Impartial Review is a Right

Jason Perry

Jason Perry

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I am furious with the Air Force MEBs at the moment. I have come across this issue again and again. A client of mine was told to "come in today to sign her MEB." There are problems with the MEB, so I advised my client to request an Impartial Review. Her PEBLO told her that if she wants to do that, she has to submit a rebuttal by Monday (three calendar days from now). This is complete BS.

Per AFI 41-210:

4.66. Impartial Review. If the SM requests an impartial review, an impartial physician or other appropriate healthcare professional (not involved in the SM‘s MEB process) must be assigned to offer a review of the medical evidence presented by the NARSUM and associated consults.
4.66.1. The impartial health professional should advise the SM within five duty days on whether the MEB findings adequately reflect the complete spectrum of injuries and/or illnesses. For cases in which the Impartial Review does not validate the MEB findings, the Impartial Reviewer will contact the MEB Board President (SGH or SGP who signed block 26 on AF Form 618) concurrently with notification to the SM.
4.66.1.1. In such cases, the MEB Board President must consider whether changes to the MEB package are warranted, and whether to reconvene the MEB once changes have been documented.
4.67. Rebuttal Letters. Armed with the decision of the MEB and, if requested, the information from the Impartial Review, the member may choose to submit a Rebuttal Letter to the MEB Convening Medical Authority (CMA).
4.67.1. Per DoDI 1332.38, E2.1.33, the CMA must be a senior medical officer, appointed by the MTF Commander, with detailed knowledge of directives pertaining to standards of medical fitness and disposition of patients, disability separation processing and familiar with the Veterans Affairs Schedule for Rating Disabilities (VASRD). It is recommended that the MTF Commander consider the SGH, SGP and Senior Profile Officer as the appointed MTF Convening Medical Authority primary and alternates, if the MTF Commander is not a physician. See Personnel and Readiness Policy Memorandum on Implementing Disability-Related Provisions of the National Defense Authorization Act of 2008, 14 Oct 08.
4.67.1.1. The acting CMA for any particular case may not be one of the three physicians who served on the MEB, and may not be the Impartial Reviewer for that particular case.
4.67.2. If the SM requested an Impartial Review, the SM shall be afforded seven calendar days from the date of Impartial Reviewer notification of review results to prepare a Rebuttal Letter and submit it to the MEB Convening Medical Authority, who shall be afforded seven calendar days to consider the Rebuttal Letter and return the fully documented decision to the SM.
4.67.3. If the SM did not request an Impartial Review, but chooses to submit a Rebuttal Letter, the SM will be afforded seven calendar days from the date of decision established in section 4.65.1. (2) to prepare a Rebuttal Letter and submit it to the MEB Convening Medical Authority, who shall be afforded seven calendar days to consider the Rebuttal Letter and return the fully documented decision to the SM.
4.67.4. If the member submits a Rebuttal Letter, the MEB results shall not be forwarded to the PEB until the Rebuttal process is finalized and MEB results indicate the SM may be unfit for duty. The fully documented Rebuttal Letter, and response, will be included with the MEB package sent to the PEB. Exceptions to timelines may be granted by an authority appointed by the SAF.
4.67.5. At the conclusion of the Impartial Review and/or Rebuttal process, the PEBLO will counsel the SM and ask him/her to sign and date the AF Form 618, blocks 29(a) and 29(b) signifying that he or she has been informed of the findings and has received the response to the Rebuttal Letter, and recommendations of the MEB. After the PEBLO meets with the member, the PEBLO assembles the package and forwards it to IPEB per the instructions of the Disability Counseling Guide for Physical Evaluation Board Liaison Officers, published by HQ AFPC/DPSD.
4.67.6. If the SM submitted a Rebuttal Letter, the PEBLO will assure the member that both the Rebuttal Letter and the Convening Medical Authority‘s response to the Rebuttal Letter will be included in the package which will be forwarded to HQ AFPC/DPSD to the Informal Physical Evaluation Board (IPEB)."

Rest assured, I am challenging this in my client's case. (I am not overly concerned about this in my client's case. Almost always, when I push back, the MEB/PEBLO folds on this issue...and when they don't it is effective ammunition at the PEB). However, I am greatly concerned by the fact that I see a pervasive issue where Airmen are told they need to justify their request for an impartial review, have to submit a rebuttal prior to the review, or have to jump through hoops to get what is guaranteed them by statute and regulation. I suspect that many Airmen forgo their rights because of a BS and illegal requirement for them to justify their request for an impartial review.

