The BCMR: It can make a grown man want to cry

klamsnacks

PEB Forum Veteran
#21
I won't quote *(Take up too much space =P) that but great post Jason - I recently got my Dual Action ruling from SAF back - they stated:
"The Board acknowledge that there appeared to be a causal relationship for the majority of the member's disiplinary difficulties based upon the timing of the latest fitness failures in relation to his medical condition and his operative procedure. Subsequently, the Board concluded that the member should be permanently retired at 40 percent.

It was determined that Senior Airman SNUFFY did not serve satisfactorily in any higher grade within the meaning of Section 1372, Title 10, USC."

**All of my disciplinary action was directly related to Fitness Failures, except 2 LOR's. These were related to my medical condition. Both punishments were given on the same day, one for Absent Without Leave and other for Dereliction of Duty - this was for missing 13 days of work without excuse, following an epidural procedure that caused me to suffer a very debilitating episode. In my rebuttal to both punishments I clearly showed that the time frame for the punishment was unjustified due to the dates being for WHEN I had the procedure with doctor's excused absence from work (5 days), that were turned into my Senior Leadership by a Lt. Col that drove me to the appointment that day. And the daily communication with my First Shirt (now Retired) at the time with MFR's I typed up, including contact with my Supervisor for these appointments. Additionally, I was arrested for failure to appear, but was at work at the time of arrest, and never received any punishment in regards to that arrest. It was merely done, to show it could be done and that harsher punishment was sought due to my "missing work all the time". Not because my condition warranted it nor the pain and sleep medication (Ambien and others) I was prescribed by my PCM. In all of my rebuttals up to the arrest (and after) - I had always outlined my difficulties with sleeping approx. 1 1/2 to 2 hrs a night which continues to this very day.

So I have a few questions;

1. I do intend to file a AFBCMR claim towards EVERY fitness test since injury - Specifically quoting AFI 36-3212, Physical Evaluations for Retention, Retirement, and Separation (27 NOV 09). When an unfit ruling by the IPEB has been determined paragraph 3.22, summarily states; the date incurred is the date when, according to documented evidence or accepted medical principles, the member incurred the disease, defect, condition, or injury, not the date the member underwent medical evaluation.
As being found unfit and SAF ruling shows cause and effect from the disability do I have a leg to stand on here?

2. Can a AFBCMR request contain multiple items - such as my intent above, with the effect being that if these AF Fitness Assessments are dismissed, then I would not have received the two or three Referral EPR's for failed fitness. Now I want these removed as well. And coincidentally, with the Fitness Failures dismissed I also would not have been demoted to Senior Airman, I wish to have my SSgt Stripe back with back pay to July 2011.

3. This is a stretch but shoot for the moon I suppose, with all above corrected, as my injustice proves, I was also unable to test for promotion to the rank of TSgt/E-6 on 2 occasions due to the Referral EPR's, I am confident as my career field recently went through a merger thus being only PFE (One study material versus subject matter for specialized career field), and my past testing scores show, I would likely have made TSgt/E-6. I wish the rank of TSgt for final retired rank be awarded.

YES YES I know I'm stretching a bit on the last one, but it is factual.

So Jason, or anyone else, what are your thoughts.

v/r
Klam
 

Jason Perry

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#22
"The Board acknowledge that there appeared to be a causal relationship for the majority of the member's disiplinary difficulties based upon the timing of the latest fitness failures in relation to his medical condition and his operative procedure. Subsequently, the Board concluded that the member should be permanently retired at 40 percent.

It was determined that Senior Airman SNUFFY did not serve satisfactorily in any higher grade within the meaning of Section 1372, Title 10, USC."


Congratulations! And, I think this finding may help your "cause" in fighting the demotions.


**All of my disciplinary action was directly related to Fitness Failures, except 2 LOR's. These were related to my medical condition. Both punishments were given on the same day, one for Absent Without Leave and other for Dereliction of Duty - this was for missing 13 days of work without excuse, following an epidural procedure that caused me to suffer a very debilitating episode. In my rebuttal to both punishments I clearly showed that the time frame for the punishment was unjustified due to the dates being for WHEN I had the procedure with doctor's excused absence from work (5 days), that were turned into my Senior Leadership by a Lt. Col that drove me to the appointment that day. And the daily communication with my First Shirt (now Retired) at the time with MFR's I typed up, including contact with my Supervisor for these appointments. Additionally, I was arrested for failure to appear, but was at work at the time of arrest, and never received any punishment in regards to that arrest. It was merely done, to show it could be done and that harsher punishment was sought due to my "missing work all the time". Not because my condition warranted it nor the pain and sleep medication (Ambien and others) I was prescribed by my PCM. In all of my rebuttals up to the arrest - I had always outlined my difficulties with sleeping approx. 1 1/2 to 2 hrs a night which continues to this very day.
Facts are always important. You mentions 2 LOR's- What were these for? You mention "arrests." This is strange/bizarre in the military context because normally, you can be ordered into pre-trial confinement in limited circumstances, but something here sounds wrong/weird.


