First, I apologize for the delay in getting my latest DES Outrage of the Week completed. I have had multiple time-sensitive requests for support from wounded warriors going through the Disability Evaluation System (DES). That, coupled with a surge in work and family obligations, has put me back on my heels a bit. As a silver lining, the DES cases I have recently supported are in the early phases and will provide great material for future Outrages if they are not properly resolved. Throughout this Outrage, I refer to issues and materials in past Outrages which can be found here: http://www.pebforum.com/section/mike-parker-s-des-outrage-week-29/
This week’s Outrage deals with the Army Board for the Correction of Military Records (ABCMR). It continues the discussion of Army SPC Luis Jardon and his attempts to get a full and complete disability evaluation as provided for under law and DoD policy. SPC Jardon received a 10% disability rating from the Army and is currently rated at 60% by the VA for his multiple service connected conditions. The difference between the Army and VA ratings is driven by the Army’s refusal to include and properly evaluate all of his service connected disabilities.
In Outrage # 12, I wrote about the many errors and issues made by the Physical Disability Board of Review (PDBR) in the review of SPC Jardon’s case. The PDBR erroneously refused to address SPC Jardon’s right arm condition and, instead, stated SPC Jardon had to have the issue reviewed by the ABCMR. SPC Jardon indeed pursued relief with the ABCMR and, as expected, hit a brick wall. This Outrage will discuss the many issues and errors made by the ABCMR in the review of his case.
There is some good news to report. This is not the first time I have written about problems with military review boards. I have been illuminating these problems for years and recently covered them again in Outrage 5, 6 and 7. It looks as though Congress is taking additional action to address these concerns. Section 532 of the House of Representatives’ National Defense Authorization Act for FY 2011, includes provisions to address appeal board issues. The report accompanying the NDAA legislation states:
Section 532—Correction of Military Records
This section would require boards for the correction of military records, discharge review boards, and disability retirement and separation review boards operated under the jurisdiction of the secretaries of the military departments to ensure that the documents announcing decisions of the boards convey the findings and conclusions of the board in an itemized and orderly fashion with specific attention to each issue presented by the member in regard to that member’s case. This section would also require that disability retirement and separation review boards be made available to enlisted members as well as officers.
The review of SPC Jardon’s case by the ABCMR will again illuminate why fixes to the military review board process are desperately needed. It should be noted that for disability cases, 10 USC 1222a already requires review boards “to ensure that the documents announcing decisions of the boards convey the findings and conclusions of the board in an itemized and orderly fashion with specific attention to each issue presented by the member in regard to that member’s case.” The review boards have done an abhorrently bad job of adhering to this law. I am hopeful that this new legislation will drive home the requirement into the review board process for disability and non disability cases alike. Once BCMRs and other boards are forced to thoroughly explain their rationales as it relates to applicable laws, regulations and policies, there should be a dramatic increase in the number of cases decided in the favor of wounded warriors.
In SPC Jardon’s ABCMR appeal, he had a simple request; a complete and proper disability evaluation of all his service connected disabilities. This request was noted in the ABCMR’s response to his appeal as follows:
The applicant requests reconsideration of his earlier request for the correction of the medical evaluation board (MEBD) and physical evaluation board (PEB) proceedings to show an accurate and complete evaluation of all his medical conditions along with an increase in his disability rating. (emphasis added)
And,
The applicant contends, in effect, that his MEBD, and PEB proceedings should be corrected to show an accurate and complete evaluation of all his medical conditions, along with an increase in his disability rating because his MEBD and PEB proceedings were missing medical documents that should have been considered at the time. (emphasis added)
The requirement to cover all medical conditions is clearly stated in DoDI 1332.38:
E3.P1.2.3. Content. MEBs, TDRL physical examinations, and Reserve component physical examinations shall document the full clinical information of all medical conditions the Service member has and state whether each condition is cause for referral into the DES. (See enclosure 4 of this Instruction.) Clinical information shall include a medical history, appropriate physical examination, medical tests and their results, medical and surgical consultations as necessary or indicated, diagnoses, treatment, and prognosis. MEBs shall not state a conclusion of unfitness because of physical disability, assignment of disability percentage rating, or the appropriate disposition under Chapter 61 of 10 U.S.C. (reference (b)). (emphasis added)
Despite the evaluation of all medical conditions being the core issue of SPC Jardon’s appeal, not once did the ABCMR decision rationale address the DoDI 1332.38 requirement above. Rather than ensure SPC Jardon received a complete and through disability evaluation, the ABCMR simply blew off his case.
