Physical Disability Board of Review Update

This is a huge problem. I will give some thoughts, most of this is just my opinion.

Before going any further, this irks me. This Board of Review is supposed to offer a way to address errors in the original PEB. Aside from the fact that there are systemic problems that still need to be addressed at the PEB (I will write about that in another post), it should not require the use of a civilian attorney to fight for your rightful benefits. Since this PDBR is just starting, we don't have any track record to judge the results yet. But I have concerns.

As far as vets orgs, I don't know if they will take on this role. On the one hand, the more they accomplish, the more they can go after funding based on the role. Depending on the number of cases, they may or may not be resourced to undertake this role. If anyone calls a VSO, and gets an answer, please let us know what they say. A whole other question is whether they are a good choice to use. In some cases, it will be a very straight-forward case and they may offer good assistance. What concerns me is if the case is either complicated, or if the PDBR decides incorrectly. VSOs may be very competent, but they are not attorneys, and perhaps will not make sure that the issues raised at the PDBR are complete and therefore make for a stronger chance in court, if that route is necessary. What is tough is that the only way you will know is after the PDBR rules on a case; that is, if you win, no additional help was necessary...but if you lose, it may have made a difference.

As far as the JAGs, I do not think these will be able to assist. By definition, the applicant is a separated member, and thus are not eligible for Legal Assistance. Even if they were, I don't have a lot of faith that they would be helpful. There is no training for JAGs in this area of law, except for those assigned at the PEB (and much of this is on the job training). I think that the services JAG Corps should welcome the mission and create a kind of "health and disability law" career track, so that there is retained institutional knowledge on the issues. As it stands now, the only military attorneys with solid experience that practice for an extended period of time are the DA/DAF civilian attorneys at certain PEBs.

We will have to see how this plays out and the members of this forum who post their experiences can help give a better picture. I hope the PDBR is an effective route to appeal. As I find out more, I will post my thoughts. I hope others do the same.

(EDIT: I have been thinking about an important issue at the PDBR regarding raising issues they have stated they will not consider; I will write more on this later in a reply to this post).
 
I sent mine in although I am expecting to be denied since I was Med boarded and discharged in early 2006 with 0% from the Army and 60% from the VA. I'll let this site know if I hear anything.:eek:
 
Well folks, I sent in my DD294 and and have first assigned case number. Will keep you posted on the process. The letter I received indicates my application will undergo preliminary processing and "caputring the record of your submission" Reall not sure what that means. It says once complete it will be transfered to the respective service records assembly unit in order to secure records and information required to present my application to the PDBR... Sounds like quite the process. Says I will be tols when that occures.

Think I have a good shot as I was rated at 30% by the Army and given retirement orders and started outprocessing. It went for a review in DC who decided that 20% sounded better and chnaged the rating right before discharge because the VA rating should not apply. VA rated me that same month under the code the Army say should not apply 30%. Will keep you posted.
 
Rangersigo said:
Weel folks, I sent in my DD214 and and have first assigned case number. Will keep you posted on the process. The letter I received indicates my application will undergo preliminary processing and "caputring the record of your submission" Reall not sure what that means. It says once complete it will be transfered to the respective service records assembly unit in order to secure records and information required to present my application to the PDBR... Sounds like quite the process. Says I will be tols when that occures.

Think I have a good shot as I was rated at 30% by the Army and given retirement orders and started outprocessing. It went for a review in DC who decided that 20% sounded better and chnaged the rating right before discharge because the VA rating should not apply. VA rated me that same month under the code the Army say should not apply 30%. Will keep you posted.
Click to expand...

When did you get discharged? Also, I didn't see where it said we need to send our DD 214 along with the 294. Can you tell me where you saw this or was it just a precaution?
 
I was discharged 30 April, 2002. Sorry meant 294, It did not ask for the DD214, I am sure they will collect this in their records search. I included nothing more than my original PEB with 30% recommending retirement, the new PEB when the board in DC changed it and my VA rating. Kept it simple as it seems straight forward as to what occured. Will keep the forum posted.
 
Defense Department, VA Smooth Path to Benefits for Severely Wounded


Severely wounded troops returning home now have fewer bureaucratic barriers between them and their veterans’ benefits.

On Jan. 22, the Defense and Veterans Affairs departments announced a new, faster means for handling troops with “catastrophic” injuries who seek the veterans’ status that allows them access to VA medical and other entitlements.