So I have a few questions;
1. I do intend to file a AFBCMR claim towards EVERY fitness test since injury - Specifically quoting AFI 36-3212, Physical Evaluations for Retention, Retirement, and Separation (27 NOV 09). When an unfit ruling by the IPEB has been determined paragraph 3.22, summarily states; the date incurred is the date when, according to documented evidence or accepted medical principles, the member incurred the disease, defect, condition, or injury, not the date the member underwent medical evaluation.
As being found unfit and SAF ruling showing cause and effect from the disability do I have a leg to stand on here?


Yes. At least two legs, maybe more.

2. Can a AFBCMR request contain multiple items - such as my intent above, with the effect being that if these AF Fitness Assessments are dismissed, then I would not have received the two or three Referral EPR's for failed fitness. Now I want these removed as well. And coincidentally, with the Fitness Failures dismissed I also would not have been demoted to Senior Airman, I wish to have my SSgt Stripe back with back pay to July 2011.
Yes, you can make multiple requests, and also make requests in the alternative (i.e., "I request X, but if that is not granted, I request Y.").


3. This is a stretch but shoot for the moon I suppose, with all above corrected, as my injustice proves, I was also unable to test for promotion to the rank of TSgt/E-6 on 2 occasions due to the Referral EPR's, I am confident as my career field recently went through a merger thus being only PFE (One study material versus subject matter for specialized career field), and my past testing scores show, I would likely have made TSgt/E-6. I wish the rank of TSgt for final retired rank be awarded.
YES YES I know I'm stretching a bit on the last one, but it is factual.


Highly unlikely, but, very distantly possible. Can't say enough that I doubt it, but if there are some specific facts showing you met standards, you actually served in the higher rank capacity and you have some compelling proof as to administrative irregularities, then maybe. So, the answer is No and it will never work. Unless it does. But it won't. Wish I had better news on this point. The law is clear there is no entitlement to promotion and not entitlement to pay of higher rank unless you actually served in that rank.
 

klamsnacks

PEB Forum Veteran
#23
Facts are always important. You mentions 2 LOR's- What were these for? You mention "arrests." This is strange/bizarre in the military context because normally, you can be ordered into pre-trial confinement in limited circumstances, but something here sounds wrong/weird.


Highly unlikely, but, very distantly possible. Can't say enough that I doubt it, but if there are some specific facts showing you met standards, you actually served in the higher rank capacity and you have some compelling proof as to administrative irregularities, then maybe. So, the answer is No and it will never work. Unless it does. But it won't. Wish I had better news on this point. The law is clear there is no entitlement to promotion and not entitlement to pay of higher rank unless you actually served in that rank.
Thanks for the reply,

As mentioned in my earlier comments, I have recieved a total of 4 LOR's and 2 Demotion Actions. Each demotion Action included 1 LOR for failure to meet fitness standards, and one Admin Separation Action since injury. Additionally I was arrested by Security Forces at work for Failure to Report (for duty), for oversleeping and being 4 hours late. I was handcuffed, read my rights, asked for my lawyer, held in a room for an hour, taken to a drug test, and then released to the custody of my squadron. The arrest has never been discussed with me by anyone other than the SMSgt that had me arrested, upon release from SF Custody that day. My First Shirt and I discussed this the following day and I presented him with a very "heated" MFR I typed up explaining my position and broke down, thus resulted in my seeing a mental health professional for Major Depression. I never received any paperwork or any NJP for the arrest, nor was it ever mentioned except in my EPR, and when I rebuttaled that EPR they changed the EPR and removed that line. My supervisor thought I had been placed on a UIF following arrest, and identified this on my Commander Directed EPR (3 months after the last close out of my previous one) When I told him NO I'm NOT on a UIF he's like I'll have to check but I think you are, he did check and found out I wasn't and that no punishment "other than arrest" came out of the actual arrest.