It is very telling that the ABCMR stated multiple times in their decision rationale that their standing position is that the Army did everything right and that SPC Jardon had to prove otherwise. Rather than providing a review to ensure his case was correctly evaluated per law and policy, they simple presume that it was. The following passage from the ABCMR’s decision highlights this point.
There is a presumption of administrative regularity in the conduct of government affairs. This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption. Since there is no evidence of record to show that the applicant’s conditions in question at the time were found medically unfitting for retention in accordance with Army Regulation 40-501, there is no basis for consideration of any additional disability rating. Thus, the applicant is not entitled to correction of his MEBD or PEB proceedings to show he was unfit for the(se) condition(s) or increased permanent disability rating(s). As a result, the applicants MEDB and PEB proceedings are presumed proper and equitable. (emphasis added)
The ABCMR’s use of the one-size-fits-all terms of “the(se)”, “condition(s)”, and “rating(s)” demonstrates the boilerplate nature of their responses. They don’t even take time to individualize their response to the case at hand let alone take time to do unbiased research to fairly and thoroughly adjudicate the case. Instead, they copied and paste canned arguments into their decision rationales.
The ABCMR response above states the applicant must provide substantial credible evidence to rebut the presumption of “administrative regularity”. The ABCMR is stating that MEBs and PEB can ignore DES law, regulations and policies as long as the applicant is also unaware of these provisions. Does the ABCMR really believe it is permissible for MEBs and PEBs to ignore longstanding laws and regulations as long as the victim remains ignorant of these provisions? Is the ABCMR ignorant of these longstanding provisions? I would hope not. Is it any wonder why DoD and the Services want BCMR’s to take the lead on the review of disability evaluation cases. No accountability in appeal adjudication leads to reduced personnel costs.
Also note the underlined section of the passage above. The ABCMR is stating there is no evidence of record to show that SPC Jardon’s conditions “were found to be medically unfitting for retention” so therefore there is no basis for consideration of any additional disability rating. Of course the MEB didn’t find them to be unfitting for retention; they never evaluated them properly in the first place. Talk about broken, circular logic. Because the MEB erred when they did not find these conditions “unfitting for retention” they can’t be corrected? Again, the reason the MEB did not find them to be “unfitting for retention” is because they never included the conditions in the first place as required by DoDI 1332.38. Further, even when the MEB fails to properly include conditions, the PEB is required to consider the overall effect of all conditions on SPC Jardon’s fitness even if the MEB failed to include the conditions. DoDI 1332.38 states:
E3.P3.4.4. Overall Effect. A member may be determined unfit as a result of the overall effect of two or more impairments even though each of them, standing alone, would not cause the member to be referred into the DES or be found unfit because of physical disability. (emphasis added)
When determining unfitness, the PEB is required to consider all conditions even if the MEB failed to include them. This is yet another DES requirement that the ABCMR refuses to consider let alone enforce. The requirement is not even mentioned in the ABCMR decision rationale.
One of the most disturbing passages from the ABCMR’s decision rationale on SPC Jardon’s case is below:
Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which are incurred in or aggravated by active military service. However, an award of a higher VA award does not establish error or in justice in the Army rating. An Army disability rating is intended to compensate an individual for the interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The VA, which has neither the authority, nor the responsibility, for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individuals civilian employability. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment. Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based on upon the agency’s examinations and findings. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for the loss of the career; while the VA may rate any service connected impairment including those that are detected after discharge in order to compensate the individual for the loss of civilian employability. [Emphasis Added].
