Greetings,
This President’s Day weekend marked the fourth anniversary of the Walter Reed and Disability Evaluation System (DES) coverage by the Washington Post and Army Times. It also marks the first anniversary of my DES Outrage series. I can report that while progress has been made, the attitude of many in DoD and the Services remains defiant of proper DES reform. In the 2011 NDAA, Congress passed measures to fix many of DES Outrage issues raised. For that I am thankful but I warn they must be vigilant as the Services are already disregarding these new laws and we are still waiting for DoD policies implementing these reforms.
Attached is DES Outrage 17 which takes the form of my statement to the Wounded Warrior Task Force (WWTF) for consideration at their February 2011meeting. The statement covers five issues that demonstrate the continuing defiance of the Services to reform the DES. In DES Outrage 9, I reported the delay in the establishment of the congressionally mandated WWTF. After a ten month delay, the WWTF held its first meeting on January 6 and 7 2011. Their second meeting will be February 22 and 23 2011. The WWTF website is here: http://dtf.defense.gov/rwtf/index.html
I encourage all who have wounded warrior issues to write or present statements to the WWTF so they have an opportunity to address them. The statement process is outlined in the Federal Register meeting announcements that are posted under the “Meetings” tab on their website.
The first issue covered in my statement is the continuing failure of Medical Evaluation Boards (MEB) to properly cover all medical conditions with full clinical data. By artificially limiting the scope of the MEB, wounded warriors are cheated out of proper disability benefits. DES Outrages 2, 12, 13 and 16 all provide good examples of this problem. The Integrated DES (IDES) will potentially resolve this issue and DoD has stated the IDES will be fully implemented across DoD by October 1st 2011. However, issue five of my statement covers concerns that the VA will not support the IDES for those placed on the Temporary Disability Retirement List (TDRL). This will result in many of the same DES problems reappearing upon TDRL review resulting in the erroneous denial of disability benefits.
The second issue in my WWTF statement deals with an Army specialist who was removed from active duty in 2004 due to PTSD and rated a mere 10%. His MEB failed to cover all of his medical conditions and PEB failed to properly rate his PTSD per the VASRD. Upon review mandated by the Sabo class action lawsuit agreement, the Army Board for the Correction of Military Records (ABCMR) properly deemed the soldier should have been rated 50% for PTSD per VASRD 4.129, placed on the TDRL and reevaluated six months post separation.
The ABCMR referred the case to the United States Army Physical Disability Agency (USAPDA) to reconstruct his six month TDRL reevaluation. The USAPDA put the soldier’s case in the “too hard to do” category and separated him off retirement with a 10% PTSD disability rating. The USAPDA stated there were no post separation records for his PTSD and they assumed he would have gotten better with treatment. In fact, the USAPDA failed to get a required TDRL reevaluation physical, failed to get his VA PTSD treatment records, failed to cover other disabilities such a hearing loss and TBI from IED blast exposure and they denied him a right to appeal their decision and have a formal board as required by 10 USC 1214. They simply pencil whipped him off disability retirement.
The third issue in my statement deals with Section 534 of the 2011 NDAA. This provision was Congress’ attempt to prevent “Fit but Unsuitable” discharges. The “Fit but Unsuitable” issue is covered in DES Outrage 3. I am already hearing that the Navy will skirt around this new law. First, when a compensable medical condition makes an individual unable to continue service, the Navy will merely deny reenlistment rather than impose an immediate administrative separation. Second, I am already seeing cases where the Navy is failing to properly refer individuals with compensable conditions into the DES. By denying a fitness determination by a PEB, they can avoid the fit finding requirement of the new law.
The fourth issue deals with Section 533 of the 2011 NDAA. This provision expands the Disability Review Board (10 USC 1554) to enlisted members. The Disability Review Board is covered in DES Outrage 7. It allows members who were discharged for disability without pay to have their cases reviewed to ensure it was adjudicated in accordance with all applicable laws, regulations and policies. This board is ideal for those discharged erroneously for conditions deemed Existing Prior To Service (EPTS), fit but unsuitable cases and PTSD cases erroneously deemed personality and adjustment disorders. However, recent conversations with the Air Force Review Board Agency revealed they would not allow members to have access to the Disability Review Board despite the new law. Instead, they will refer members to the Air Force Board for the Correction of Military Records (AFBCMR) which places the burden on the wounded warrior to demonstrate government error.
Airman Weston case is described in DES Outrage 4. The Air Force deemed his leukemia EPTS without aggravation and refused to follow the law in overcoming the presumptions that his leukemia was service connected and/or aggravated by service. The VA, using the same presumption standards the law requires DoD to use, found Airman Weston’s leukemia service connected and assigned a 100% disability rating effective the day he left service.
After the President signed into effect the law extended the Disability Review Board to enlisted members, Airman Weston wrote the Air Force asking for this board and stated he was not interested in the AFBCMR reviewing his case at this time. In response to his request, the Air Force Review Board Agency sent him an application for the AFBCMR. Apparently the Air Force has no intent in allowing Airman Weston to have access to this statutory board. They would rather force him to the AFBCMR that will not guarantee a personal appearance and presumes the government is without error.
Again I would like to thank the members of Congress and their staffs that were able to pass legislation in short order to fix many of the issues raised in my DES Outrages. I ask them to monitor these new laws to ensure they are properly implemented and enforced by DoD and the Services. I also ask members of the press to report on these issues to keep the wider American audience aware of the continuing struggles of our wounded warriors.