The additional 2 LOR's I received the same day. They were for Absent Without Leave and Dereliction of Duty. They both outlined that I failed to go on 13 occasions to my place of work/duty, without excused absence or while on leave. Thus they correlated with one another in that Because I was absent without leave, I was derelict in my duties. The nonsense of these two actions were that the dates they were for began on the date of my Epidural procedure and the 5 days excused abscence from the providing pain management specialist. So now the remaining "8" days I was in constant communication with my Supervisor, Additional Rater (SMSgt who would later have me arrested), and First Shirt specifically. The shirt informed me that I shouldn't worry, but I needed to get put on Con Leave, and that he was working it. I was literally bedriden. I was only able to get up to go to the bathroom, was left sleeping on my floor, and unable to do many daily functions including hygene. In my rebuttal for both of these, I showed copies of everything I had including the doctor's excused abscence, a statement from the Lt. Col whom drove me to and from the appointment and had turned in the copies of the Docs excuse. A brief summary of my daily communication with my First Shirt as to my condition being in the shape I was. Ultimately, my CC chose not to accept that my medical condition was anything at all. To include telling me when serving this paperwork that whatever medical condition I may THINK i have, it doesn't warrant me to miss work unexcused. When offered to ask him any questions about the action, I asked him right away or more informed him that I was confused how my medical condition that it is regardless of my opinion but in the PCM and now 2 Dr's I'd seen opinion would not be taken into consideration. Additionally, I asked him how HE justified this action considering the date for which I was being wrote up I was having a medical procedure done, and verifiable by all email traffic with my supervision and the LtC that drove me to the appointment. Thirdly, as of that day, I was ordered to come in for this appointment by SMSgt, even after I informed him that I was on prescription Narcotics and told not to drive, but he was unable to secure a ride for me and told me I would have to do whatever I had to do but I needed to be here in the next 30 minutes or he was sending the police to come get me.

YEAH SO my CC is a dick I get it, but he was completely unsympthetic and unusally harsh in all aspects of my condition, up to the point of forcing me to pt test 3 days before surgery, and refusing Con Leave for the 2nd and 3rd month following surgery, but finally gave in after some very heated discussions with my surgeon and PCM about the 2nd month. The third month, NO WAY he said absolutely I will not authorize this. So, I think he decided long ago to make his mind up and now it's catching up to him finally, but not before he was able to get his way and have me busted down to A1C, right before my SAF decision came down.

v/r
A1C Klamsnacks!!!
 

Ed Mercanti

PEB Forum Veteran
Registered Member
#25
I wasn't management in the ARBA. I was the supervisor of an ABCMR production team. So I'm not sure why I'm defending them. OK. Jason, I know you were an officer and officers by their very nature are managers. Lets say you're the ABCMR director. While there has been laws in place to protect the manning of the ABCMR, when HRC was moved to Ft. Knox the ARBA at Crystal City picked up the functions of HRC St. Louis (screening applications, sending them out for advisory opinions if necessary, getting records, letter closing cases, responding to applicants). The ARBA picked up some of the St. Louis personnel allocations, but not nearly all of them. The ARBA also picked up the DA level boards that were at HRC Alexandria (OSRB, ESRB, DASEB, etc) and were given NO additional personnel allocations with the additional responsibilities. This required a revamp of the ARBA which included the loss of two ABCMR production teams. So with two less ABCMR production teams, your applications increase by a third (probably due to the poor economy) and you have to comply with Title 10, Section 1557.

I would imagine as a manager you would look for ways to streamline the production process and encourage your analysts to produce more cases. This is precisely what occurred in the ABCMR.

Unfortunately, that sometimes results in issues not being properly addressed. I think I can honestly say that never happened on my team. But that came with the cost of lower production. And we're rated on our production.

The solution to the problem is giving the ABCMR more personnel, but that isn't happening in this day and age of decreasing resources.

As for your question about the analysts, the analysts write the entire Record of Proceedings you see in the Reading Room, including the recommendation. If the Board disagrees with the recommendation, they change it. The Board is provided the case with tabs identifying the applicable documents. The Board members view those documents or don't view them at their descretion.

