Last week’s DES Outrage of the Week covered how reviews conducted on disability cases by Boards for Correction of Military Records (BCMR) were disregarding disability law, policies and federal court decisions. In last week’s Outrage, I stated I would be covering three other review boards in this week’s Outrage, I have decided to pare the discussion for this week to just the Physical Disability Board of Review (PDBR) covered under 10 USC 1554a. I will discuss the Disability Review Board (10 USC 1554) and the Discharge Review Board (10 USC 1553) in next week’s Outrage.
Many of my past Outrages have discussed the decisions made by DoD and the PDBR that do the least for wounded warriors, thus preventing their receipt of legally due disability benefits. Some of those decisions were retracted by DoD after exposure by the press and by Congressional pressure.
The key policies retracted by DoD include the limiting of PDBR reviews to only conditions found unfitting by the PEBs, the use of non VASRD rating criteria and the DoD decision not to make PDBR recommendations retroactive to the date of separation. Unfortunately, several remaining PDBR issues have yet to be resolved in the favor of wounded warriors. Over the last couple of weeks, the press has published articles covering PDBR issues raised in some of my past Outrages. Two of these articles (and feedback to the articles) can be found here:
http://www.pebforum.com/f67/tom-phil...e-pdbrl-18081/
http://www.pebforum.com/f67/new-disa...135/#post38552
I will post other articles to pebforum.com as they become available.
One of the key concerns still affecting the PDBR is DoD’s decision not to properly resource the PDBR. PDBR officials have stated that 77,000 wounded warriors are eligible for PDBR review. The PDBR has further stated that their current PDBR staffing only allows them to adjudicate approximately one case per day. At that rate, it will take over 210 years to adjudicate all wounded warriors disability cases currently eligible for PDBR review. Secretary Gates has repeatedly stated that taking care of wounded warriors is the Department of Defense’s highest priority after winning the war of terrorism. However, it is obvious that DoD officials have failed to take Secretary Gate’s priority seriously as they have continually failed to properly resource review boards. DoD also has a consistent track record of making policy decisions that do the least possible for wounded warriors.
The PDBR, despite its continuing problems, has the potential to be a tremendous venue for rectifying improperly adjudicated disability cases. As a DoD level review board, the PDBR can drive uniformity into the Services’ adjudication of disability cases. The lack of uniformity in disability evaluation continues to be a major inequity in DoD’s Disability Evaluation System (DES) process. The “fit but unsuitable” issue I discussed in Outrage # 3, is prime example of a major and continuing uniformity issue affecting our Marine, Navy and reserve component wounded warriors. For the PDBR to reach its full potential, Congress and DoD must make changes in law and policy so that the PDBR can broaden its scope and timeliness. This would help all wounded warriors who qualify for disability benefits under law to actually receive those benefits in a reasonable timeframe. The changes Congress and DoD should make include:
1. Expansion of the PDBR eligibility window from 12-31-09 to at least the time when the DoD/VA Pilot Program is fully expanded to all wounded warriors. DoD expects full implementation of the Pilot Program by the end of 2012. Currently we have two processes for DoD disability evaluation, the traditional DES and the DoD/VA pilot program. Those evaluated under the Pilot Program are receiving higher disability ratings as well as access to a much more robust and responsive VA appeal process. The VA appeal process includes the requirement for the Government to assist the wounded warrior in developing his appeal. Further, the dual tracked traditional DES / Pilot Program adjudication process perhaps denies equal protection rights for those not covered under the more robust Pilot Program.
2. Ensure DoD notifies in writing all wounded warriors eligible for PDBR review that they have this option and the pros and cons of accepting a PDBR review. The Military Coalition (TMC) recently sent Dr. Clifford Stanley, Undersecretary of Defense for Personnel and Readiness, a letter, signed by all the TMC partners, that urges DoD to properly notify all wounded warriors eligible for PDBR review.
3. Expand PDBR review authority to cover all wounded warriors whose PEB determinations resulted in separation without retirement benefits. This would include fit determinations by PEBs when the service member is subsequently administratively discharged without DoD disability benefits due to the same medical condition(s). The fit but unsuitable issue is covered in Outrage # 3. PDBR review expansion should also include wounded warriors whose PEBs deemed their disabilities existed prior to service without aggravation. This issue is covered in Outrage # 4.
4. As per the language of PDBR law (10 USC 1554a) and the Congressional intent for this law, limit the PDBR’s review to only the determinations made by PEBs that led to the separation of wounded warriors without retirement benefits. If the PDBR determines a PEB should have placed the wounded warrior on the Temporary Disability Retirement List (TDRL), the PDBR should not be allowed to conduct a TDRL review unilaterally and in a vacuum. By law and policy, a TDRL review requires a full and complete medical evaluation board, an informal PEB, a formal PEB (if requested) and it includes appeal rights throughout the entire process. When the PDBR conducts TDRL reviews, they act as judge, jury and executioner with inadequate medical data while denying the wounded warrior protections guaranteed under law. In such TDRL cases, the PDBR should refer the wounded warrior back to the DES for a full and complete TDRL review.
Again, with proper modifications, the PDBR structure could serve as a extremely effective review board that will drive uniformity into the DES. Congress and DoD need to calibrate the PDBR so that it covers all wounded warriors removed from service due to the effects of a medical condition. When the PDBR deems an error has occurred that should have placed the member on the TDRL, the member needs to have access to the full TDRL review process. To aid in streamlining the process, perhaps the PDBR can take the first cut at the TDRL review. If the results of the TDRL review are acceptable to both the wounded warrior and the Service secretary, then no further review is needed. If, however, the PDBR’s TDRL review decision is not acceptable to either the wounded warrior or the Service secretary, a complete TDRL review with a complete MEB, informal PEB, and informal PEB (if requested),and full appeal rights are in order.