“This new policy should allow service members and their families to focus on the essentials of recovery, reintegration, employment and independent living, with the combined assistance from [the Defense Department] and VA,” Michael L. Dominguez, acting undersecretary of defense for personnel and readiness, said.

In the past, injured troops were subject to lengthy reviews under the standard Disability Evaluation System, or DES, before being transferred from Defense Department to VA status. Today’s announcement waives this requirement for those with catastrophic injuries -- severe, permanent impairments resulting from combat -- and reduces their processing time.

Troops who participate in this optional, expedited process will be given a Defense Department disability rating of 100 percent, and the VA then will identify the applicable range of benefits, compensation and specialty care.

Read on at: Press Releases/Advisories - Defense Department, VA Smooth Path to Benefits for Severely Wounded.
 
Milhealth,

1'st off thanks for your input.

i was wondering how this applies for many of us that are currently going through the DES and are currently stuck or have been stuck in the DES for long periods of time. i was initialy MEB'd in 2007 and due to numerous failures and lack of education to the DES, on the part of my unit i'm still going through the process. would you know how this process is initiated? any info. would be greatly appreciated. thanks!
 
robs42 said:
Milhealth,

1'st off thanks for your input.

i was wondering how this applies for many of us that are currently going through the DES and are currently stuck or have been stuck in the DES for long periods of time. i was initialy MEB'd in 2007 and due to numerous failures and lack of education to the DES, on the part of my unit i'm still going through the process. would you know how this process is initiated? any info. would be greatly appreciated. thanks!
Click to expand...

Hi Robs42,

I would encourage you to submit your question to the article on Health.mil.

Here's the link: Press Releases/Advisories - Defense Department, VA Smooth Path to Benefits for Severely Wounded.

Thanks!
 
I was discharged in nov 2006 for an elbow injury. I was given 20% for the injury.
The va gave me 70% for various other injuries including 30% for my elbow.
Now my question is since they will not consider the other conditions because they did not before will they give me the ritirement based on the 30% finding for the elbow?
They seem to have covered their backs on it since the meb only says I was boarded for Arthritis and bone damage and does not specify the Nerve damage I suffered the VA does include the Nerve damage. Will I get screwed on the semantics?
Anyway they take 30% out of my disability check so to me it is an acknowledgement of a 30% discharge causing injury.
Thank you for the site and the info
 
I am rated at 100% with the VA and I get Social Security disability. I am only rated at 20% with the Army. What will I gain at this point with the PDBR? I know this may sound stupid but I just want to make sure this is a good move for me. Thanks for any feedback.
 
You may end up with retirement from the Army, too. This would make you eligible for health care benefits for you and your eligible dependents and depending on your situation, increased compensation.

It is almost always to your advantage to be retired from the DoD. How much it benefits you will depend on your circumstances.
 
You cannot do any worse going to the PDBR. You will get retirement benefits if rated 30% or more. If retired, depending on the amount of your severance and how long ago is was granted, you could get disability retirement back pay. If you have combat related conditions, you could become eligible for CRSC paymemts as well. Apply to the PDBR, espicially if the VA rated the 20% Army condition higher.

Mike
 
Here is the body of a letter I wrote to the PDBR asking for clarity. I sent it about 10 days ago. I will let you know what they say.


SAF/MRBR
550 C Street West
Suite 41
Randolph AFB, Texas 78150-4743


Greetings,

There is quite a bit of ambiguity and conflicting information on the Physical Disability Board of Review (PDBR). As PDBR decisions are not further appealable, disabled service members deserve absolute clarity on the rules the PDBR will follow so they can make the best decisions on how best to appeal their disability cases. Please address the issues below so that I can give the best possible advice and assistance to wounded warriors considering appealing their cases to the PDBR. Feel free to respond to my email address above to expedite my receipt of this critical information.

1. PDBR use of non VASRD rating Criteria and Policies:

(a) Background: DoD has stated the PDBR will review PEB decisions made prior to 28 January 2008 using DoD and Service specific rating criteria and policies. In an email to the Military Officers Association dated 13January 2009, DoD stated:

"For disability cases adjudicated after the effective date of section 1643, only the VA standard should have been used and thus will be used in the PDBR process to reach the recommendation to raise the disability rating (where appropriate). For separation cases prior to the effective date of section 1643, the rating will be upheld if the rating was fair and accurate using the Services' (or DOD) supplemental guidance to the VA rating. If that guidance was not correctly applied, the PDBR will make a recommendation based upon the correct interpretation of the guidance."