This explanation doesn't change the fact that the ABCMR could do a better job, but I can honestly say they are doing the best they can with the resources they are provided.
 

grizz13

PEB Forum Veteran
Registered Member
#26
I am loving this conversation and it is very insightful on the processes, thank you Jason and Ed for the many explanations and opinions on these matters. Jason have you brought up your viewpoint the the VFW or VA personnel? I am sure the more talk spread around this subject may eventually lead to some sort of fix, or get it into a lobby review?
 

robins

PEB Forum Regular Member
#27
Jason,

I have been looking through the opinions as well and am curious what you have seen with regards to increasing ratings. I hear all the time people saying that if the VA rates your unfitting condition higher that you can just apply and the BCMR will increase the rating. I think that sounds too good to be true but does that BCMR generally accept a VA rating as proof that the IPEB was incorrect.

Thanks
 

Ed Mercanti

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Registered Member
#30
Jason,

I have been looking through the opinions as well and am curious what you have seen with regards to increasing ratings. I hear all the time people saying that if the VA rates your unfitting condition higher that you can just apply and the BCMR will increase the rating. I think that sounds too good to be true but does that BCMR generally accept a VA rating as proof that the IPEB was incorrect.

Thanks
That is not true for the BCMR unless its a PTSD issue and after the court ruling.

The VA operates under Title 38 and the military operates under Title 10. Title 38 requires the benefit of doubt be given the veteran. Title 10 does not have that clause. So there is no presumption that if the VA granted a higher rating, the military was incorrect.
 

Jason Perry

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#31
Generally (I bolded for a reason), I concur with Ed. But, for example, in IDES cases, when the condition was originally rated by VA and through their appeals process you are given a retroactive grant of increase to the date after separation, the IDES Reg. (DTM 11-015) strongly suggests that the VA rating should be credited by BCMR and applied with resultant retirement status awarded (if applicable). Also, PDBR Reg says that special attention should be given to VA awards granted within a 12 month period after separation (begs the question of actual date of award or effective date).
 

Ed Mercanti

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Registered Member
#32
Yes. Jason is correct. If the VA ups a rating based on an appeal of the original rating, there would be no reason why the BCMR wouldn't correct the military rating in this instance. Good point Jason!
 

Load Clear!

Registered Member
#33
Yes. Jason is correct. If the VA ups a rating based on an appeal of the original rating, there would be no reason why the BCMR wouldn't correct the military rating in this instance. Good point Jason!
Ed/Jason,

So if I understand correctly, PDBR is encouraged to give special attention to VA ratings granted within 12 months of separation and BCMR is not? Does the BCMR give any weight at all to VA ratings effective the day following discharge?

I MEB/PEB'd with an inaccurate condition/had an unfitting condition (due to the same injury/event) which was not considered by MEB/PEB. I was discharged with severance at 10% and wish I knew of this board back in 2003 when I was going through the DES. Anyway...The VA rated me at 20% and 10% for unfitting conditions sustained in my injury. I was initially excited about the chance for a retirement/justice when I heard of the PDBR, but as I learned more about it, I learned it would not help me since they can only consider conditions presented on the MEB/PEB. I have since considered the BCMR but am unsure if it is the correct avenue.

Any thoughts?

Thanks,
LC
 

Ed Mercanti

PEB Forum Veteran
Registered Member
#34
The BCMR will pretty much change a military rating if a person is processed under the IDES and the VA changes its rating of the unfitting condition upon appeal of that rating (not due to subsequent ratings of the condition). The IDES didn't exist in 2003. The VA rated you for two conditions, the military (presumably) for one. You would have to show both conditions were unfitting to perform your duties and they were both rated properly by the VA.
 

Jason Perry

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#35
Ed/Jason,

So if I understand correctly, PDBR is encouraged to give special attention to VA ratings granted within 12 months of separation and BCMR is not? Does the BCMR give any weight at all to VA ratings effective the day following discharge?

I MEB/PEB'd with an inaccurate condition/had an unfitting condition (due to the same injury/event) which was not considered by MEB/PEB. I was discharged with severance at 10% and wish I knew of this board back in 2003 when I was going through the DES. Anyway...The VA rated me at 20% and 10% for unfitting conditions sustained in my injury. I was initially excited about the chance for a retirement/justice when I heard of the PDBR, but as I learned more about it, I learned it would not help me since they can only consider conditions presented on the MEB/PEB. I have since considered the BCMR but am unsure if it is the correct avenue.

Any thoughts?

Thanks,
LC
There is specific regulatory language stating that the PDBR should "particularly" consider VA ratings given within 12 months of separation:

DODI 6040.44:
"The Military Departments will obtain DVA rating determinations issued on behalf of the former Service member. Once obtained, the PDBR should compare any DVA disability rating for the specifically military unfitting condition(s) with the PEB combined disability rating and consider any variance in its deliberations and any impact on the final PEB combined disability rating, particularly if the DVA rating was awarded within 12 months of the Service member’s separation."

