To: The Recovering Warrior Task Force (RWTF)
From: Michael A. Parker, Wounded Warrior Advocate
Subject: Improper PDBR Ratings of Category II Conditions
Date: 27 November 2012
The PDBR, like the Navy PEB, is improperly rating conditions the Navy PEB designates as Category II conditions. Enclosed is a PDBR case that involves several category II conditions that were not properly rated by the initial Navy PEB or the PDBR.
Paragraph 4111 of SECNAVINST 18504.E defines condition categories as follows:
4111 Categorization Of Findings
All PEB findings should be arranged into four categories for members found Unfit
to continue naval service:
a. Category I: All Unfitting Conditions
b. Category II: Those Conditions That Are Contributing to the Unfitting Condition.
c. Category III: Those Conditions That Are Not Separately Unfitting, And Do Not
Contribute To The Unfitting Condition.
d. Category IV: Conditions, Which Do Not Constitute A Physical Disability.
Note: Only Category I and Category II conditions will be rated by the PEB.
Please note that category II conditions are conditions that contribute to the unfitting condition and that
category I and II conditions will be rated by the PEB".
10 USC 1216 states:
(b) Consideration of All Medical Conditions.—
In making a determination of the rating of disability of a member of the armed forces for purposes of this chapter, the Secretary concerned shall take into account all medical conditions, whether individually or collectively, that render the member unfit to perform the duties of the member’s office, grade, rank, or rating.
This section of 10 USC 1216 was placed into law via the 2008 NDAA. It requires all conditions that contribute to unfitness to be rated per the VASRD.
The 14 October 2008 DoD DTM, which implements the wounded warrior provisions in the 2008 NDAA, states the following:
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.
In short, category II conditions are required to be rated per the rating criteria of the VASRD.
In the enclosed case, the wounded warrior was exposed to several IED and RPG explosions. His Navy PEB found him unfit and separated him with a 10% disability rating. His VA rating is 80% effective from the date of separation. The wounded warrior in this case had several category II conditions identified by the Navy PEB. They include: cognitive disorder, multiple grade two and three concussions, personality change due to a medic, post-traumatic headache, PTSD and major depressive disorder. Below is the rating comparison from the wounded warriors PDBR case:
RATING COMPARISON:
Note: The rating comparison table from the case would not copy into this Pebforum message. This table can be seen by pullin up PDBR number
PD1100184 on the USAF PDBR section at http://boards.law.af.mil/.
Note the Navy PEB only rated the individual for post concussive syndrome at 10% and failed to rate the six category II conditions as required by SECNAVINST 1850.4e, 10 USC 1216 and 14 October 2008 DoD DTM. Note the VA rated the headaches and PTSD both at 50% disabling effective the date of separation.
This is an all too common occurrence in the Navy PEB. I have advocated for multiple cases recently that had category II conditions identified but not rated by the Navy PEB. I have made multiple inquiries to the Navy PEB on the issue but they have refused to respond.
The PDBR erred when it failed to properly assess and rate the category II conditions. For example, the PDBR findings state:
In the matter of personality change condition, the Board unanimously recommends no change from the PEB adjudications as, Category II, contributing to but not separately unfitting.
The PDBR, like the Navy PEB, is in error when it states a condition must be separately unfitting to be rated by the PEB. The SECNAVINST 1850.4e clearly shows that category II conditions are to be rated and 10 USC 1216/the 14 October 2008 DoD DTM clearly state that conditions that contribute to unfitness are to be rated IAW with the VASRD.
It should also be noted that the PDBR placed the wounded warrior on the TDRL based on a 50% PTSD rating determination. This is proper but it was improper for the PDBR to conduct a TDRL review of the case as they have no authority in law or regulation to conduct TDRL reviews. This wounded warrior, separated in July of 2008, is well within the five year TDRL window. He should have been referred back to the Navy for a proper and complete TDRL evaluation. The PDBR TDRL evaluation issue is covered in deeper depth in my 05 December 2012 statement to the RWTF.
Enclosure
PDBR Case PD1100184
Michael A. Parker
LTC, USA (Retired)
Wounded Warrior Advocate