Three uses for the IMA

Jason Perry

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The first thing to understand is the importance of a complete and accurate Medical Evaluation Board Report. This is the first and primary source of evidence that the Informal (and later the Formal) PEB will use to decide your case. If it is inaccurate or incomplete, the PEB will not rate you correctly.

The request for an Independent Medical Advisor (IMA) will help ensure your MEB is an accurate depiction of your disabilities. Note that the IMA is not provided unless you request it. Submit requests in writing to make clear and document your request. The following are the three main ways that the IMA will help your case.

1) It will allow you to consult with and have the advice of an impartial health care provider in reviewing your case and addressing errors or omissions.

After you have been counseled, you have the right to submit additional matters in your rebuttal. The MEB approving authority must, in accordance with the law, respond to your concerns in writing. If you do not request the IMA, you may still submit a rebuttal. But, if you choose to simply submit a rebuttal the approving authority is not required to answer your concerns. Your rebuttal should still be forwarded to the PEB with your MEB, but if there was a written response, it would help to explain the difference of opinion and would help document legal errors in the decision-making process (see 3, below).

The advice you receive may or may not provide you with additional information or an opinion regarding your disabilities. However, do not discount the effectiveness of having a written response to your concerns.

2) The request for an IMA may result in a voluntary change to the MEB without the provision of the IMA.

My experience to date has shown that most MEBs and Military Treatment Facilities housing MEBs do not know about the requirement to provide an IMA on request. In addition, after requesting the IMA, you may find that the MEB does not want to appoint one. However, this may work to your advantage in giving you leverage in getting your MEB changed. Think of it as a bargaining chip. I have seen several cases where the MEB, in response to a request to an IMA, instead agrees to change the MEB to reflect the member's concerns. While not in strict compliance with the law, if this results in the appropriate changes to your MEB, this may be an acceptable outcome.

3) If either your request for an IMA is not granted or if the response to your rebuttal is inadequate, this may form the basis for a successful appeal.

Basically, if they do not follow the law in either granting you an IMA, or if the response to your rebuttal is deficient, you will have created an issue that may form the basis for a successful appeal to a poor outcome at the PEB.

Do not underestimate the importance and utility of asking for an IMA. In the best case, you wil gather additional evidence or provoke a favorable change to your MEB. If they do not follow the law, this will help you on appeal.

The MEB and PEB process leaves many things to be desired. Even so, the IMA request will help you get a better outcome, either in the near term or eventually on appeal. Do not sell yourself short by accepting an inaccurate or incomplete MEB. Consider using the request for the IMA to get the correct outcome of your MEB and to provide the PEB with the clearest picture of your disabilities.
 

CSM493

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Jason,

My PEBLO was aware of the IMA requirement and counseled me concerning the option of using an IMA. In fact, the new DA Form 5893 dated December 2008 - Soldier's MEB/PEB Counseling Checklist - has a place where the soldier has to initial acknowledging his/her right to have an Independent Medical Professional review the findings.

My issue is this - I was told the IMA came from a pre-selected pool of doctors on the same installation, probably some kind of duty roster or rotating additional assignment for doctors in the hospital. I don't know how "independent" such an evaluation would be. I am sure these doctors find themselves reviewing their cohort's cases and vice versa. And I would bet there is no big incentives for these guys to start cutting into their colleague's findings.

Is there a provision to have an outside or civilian IMA review the case, even if it is at the soldier's expense? Also, how many IMA's are allowed? I saw many specialists during my MEB to include psychiatrists and TBI specialists. How much of the MEB is subject to review? Where are the guidelines posted for what is authorized in the review?

Just a few questions since I figured you didn't have anything else going on today (LOL) but I do think it is good information to post.

Thanks as always,

CSM
 

CSM493

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I did read the post "DOD Policy Memo 2008 NDAA: Independent Medical Advisor" in the 2008 NDAA Forum but the information is a bit dated. I am going to study the 2008 NDAA a little closer, but at first blush it appears vague on defining "independent". Call me skeptical, but after 30 years in the military, I do understand how things work. I think any doctor in the field of fire of a MEB facility might have a more vested interest in supporting the board than in going against the board's decisions.