As a matter of statutory/regulatory construction, I think that the use of the word "particularly" means that they have to give some special (i.e., above ordinary) weight to ratings "awarded" within 12 months of separation (the unanswered question is whether the award must be made within 12 months or whether a retroactive award- perhaps years later, but with an effective date of within 12 months, qualifies. I think that as a matter of law, it should qualify.

There is no such regulatory language that applies to the BCMR. However, there is case law that suggests that VA ratings must be considered, if not applied expressly.

The BCMR will pretty much change a military rating if a person is processed under the IDES and the VA changes its rating of the unfitting condition upon appeal of that rating (not due to subsequent ratings of the condition). The IDES didn't exist in 2003. The VA rated you for two conditions, the military (presumably) for one. You would have to show both conditions were unfitting to perform your duties and they were both rated properly by the VA.
Agree 100% as to the first clause (italicized). And, in principle, agree with the bolded part. However, the corollary to the principle that in pre-IDES cases the military does not have to apply VA ratings, is that a VA rating higher than military is not necessarily going to result in showing a proper military rating.

To try to state it in simple terms (and trying to encompass case law), outside of IDES cases, VA ratings are simply "evidence" that should be considered by the military (though, I am not sure the cases have stressed this enough, I really think that most cases, at least pre-IDES, really turn not on the actual VA rating, but on the underlying facts found by the VA). Don't take this as gospel, though, because there are some cases that are not really clear on this point (and if you really want to practice your legal ninjitsu, you will look to add in cases from either SSDI or out in the Federal District Courts- depends on your circuit and how deep you want to dig into the legal issues before really trying to figure out what the law says or suggest).

The above said, I think it is way more complicated than all that I suggested. My gut instinct is to just state that the PDBR appears to be required to give more deference to VA decisions than does the BCMR.

And, I would tell most folks, to look at the relatively high grant of awards from the PDBR vs. the BCMR/BCNR. However, once again, you have to look at what specific issues you are talking about in the first place.
 

Ed Mercanti

PEB Forum Veteran
Registered Member
#36
Jason said "My gut instinct is to just state that the PDBR appears to be required to give more deference to VA decisions than does the BCMR."

I totally agree.
 

maparker

Staff Member
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#37
That is not true for the BCMR unless its a PTSD issue and after the court ruling.

The VA operates under Title 38 and the military operates under Title 10. Title 38 requires the benefit of doubt be given the veteran. Title 10 does not have that clause. So there is no presumption that if the VA granted a higher rating, the military was incorrect.

Ed,

In terms of the benefit of the doubt, DoDI 1332.39 stated:

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.



DoDI 1332.38 was in effect until the 2007/2008 timeframe.

AR 635-40 states:



B–4. Higher of two evaluations

In a number of a typical 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.



While the benefit of the doubt is not written in law, it is in DoD instructions and Army regulations which the ABCMR must adhere to when making their decisions.



Below is an excerpt fro my DES Outrage # 5. To me the crux of the issue is that if the BCMR does not agree with the VA rating for the condition, they need to clearly explain why so that a court can act appropriately on that decision rationale. The ABCMR boilerplate excuse that the DoD and VA are different just does not cut it.

Mike



The case of SSG Christopher Rominger clearly shows the BCMRs’ 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 Army BCMR arguing that he should have received a 40% rating for his unfitting disability and given disability retirement. The Army BCMR denied his claim using a 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 No. 05-742C). The court decision stated the Army BCMR decision lacked sufficient explanation for judicial review. They 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).

In SSG Rominger’s case, the federal court, once again, reemphasized that unfitting conditions must be rated per the VASRD and that the BCMR cannot ignore VA ratings for the same unfitting conditions.
 

Ed Mercanti

PEB Forum Veteran
Registered Member
#38
If a psychiatrist says "Its as likely as not that the patient's PTSD is from his experience in Vietnam" the VA is required to accept that under Title 38. The military does not. That is what I am referring to. All VA ratings must be made in adherance to this principle. In addition, why would you say that the ratings made by VA personnel would be more accurate than those made by the military? Do they have better, more comprehensive training than the military rating officials? Do the VA rating officials have far fewer cases to decide than the military so we can make a presumption that the VA rating officials take more time to insure the rating is the most accurate for the disabling conditions?

