaluation board.
(G) Uniform standards among the military departments on the roles and responsibilities of non-medical care managers under section 1611(e)(4) and judge advocates assigned to recovering service members undergoing evaluation by a physical disability board, and uniform standards on the maximum number of cases involving such service members that are to be assigned to judge advocates at any one time.
(c) Assessment of Consolidation of Department of Defense and Department of Veterans Affairs Disability Evaluation Systems.--
(1) In general.-- The Secretary of Defense and the Secretary of Veterans Affairs shall jointly submit to the appropriate committees of Congress a report on the feasability and advisability of consolidating the disability evaluation systems of the military departments and the disability evaluation system of the Department of Veterans Affairs into a single disability evaluation system. The report shall be submitted together with the report required by section 1611(a).
(2) Elements.-- The report required by paragraph (1) shall include the following:
(A) An assessment of the feasability and advisability of consolidating the disability evaluation systems described in paragraph (1) as specified in that paragraph.
(B) If the consolidation of the systems is considered feasible and advisable--
(i) recommendations for various options for consolidating the systems as specified in paragraph (1); and
(ii) recommendations for mechanisms to evaluate and assess any progress made in consolidating the systems as specified in that paragraph.

 

[embalmerswife]

Jason,
Would it be beneficial for all of us to contact our senators and representatives to complain about this missed deadline? (Squeaky wheels and all) I know that you can get access to their email through the firstgov.gov site. Perhaps we should give a brief detail about how this failed timeline is effecting each individual case. I would think if we all did this Congress could force DOD's hand to some extent.

 

[Jason Perry]

I am all for keeping pressure on the DoD and VA to follow through. Recently, at one of the House Oversight Committee meetings to address progress of implementing the 2008 NDAA, the DoD Rep basically admitted that they were missing deadlines. I suspect the answer that will be given if DoD is asked about the timelines will be "we are working on it." I suspect that unless this becomes a real political "hot potato" they will implement this when they are ready. Having real stories of how this impacts people would certainly help.

If more advantageous regulations come out after anyone's case is decided, I would strongly suggest that you should argue for re-adjudication of your case with more favorable rules applied. This is the real "so what." All of you with pending cases are being denied the benefit of the law Congress passed to try to "fix" the broken procceses.

 

[surfer495]

I actually contacted the Senate Commitee for VA affairs and made a formal complain about my MEB. I was one of the first AF to get a disability rating through the pilot as well. The whole system is a huge mess and needs major attention to fix the problems. I made all the problems very clear to the DOD, VA, the Senate commitee and even the contracted company who is making survey calls to see how the pilot is going/went. Since I was one of the first, I felt the need to make all problems heard to hopefully better the process for future members of the pilot. Overall, the system has a great idea behind it, but it is unrealistic for the DOD to join with the VA and expect them to work together. They both work on completely different systems.

 

[frank]

Jason,

In accordance with 2008 NDAA, we requested an independent review of our MEB/PEB packet and were given that. But the MEB office does not want to make the changes recommended by the independent doctor reviewer.
Today they are pressuring my husband to go in and sign the old, unchanged 3947. Now what?
Cheryl(wife of Frank)

F

 

[cvma544]

I wouldn't sign unless my changes were made or noted for an appeal.

But that me.

By the way what post or MTF are you at, FT Knox PEBLO told me she never heard of it, and they don't do it.

Thanks
Stu

 

[Jason Perry]

Cheryl,

Right now, it is probably enough to have gotten the review (I assume that it was included in the MEB packet). Having that will preserve any issues for appeal and will make your concerns clear to the board.

After the regulations on the Independent Medical Advisor are published, there may be some other processes or rights that are conferred. I tend to think that later, a deficient review or the denial of the advisor in the first place may give rise to some legal protections. But, in the end, there will always exist differences in some case as to if the MEB has accurately evaluated a member's conditions. In some respects, even now, the rights are the same- a deficient evaluation may give rise to a challenge of the sufficiency of the PEB's "full and fair hearing." I tend to think that a Court will ask if the error, had it not occurred, would have changed the outcome of the case. The main benefit, from what I can forsee, will be in maximizing the chances that all conditions are appropriately addressed at the MEB level. But for now, if the Independent Medical Advisor documented the issues, that is a good thing for your husband's case. It will also make it easier to argue any points at the Formal PEB.