This is just another boilerplate response the ABCMR continues to use despite the longstanding requirement to rate unfitting conditions per the VASRD and despite of specific court decisions that stated such generalized rationale is unacceptable. Conditions that contribute to unfitness are rated per the VASRD, period. If the VA and the Army come up with different ratings for the “same impairment” as stated above, then one of the agencies is wrong and the Army must justify the difference in their rating. Throughout the years, the federal courts have backed up that law with several rulings that affirm that PEBs must rate unfitting conditions per the VASRD. A passage from McHenry v. US (367 F.3d 1370, Fed.Cir. 2004), does an excellent job of summarizing key federal rulings on the VASRD rating requirement. It states:
“The statute mandating the creation of the VASRD requires only the Secretary of Veterans Affairs to apply the guidelines, see 38 U.S.C. § 1155 (2000),[7] but 10 U.S.C. § 1201 requires that disability ratings by the Secretary of the pertinent military department be based on the VASRD schedule. Section 1201 provides: Determinations [that a service member is unfit for duty because of a physical disability] are determinations by the Secretary that . . . the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination . . . .” 10 U.S.C. § 1201(b) (emphasis added). Section 1204(4)(B), involving disability retirement for service members not covered by section 1201, Similarly requires that disability ratings be based on the VASRD schedule, using the same language as section 1201. See also 10 U.S.C. § 1203(b)(4). In Thompson v. United States, 195 Ct. Cl. 468 (1971), our predecessor court held that section 1204(4)(B) requires the Secretary to apply the VASRD in rating disabilities. Id. at 477; see also Hordechuck v. United States, 144 Ct. Cl. 492, 495 (1959). The court noted that the statute “requires by specific reference, that the rating of disability be made ‘under the standard schedule of rating disabilities in use by the Veterans Administration.’” Thompson, 195 Ct. Cl. at 477 (quoting 10 U.S.C. § 1204(4)(B)).[8] “[T]here [is] no authority for reducing percentages beyond those found in the schedule itself.” Wolf v. United States, 168 Ct. Cl. 24, 32 (1964). Although the armed forces must use the VASRD guidelines when the service member’s disabilities “come within” them, the Secretary may make upward departures from the VASRD guidelines in particular cases. Id. at 31-32; see also Finn v. United States, 212 Ct. Cl. 353, 356 (1971).[9] These same rules apply to the identically-worded section 1201 involved in this case.” (emphasis added)
As covered in Outrage # 5, the case of SSG Christopher Rominger clearly shows the ABCMRs’ broken attitude on the requirement to rate per the VARSD. The Army discharged SSG Rominger without disability retirement for a back condition, assigning a 20% disability rating. The VA rated the same back condition at 40% disabling effective the day he left service. He took his case to the ABCMR arguing that he should have received a 40% rating for his unfitting disability and given disability retirement. The ABCMR denied his claim using another boilerplate passage they have used on an untold number of similar cases. The Army BCMR stated:
The applicant provided no evidence that his disability was improperly rated in accordance with VASRD or that his separation with severance pay was not in compliance with law and regulation. The rating action by the DVA does not necessarily demonstrate any error or injustice in the Army rating. The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating by the DVA does not compel the Army to modify its rating. The applicant’s contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.
The Army BCMR did not care that the VA rated the same back condition at 40%, after all they have always believed the Army is free to rate conditions any way they want under whatever criteria they develop. SSG Rominger then took the decision to federal court (Rominger V. US, United States Court of Federal Claims, case 05-742C). The court decision stated the Army BCMR decision lacked sufficient explanation for judicial review. The key passage from that decision stated:
Although courts afford great deference to the decisions of boards for the correction of military records, that deference is not absolute. Correction boards are obligated to “examine relevant data and articulate a satisfactory explanation for their decisions.” See Van Cleave, 66 Fed. Cl. at 136 (citing Yagjian v. Marsh, 571 F. Supp. 698, 701 (D.N.H. 1983)). In this connection, “correction boards are required to make rational connections between the facts found and the choices made.” Id. Where a correction board fails to support its decision with a reasoned explanation of an important issue, a remand is appropriate. Id. Tested by these standards, a remand is necessary in this case. Here, the ABCMR dismissed Mr. Rominger’s objections in three short paragraphs without any real analysis. After reiterating the undisputed factual evidence, the ABCMR did not provide any explanation for why the Army should not reconsider its disability rating based on the higher disability rating provided to Mr. Rominger by the VA for precisely the same diagnosis. Although the VA and Army have different standards for determining whether a service member is “disabled” or unfit for military service, “once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.” Army Reg. 635-40, App. B-3(a). “Congress has established the VASRD as the standard under which percentage rating decisions are to be made for disabled military personnel.” Id., App. B-1(a). (emphasis added)
In SSG Rominger’s case, the federal court, once again, reemphasized that unfitting conditions must be rated per the VASRD and that the ABCMR cannot ignore VA ratings for the same unfitting conditions. SPC Jardon’s case clearly demonstrates that the ABCMR still does not give a damn what court decisions state. The ABCMR, some four plus years after the Rominger decision, still states that it is perfectly acceptable for the Army and the VA to rate the same condition differently: In SPC Jardon’s February 2010 case, the ABCMR stated:
The fact that the VA (or any other government agency), in its discretion, awarded the applicant a higher disability rating than that which he received from the U.S. Army, is a prerogative exercised within the policies of that agency.