Michael A. Parker
LTC, USA (Retired)
Wounded Warrior Advocate
Many of my past Outrages have discussed the decisions made by DoD and the PDBR that do the least for wounded warriors, thus preventing their receipt of legally due disability benefits. Some of those decisions were retracted by DoD after exposure by the press and by Congressional pressure.
The key policies retracted by DoD include the limiting of PDBR reviews to only conditions found unfitting by the PEBs, the use of non VASRD rating criteria and the DoD decision not to make PDBR recommendations retroactive to the date of separation. Unfortunately, several remaining PDBR issues have yet to be resolved in the favor of wounded warriors. Over the last couple of weeks, the press has published articles covering PDBR issues raised in some of my past Outrages. Two of these articles (and feedback to the articles) can be found here:
http://www.pebforum.com/f67/tom-phil...e-pdbrl-18081/
http://www.pebforum.com/f67/new-disa...135/#post38552
I will post other articles to pebforum.com as they become available.
One of the key concerns still affecting the PDBR is DoD’s decision not to properly resource the PDBR. PDBR officials have stated that 77,000 wounded warriors are eligible for PDBR review. The PDBR has further stated that their current PDBR staffing only allows them to adjudicate approximately one case per day. At that rate, it will take over 210 years to adjudicate all wounded warriors disability cases currently eligible for PDBR review. Secretary Gates has repeatedly stated that taking care of wounded warriors is the Department of Defense’s highest priority after winning the war of terrorism. However, it is obvious that DoD officials have failed to take Secretary Gate’s priority seriously as they have continually failed to properly resource review boards. DoD also has a consistent track record of making policy decisions that do the least possible for wounded warriors.
The PDBR, despite its continuing problems, has the potential to be a tremendous venue for rectifying improperly adjudicated disability cases. As a DoD level review board, the PDBR can drive uniformity into the Services’ adjudication of disability cases. The lack of uniformity in disability evaluation continues to be a major inequity in DoD’s Disability Evaluation System (DES) process. The “fit but unsuitable” issue I discussed in Outrage # 3, is prime example of a major and continuing uniformity issue affecting our Marine, Navy and reserve component wounded warriors. For the PDBR to reach its full potential, Congress and DoD must make changes in law and policy so that the PDBR can broaden its scope and timeliness. This would help all wounded warriors who qualify for disability benefits under law to actually receive those benefits in a reasonable timeframe. The changes Congress and DoD should make include:
1. Expansion of the PDBR eligibility window from 12-31-09 to at least the time when the DoD/VA Pilot Program is fully expanded to all wounded warriors. DoD expects full implementation of the Pilot Program by the end of 2012. Currently we have two processes for DoD disability evaluation, the traditional DES and the DoD/VA pilot program. Those evaluated under the Pilot Program are receiving higher disability ratings as well as access to a much more robust and responsive VA appeal process. The VA appeal process includes the requirement for the Government to assist the wounded warrior in developing his appeal. Further, the dual tracked traditional DES / Pilot Program adjudication process perhaps denies equal protection rights for those not covered under the more robust Pilot Program.
2. Ensure DoD notifies in writing all wounded warriors eligible for PDBR review that they have this option and the pros and cons of accepting a PDBR review. The Military Coalition (TMC) recently sent Dr. Clifford Stanley, Undersecretary of Defense for Personnel and Readiness, a letter, signed by all the TMC partners, that urges DoD to properly notify all wounded warriors eligible for PDBR review.
3. Expand PDBR review authority to cover all wounded warriors whose PEB determinations resulted in separation without retirement benefits. This would include fit determinations by PEBs when the service member is subsequently administratively discharged without DoD disability benefits due to the same medical condition(s). The fit but unsuitable issue is covered in Outrage # 3. PDBR review expansion should also include wounded warriors whose PEBs deemed their disabilities existed prior to service without aggravation. This issue is covered in Outrage # 4.
4. As per the language of PDBR law (10 USC 1554a) and the Congressional intent for this law, limit the PDBR’s review to only the determinations made by PEBs that led to the separation of wounded warriors without retirement benefits. If the PDBR determines a PEB should have placed the wounded warrior on the Temporary Disability Retirement List (TDRL), the PDBR should not be allowed to conduct a TDRL review unilaterally and in a vacuum. By law and policy, a TDRL review requires a full and complete medical evaluation board, an informal PEB, a formal PEB (if requested) and it includes appeal rights throughout the entire process. When the PDBR conducts TDRL reviews, they act as judge, jury and executioner with inadequate medical data while denying the wounded warrior protections guaranteed under law. In such TDRL cases, the PDBR should refer the wounded warrior back to the DES for a full and complete TDRL review.
Again, with proper modifications, the PDBR structure could serve as a extremely effective review board that will drive uniformity into the DES. Congress and DoD need to calibrate the PDBR so that it covers all wounded warriors removed from service due to the effects of a medical condition. When the PDBR deems an error has occurred that should have placed the member on the TDRL, the member needs to have access to the full TDRL review process. To aid in streamlining the process, perhaps the PDBR can take the first cut at the TDRL review. If the results of the TDRL review are acceptable to both the wounded warrior and the Service secretary, then no further review is needed. If, however, the PDBR’s TDRL review decision is not acceptable to either the wounded warrior or the Service secretary, a complete TDRL review with a complete MEB, informal PEB, and informal PEB (if requested),and full appeal rights are in order.
Michael A. Parker
LTC, USA (Retired)
Wounded Warrior Advocate