This conflicts with DoDI 6040.44 which states that DoD and Service criteria and policies will only be used if they don't conflict with the VASRD. Paragraph 4d of DoDI 6040.44 directs the PDBR to:

Use the VASRD in arriving at its recommendations, along with all applicable statutes, and any directives in effect at the time of the contested separation (to the extent they do not conflict with the VASRD in effect at the time of the contested separation).

DoDI 6040.44 paragraph 4d is compliant with 10 USC 1201 and 1204 which requires the military services to retire service members if the rating(s) for the unfitting condition(s) combines to at least 30% under the VASRD. DoDI 1332.38 echoes the Title 10 requirement to retire unfit service members rated 30% or more under the VASRD:

E3.P7.5. Dispositions for Unfit Members


E3.P7.5.1. Permanent Disability Retirement. Retirement is directed under
Section 1201 or 1204 of [Chapter 61 of Title 10] when the member is unfit for a permanent and stable compensable physical disability under the standards of this Instruction; and


E3.P7.5.1.2. The total disability rating is at least 30 percent under the VASRD.


Despite the legal requirement to retire those rated 30% or more per the VASRD, DoD, in DoDI 1332.39, replaced entire sections of VASRD rating criteria with their own ratings lower criteria. Further, the Army created specific rating criteria and policies in AR 635-40 and with policy directives that further changed rating criteria. This resulted in Army PEB ratings that were lower than what is required by the VASRD or even DoDI 1332.39. The use of Service specific rating criteria and policies violates the requirement in DoDD 1332.18 that standards for the compensability of ratings be consistent between the Services:


3.7. The standards for determining unfitness because of physical disability or medical disqualification and the compensability of unfitting disabilities shall be uniform among the Services and between components within an individual Service.


(b) Specific Examples of Problem Areas: Given the issues described above, please address how the PDBR would rule in the following situations:


(1) The VASRD calls for a 50% rating for sleep apnea if the condition requires the use of a CPAP. DoDI 1332.39 replaced the VASRD sleep apnea rating criteria with rating criteria that usually led to a 0% rating even if the condition required the use of a CPAP. If the PDBR receives a pre January 28th 2008 case of unfitting sleep apnea requiring a CPAP that was rated 0% by PEB but was rated 50% by the VA, will the PDBR change the rating to 50% per the VASRD rating criteria or will the PDBR uphold the 0% rating under the non VASRD criteria of DoDI 1332.39?

(2) Many soldiers were denied range of motion (ROM) based ratings because the Army, in AR 635-40 appendix B-29e, required that a joint disabilities have a "mechanical basis" to be rated using ROM based criteria. As a result, non Army service members with identical disabilities received higher ratings than their Army counterparts as the non Army PEB's did not have a non VASRD based "mechanical basis" requirement. If a service member received a lower disability rating because their PEB ruled their condition lacked a "mechanical basis", will the PDBR honor and apply a higher VA rating that is in compliance with VASRD rating criteria?

(3) Variances between DoD and VA ratings for migraine headaches were significant. In order to rate migraines at 30% disabling per the VASRD, the headaches must be "prostrating". To receive a 50% rating, the headaches have to be "completely prostrating". Unfortunately, the VA has never defined the criteria for "Prostrating" and Completely Prostrating" headaches. A 2007 study, commissioned by Congressional Veteran's Disability Benefits Commission (VDBC), identified 445 cases of service members being found unfit for migraines and rated less than 30%. Of those 445 cases, 319 (72%) were subsequently rated 30% or higher by the VA. Driving a large degree of this variance between PEB and VA ratings was the Army's Issue and Guidance Memorandum #2, Issued 25 May 2005. This policy required seven items be met before a migraine headache could be deemed prostrating. Included in this policy was a requirement that the service member's physician produce a written headache management plan and update it every six months. The policy also included a requirement that the soldier's chain of command document the effects of the headache on the service member's performance. If the physician or chain of command failed to adhere to these requirements, then the headaches could not be deemed "prostrating" or "completely prostrating". Complicating this issue, the Army directed that this policy could not be shared with the soldier, his physician or his counsel leaving them blind to this extra non VASRD rating requirement. If a soldier was rated less than 30% for migraines by his PEB but 30%+ by the VA, will the PDBR enforce the standards of the Army's Issue and Guidance #2 or will the PDBR enforce a VA rating of 30% or more?

