I have an important advisory and issue of great importance for Air Force Reserve Component Members (Air Reserve and Air National Guard members).
A few weeks back a colleague of mine called me and asked whether I had heard of ARC/ANG members being processed through the Legacy Disability Evaluation System (LDES). My friend shared a story of a client who was an AF Reserve member who was referred to the MEB and then the PEB notified his client that he was being processed by the PEB as an LDES case. The client had a current VA rating that was higher than the PEB decision. I was asked what I thought of this and I said that this made no sense and seemed patently illegal. I thought this was just an error or an aberration- until the next day when a prospective client, and ANG member called me and related that while in the MEB process, he was asked to "elect" the LDES process by his PEBLO because his case would be processed faster. My opinion is that this is a patently illegal processing of cases. It is very disturbing to me that this improper use of LDES processing is essentially a policy action by the AF PEBs for ARC/ANG members. Both cases are still processing and there is no definitive answer as to the resolution of this issue, but, I wanted to alert folks about this and let folks know not to agree with LDES processing in cases where they should be processed by the Integrated Disability Evaluation System (IDES).
Here is a quick overview of the history and differences between the systems. The "traditional" of LDES system is what was in place for all cases prior to about 2008-2009. The LDES is where members are reviewed by the PEB, which determines both a members fitness and the disability rating assigned for any unfitting condition. After many complaints about the PEBs assigning low ratings for conditions that were then found by the Department of Veterans Affairs (VA) using the same rating criteria to warrant a higher rating, Congress, in 2008 directed that a joint program was authorized where the PEB would continue to make fitness determinations but the VA would provide the ratings for all service connected conditions and the Military Departments would apply the VA ratings to the conditions found unfitting by the PEB. This program was initially called the "Pilot Program." Here is a reference that discusses this:
After the rollout of the Pilot Program, which happened over several years, it was in about 2011 that the Program was used in almost every case. The result was that members were given higher ratings and retired more often than in the past. This new Pilot Program eventually became known as the Integrated Disability Evaluation System.
In 2014, the DoD published three regulations, DoDI 1332.18, DoD Manual 1332.18 Vol. 1 and Vol. 2. The regulations provided for all new cases to be processed via the IDES program with a few exceptions. This is an excerpt from DoDI 1332.18:
"b. The Secretaries of the Military Departments:
(1) Will use the LDES process for non-duty-related disability cases and for Service members who entered the DES prior to the IDES being implemented at a given MTF.
(2) Subject to the written approval of the USD(P&R), may also use the LDES process for Service members who are in initial entry training status, including trainees, recruits, cadets, and midshipmen. Secretaries of the Military Departments who enroll initial entry trainees, recruits, cadets, and midshipmen in the LDES must offer to enroll these Service members in the VA Benefits Delivery at Discharge or Quick Start programs.
(3) Will use the EDES process for consenting Service members designated with a catastrophic illness or injury incurred in the line of duty.
(4) May designate a Service member’s condition as catastrophic if he or she has a permanent and severely disabling injury or illness that compromises the ability to carry out the activities of daily living. Guidance for procedures unique to the EDES is available in Reference (u).
c. Except for initial entry trainees, Military Academy cadets, and midshipmen entered into the LDES and catastrophically ill or injured Service members entered in the EDES, will use the IDES process for all newly initiated cases referred under the duty-related process (see Glossary). Guidance for procedures unique to the IDES is available in Reference (q). "
It is apparent to me that the use of LDES processing for ARC/ANG members is patently illegal. By not processing members under the IDES, members miss out on getting a VA determined rating, by not having the opportunity to request a VA Rating Reconsideration Request (VARR) if they are not in agreement with the VA rating, and they also miss out on having a VA rating and decision that will be applicable once the member is retired or separated.
In short, the use of LDES is generally not in the members' interest, denies the member important rights, and is contrary to law and regulations.
Beware of PEBLOs or the PEBs trying to process you through the LDES when you should be going through the IDES!!
(I will be challenging this new "policy" or development and will update folks on whether this issue is resolved going forward).