Keep it up, Air Force MEBs. Failure to follow the regulations and provide members with their rights will only come back to bite you with a system wide challenge (read as lawsuit) for denial of a substantive right of members. Or a nice heads up to Senate/House Armed Services Committees.
 
Jason, I wonder if this PEBLO is aware the SM has you on her side...I'm sure she'll figure it out soon enough. :) Thanks for posting!
 
Jason, out of curiosity would you consider a IMR to actually be "impartial" if it is given to another physician within the same hospital command?

An example would be: A soldier at JBLM received a jacked up NARSUM and requests an impartial medical review, this is given to another physician who may or may not have been involved in command pressure to rate cases in a specific manner (guidelines) that are imposed by the command.
 
gsfowler said:
Jason, out of curiosity would you consider a IMR to actually be "impartial" if it is given to another physician within the same hospital command?

An example would be: A soldier at JBLM received a jacked up NARSUM and requests an impartial medical review, this is given to another physician who may or may not have been involved in command pressure to rate cases in a specific manner (guidelines) that are imposed by the command.
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Very rarely do I see changes come out of an "impartial" review. This is not dispositive, as the MEBs do get a lot of things right. However, I neither think they are truly impartial or that effective unto themselves. The benefits to these reviews are mainly two-fold. First, they trigger the requirement for a written response to the post review rebuttal from the MEB Convening Authority. The response (or non-response) can be very helpful on appeal. Second, they get the members views (and the fact that the member actually disagreed with something) before the IPEB. (Without a rebuttal, the IPEB only has the MEB's write up and documentation to consider). So, probably most important is that it gets issues that might not otherwise be raised before the IPEB and it preserves issues for appeal.
 
By the way, the implementation of the impartial review is a far cry from what I think Congress envisioned. The statute says this:

"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:

(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."

My read of this says the independent physician should be available only to the Servicemember and to act as an advisor to the member on medical issues (including such things as what evidence might be gathered, what tests might be appropriate, etc....essentially, acting somewhat like an expert advisor for the member). Instead, you get someone who signs a memo that basically says whether they agree or disagree with the MEB as written. This does not seem to meet the intent of Congress, in my opinion.
 
If the organizations responsible cannot handle their responsibility can we effetely change this? What are the options to fix a broken program?: Class action lawsuits? Contracting MEB’s out to a company like KBR? Being in the Military for a while I have lived through many times of “Change” those changes being; we are actually going to follow or enforce a regulation already in place. Is there any oversight other than congress that can bring these two monsters to heel? (DOD, VA) Or are we just stuck fighting each case one at a time while the system itself remains broken? I never thought about Veterans’ advocacy until I started the painful process to become one. But I am going to have some spare time in my near future, and I defiantly need a hobby, so I will be trying to figure out a way to use some of that time to aid in this task of system reform. I don’t know how yet but I will find a legally and morally sound way to offer what I can.
 
One of the biggest issues that I have is that the IMR only uses AHLTA to paint a picture and with Tricare, often Sevice Members are seen by outside providers. Even though the consult requests and progress notes are given to patient administration or the MEB medical records technician, they do not all make it into AHLTA.

I feel like there should be a medical records tech assigned to each platoon or NCM in the MEB process and their focus should be on accurate documentation of medical progress.
 
gsfowler said:
One of the biggest issues that I have is that the IMR only uses AHLTA to paint a picture and with Tricare, often Sevice Members are seen by outside providers. Even though the consult requests and progress notes are given to patient administration or the MEB medical records technician, they do not all make it into AHLTA.

I feel like there should be a medical records tech assigned to each platoon or NCM in the MEB process and their focus should be on accurate documentation of medical progress.
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Ideally, this is where a good PEBLO comes into play, but I digress to the fact that many PEBLO's, for whatever reason, aren't willing or able to do this.

What is AHLTA?
 
ceilingfan said:
Ideally, this is where a good PEBLO comes into play, but I digress to the fact that many PEBLO's, for whatever reason, aren't willing or able to do this.

What is AHLTA?
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It is the DoD electronic medical records system
 
ceilingfan said:
Ideally, this is where a good PEBLO comes into play, but I digress to the fact that many PEBLO's, for whatever reason, aren't willing or able to do this.