As always, please pass this DES Outrage on to anyone who can help fix the problems. The complete set of DES Outrages to date can be found here: http://www.pebforum.com/section/mike-parker-s-des-outrage-week-29/
Michael A. Parker
LTC, USA (Retired)
Wounded Warrior Advocate
This President’s Day weekend marked the fourth anniversary of the Walter Reed and Disability Evaluation System (DES) coverage by the Washington Post and Army Times. It also marks the first anniversary of my DES Outrage series. I can report that while progress has been made, the attitude of many in DoD and the Services remains defiant of proper DES reform. In the 2011 NDAA, Congress passed measures to fix many of DES Outrage issues raised. For that I am thankful but I warn they must be vigilant as the Services are already disregarding these new laws and we are still waiting for DoD policies implementing these reforms.
Attached is DES Outrage 17 which takes the form of my statement to the Wounded Warrior Task Force (WWTF) for consideration at their February 2011meeting. The statement covers five issues that demonstrate the continuing defiance of the Services to reform the DES. In DES Outrage 9, I reported the delay in the establishment of the congressionally mandated WWTF. After a ten month delay, the WWTF held its first meeting on January 6 and 7 2011. Their second meeting will be February 22 and 23 2011. The WWTF website is here: http://dtf.defense.gov/rwtf/index.html
I encourage all who have wounded warrior issues to write or present statements to the WWTF so they have an opportunity to address them. The statement process is outlined in the Federal Register meeting announcements that are posted under the “Meetings” tab on their website.
The first issue covered in my statement is the continuing failure of Medical Evaluation Boards (MEB) to properly cover all medical conditions with full clinical data. By artificially limiting the scope of the MEB, wounded warriors are cheated out of proper disability benefits. DES Outrages 2, 12, 13 and 16 all provide good examples of this problem. The Integrated DES (IDES) will potentially resolve this issue and DoD has stated the IDES will be fully implemented across DoD by October 1st 2011. However, issue five of my statement covers concerns that the VA will not support the IDES for those placed on the Temporary Disability Retirement List (TDRL). This will result in many of the same DES problems reappearing upon TDRL review resulting in the erroneous denial of disability benefits.
The second issue in my WWTF statement deals with an Army specialist who was removed from active duty in 2004 due to PTSD and rated a mere 10%. His MEB failed to cover all of his medical conditions and PEB failed to properly rate his PTSD per the VASRD. Upon review mandated by the Sabo class action lawsuit agreement, the Army Board for the Correction of Military Records (ABCMR) properly deemed the soldier should have been rated 50% for PTSD per VASRD 4.129, placed on the TDRL and reevaluated six months post separation.
The ABCMR referred the case to the United States Army Physical Disability Agency (USAPDA) to reconstruct his six month TDRL reevaluation. The USAPDA put the soldier’s case in the “too hard to do” category and separated him off retirement with a 10% PTSD disability rating. The USAPDA stated there were no post separation records for his PTSD and they assumed he would have gotten better with treatment. In fact, the USAPDA failed to get a required TDRL reevaluation physical, failed to get his VA PTSD treatment records, failed to cover other disabilities such a hearing loss and TBI from IED blast exposure and they denied him a right to appeal their decision and have a formal board as required by 10 USC 1214. They simply pencil whipped him off disability retirement.
The third issue in my statement deals with Section 534 of the 2011 NDAA. This provision was Congress’ attempt to prevent “Fit but Unsuitable” discharges. The “Fit but Unsuitable” issue is covered in DES Outrage 3. I am already hearing that the Navy will skirt around this new law. First, when a compensable medical condition makes an individual unable to continue service, the Navy will merely deny reenlistment rather than impose an immediate administrative separation. Second, I am already seeing cases where the Navy is failing to properly refer individuals with compensable conditions into the DES. By denying a fitness determination by a PEB, they can avoid the fit finding requirement of the new law.
The fourth issue deals with Section 533 of the 2011 NDAA. This provision expands the Disability Review Board (10 USC 1554) to enlisted members. The Disability Review Board is covered in DES Outrage 7. It allows members who were discharged for disability without pay to have their cases reviewed to ensure it was adjudicated in accordance with all applicable laws, regulations and policies. This board is ideal for those discharged erroneously for conditions deemed Existing Prior To Service (EPTS), fit but unsuitable cases and PTSD cases erroneously deemed personality and adjustment disorders. However, recent conversations with the Air Force Review Board Agency revealed they would not allow members to have access to the Disability Review Board despite the new law. Instead, they will refer members to the Air Force Board for the Correction of Military Records (AFBCMR) which places the burden on the wounded warrior to demonstrate government error.
Airman Weston case is described in DES Outrage 4. The Air Force deemed his leukemia EPTS without aggravation and refused to follow the law in overcoming the presumptions that his leukemia was service connected and/or aggravated by service. The VA, using the same presumption standards the law requires DoD to use, found Airman Weston’s leukemia service connected and assigned a 100% disability rating effective the day he left service.
After the President signed into effect the law extended the Disability Review Board to enlisted members, Airman Weston wrote the Air Force asking for this board and stated he was not interested in the AFBCMR reviewing his case at this time. In response to his request, the Air Force Review Board Agency sent him an application for the AFBCMR. Apparently the Air Force has no intent in allowing Airman Weston to have access to this statutory board. They would rather force him to the AFBCMR that will not guarantee a personal appearance and presumes the government is without error.
Again I would like to thank the members of Congress and their staffs that were able to pass legislation in short order to fix many of the issues raised in my DES Outrages. I ask them to monitor these new laws to ensure they are properly implemented and enforced by DoD and the Services. I also ask members of the press to report on these issues to keep the wider American audience aware of the continuing struggles of our wounded warriors.
As always, please pass this DES Outrage on to anyone who can help fix the problems. The complete set of DES Outrages to date can be found here: http://www.pebforum.com/section/mike-parker-s-des-outrage-week-29/
Michael A. Parker
LTC, USA (Retired)
Wounded Warrior Advocate