2. DoD (ASD-HA) established the definition and standard for EPTS in January 1999, via DOD 6015M.1.


5.1.23. EXISTED PRIOR TO SERVICE (EPTS). A term used to signify there is clear and unmistakable evidence that the disease or injury, or the underlying condition producing the disease or injury, existed prior to the individual's entry into military service.

The cover letter of this manual states that its definitions are mandatory for all DoD components. The Air Force governing DES instruction, AFI 136-3212, implemented the DoD 6015M.1 EPTS standard but the other Services did not. This was also a violation of the DoDD 1332.18 requirement that the standards for the compensability of unfitting disabilities be uniform among the Services.


The PDBR states it will only review conditions found unfitting by a PEB rather than the entire disability determination as required by section 1643 of the 2008 NDAA. However, Despite this narrowing of the of the PDBR's jurisdiction, will the PDBR accept and review cases for conditions found unfit but deemed to have existed prior to service (EPTS) by the PEB? In reviewing EPTS cases, will the PDBR enforce the DoD mandated EPTS definition?

3. Please confirm that PDBR decisions to increase ratings will be retroactive to the date of the PEB's decision. The PDBR website still states:

The new Physical Disability Board of Review (PDBR) will examine each applicant's medical separation, compare DoD and VA ratings, and make a recommendation to the respective Service Secretary (or designee.) A disability rating cannot be lowered and any change to the rating is effective on the date of final decision by the Service Secretary.

The above passage conflicts with the FAQ section of the same website that states that Service approved PDBR decisions are "retroactive to date of Physical Evaluation Board".


4. 10 USC 1222a requires issues raised by the service member during subsequent appeals to be addressed in an orderly and Itemized fashion in the documents announcing the decision of the board:

1222. Physical evaluation boards
(a) Response to Applications and Appeals.-The Secretary of each military department shall ensure, in the case of any member of the armed forces appearing before a physical evaluation board under that Secretary's supervision, that documents announcing a decision of the board in the case convey the findings and conclusions of the board in an orderly and itemized fashion with specific attention to each issue presented by the member in regard to that member's case. The requirement under the preceding sentence applies to a case both during initial consideration and upon subsequent consideration due to appeal by the member or other circumstance.


Will the PDBR decisions address, in an orderly and itemized fashion, the issues raised by the service member in their application to the PDBR?

5. Section 1643 of the 2008 NDAA prohibits individuals who appeal to the PDBR from further appealing the issue to a Board for the Correction of Military Records (BCMR). Previously, on the PDBR website FAQ's, DoD had established a prohibition against service members from apply to the PDBR if the issue had previously been brought before a BCMR. That prohibition no longer appears on the PDBR website. Can a service member who brought a disability determination issue before the BCMR subsequently bring the issue to the PDBR? If this prohibition is still in effect, please provide the legal basis for denying access to the PDBR due to a previous BCMR action.
Thank you for your time and efforts ensuring 100% clarity on PDBR operations.



Michael A. Parker
LTC, USA (Retired)
Wounded Warrior Advocate
 
Thanks for all of the feedback. I wanted to make sure that there was not some loop hole that I did not know about. I am going to go forward with the PDBR. Take care everyone. Keep moving forward-never give up!
Ron
 
Mike,

Once again you show your dedication to those who have served and are not being taken care of. I want to thank you for your efforts it shows that you are a true leader.

Jim
 
If I get my retirement back with the PDBR, will it mean more money or will the Va take back what the Army pays me? I had just over 10 years in when I was wounded in combat in Iraq. Thanks for the feedback.
 
Your the man Mike, your the man. Thanks. Let us know what reply they send, if any. Thanks again.
 
I am about to fill out my application and send it in. I am hoping I get my retirement. I am not sure if I should contact my congressman's office. Not sure what he can even do for me but it may not hurt.
The VA gives me 70% and they take 30% out of my check each month to pay back my severance. So does'nt that mean I had a 30% injury that caused my discharge?
Also I hope that they will not screw us all over by not reviewing the whole disability and just give us the lowest rating based on the already flawed system.
That scares me.
Thanks for the site and info
John
 
Sounds like you got 30% for your unfitting disabilities. You should be able to find out for sure by reading the details of your VA rating.

Mike
 
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