Wrong! Again, it is a matter of longstanding law and numerous court decisions that unfitting conditions must be rated in accordance with the VASRD. If ABCMR officials cannot understand, or choose to ignore, such a simple concept they need to be fired. It is a crime that such high paid government officials can make such errors (or worse, deliberately defy the intent of the law and court decsions) without any repercussions. After making such erroneous decisions, they go home every night to nice, comfortable houses while wounded warriors lose their houses and are forced to live on the streets. It truly is a national disgrace.
As discussed in Outrage # 12, a driver of appeal board mistakes is their blind and unholy allegiance to advisory opinions of the United States Army Physical Disability Agency (USAPDA). These USAPDA advisory opinions are not fair and balanced. Rather, they are simply the USAPDA’s propagation of errant policies and positions that cover their mistakes and to continue the avoidance of having to pay legally due disability benefits. Many of the points in USAPDA advisory opinions are lies by omission. Just like in SPC Jardon’s PDBR decision, the ABCMR used the USAPDA advisory opinion as the basis for their decision rationale to deny the relief sought. SPC Jardon’s ABCMR decision stated:
The evidence of record [USAPDA advisory opinion] shows that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service. Furthermore, it can rate a condition only to the extent that the condition limits performance of duty.
The USAPDA advisory opinion actually stated:
“A PEB can only rate conditions that are found unfitting for duty (6.1.7, DoDI 1332.39).”
This is what paragraph 6.1.7 of DoDI 1332.39 actually states:
6.1.7. Disabilities Not Unfitting for Military Service. Conditions that do
not themselves render a Service member unfit for military service will not be
considered for determining the compensable disability rating unless they contribute to the finding of unfitness. (emphasis added)
I don’t exactly know what the ABCMR means in the passage above when they state, “Furthermore, it can rate a condition only to the extent that the condition limits performance of duty.” Again, if a condition contributes to unfitness, it is rated per the VASRD. If the ABCMR is stating it only has to apply certain parts of the VASRD criteria for a certain condition they are wrong. However, such a “technique” would be in keeping with numerous, ratings lowering strategies used by the Army over the years to avoid paying disability benefits.
Finally, the ABCMR used the following rationale for explain why Army ratings are lower than VA ratings:
Moreover, the law requires that the VA must give the veteran the benefit of reasonable doubt.
However, the Army and DoD have similar policies that were never mentioned in the ABCMR decision. For example:
AR 635-40, B–4. Higher of two evaluations. In a number of atypical instances, it is not expected that all cases will show all the findings specified in the VASRD. Where there is question as to which of two percentage evaluations shall be applied, the higher evaluation will be assigned if the Soldier’s disability more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. When, after careful consideration of all reasonably procurable and assembled data, there remains a reasonable doubt as to which rating shall be applied, such doubt will be resolved in favor of the Soldier.
AR 635-40, 3-2 a.(5) The foregoing presumptions may be overcome only by a preponderance of the evidence, which differs from personal opinion, speculation, or conjecture. When reasonable doubt exists about a Soldier’s condition, an attempt should be made to resolve the doubt by further clinical investigation and observation and by consideration of any other evidence that may apply. In the absence of such proof by the preponderance of the evidence, reasonable doubt should be resolved in favor of the Soldier.
DoDI 1332.39, 6.2. Higher of Two Evaluations. When the circumstances of a case are such that two percentage evaluations could be applied, the higher percentage will be assigned only if the Service member's disability more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. When, after careful consideration of all reasonably procurable and assembled data, there remains a reasonable doubt as to which rating should be applied, such doubt will be resolved in favor to the member. (Note: DoDI 1332.39 was in effect at the time the time the PEB adjudicated SPC Jardon’s case. It was later rescinded because it contained DoD developed rating criteria in violation with the lawful requirement to rate in strict compliance with the VASRD)
In reality, the ABCMR wording may be technically correct. The VA benefit of the doubt provision is in law but the DoD DES benefit of the doubt provision is only policy. This is just another example of the ABCMR bending the truth to support a desired conclusion. It is also in keeping with the ABCMR’s routine disregard of polices that conflict with their decisions. Perhaps Congress needs to put DoD’s benefit of the doubt policy into law just like Congress had to do with DoD’s Existing Prior to Service (EPTS) policy. DoD’s EPTS policy was also routinely ignored by DES elements and review boards.
