DES Outrage # 15

maparker

Moderator
PEB Forum Veteran
Registered Member
DES Outrage # 15, The Navy Continues to Use the Same Old Tricks to Deny Disability Benefits to Wounded Warriors.

I haven’t written a DES Outrage in a while but that doesn’t mean I have run out of issues to write about. Rather, I have been quite busy assisting wounded warriors trying to gain their legally due DoD disability benefits. Much of the assistance I have given in the last six months was in support of marines who were systematically cheated out of their disability benefits by the Navy DES system. I now have the time to relay the problems and concerns I encountered supporting these marines.

As background, the 2007 Walter Reed press coverage revealed numerous deceitful tactics DoD and the Services used to cheat wounded warriors out of their DoD disability benefits. Some of these key tactics were:

- Use of non Veterans Administration Schedule for Rating Disabilities (VASRD) rating criteria to low-ball DoD disability ratings.
- Failing to cover all medical conditions in the Medical Evaluation Board (MEB) as required by DoDI 1332.38.
- Finding members fit for duty and then administratively separating them without DoD disability benefits for the same condition for which they were found “fit” for continued service.
- Calling PTSD personality or adjustment disorder to avoid paying disability compensation.
- Physical Evaluation Boards (PEB) arbitrarily cherry picking which disabilities to deem unfitting thus keeping the overall DoD disability ratings below the 30% disability retirement level.
- Avoiding transparency to keep wounded warriors in the dark on disability decisions. Wounded warriors can’t appeal what they don’t know.

The cases of three marines I have recently assisted clearly show that the Navy, despite all the DoD and Congressional fixes to issues listed above, continue these practices to the detriment of wounded warriors and their families. In my next DES Outrage, I will cover the case of Sergeant Roy Sanchez, USMC. I covered aspects of Sergeant Sanchez’s case in DES Outrage # 14, which can be found here:

http://www.pebforum.com/content/des...es-its-own-thing-deny-disability-benefits-60/

Sergeant Sanchez recently received his findings from his formal PEB petition for relief to the Navy Council of Review Boards (CORB). These results are shocking evidence of the corruption that still runs rampant in the Navy Disability Evaluation System (DES). Sergeant Sanchez is now vulnerable to being administratively separated due to the service impacts of his so called “fitting” medical conditions.

Note to the U.S. Senate: Section 571 of the Senate’s Version of the 2011 National Defense Authorization Act (S. 3454) addresses the “fit but unsuitable problem”. Unfortunately, if it is passed as written, it will not put an end to the Navy’s “fit but unsuitable” practice discussed in DES Outrage # 3, found here: http://www.pebforum.com/content/des...uitable-practice-deny-disability-benefits-33/

At best, Section 571 only closes the deployability loop hole. Unfortunately, deployability is only one of numerous methods the Navy uses to administratively discharge members due to the impacts of their supposedly “fitting” medical conditions. The Navy is way ahead of the Senate’s provision and they will continue the “fit but unsuitable” practice despite the intent of Section 571. I will provide further details in my next DES Outrage.

This DES Outrage covers the cases of two marines with PTSD and how the Navy continues to cheat them out their disability benefits. It is one of my longer DES Outrages because I need to walk through numerous problems and concerns. Both marines were found unfit due to PTSD and medically separated with less than a 30% military disability rating. Again, a 30% rating is the minimum level required for DoD disability retirement. The original Navy PEB findings low-balled these marines’ disability ratings by using non VASRD rating criteria and by failing to apply VASRD provision 4.129 which states:

§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. (Authority: 38 U.S.C. 1155)

In response to the problem of tens of thousands of wounded warriors being cheated out of their disability benefits, Congress established the Physical Disability Board of Review (PDBR) under 10 USC 1544a. The PDBR reviews disability cases that resulted in ratings of less than 30% to determine if they should have received higher DoD ratings. Initially DoD tried to mute the effect of the PDBR by stating the PDBR could continue to use non VASRD rating criteria and that the PDBR only had to review conditions deemed unfitting by the Physical Evaluation Board (PEB). Congress was outraged when they found out about DoD’s continuing shenanigans to cheat wounded warriors. Two articles that covered these issues and Congress’s response can be found here:

http://www.military.com/features/0,15240,185783,00.html
http://www.military.com/features/0,15240,190478,00.html (Second Half of Article)

In response to the Congressional outrage, DoD modified its PDBR procedures to ban non VASRD rating criteria and to allow the PDBR to review conditions not found unfitting by the PEB. Problem fixed? Not so fast.