What is AHLTA?
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I do not think it is realistic for the PEBLO to ensure each and every consult request and progress not is input into AHLTA. The PEBLO has far to may soldiers cases under their wing.

This should be implkemented in my opion at the platoon or NCM level. The information in AHLTA should be inputted and accurate in a timely manner so the that the PEBLO and MEB physician can make the best recommendations.
 
Jason Perry said:
I am furious with the Air Force MEBs at the moment. I have come across this issue again and again. A client of mine was told to "come in today to sign her MEB." There are problems with the MEB, so I advised my client to request an Impartial Review. Her PEBLO told her that if she wants to do that, she has to submit a rebuttal by Monday (three calendar days from now). This is complete BS.

Per AFI 41-210:

4.66. Impartial Review. If the SM requests an impartial review, an impartial physician or other appropriate healthcare professional (not involved in the SM‘s MEB process) must be assigned to offer a review of the medical evidence presented by the NARSUM and associated consults.
4.66.1. The impartial health professional should advise the SM within five duty days on whether the MEB findings adequately reflect the complete spectrum of injuries and/or illnesses. For cases in which the Impartial Review does not validate the MEB findings, the Impartial Reviewer will contact the MEB Board President (SGH or SGP who signed block 26 on AF Form 618) concurrently with notification to the SM.
4.66.1.1. In such cases, the MEB Board President must consider whether changes to the MEB package are warranted, and whether to reconvene the MEB once changes have been documented.
4.67. Rebuttal Letters. Armed with the decision of the MEB and, if requested, the information from the Impartial Review, the member may choose to submit a Rebuttal Letter to the MEB Convening Medical Authority (CMA).
4.67.1. Per DoDI 1332.38, E2.1.33, the CMA must be a senior medical officer, appointed by the MTF Commander, with detailed knowledge of directives pertaining to standards of medical fitness and disposition of patients, disability separation processing and familiar with the Veterans Affairs Schedule for Rating Disabilities (VASRD). It is recommended that the MTF Commander consider the SGH, SGP and Senior Profile Officer as the appointed MTF Convening Medical Authority primary and alternates, if the MTF Commander is not a physician. See Personnel and Readiness Policy Memorandum on Implementing Disability-Related Provisions of the National Defense Authorization Act of 2008, 14 Oct 08.
4.67.1.1. The acting CMA for any particular case may not be one of the three physicians who served on the MEB, and may not be the Impartial Reviewer for that particular case.
4.67.2. If the SM requested an Impartial Review, the SM shall be afforded seven calendar days from the date of Impartial Reviewer notification of review results to prepare a Rebuttal Letter and submit it to the MEB Convening Medical Authority, who shall be afforded seven calendar days to consider the Rebuttal Letter and return the fully documented decision to the SM.
4.67.3. If the SM did not request an Impartial Review, but chooses to submit a Rebuttal Letter, the SM will be afforded seven calendar days from the date of decision established in section 4.65.1. (2) to prepare a Rebuttal Letter and submit it to the MEB Convening Medical Authority, who shall be afforded seven calendar days to consider the Rebuttal Letter and return the fully documented decision to the SM.
4.67.4. If the member submits a Rebuttal Letter, the MEB results shall not be forwarded to the PEB until the Rebuttal process is finalized and MEB results indicate the SM may be unfit for duty. The fully documented Rebuttal Letter, and response, will be included with the MEB package sent to the PEB. Exceptions to timelines may be granted by an authority appointed by the SAF.
4.67.5. At the conclusion of the Impartial Review and/or Rebuttal process, the PEBLO will counsel the SM and ask him/her to sign and date the AF Form 618, blocks 29(a) and 29(b) signifying that he or she has been informed of the findings and has received the response to the Rebuttal Letter, and recommendations of the MEB. After the PEBLO meets with the member, the PEBLO assembles the package and forwards it to IPEB per the instructions of the Disability Counseling Guide for Physical Evaluation Board Liaison Officers, published by HQ AFPC/DPSD.
4.67.6. If the SM submitted a Rebuttal Letter, the PEBLO will assure the member that both the Rebuttal Letter and the Convening Medical Authority‘s response to the Rebuttal Letter will be included in the package which will be forwarded to HQ AFPC/DPSD to the Informal Physical Evaluation Board (IPEB)."

