Army Rescinds Policies that Resulted in Low Disability Ratings for Wounded Warriors

Jason Perry

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BREAKING NEWS FOLKS! The following e-mail is from Mr. Dennis Brower, legal advisor to the Army Physical Disability Agency. Brigadier General Jones is the Adjutant General and in charge of the APDA.

"ALL:

As per direction of BG Jones, the guidance found at paragraph B-29e, AR 635-40 (mechanical ROM rating); DoDI 1332.39, E2.A1.2.21 (Sleep Apnea rating guidance); and, DoDI 1332.39, E2.A1.4.1.5 (Narcolepsy rating guidance) will no longer be followed.

Disability cases at the PEB that have been decided IAW this guidance, but not yet forwarded to the PDA, should be reconsidered using only the VASRD rating guidance for the respective VASRD rating codes. Cases yet to be decided should only use the VASRD rating code. If additional information or medical data is needed to properly rate these cases the cases may be returned to the MTF for the required information/data.

I & G #s 1 and 6 and PDA Policy Memorandum #7 are deleted.

Issues regarding the new severance pay criteria has been addressed previously and additional guidance will be forthcoming when it is
obtained. MEDCOM is being contacted to correct the PEBLO Counseling Checklist to incorporate these severance pay changes.

Additional guidance regarding other issues will be forthcoming from DoD and will be passed on as soon as we receive them.

Dennis E. Brower
Agency Legal Advisor
U.S. Army Physical Disability Agency
 

builtgypsy

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Army Rescinds Range of Motion Policies

I take this as proof that they're starting to follow the 2008 NDAA ruling of following the VASRD? That's great.
 

sfxer02

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Army Rescinds Policies that Resulted in Low Disability Ratings for Wounded Warrio

This is great news...
 

Jason Perry

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Army Rescinds Policies that Resulted in Low Disability Ratings for Wounded Warrio

Yes, this is the first news of their implementation of the provisions of the 2008 National Defense Authorization Act requiring the military to rate on the Veterans Affairs Schedule of Rating Disabilities (VASRD) as interpreted by US Court of Appeals for Veterans Claims.

For those of you who have not followed this issue, I will provide some background. Title 10 USC Chapter 61 states that the Secretaries of the Military Departments will rate wounded or injured Servicemember using the Schedule used by the Secretary of Veterans Affiars to rate disabilities. For many years, the Military Departments have unfairly (and illegally, in my opinion) deviated from the VASRD by implementing their own regulations that sometimes "interpreted" the VASRD differently from the plain language.

One particularly egregious example of this has been in the Army, where under regulations promulgated by the Army Physical Disability Agency, Soldiers who were unfit to perform their duties due to back conditions were not rated on the limitation of range of motion if that limitation was deemed to be caused by pain rather than by mechanical reasons. The result in some instances was that a Soldier who, if properly rated may have been rated at 40% or higher and eligible for retirement was instead rated at 10% or lower and separated from the service with severance pay.

Under the change brought about by the 2008 NDAA, Soldiers now have an opportunity to get a fair rating in accordance with the law. This is a great step forward.
 

Jason Perry

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Army Rescinds Policies that Resulted in Low Disability Ratings for Wounded Warrio

One thing I want to point out is that BG Jones' decision is an example of the speed in which our leaders can fix problems if they want to. If they did not do this voluntarily, it could take months or years of lawsuits and the denial of benefits to those who need it most. Exercising their authority properly, the leadership in the military can quickly address many of the faults in the Physical Disability Evaluation System.

While a long time in coming, I want to say that it is a good thing for our leaders to act this way in quickly addressing what is wrong. We should applaud the action and continue to fight for continued corrections to problems with the system.
 

builtgypsy

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Army Rescinds Policies that Resulted in Low Disability Ratings for Wounded Warrio

I hope the Navy's as quick. In reading the 2008 NDAA, I thought it mentioned a few different times that there was a window of several months into 2008 that this could be started in. I figured they would wait until the last minute, but hearing this from the Army has my hopes up.
 

bowiesoldier

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Army Rescinds Policies that Resulted in Low Disability Ratings for Wounded Warrio

WOW!!!!!!!!!!!! What can I say. This is amazing. I am a little bit of a doubting thomas at times (as you can tell from some of my posts) but when the leadership takes this kind of initiative it really invigorates my sense of trust in those folks. I don't want to annoint them as saints or anything, it did take a congressional mandate to do it, but it was still a very progressive move that warrants kudos.
 

bowiesoldier

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Army Rescinds Policies that Resulted in Low Disability Ratings for Wounded Warrio

I guess now this will bring us to the question of fitness vs unfittness. Does this condition make the soldier unfitting. Do you think they will be revisiting AR 40-501 after this?
 

RikersIsland1

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Army Rescinds Policies that Resulted in Low Disability Ratings for Wounded Warrio

Can someone break this info down to the lay person? I would like to inform those that are going thru this process. Thanks.
 

Jason Perry

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Army Rescinds Policies that Resulted in Low Disability Ratings for Wounded Warrio

One particularly egregious example of this has been in the Army, where under regulations promulgated by the Army Physical Disability Agency, Soldiers who were unfit to perform their duties due to back conditions were not rated on the limitation of range of motion if that limitation was deemed to be caused by pain rather than by mechanical reasons. The result in some instances was that a Soldier who, if properly rated may have been rated at 40% or higher and eligible for retirement was instead rated at 10% or lower and separated from the service with severance pay.