There are other areas of concern but I hope the discussion above is illuminating on the continuing challenges that wounded warriors face in their attempts to get complete and fair adjudication of their disability cases. The DES and review board system continues to ignore key provisions design to protect the equities of the wounded warrior and this is truly shameful.
Michael A. Parker
LTC, USA (Retired)
Wounded Warrior Advocate
This week’s Outrage deals with the Army Board for the Correction of Military Records (ABCMR). It continues the discussion of Army SPC Luis Jardon and his attempts to get a full and complete disability evaluation as provided for under law and DoD policy. SPC Jardon received a 10% disability rating from the Army and is currently rated at 60% by the VA for his multiple service connected conditions. The difference between the Army and VA ratings is driven by the Army’s refusal to include and properly evaluate all of his service connected disabilities.
In Outrage # 12, I wrote about the many errors and issues made by the Physical Disability Board of Review (PDBR) in the review of SPC Jardon’s case. The PDBR erroneously refused to address SPC Jardon’s right arm condition and, instead, stated SPC Jardon had to have the issue reviewed by the ABCMR. SPC Jardon indeed pursued relief with the ABCMR and, as expected, hit a brick wall. This Outrage will discuss the many issues and errors made by the ABCMR in the review of his case.
There is some good news to report. This is not the first time I have written about problems with military review boards. I have been illuminating these problems for years and recently covered them again in Outrage 5, 6 and 7. It looks as though Congress is taking additional action to address these concerns. Section 532 of the House of Representatives’ National Defense Authorization Act for FY 2011, includes provisions to address appeal board issues. The report accompanying the NDAA legislation states:
Section 532—Correction of Military Records
This section would require boards for the correction of military records, discharge review boards, and disability retirement and separation review boards operated under the jurisdiction of the secretaries of the military departments to ensure that the documents announcing decisions of the boards convey the findings and conclusions of the board in an itemized and orderly fashion with specific attention to each issue presented by the member in regard to that member’s case. This section would also require that disability retirement and separation review boards be made available to enlisted members as well as officers.
The review of SPC Jardon’s case by the ABCMR will again illuminate why fixes to the military review board process are desperately needed. It should be noted that for disability cases, 10 USC 1222a already requires review boards “to ensure that the documents announcing decisions of the boards convey the findings and conclusions of the board in an itemized and orderly fashion with specific attention to each issue presented by the member in regard to that member’s case.” The review boards have done an abhorrently bad job of adhering to this law. I am hopeful that this new legislation will drive home the requirement into the review board process for disability and non disability cases alike. Once BCMRs and other boards are forced to thoroughly explain their rationales as it relates to applicable laws, regulations and policies, there should be a dramatic increase in the number of cases decided in the favor of wounded warriors.
In SPC Jardon’s ABCMR appeal, he had a simple request; a complete and proper disability evaluation of all his service connected disabilities. This request was noted in the ABCMR’s response to his appeal as follows:
The applicant requests reconsideration of his earlier request for the correction of the medical evaluation board (MEBD) and physical evaluation board (PEB) proceedings to show an accurate and complete evaluation of all his medical conditions along with an increase in his disability rating. (emphasis added)
And,
The applicant contends, in effect, that his MEBD, and PEB proceedings should be corrected to show an accurate and complete evaluation of all his medical conditions, along with an increase in his disability rating because his MEBD and PEB proceedings were missing medical documents that should have been considered at the time. (emphasis added)
The requirement to cover all medical conditions is clearly stated in DoDI 1332.38:
E3.P1.2.3. Content. MEBs, TDRL physical examinations, and Reserve component physical examinations shall document the full clinical information of all medical conditions the Service member has and state whether each condition is cause for referral into the DES. (See enclosure 4 of this Instruction.) Clinical information shall include a medical history, appropriate physical examination, medical tests and their results, medical and surgical consultations as necessary or indicated, diagnoses, treatment, and prognosis. MEBs shall not state a conclusion of unfitness because of physical disability, assignment of disability percentage rating, or the appropriate disposition under Chapter 61 of 10 U.S.C. (reference (b)). (emphasis added)
Despite the evaluation of all medical conditions being the core issue of SPC Jardon’s appeal, not once did the ABCMR decision rationale address the DoDI 1332.38 requirement above. Rather than ensure SPC Jardon received a complete and through disability evaluation, the ABCMR simply blew off his case.
It is very telling that the ABCMR stated multiple times in their decision rationale that their standing position is that the Army did everything right and that SPC Jardon had to prove otherwise. Rather than providing a review to ensure his case was correctly evaluated per law and policy, they simple presume that it was. The following passage from the ABCMR’s decision highlights this point.
