New Disability Board Disappoints
Tom Philpott | February 26, 2009
Review Board to Disappoint Vets Disabled Since 9/11
Complaints from veterans and from a high-profile commission that the services routinely were "low-balling" disability ratings for military members found medically unfit spurred Congress last year to take action.
Among other things it ordered the Department of Defense to create a special board to review disability ratings of 20 percent or less given to members who separated since Sept. 11, 2001. Thousands of veterans had higher ratings and additional benefits at stake from any fresh review.
But the new Physical Disability Board of Review Board (PDBR), which began accepting applications last month, isn't going to do what some in Congress and many veterans hoped that it would. It will not be reassessing ratings for mental and physical conditions from applicants based solely on the more liberal criteria used by raters at the Department of Veterans Affairs.
The Veterans Administration Schedule for Ratings Disabilities, or VASRD (pronounced a "vaazer-dee"), will only be used to their full effect in reviewing lower disability ratings awarded on or after Jan. 28, 2008.
In reviewing earlier disability rating, back through 9/11, the PDBR simply will determine if the service branch properly had followed its own guidelines for rating disabilities at the time of a veteran's separation.
The problem with that, say critics, is that, for some health conditions, service guidelines had watered down or ignored the VASRD, creating inequities across services and lower ratings for many members, including those with Post-Traumatic Stress Disorder, migraine headaches and other conditions. Still, the board's legal staff says that is all that the law requires.
"In adjudicating cases, the PDBR will assume service-specific policies to be authorized interpretations of the VASRD," explained Victor R. Donovan, legal advisor to the Air Force Review Boards Agency, which is tasked to run the PDBR from its headquarters at Andrews Air Force Base, Md.
Retired Army Lt. Col. Michael Parker, an expert on disability ratings and an advocate for disabled veterans, elicited that agency position with a lengthy letter and detailed questions seeking "absolute clarity" on the criteria the board will be using on thousands of veterans' applications.
Parker said he is stunned by the position being taken by Department of Defense lawyers. In effect, he said, it will neutralize what Congress has tried to accomplish for veterans now queuing up for rating reconsideration.
"We're back to square one," Parker said. "They are just going to confirm what was already said before."
It will make application to the board a hollow, perhaps even a harmful exercise for some because a decision by the PDBR, made final by the service secretary's signature, won't allow for an appeal or reconsideration. Some veterans trying to challenge their military disability ratings would be better off going before their service's Board for Correction of Military Records.
That, by the way, was an argument some Defense officials had made already in trying to discourage Congress from creating the special board.
A congressional staffer who helped to draft the legislative language for the board shared at least Parker's surprise at its limited scope.
"We weren't trying to change the standards that were in place," he said. "But the standards that were in place were to be the VASRD. The Army was the most serious offender. They claimed they were using the VASRD, that they had just supplemented it with more specific guidance."
As a result, critics contend, many veterans got lower ratings than they deserved, going back to 9/11 for this review but, in fact, going back decades.
Mike Hayden, a veterans' benefits expert with the Military Officers Association of America, also is frustrated at the PDBR's approach.
"We thought the intent of this board was to look at these low-balled ratings to see if they need to be elevated," said Hayden. "If they're going to continue to allow use of service disability schedules that had lower ratings compared to the VASRD, they're just going to perpetuate the same problems."
In 2007 retired Army Lt. Gen. James Terry Scott, chairman of the Veterans' Disability Benefits Commission, drew Congress's attention to the high proportion of injured veterans from the Iraq and Afghanistan wars who were being discharged with disability ratings below 30 percent.
A rating of 10 or 20 percent just qualifies a member for a lump sum severance. A rating of 30 percent or higher results in a lifetime annuity, access to the military health care for veteran and family as well as other benefits including discounted shopping on base.
Scott noted that from 2000 through 2006, the Army gave ratings of 30 percent or higher only to 13 percent of medically discharged soldiers. By comparison, the Navy awarded disability retirements to 36 percent. Air Force and Marine Corps numbers fell between those two. In the same period, the Army had awarded a 0 percent rating to 13,646 soldiers; the Navy, Marine Corps and Air Force had assigned 0 ratings to 400 apiece.
But the fiscal year 2008 National Defense Authorization Act mandating creation of a special board to review disability ratings since 9/11 apparently doesn't specify, as many veterans had assumed, that the board must rely on the VASRD, and not just verify that service guidance had been followed.
Hayden noted that another part of the bill's conference report said it expects DoD to implement the commission recommendations to use VASRD to achieve consistency in ratings between services, and VA and DoD.
No, he acknowledged, the 2008 law's section on the board doesn't seem to restrict DoD from using old service policies to judge the accuracy of ratings. But it seems short of what the commission and Congress intended.
"DoD is still refusing to follow the law," Parker said. "Instead, the PDBR will uphold illegal rating decisions, and DoD will continue to cheat disabled service members out of legally due disability benefits."
PDBR officials declined comment on short notice referring to the board's website for details.
How would any service member know to ask that question, to challenge that information, if by some chance they knew that these policies even existed! This system is supposed to allow the service members to be able to defend themselves, and yet we are reasonably expected to be able to utilize our own resources to discover these documents and policies? The pompous nature of the above excerpt shows that this is the DES' MEB system in action again. The average service member does not have the knowledge or schooling to delve as far into the system as the experts assigned to the boards. The scale of justice dips toward the system and leaves our veteran's (myself included) high and dry if we are without the assistance of a legal professional educated in this system. 