In 2007, LCPL Raymond Vito was diagnosed with PTSD, found unfit, rated a mere 10% by his Navy PEB and medically separated. Upon discharge, he was immediately diagnosed with PTSD by the VA and rated 30%, a rating that continues to this date. (The VA should have assigned an initial 50% rating under the provisions of VASRD 4.129) LCPL Vito was an ideal case for PDBR review as he was immediately rated at 30% by the VA for the same condition the Navy PEB deemed unfitting but rated at only 10%.

When LCPL Vito received his notification from the Navy on the results of his PDBR review he was shocked. The decision was to retroactively place him on the Temporary Retirement Disability List (TDRL) at 50% for the first 6 months after his discharge per the provisions of VASRD 4.129. After the first six months, however, the decision was to return his rating to 10%, remove him from the TDRL and to separate him without disability retirement benefits.

How could the PDBR recommend a 10% rating in light of the fact the VA had rated him at 30% for PTSD from the day he left service? The truth is they didn’t. The PDBR recommended to the Navy that LCPL Vito be permanently retired for PTSD with a 30% disability rating. It turns out that the Navy, based on a recommendation by the Navy Council of Review Boards (CORB), ignored the PDBR’s recommendation and changed the final disability rating to 10% and separation without disability retirement. Worse, the Navy never informed LCPL Vito that the PDBR recommendation was different than the Navy decision nor did the Navy provide LCPL Vito with the PDBR and Navy rationales for their respective decisions. Instead, LCPL Vito received a generic letter from the Navy stating the results of the PDBR process was that he would receive a 50% rating for six months followed by a 10% rating and separation without disability retirement.

When I finally got my hands on the PDBR and Navy rationale documents from LCPL Vito’s case, it became obvious the Navy based their 10% rating not on VASRD criteria, but on their own non VASRD criteria from the Navy’s 2002 DES instruction (SECNAVINST 1850.4e). It was the fact DoD and the Services were using non VASRD rating criteria to low-ball disability ratings that created the need for PDBR reviews in the first place. Again, DoD initially tried to continue using non VASRD rating criteria but Congress put a stop to it. Now it turns out that the Navy is rejecting PDBR decisions because they are not in keeping with the Navy’s non VASRD rating criteria. Unbelievable! We are back at square one! And worse, the Navy is doing this covertly without informing the wounded warrior of what is going on.

Here is a breakdown of the details:

The VASRD 30% rating criteria for PTSD is as follows:

“Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) ….30%.”

Based on the criteria above, both the VA and the PDBR rated LCPL Vito at 30% disabled due to PTSD. In fact, the PDBR rationale stated LCPL Vito’s MEB NARSUM supported a 50% PTSD rating and that his post separation assessment met some of the criteria for a 50% PTSD rating.

The 29 July 2010 Navy CORB letter to the Assistant Secretary of the Navy for Manpower and Reserve Affairs offered the first clue that demonstrate the Navy is continuing to use non VASRD criteria to justify low-balled ratings. In paragraph 3, the letter states:

“……however, the [CORB] Medical Officer non-concurred with the recommendation Mr. Vito be placed on the Permanent Disability Retirement List with a 30 percent rating. It is his opinion that a 10 percent final rating for PTSD is warranted based on the evidence which does not substantiate sufficient occupational impairment to warrant a 30 percent rating under the Veterans Administrations Schedule for Rating Disabilities Code 9411.”