There is a presumption of administrative regularity in the conduct of government affairs. This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption. Since there is no evidence of record to show that the applicant’s conditions in question at the time were found medically unfitting for retention in accordance with Army Regulation 40-501, there is no basis for consideration of any additional disability rating. Thus, the applicant is not entitled to correction of his MEBD or PEB proceedings to show he was unfit for the(se) condition(s) or increased permanent disability rating(s). As a result, the applicants MEDB and PEB proceedings are presumed proper and equitable. (emphasis added)
The ABCMR’s use of the one-size-fits-all terms of “the(se)”, “condition(s)”, and “rating(s)” demonstrates the boilerplate nature of their responses. They don’t even take time to individualize their response to the case at hand let alone take time to do unbiased research to fairly and thoroughly adjudicate the case. Instead, they copied and paste canned arguments into their decision rationales.
The ABCMR response above states the applicant must provide substantial credible evidence to rebut the presumption of “administrative regularity”. The ABCMR is stating that MEBs and PEB can ignore DES law, regulations and policies as long as the applicant is also unaware of these provisions. Does the ABCMR really believe it is permissible for MEBs and PEBs to ignore longstanding laws and regulations as long as the victim remains ignorant of these provisions? Is the ABCMR ignorant of these longstanding provisions? I would hope not. Is it any wonder why DoD and the Services want BCMR’s to take the lead on the review of disability evaluation cases. No accountability in appeal adjudication leads to reduced personnel costs.
Also note the underlined section of the passage above. The ABCMR is stating there is no evidence of record to show that SPC Jardon’s conditions “were found to be medically unfitting for retention” so therefore there is no basis for consideration of any additional disability rating. Of course the MEB didn’t find them to be unfitting for retention; they never evaluated them properly in the first place. Talk about broken, circular logic. Because the MEB erred when they did not find these conditions “unfitting for retention” they can’t be corrected? Again, the reason the MEB did not find them to be “unfitting for retention” is because they never included the conditions in the first place as required by DoDI 1332.38. Further, even when the MEB fails to properly include conditions, the PEB is required to consider the overall effect of all conditions on SPC Jardon’s fitness even if the MEB failed to include the conditions. DoDI 1332.38 states:
E3.P3.4.4. Overall Effect. A member may be determined unfit as a result of the overall effect of two or more impairments even though each of them, standing alone, would not cause the member to be referred into the DES or be found unfit because of physical disability. (emphasis added)
When determining unfitness, the PEB is required to consider all conditions even if the MEB failed to include them. This is yet another DES requirement that the ABCMR refuses to consider let alone enforce. The requirement is not even mentioned in the ABCMR decision rationale.
One of the most disturbing passages from the ABCMR’s decision rationale on SPC Jardon’s case is below:
Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which are incurred in or aggravated by active military service. However, an award of a higher VA award does not establish error or in justice in the Army rating. An Army disability rating is intended to compensate an individual for the interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The VA, which has neither the authority, nor the responsibility, for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individuals civilian employability. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment. Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based on upon the agency’s examinations and findings. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for the loss of the career; while the VA may rate any service connected impairment including those that are detected after discharge in order to compensate the individual for the loss of civilian employability. [Emphasis Added].