As for the Rominger case, as we've discussed the ABCMR recognises that it needs to discuss specifics based on the VASRD. I would assume that all disability cases (where ratings have been assigned) now have that type of review today.
 

maparker

Staff Member
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#39
Ed,

I was specifically referring to conditions that were deemed unfitting by the military but rated higher by the VA. I would argue the VA is in fact better at rating because it is their core responsibility, they have a solid training program and they get continual feedback from the BVA and the CAVC. They also have a tons of general counsel opinions on rating issues. As you have stated, the BCMR's are extremly diverse and thus I would argue diluted in expertise. To many of the BCMR cases I have seen merely stated that DoD is different than the VA and left it at that. The VA rating decisions also provide the basis as well as the requirements for the next higher rating. This something the DoD does not do. In fact, Navy IPEB case provide no rating rationale whatsoever.

I am certain the VA makes rating errors all the time. What I am asking for is for the BCMR's (and other review boards) to clearly state why the VA rating is wrong for the same condition found unfitting and rated by the military at a lower level. If the military rating is in fact correct, then they should have no problem justifying it in the decision rationale. Either the BCMR should accept the VA rating or clearly demonstrate why it is in error.

The issue you raise above deals with service conenction where the VA and DoD differ. There are issue there as well especially dealing with the requirement to overcome the presumption of service connect and aggravation with clear and unmistakable evidence to the contrary. Futher, the Army track record for handling PTSD cases is dismal at best given what we saw in the Sabo lawsuit and the recent Madigan situation. Now the Army is having to review all past mental health cases since 2001 to ensure they were handled correclty. Cetainly the process has improved under the IDES and 2008 NDAA but that does not mean we should let past victims go uncorrected.

The review you speak of needs to apply to past decisions that did not expalin why the lower DoD rating was correct given the higher VA rating for the same condition (beyond the DoD being different than the VA). The ideal that the PEBs only need to follow the VASRD post 2008 conflicts with a whole bunch of court cases going back to at least 1959. Thus, any case that did not provide such rationale should be subject to additional BCMR appeal and review regardless of the time elapsed.

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.

Since at least the 1959 Hordechuck decision, the federal courts have consistently ruled that PEBs must rate unfitting conditions per the VASRD. And, since at least 1959, DoD and the Services have ignored these federal court rulings and low balled ratings using their own ratings lowering criteria. One dividend of the Walter Reed press coverage was the exposure of the DoD rating scandal. Congress acted on this problem in the 2008 NDAA by making it explicitly clear that the VASRD is the standard for rating unfitting conditions. DoD immediately stated the 2008 NDAA only applied to future cases, again ignoring the law and the numerous federal court rulings to the contrary. The 2008 NDAA also established the Physical Disability Board of Review (PDBR). DoD attempted to allow the PDBR to use non VASRD rating criteria for past cases. Under Congressional pressure, DoD agreed to use VASRD criteria in all cases eligible for PDBR review. Two great articles on the PDBR rating issue can be found at: http://www.military.com/features/0,15240,190478,00.html

and

http://www.military.com/features/0,15240,185783,00.html .

Forever and a day DoD has tried to avoid rating per the VASRD. They have been largely constrained against doing so as of late but we simply have to fix past victims as well.

Mike
 

Ed Mercanti

PEB Forum Veteran
Registered Member
#40
So I am to assume that if a military physician says the individual has a 60 degree range of motion in his left arm and the VA physician says he has a 45 degree range of motion, I'm supposed to assume the military physician was wrong? I wouldn't make that presumption and neither would the people writing the cases for the BCMR.

The BVA certainly has more expertise than the BCMRs/BCNR in disability matters because of the singleness of purpose you cite Mike. But how about the actual rating process? In the VA the disability adjudicators are GS 0996, grades GS 5 to GS 12. So the vast majority of the cases are probably adjudicated by GS 5 or GS 7 employees. I compare this to a panel of the PEB which is a colonel (President), and either lieutenant colonels or senior Army civilians who have attended special training to work on a PEB, one of which being a physician. And every PEB is required to have a quality control review at the USAPDA.

So while there have been problems with the BCMR reviews which have been addressed by the courts (not addressing the specific issues using the VASRD and supplimentation of the VASRD), absent a clear cut showing that one of these issues resulted in an improper rating by the military, an assumption cannot, in my mind, be reasonably or logically made that the VA rating should be considered the more accurate rating when a rating disparity exists between the VA and the military.
 
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