So what substantiates sufficient occupational impairment in the eyes of the Navy and why does it differ from the definition used by the PDBR and the VA? The answer is that the Navy is using non VASRD criteria from their 2002 SECNAVINST 1850.4e. In the CORB Medical Officer’s 29 July 2010 opinion, he list reference (b) as SECNAVINST 1850,4e. Then, the CORB Medical Office states:

“…the “permanent” disability rating thereafter turns on the interpretation of the following sentence from the 25 July 2007 EAST ORANGE VA PTSD EVALUATION: He is working as a garbage truck driver. He is generally able to do the job and does not report any problems at work”

The CORB Medical Officer took one sentence from the VA evaluation, in isolation, to justify his “opinion”. Further, the VA exam was a mere two months after LCPL Vito’s separation from service and he had just started his new job. Again, the VA should have assigned an initial rating of 50% IAW VASRD 4.129 and schedule a follow up exam within six months to determine whether a change in evaluation was warranted. The CORB Medical Officer’s opinion leverages off a process error made by the VA in enforcing VASRD 4.129.

However, the fatal error in the CORB Medical Officer’s opinion is in paragraph 5 where he states:

Conclusion: NON-CONCUR with PDBR’s recommended permanent disability rating of 30% (vice 10%) –cf., §9011k.(1) (b), reference (b), ….”

Paragraph 9011k. (1) (b) of SECNAVINST 1850.4e states:

(b) Vocational functional impairment. Since the 30% rating in the VASRD requires "…intermittent periods of inability to perform occupational tasks," the following definition of vocational functional impairment is provided: Symptoms of a psychiatric condition causing a period or periods of "inability to perform occupational tasks" should be of such severity as to result in a pattern of job loss, demotion, disqualification from obtaining employment, or inability to engage in or maintain reasonable employment. "Reasonable employment" is determined, in part, by considering the service member's premorbid vocational adjustment, education, and accomplishments.

The VASRD does not require job loss, demotion, disqualification from obtaining employment, or inability to engage in or maintain reasonable employment to qualify for a 30% PTSD rating. It does require such factors for higher PTSD ratings, such as the 100% PTSD rating requirement for ‘total occupational impairment, but not the 30% rating.

The overall paragraph 9011 in SECNAVINST 1850.4e is titled, “Instructions for Specific VASRD Codes”. The reason Congress established the PDBR was because VA ratings for conditions were drastically different than the military rating despite the fact that all ratings were required to be done in accordance with VASRD criteria. Title 10 has always required the use of the VASRD to rate conditions deemed unfitting by the military. Numerous federal court opinions and even a 1994 DoD General Counsel opinion have reinforced the VASRD rating requirement. However, over the years, DoD and the Services created their own rating criteria to replace or modify VASRD criteria. The effect was low-balled military disability ratings which all too often dropped the rating below 30%, the level needed to qualify for disability retirement. Congress took action in the 2008 NDAA and made it clear that VASRD was the rating criteria that Services must use to rate unfitting conditions. And, as discussed earlier, Congress had to reign in DoD to ensure the PDBR did not use non VASRD rating criteria.

As a result of Congressional action, DoD rescinded its non VASRD criteria document, DoDI 1332.39, and released a directive type memorandum stating the VASRD would be the sole rating criteria for rating disabilities. (Like SECNAVINST 1850.4e, DoDI 1332.39 also modified the VASRD criteria for PTSD.) We now find out that the Navy apparently never got the memo and they continue to use Non VASRD criteria to rate unfitting conditions. The Navy is continuing to low-ball disability ratings using the same non VASRD criteria that drove the need for the PDBR in the first place. Disabled sailors and marines are caught in a do-loop designed to deny legally due disability benefits!

Even if the non VASRD criteria were allowed, it would have to be consistent among the military services. Paragraph 3.7 of DoDD 1332.18 states:

The standards for determining unfitness because of physical disability or medical disqualification and the compensability of unfitting disabilities shall be uniform among the Services and between components within an individual Service.

The fact that the Navy continues to rate conditions with Navy specific, non VASRD rating criteria would explain why the Navy rejects PDBR decisions at a rate six times higher than that of the Army according to PDBR data released earlier this year. (The same data indicates the Air Force accepts 100% of the PDBR recommendations.)

LCPL Erica Kelly’s case is similar to that of LCPL Vito’s. As documented in her PDBR review findings, the critical events of LCPL Kelly’s PTSD diagnosis and ratings are as follows:

“On 20050201[LCPL Kelly] was examined by a Navy Psychiatrist (Dr. S).”