CSM
 

Jason Perry

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Steve,

I think you have hit on a valid point. Just how "independent" (the law uses this term, the DoD Policy memo uses "impartial") are these doctors going to be? I agree that colleagues on staff at the same MTF may in fact be inclined to be overly deferential to the findings of other doctors. This is probably amplified by the fact that their "boss", the Deputy Commander for Clinical Services (DCCS), has already approved the findings. There remains many unanswered questions because while the Department of the Army has taken steps to implement the policy memo (none of the other services have to the same degree...I continually have to explain these requirements to the MEBs in all branches, but the Army is ahead of the curve as far as I can tell) there have been no regulations published by the Services.

What this means is that you may or may not get meaningful advice from the IMA. If you did, that would be great. But even if not, the requirement that the DCCS responds in writing to your concerns still makes this a powerful tool.

And if you don't get meaningful or impartial advice, or if they fail to respond, like anything else, this may be a basis for a later legal challenge. I have no faith that at this point the BCMR's or the PDBR will address failures properly. But, depending on the circumstances, a reviewing court may remand a case for the Services failure to implement the law correctly.
 

CSM493

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Thanks for the info Jason. Hopefully we will see a day that requires doctors used as IMA's to be in a different rating chain, something roughly akin to TDS in the JAG Corps. It would likely result in a situation more favorable to the soldier.

Also the "specialist" issue - sending a soldier to a PCM for review will not fully address most situations. My PCM wouldn't make any calls in my NARSUM until the psychiatrist and TBI specialists had promulgated their findings in the addendums. Which is a good thing, as they are not qualified to review those decisions. So I am not really feeling the "warm fuzzy" the IMA provision should provide, rather it appears to be more lip service to placate Congress in light of all the bad press.

Steve
 

Jason Perry

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Steve,

My personal opinion is that the IMA is a result of them not following the law in the first place and there being no quick and effective review of decisions. On the VA side, an incomplete Comp and Pension exam is an automatic grounds for remand. Because this happens, the VA does a much better job (still not perfect) in conducting evaluations. The IMA is a "contortion" to try to get the MEB to do accurate and complete evaluations.

I see a few solutions that could have avoided all of this. The MEBs could have responded to members concerns voluntarily. The PEBs could have returned cases that are incomplete when the member raised the issue. Finally, if they had assigned legal counsel early in the process, this would probably help clarify issues at the MEB level, making all of this much more efficient.

However, that, as we know, is not how things ended up working out.
 

flowerss

PEB Forum Regular Member
Question concerning the request of an IMA. Is it too late to try and get some type of review concerning my NARSUM after the IPEB has sent back a rating? I was supposedly written up for PTSD but IPEB sent it back with a rating for Depression. IPEB quoted my shrink as saying the PTSD is mild and doesn't interfere with my day to day activities but he didn't say that; my GAF is a 58. I've requested an appeal to the Formal down at Lackland but haven't been given a date. Basically, is it too late to try and get my NARSUM re-evaluated by someone else before I head down there. The psychiatrist who wrote the NARSUM is the only one on base, the rest are psychologists.
 

CSM493

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The MEBs could have responded to members concerns voluntarily. The PEBs could have returned cases that are incomplete when the member raised the issue.
There seems to be a mindset at the MEB level that "an action passed is an action completed". I was told at the beginning that the MEB would only considered the issues that were addressed in the original profile. Luckily I had a pretty good PEBLO and MEB doctors and were able to get other issues addressed, but that is not the norm.

Finally, if they had assigned legal counsel early in the process, this would probably help clarify issues at the MEB level, making all of this much more efficient.
You are so right. If they did, there wouldn't be a need for soldiers to use this forum to understand the process. It shows how badly broken the system is. For years I have heard the horror stories of how bad the board process is. It should be a process that comforts and assures soldiers that they will be taken care of, not a process that causes fear and anxiety. I take my rap as a former very senior leader for not making this process easier. It is a matter of educating our own on this very critical stage of a soldiers career.
 

CSM493

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Question concerning the request of an IMA. Is it too late to try and get some type of review concerning my NARSUM after the IPEB has sent back a rating? I was supposedly written up for PTSD but IPEB sent it back with a rating for Depression. IPEB quoted my shrink as saying the PTSD is mild and doesn't interfere with my day to day activities but he didn't say that; my GAF is a 58. I've requested an appeal to the Formal down at Lackland but haven't been given a date. Basically, is it too late to try and get my NARSUM re-evaluated by someone else before I head down there. The psychiatrist who wrote the NARSUM is the only one on base, the rest are psychologists.
I am pretty sure the only way to address your concerns now is at the Formal PEB. I don't think the MEB or IPEB will entertain a relook since you signed off on the MEB/NARSUM stating you agreed it was an accurate assessment of your conditions. By the way, a physician should have prepared the NARSUM with an addendum by the psychiatrist. Is that how it was done?