Rest assured, I am challenging this in my client's case. (I am not overly concerned about this in my client's case. Almost always, when I push back, the MEB/PEBLO folds on this issue...and when they don't it is effective ammunition at the PEB). However, I am greatly concerned by the fact that I see a pervasive issue where Airmen are told they need to justify their request for an impartial review, have to submit a rebuttal prior to the review, or have to jump through hoops to get what is guaranteed them by statute and regulation. I suspect that many Airmen forgo their rights because of a BS and illegal requirement for them to justify their request for an impartial review.

Keep it up, Air Force MEBs. Failure to follow the regulations and provide members with their rights will only come back to bite you with a system wide challenge (read as lawsuit) for denial of a substantive right of members. Or a nice heads up to Senate/House Armed Services Committees.
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The same thing happened to me. I was told to write a letter to request an impartial review and to state why in the letter I wanted the review. Then I was given erroneous reasons denying my requests. See attachment below to see how effective my impartial review was.
 

Attachments

  • Redacted Impartial Review Response.pdf
    113.4 KB · Views: 150
Is IMP even an option when a VA doctor makes an error on one of their forms? An error such as telling me I did have regulation of activities, then checking the box for no regulation?
 
T1D said:
Is IMP even an option when a VA doctor makes an error on one of their forms? An error such as telling me I did have regulation of activities, then checking the box for no regulation?
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It is always an option....however, the Impartial Review is an activity within the MEB process, so really, what you are looking for is challenging a finding of the MEB. Since the MEB cannot change or overrule the VA, there is little sense in trying to use the Impartial Review to address the VA's actions.

For the type of error you are describing, it is often difficult to get a change....(though, I have seen rare cases where requesting assistance through the VA and or MSC have worked to get an addendum or new exam). Most times, the erroneous VA exam would result in an erroneous rating (but, of course, if the rating is right, then no problem) which would have to be addressed with a one time VA Rating Reconsideration Request (VARR).

I gave a bit of a longer answer...summed up, Impartial Review is not route to address problem you are describing. Procedurally, would be the VARR.
 
Thanks! So a rebuttal letter with documentation from my endo might be the best option?
 
T1D said:
Thanks! So a rebuttal letter with documentation from my endo might be the best option?
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If the issue is with a rating from the VA, the only way within the IDES system to address that is with the VARR. I almost always believe it is better to exercise that option only when you agree that the PEB or SAFPC has correctly found all of your contended for conditions unfitting (in a case where you are looking for an unfit finding....normally, this means you do it after the IPEB comes back with correct findings, or absent that, after FPEB and/or SAFPC appeal- whichever level it takes for you to get an outcome you agree with or you have exercised all of your appeal options. This is because, you only have one opportunity for VARR within the IDES system, so if you do it earlier, you may miss having additional conditions that you might be able to appeal).

I always think folks should understand what each organization/board/agency can do what and to address problems to those who have power to grant relief. It makes no sense, for example, to ask the PEB to increase a rating- that is not within the PEB's power, it is the province of the VA. Or it make no sense to ask the VA to find you unit- the power to make that finding lies with the PEB. (There are some very rare or narrow exceptions to the above).

So, based on what you wrote, the issue sounds like concern about your rating based on erroneous opinion about your "regulation of activities." The rating is determined by the VA, so if they get it wrong, yes, a VARR with additional evidence showing regulation of activities would be the way to address any incorrect rating.
 
My husband was never even given the option of an IMR or a rebuttal letter. He was pushed my both the Peblo and the IDES attorney to sign the Narsum and submit it to PEB. We were never told we had any options other than asking the docs to write addendum's to get the other conditions considered for unfitting. The docs declined and we were told we needed to sent it off because it was already delayed and behind the timeline. He was told he could appeal in the PEB stage. So frustrating! I wish I would of known about this option before he signed off on his MEB.
 
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ReinaCat said:
My husband was never even given the option of an IMR or a rebuttal letter. He was pushed my both the Peblo and the IDES attorney to sign the Narsum and submit it to PEB. We were never told we had any options other than asking the docs to write addendum's to get the other conditions considered for unfitting. The docs declined and we were told we needed to sent it off because it was already delayed and behind the timeline. He was told he could appeal in the PEB stage. So frustrating! I wish I would of known about this option before he signed off on his MEB.
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Wow, this unnecessary tactic continues to bother me; a definite injustice while in the DoD IDES MEB/PEB process indeed! :mad:

In retrospect, I had a similar situation while in the DoD IDES MEB phase with an idiotic MEB Physician; she stated the very exact verbiage as boldly annotated above when the NARSUM was completed and I was an inpatient at a civilian mental healthcare hospital which was TRICARE approved for Active Duty military personnel with severe PTSD!