This is just another boilerplate response the ABCMR continues to use despite the longstanding requirement to rate unfitting conditions per the VASRD and despite of specific court decisions that stated such generalized rationale is unacceptable. Conditions that contribute to unfitness are rated per the VASRD, period. If the VA and the Army come up with different ratings for the “same impairment” as stated above, then one of the agencies is wrong and the Army must justify the difference in their rating. Throughout the years, the federal courts have backed up that law with several rulings that affirm that PEBs must rate unfitting conditions per the VASRD. A passage from McHenry v. US (367 F.3d 1370, Fed.Cir. 2004), does an excellent job of summarizing key federal rulings on the VASRD rating requirement. It states:
“The statute mandating the creation of the VASRD requires only the Secretary of Veterans Affairs to apply the guidelines, see 38 U.S.C. § 1155 (2000),[7] but 10 U.S.C. § 1201 requires that disability ratings by the Secretary of the pertinent military department be based on the VASRD schedule. Section 1201 provides: Determinations [that a service member is unfit for duty because of a physical disability] are determinations by the Secretary that . . . the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination . . . .” 10 U.S.C. § 1201(b) (emphasis added). Section 1204(4)(B), involving disability retirement for service members not covered by section 1201, Similarly requires that disability ratings be based on the VASRD schedule, using the same language as section 1201. See also 10 U.S.C. § 1203(b)(4). In Thompson v. United States, 195 Ct. Cl. 468 (1971), our predecessor court held that section 1204(4)(B) requires the Secretary to apply the VASRD in rating disabilities. Id. at 477; see also Hordechuck v. United States, 144 Ct. Cl. 492, 495 (1959). The court noted that the statute “requires by specific reference, that the rating of disability be made ‘under the standard schedule of rating disabilities in use by the Veterans Administration.’” Thompson, 195 Ct. Cl. at 477 (quoting 10 U.S.C. § 1204(4)(B)).[8] “[T]here [is] no authority for reducing percentages beyond those found in the schedule itself.” Wolf v. United States, 168 Ct. Cl. 24, 32 (1964). Although the armed forces must use the VASRD guidelines when the service member’s disabilities “come within” them, the Secretary may make upward departures from the VASRD guidelines in particular cases. Id. at 31-32; see also Finn v. United States, 212 Ct. Cl. 353, 356 (1971).[9] These same rules apply to the identically-worded section 1201 involved in this case.” (emphasis added)
As covered in Outrage # 5, the case of SSG Christopher Rominger clearly shows the ABCMRs’ broken attitude on the requirement to rate per the VARSD. The Army discharged SSG Rominger without disability retirement for a back condition, assigning a 20% disability rating. The VA rated the same back condition at 40% disabling effective the day he left service. He took his case to the ABCMR arguing that he should have received a 40% rating for his unfitting disability and given disability retirement. The ABCMR denied his claim using another boilerplate passage they have used on an untold number of similar cases. The Army BCMR stated:
The applicant provided no evidence that his disability was improperly rated in accordance with VASRD or that his separation with severance pay was not in compliance with law and regulation. The rating action by the DVA does not necessarily demonstrate any error or injustice in the Army rating. The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating by the DVA does not compel the Army to modify its rating. The applicant’s contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.
The Army BCMR did not care that the VA rated the same back condition at 40%, after all they have always believed the Army is free to rate conditions any way they want under whatever criteria they develop. SSG Rominger then took the decision to federal court (Rominger V. US, United States Court of Federal Claims, case 05-742C). The court decision stated the Army BCMR decision lacked sufficient explanation for judicial review. The key passage from that decision stated:
Although courts afford great deference to the decisions of boards for the correction of military records, that deference is not absolute. Correction boards are obligated to “examine relevant data and articulate a satisfactory explanation for their decisions.” See Van Cleave, 66 Fed. Cl. at 136 (citing Yagjian v. Marsh, 571 F. Supp. 698, 701 (D.N.H. 1983)). In this connection, “correction boards are required to make rational connections between the facts found and the choices made.” Id. Where a correction board fails to support its decision with a reasoned explanation of an important issue, a remand is appropriate. Id. Tested by these standards, a remand is necessary in this case. Here, the ABCMR dismissed Mr. Rominger’s objections in three short paragraphs without any real analysis. After reiterating the undisputed factual evidence, the ABCMR did not provide any explanation for why the Army should not reconsider its disability rating based on the higher disability rating provided to Mr. Rominger by the VA for precisely the same diagnosis. Although the VA and Army have different standards for determining whether a service member is “disabled” or unfit for military service, “once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.” Army Reg. 635-40, App. B-3(a). “Congress has established the VASRD as the standard under which percentage rating decisions are to be made for disabled military personnel.” Id., App. B-1(a). (emphasis added)
In SSG Rominger’s case, the federal court, once again, reemphasized that unfitting conditions must be rated per the VASRD and that the ABCMR cannot ignore VA ratings for the same unfitting conditions. SPC Jardon’s case clearly demonstrates that the ABCMR still does not give a damn what court decisions state. The ABCMR, some four plus years after the Rominger decision, still states that it is perfectly acceptable for the Army and the VA to rate the same condition differently: In SPC Jardon’s February 2010 case, the ABCMR stated:
The fact that the VA (or any other government agency), in its discretion, awarded the applicant a higher disability rating than that which he received from the U.S. Army, is a prerogative exercised within the policies of that agency.