Before, if a Soldier could bend or turn and had pain, they would not rate on the inability to bend or turn. They would usually only rate on the pain or spasms (max of 20%). Now, they will rate on limited range of motion, which may be much higher.

Please let me know if that is not clear or any questions!
 

trip

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Army Rescinds Policies that Resulted in Low Disability Ratings for Wounded Warrio

What does this mean for sleep apnea?
 

fdmckeever

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Army Rescinds Policies that Resulted in Low Disability Ratings for Wounded Warrio

Jason, We will see how this plays out 18 months from now, but it is clearly an indication that Army has found the grenade in their bunker.

D
 

maparker

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Army Rescinds Policies that Resulted in Low Disability Ratings for Wounded Warrio

Trip,

It means they will rate sleep apnea per the VASRD criteria. if found unfit for sleep apnea, and you require a CPAP, you will be given a 50% rating. Most were given a 0% rating under DoD's revised criteria.

Mike
 

jor41265

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Army Rescinds Policies that Resulted in Low Disability Ratings for Wounded Warrio

Hello Jason,
This is jor41265 thank you for the information about the new policy on range of motion. I have a question that maybe you can help, I have just completed my TDRL evaluation and waiting for results; prior to my re -evaluation, I sent to the board of corrections to correct my military records to reflect my pay grade and ptsd and depression to reflect combat related. In 2003, I was in an explosion in Iraq, where my humvee rode over and IED and was hit with a RPG. My initial PEB decision was rated ptsd was not severe enough to be unfitting to the military, depression was rated at 10%. During the second evaluation ptsd was the primary cause and depression was secondary. I asked that this be change to state on my orders that this was combat related, the Board of Correction stated that because of what the first evalution board stated it was correct, however, they stated I was in an two explosions and I may appeal this in one year; however they granted a partial request for my rank to be change from SGT to SSG. Do you have any suggestions on what I should do?
 

rangerchuck

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Army Rescinds Policies that Resulted in Low Disability Ratings for Wounded Warrio

Jason,
I am guessing that these new implications will not be retroactive. I am the guy who was med boarded last year for a lower back spinal fusion and I am still waiting for my case to be heard at the ARBA. I am trying to get re-instated to active duty. I received 0% from the Army because I have full range of motion, but the PEB deemed me unfit because at the time I was phyically unable to do my job (11B) . I was only 6 months post surgery and by the time the rating came back from the PEB, I was back to normal PT. I was the guy who had the PEBLO who insisted I had no chance to be found fit with a formal board and had best take what the PEB gave me. I was wondering, in adjuicating my case, will these new guidlines favor the board granting my request??
 

Jason Perry

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Army Rescinds Policies that Resulted in Low Disability Ratings for Wounded Warrio

rangerchuck,

Strictly speaking, I think this policy change will not impact your case for a fit finding as this deals with ratings after a finding of unfit. Now, if you were to be asking for an increased rating, that might change things.

What board did you apply to at Army Review Boards Agency. ABCMR or Discharge Review Board?
 

Jason Perry

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Army Rescinds Policies that Resulted in Low Disability Ratings for Wounded Warrio

Trip,

This also impacts narcolepsy cases. Formerly, they were rated on degree of industrial impairment.

I am interested to see if they find Sleep apnea and narcolepsy to be not unfitting more often under this "new" (or more appropriately "correct") rating criteria.
 

rangerchuck

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Army Rescinds Policies that Resulted in Low Disability Ratings for Wounded Warrio

I applied to the ABCMR back in November. I asked you alot of questions around Oct last year. You seemed to think I had a shot since I was not asking for more money or a higher rating, but to continue to serve in uniform. I have been monitoring these new changes and I hope that when they look at my board results and the medical board itself, they will find that with todays standard, I should of been found fit from the start. Hopefully anyway. I figure I might hear something from them in May or June if they are still doing as many cases as last year.
 

maparker

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Army Rescinds Policies that Resulted in Low Disability Ratings for Wounded Warrio

Jor,

As far as retroactivity, you are being rerated on TDRL so the new rules apply to your new rating. For PTSD, USAPDA policy # 7 was also rescinded. It had a lot of provisions to include one that disallowed the following VASRD provision for rating PTSD.

VASRD Provides:

4.129 Mental disorders due to traumatic stress.

When a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran's release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six month period following the veteran's discharge to determine whether a change in evaluation is warranted.

United States Army Physical Disability Agency Policy # 7 Stated:

“Convalescent ratings: The Army does not use convalescent ratings. Paragraph 4.129 of the new section states that “When a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran's release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six month period following the veteran's discharge to determine whether a change in evaluation is warranted.” This is essentially a convalescent rating and will not be used.

Does this now mean that the Army PEB’s will follow 4.129 above and assigned an initial 50% rating for all cases where one if found unfit for PTSD? Seem like they should if they are to be compliant with the law but time will tell. I will ask BG Jones this question at my next meeting with him.

Jason,

I will forward the complete USAPDA policy Memo # 7 to you for your analysis.

Mike
 

superslacker87

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Army Rescinds Policies that Resulted in Low Disability Ratings for Wounded Warrio

So does this mean I could request another MEB for OSA now that everything's changed? I was found FFD in November 2007 and deployed with major issues regarding my CPAP that were largely ignored.
 
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