“He [Dr. S.] said she was physically fit for full duty, but unsuitable for ongoing military service in the Marine Corps”

“He [Dr. S.] diagnosed Adjustment Disorder with Mixed Disturbances of Emotion and Conduct & Personality Disorder – not otherwise specified.” She had no medically boardable conditions, and he recommended Administrative Separation.”

“The following month (March 2005), Medical Evaluation Board (MEB) action was initiated. Psychiatric Narrative Summary (NARSUM) was done by Dr. F. [LCPL Kelly] was suffering from insomnia, recurrent thoughts and nightmares related to the mortar incident. [LCPL Kelly] complained she was unable to enjoy fireworks. She reported difficulty completing tasks, and being easily distracted. Dr F. determined that Global Assessment of Functioning (GAF) score was 55 and diagnosis was PTSD. He made no mention of her other two Psychiatric Disorders.”

“The MEB referred [LCPL Kelly] to the Physical Evaluation Board (PEB).”

“ The PEB considered the evidence from both Psychiatric evaluations [Dr. S and Dr. F.]. They determined that none of her conditions were separately unfitting. However, the Overall Effect of her three psychiatric diagnosis made her unfit for military service. She was separated at 0%.”*

“Three (3) months following separation, she went to the VA and was rated at 50% for PTSD.” [The effective date of the VA rating is 10012005, the day after LCPL Kelly was separated from service]

* It is important to note that the Navy PEB had an internal policy stating that if a condition contributed to unfitness, but was not independently unfitting, the rating could be no greater than 0%, regardless of the VASRD criteria. DoD issued a directive in October 2008 stating all conditions that contribute to unfitness are to be rated in strict compliance with the VARSD. During the August 2010 PEB’s formal board hearing for Sergeant Sanchez (the topic of my next DES Outrage), the PEB presiding officer stated the Navy would still only rate such conditions at a maximum of 0%. Two months later the PEB corrected their position and stating they were required to follow the requirements of the 14 October 2008 DoD directive. This raises concerns than many other Navy cases may exist that involve improperly rated “overall effect” conditions.

The PDBR made the following recommendation in reference to LCPL Kelly’s PTSD:

“In the matter of the Mental Disorder (coded 9411-9440) [PTSD-Chronic Adjustment Disorder], the board unanimously recommends an initial Temporary Disability Retired list (TDRL) rating of 50%, in retroactive compliance with VASRD paragraph 4.129, as directed by DoD. The Board unanimously recommends a permanent rating of 30% at six months following separation IAW VASRD 4.130.”

Just like in LCPL Vito’s case, the CORB sent LCPL Kelly a letter stating that the results of her PDBR process was to grant a 50% rating and placement on the TDRL for six months followed by a 10% rating and separation without disability retirement. Nowhere in the CORB’s letter did they mention the fact that the PDBR had actually recommended a 30% permanent retirement rating for PTSD or the fact it was the Navy that rejected the PDBR recommendation and replaced it with a 10% separation level rating. So much for transparency in the DES.

In fact, a passage from a letter by the CORB to the Assistant Secretary of the Navy for Manpower and Reserve Affairs was identical to that of LCPL Vito’s. Only the name was changed. Both letters were dated 29 July 2010. The passage states:

“……however, the [CORB] Medical Officer non-concurred with the recommendation Ms. Kelly be placed on the Permanent Disability Retirement List with a 30 percent rating. It is his opinion that a 10 percent final rating for PTSD is warranted based on the evidence which does not substantiate sufficient occupational impairment to warrant a 30 percent rating under the Veterans Administrations Schedule for Rating Disabilities Code 9411.”

However, in LCPL Kelly’s case, the CORB letter continues the passage as follows:

“The [CORB] medical officer also stated Ms. Kelly’s post-discharge difficulties are primarily due to conditions (Personality disorder ATTENTION DEFICIT DISORDER) not compensable under Chapter 61.”

The CORB medical officer focuses on Dr. S’s diagnosis of personality and adjustment disorder and ignores the medical evidence from the MEB NARSUM and VA that diagnose the condition as PTSD. LCPL Kelly states that a senior non commissioned officer in her chain of command paid a visit to Dr. S. and stated nothing was wrong with her and demanded that the doctor deem her deployable, and if not, recommend administrative separation. Sure enough, Dr. S.’s findings were that LCPL Kelly had no medically boardable conditions but should be administratively separated. Neither the MEB psychiatrist nor the multiple VA psychiatrists concur with Dr. S.’s positions. Rather they unanimously stated LCPL Kelly suffers from the effects of PTSD.