Hence, I did not want any part of dealing with the MEB NARSUM until I was officially released, but the idiotic MEB Physician stated "no" and fax the document on a Friday afternoon to me at the civilian mental healthcare hospital. Why? Because meeting the official MEB timelines was more important while stating that I wasn't declared mentally incompetent to proceed thru the IDES process albeit my current mental state required urgent inpatient healthcare treatment. Nonetheless, I was able to obtain assistance from the SMEBC (e.g., IDES Legal Office) as an inpatient with the submission of a MEB IMR to include the MEB Soldier's Rebuttal soon afterwards.

As such, this is just one of a multitude of reasons why I have decided to lend any potential assistance to military service members who are pending, referred and/or accepted into the DoD IDES process! In my opinion, even with the assistance of the PEBLO and IDES Legal Office, please know all of your DoD IDES legal rights and fight (e.g., invoke them) at every feasible opportunity if warranted!

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

Best Wishes!
 
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Wow Warrior our experience was very similar. My husband was also inpatient, at a military facility for combat PTSD during the MEB portion. The Peblo kept contacting me asking when he would be able to sign. I told the Peblo he was going to have to wait a few weeks since his 3 months program was almost done. We had several meetings with the Peblo, IDES attorney, RCC (AW2), all together in the same room and there was never a mention of an IMR or rebuttal. The only thing mentioned was the addendum but is was us that brought that up. It makes me so frustrated that this can happen to senior people. I really feel for the young people in this process. We kept being told my husband will be just fine, he is at 25 years active duty, his medical records are good and his C&P's look good. Don't worry you will be getting plenty go money. We could careless. We want it done right. In this end I think we will be fine. I am surely better educating myself now on the process. I didn't know my husband had signed off on it and submitted it until after it was done. Hopefully he will consult me before he does it again. His mental state is still difficult and he sadly could care less and wants me to handle this process. I still don't feel the IDES attorney, Peblo, or RCC(AW2), care that much. They kept saying you can deal with the VA over those issues later. The Peblo called me a Bull Dog! I take that as a complement though! I am protecting my husband.
 
ReinaCat said:
Wow Warrior our experience was very similar. My husband was also inpatient, at a military facility for combat PTSD during the MEB portion. The Peblo kept contacting me asking when he would be able to sign. I told the Peblo he was going to have to wait a few weeks since his 3 months program was almost done. We had several meetings with the Peblo, IDES attorney, RCC (AW2), all together in the same room and there was never a mention of an IMR or rebuttal. The only thing mentioned was the addendum but is was us that brought that up. It makes me so frustrated that this can happen to senior people. I really feel for the young people in this process. We kept being told my husband will be just fine, he is at 25 years active duty, his medical records are good and his C&P's look good. Don't worry you will be getting plenty go money. We could careless. We want it done right. In this end I think we will be fine. I am surely better educating myself now on the process. I didn't know my husband had signed off on it and submitted it until after it was done. Hopefully he will consult me before he does it again. His mental state is still difficult and he sadly could care less and wants me to handle this process. I still don't feel the IDES attorney, Peblo, or RCC(AW2), care that much. They kept saying you can deal with the VA over those issues later. The Peblo called me a Bull Dog! I take that as a complement though! I am protecting my husband.
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Yes, wow, very similar experiences indeed! :eek:

As such, you are doing a great job with assisting your husband throughout the DoD IDES process; I definitely for sure commend your efforts, and thank you as well! Take care! :cool:

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

Best Wishes!
 
Lots of issues with the IMR process, I was also told I had to have a valid reason for requesting an IMR, and that the NARSUM was more important than the 618. I've complained several times to my PEBLO and patient advocate, my PCM says he doesn't decide what goes on the 618 and the MSD says I have multiple conditions not listed. The one they did list is innacurrate but I was told they have to pick something from the MSD that most closely aligns with what I have. In this case, I have Portal vein thrombosis, but they are rating it as Deep vein Thrombosis. Medical records don't back up DVT. My package has just been pushed from the I PEB to the DRAS. If they have only rated the one condition, and none of the affiliated neoplastic conditions, what are my options for getting this fixed? Legally they have to include all unfitting conditions, do i just have to prove they omitted some IAW their own MSD? Who do I prove that to?
 
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