Wrong! Again, it is a matter of longstanding law and numerous court decisions that unfitting conditions must be rated in accordance with the VASRD. If ABCMR officials cannot understand, or choose to ignore, such a simple concept they need to be fired. It is a crime that such high paid government officials can make such errors (or worse, deliberately defy the intent of the law and court decsions) without any repercussions. After making such erroneous decisions, they go home every night to nice, comfortable houses while wounded warriors lose their houses and are forced to live on the streets. It truly is a national disgrace.
As discussed in Outrage # 12, a driver of appeal board mistakes is their blind and unholy allegiance to advisory opinions of the United States Army Physical Disability Agency (USAPDA). These USAPDA advisory opinions are not fair and balanced. Rather, they are simply the USAPDA’s propagation of errant policies and positions that cover their mistakes and to continue the avoidance of having to pay legally due disability benefits. Many of the points in USAPDA advisory opinions are lies by omission. Just like in SPC Jardon’s PDBR decision, the ABCMR used the USAPDA advisory opinion as the basis for their decision rationale to deny the relief sought. SPC Jardon’s ABCMR decision stated:
The evidence of record [USAPDA advisory opinion] shows that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service. Furthermore, it can rate a condition only to the extent that the condition limits performance of duty.
The USAPDA advisory opinion actually stated:
“A PEB can only rate conditions that are found unfitting for duty (6.1.7, DoDI 1332.39).”
This is what paragraph 6.1.7 of DoDI 1332.39 actually states:
6.1.7. Disabilities Not Unfitting for Military Service. Conditions that do
not themselves render a Service member unfit for military service will not be
considered for determining the compensable disability rating unless they contribute to the finding of unfitness. (emphasis added)
I don’t exactly know what the ABCMR means in the passage above when they state, “Furthermore, it can rate a condition only to the extent that the condition limits performance of duty.” Again, if a condition contributes to unfitness, it is rated per the VASRD. If the ABCMR is stating it only has to apply certain parts of the VASRD criteria for a certain condition they are wrong. However, such a “technique” would be in keeping with numerous, ratings lowering strategies used by the Army over the years to avoid paying disability benefits.
Finally, the ABCMR used the following rationale for explain why Army ratings are lower than VA ratings:
Moreover, the law requires that the VA must give the veteran the benefit of reasonable doubt.
However, the Army and DoD have similar policies that were never mentioned in the ABCMR decision. For example:
AR 635-40, B–4. Higher of two evaluations. In a number of atypical instances, it is not expected that all cases will show all the findings specified in the VASRD. Where there is question as to which of two percentage evaluations shall be applied, the higher evaluation will be assigned if the Soldier’s disability more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. When, after careful consideration of all reasonably procurable and assembled data, there remains a reasonable doubt as to which rating shall be applied, such doubt will be resolved in favor of the Soldier.
AR 635-40, 3-2 a.(5) The foregoing presumptions may be overcome only by a preponderance of the evidence, which differs from personal opinion, speculation, or conjecture. When reasonable doubt exists about a Soldier’s condition, an attempt should be made to resolve the doubt by further clinical investigation and observation and by consideration of any other evidence that may apply. In the absence of such proof by the preponderance of the evidence, reasonable doubt should be resolved in favor of the Soldier.
DoDI 1332.39, 6.2. Higher of Two Evaluations. When the circumstances of a case are such that two percentage evaluations could be applied, the higher percentage will be assigned only if the Service member's disability more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. When, after careful consideration of all reasonably procurable and assembled data, there remains a reasonable doubt as to which rating should be applied, such doubt will be resolved in favor to the member. (Note: DoDI 1332.39 was in effect at the time the time the PEB adjudicated SPC Jardon’s case. It was later rescinded because it contained DoD developed rating criteria in violation with the lawful requirement to rate in strict compliance with the VASRD)
In reality, the ABCMR wording may be technically correct. The VA benefit of the doubt provision is in law but the DoD DES benefit of the doubt provision is only policy. This is just another example of the ABCMR bending the truth to support a desired conclusion. It is also in keeping with the ABCMR’s routine disregard of polices that conflict with their decisions. Perhaps Congress needs to put DoD’s benefit of the doubt policy into law just like Congress had to do with DoD’s Existing Prior to Service (EPTS) policy. DoD’s EPTS policy was also routinely ignored by DES elements and review boards.
There are other areas of concern but I hope the discussion above is illuminating on the continuing challenges that wounded warriors face in their attempts to get complete and fair adjudication of their disability cases. The DES and review board system continues to ignore key provisions design to protect the equities of the wounded warrior and this is truly shameful.
Michael A. Parker
LTC, USA (Retired)
Wounded Warrior Advocate