Just my opinion, but I think you need to make ready for the Formal PEB by getting other opinions now, perhaps a private doctor? Have you used the VA system at all? I am in the reserves with prior active duty so I was already in the VA system, but the reports from them really helped my case.
 

flowerss

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Unfortunately I'm ADAF overseas so I'm limited in my resources in gaining the consult of a private doctor...the base doctors seem to have a biased view against the Italian doctors...even if the healthcare system is #2 in the world, so I'd imagine similar view would be given at the Formal. The NARSUM was actually in a different order, my psychologist wrote the NARSUM and my PCM wrote an addendum to my package for OSA (which wasn't rated but it'll be good for VA). Also, the current VA rep (they rotate on a quarterly basis) isn't very helpful but from what I've gathered I can't see the VA at Landstuhl until after the FPEB. Are there any types of statements I can attain from the clinic to back up appeal?
 

CSM493

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Are there any types of statements I can attain from the clinic to back up appeal?
I think any statement you can get will be helpful, but the main thing you need right now is legal assistance. Have you talked with a JAG? They have to give you legal support...
 

flowerss

PEB Forum Regular Member
Not as much as I'd like, but the ADC lawyer here just finished with trial last Friday so I'm hoping to get some more help from him. I've been dealing with a multitude of issues and am under scrutiny from the unit right now, same as the rest of us who have sought mental health treatment but it's my turn to take the heat. To some extent, I just wanted to take the 30% for Depression but I felt it principally wrong to accept the wrong rating, I'm diagnosed with PTSD among other ailments, for what I see as the AF not accepting the fact that those of us being sent to perform ILO duties over and over are breaking. They also labeled it non-combat related....didn't have issues until after the deployments, but I did afterwards.
 

builtgypsy

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I'm curious if the IMA would be able to do more than just make recommendations about your case. Would they be able to order additional tests themselves if they wanted?
 

StacyD

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If you request an IMA, will they at least attempt to appoint one that has some sort of knowledge of your issue? I have narcolepsy which is VERY misunderstood, even in the medical community. I'm not sure an IMA would be helpful to me if he/she didn't know anything about narcolepsy and the serious negative impact it has had on my life. Also, would the board consider a memo from a civilian doctor? I was diagnosed by a civilian doc because the military docs were too backed up to get me in for a sleep study. I feel she may be able to provide the board with a better summary of my problem, especially since she is a neurologist and sleep specialist.
 

Jason Perry

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Stacy D,

The MTF has a lot of latitude on who they appoint. The only requirement per the law and the regulations are that the healthcare provider not be involved in the MEB.

They should consider anything that you submit for evidence. I recently represented two members with narcolepsy. We did submit an opinion letter from a civilian neurologist. Ideally, such a letter would address the items from the VA narcolepsy worksheet. Also, in narcolepsy cases, I think that it is important to submit a diary/log of the impact of your condition. Oftentimes, the MEB will not correctly assess the rating criteria, so you need to make sure that you present evidence of frequency of episodes if the MEB does not clearly state the number of episodes.

I hope you get a good outcome.
 

StacyD

PEB Forum Regular Member
Jason,
Thank you. Did the members you represented have cataplexy? What was their outcome? Should I get representation right away? I'm expecting a big battle because I do not have cataplexy, so how do I define an "episode"? I will try to start keeping a journal as well. I'm not always good at keeping up with those sorts of things. I know the MEB/PEB is not concerned with the impact this has had on my family, but will the VA consider that?
 

Jason Perry

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No, in both recent cases there was no cataplexy. Both members were retired. As far as when to get representation, if you are going to anyways, then I would do so earlier. Whether you would benefit from civilian representation or not is a tough one to answer. I think it depends on how well the MEB is prepared and the state of the evidence in your file. But if it is poorly done, it is very beneficial to have an early start so you have more time to gather evidence favorable to your case.

Keep an accurate journal!!! If you forget some episodes, it may mean the difference between the next higher rating and the rating you get.

Impact on family is not a rating criteria for the military or the VA. However, if your condition were to cause a related depression or mental condition and this impacted your family relationships, this may be compensable.
 
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