The only entities that have pushed the non PTSD mental diagnosis have been the Navy PEB and the Navy CORB. Both these entities have long established track records of cheating wounded warriors out of proper disability benefits. In fact, in the 2008 NDAA, Congress clarified the requirement to rate unfitting conditions in strict compliance with the VASRD. Soon after the 2008 NDAA was signed into law, The Navy CORB released a policy (2008-02) stating they did not have to follow VASRD provision 4.129. The Navy CORB policy unbelievably stated that VASRD 4.129, “is not applicable to an active duty population”. Incredible! The day a service member is separated from the military due to PTSD, the condition is still severe enough to warrant their removal from service and, thus, VASRD 4.129 applies. This was just another attempt by the Navy to low-ball disability ratings to avoid paying disability benefits. It took nine months for DoD put out policy that mandating that the Services apply VASRD 4.129 as required by law.

The military’s abuse of substituting a non compensable personality disorder diagnosis for a compensable PTSD diagnosis has been extensively covered by the press over the last three years. It is clear this is exactly what happened to LCPL Kelly. A recent Congressional hearing on the use of a personality disorder diagnosis in lieu of a PTSD diagnosis can be found here.

http://veterans.house.gov/hearings/hearing.aspx?newsid=622

(You can view the video of the hearing by clicking on the multimedia link on this page)

It is well worth watching the hearing to see just how little DoD has actually done to fix the problem despite their 2007 commitment to do so. The Navy CORB has made LCPL Kelly one of the latest victims of the practice of using a personality/adjustment disorder diagnoses in lieu of PTSD.

In addition, the PDBR refused to consider LCPL Kelly’s asthma in her review. LCPL Kelly’s service connected asthma is well documented in her military and VA records. Her asthma was diagnosed shortly after she returned from Iraq. The VA rated this condition at 30% which, when combined with her PTSD rating, gave her an overall 70% VA disability rating. The asthma condition was in fact listed in her DES physical. The PDBR rationale stated that because the asthma was not included in her DES package, it was outside the scope of PDBR review. First, per DoDI 1332.38, all medical conditions are required to be covered in MEBs with full clinical data. Second, PEBs are required to return MEBs that are not complete. Again, the asthma was documented in LCPL Kelly’s service medical records, listed on her DES physical and was covered in detail by the VA. The PDBR had plenty of information to determine if LCPL Kelly’s asthma contributed to her military unfitness and how to rate the condition. Rather than address the condition, the PDBR elected to perpetuate the MEB/PEB error of not properly covering her asthma condition and, instead, stated LCPL Kelly needs to address the issue in a separate action with the Board for the Correction of Naval Records. This is not taking care of wounded warriors.

It should also be pointed out that the Navy CORB letters to the Assistant Secretary of the Navy for Manpower and Reserve Affairs pointed out the years of service of both LCPL Vito and LCPL Kelly. The number of years of service is not a factor in DES compensability for conditions that incurred while on active duty. For the Navy CORB to highlight the years of service in their letter leads me to conclude they are indeed using years of service as a criteria for determining who deserves DoD disability retirement. Numerous times in my advocacy, wounded warriors have reported to me they were told they did not have enough years in to qualify for disability retirement. Absent pure Existing Prior to Service (EPTS) conditions, years of service has no bearing on disability retirement eligibility. It appears, however, within the broken DES culture, years of service is a hidden, albeit illegal, factor of consideration.

It is clear to me that despite Congressional and DoD intent, the military Services, and in particular the Navy, will continue to do whatever they want, laws and policies be damned, to avoid paying DoD disability benefits. Congress can change laws and DoD can change policies but without proper, consistent and deep monitoring and enforcement, they are merely whistling in the wind. No enforcement and accountability equals abandoned wounded warriors, plain and simple. We are better than that.


Michael A. Parker
LTC, USA (Retired)
Wounded Warrior Advocate
 
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