DES Outrage of the Week # 12– Numerous Errors of the PDBR’s Review of SPC Jardon's Disability Case

maparker

Staff Member
PEB Forum Veteran
Registered Member
This week’s DES Outrage of the Week will illuminate issues covered in past Outrages on how practices by the Physical Disability Board of Review (PDBR) cheat our wounded warriors out of fair and honest reviews of their disability cases. The very recent review of SPC Louis Jardon’s disability case by the PDBR demonstrates continuing problems with the way this agency evaluates disability claims and issues.
SPC Jardon served in the Army for five years, to include a tour in Iraq. He was separated from the Army in 2006 for physical disability. He received a 10% disability rating from the Army for left wrist pain. Initially, the VA gave SPC Jardon a 40% rating effective the day after he left active duty. (10% for left arm issues, 10% for right arm issues, 10% for vertigo and 10% for bilateral tinnitus.) The VA also assigned an additional 1.9% bilateral rating as both his left and right arms were impacted by the same condition. In 2008, the VA assigned a 30% rating to SPC Jardon for PTSD, a condition he did not originally file for due to a misdiagnosis by the Army. The additional 30% VA rating increased his total VA rating to 60%.
The difference between the Army’s 10% rating and the VA’s initial 40% rating and subsequent 60% rating can be attributed to one common root cause; an incompetent Medical Evaluation Board (MEB). The Physical Evaluation Board (PEB) further exacerbated the problem when they adjudicated SPC Jardon’s case without demanding a full and correct MEB. The PDBR review of his case ignored both laws and provisions that would have benefitted SPC Jardon’s disability determination.
DoDI 1332.38 states:
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)).

Per the VA ratings, we know for a fact that SPC Jardon had at least five service connected medical conditions: Right and left arm conditions, PTSD, vertigo, and bilateral tinnitus. His MEB narrative summary only included his left arm conditions and his difficulty in sleeping. His MEB narrative summary and DA 3947 failed to identify and cover his other medical conditions. Of particular concern was the fact the Army “diagnosed” his PTSD as “adjustment disorder”. Adjustment disorder is listed as a non-compensable condition in DoDI 1332.38. The use of adjustment disorder as a diagnosis for combat veterans is much akin to calling PTSD a personality disorder which is another non compensable condition listed in DoDI 1332.38. By calling PTSD a personality or adjustment disorder, DoD can avoid compensating wounded warriors with PTSD. I will write more about the problem of adjustment disorder being used in lieu of a proper PTSD diagnosis in an upcoming DES Outrage of the Week.

In SPC Jardon’s appeals to the PDBR had a simple request; that the Army ensure all his service connected medical conditions are properly assessed and evaluated via the DES. SPC Jardon contends that his unfitness was due to more than just one of his left arm conditions. The PDBR is continuing the logic that only one condition out of many contributed to his unfitness despite the fact that other conditions were rated just as high or higher by the VA. It is a classic case of cherry- picking unfitting disabilities to avoid awarding disability retirement.

The PDBR’s review of SPC Jardon’s disability case had three major areas of errors. The first area was the PDBR’s self-imposed limitation on the conditions they would review. The second area was the PDBR’s failure to consider “combined effect” of all his service connected conditions on his fitness. The third area was the PDBR’s reliance on the advisory opinion of the United States Army Physical Disability Agency (USAPDA); a document not even worth the paper it is written on from an agency that still has light years to go to be truly fair, balanced and unbiased.

The PDBR refused to review SPC Jardon’s right arm condition stating the following rationale:

As this condition was not addressed in the DES file, it is outside the scope of the Board to adjudicate. Only conditions specifically noted in the DES submission (MEB Physical, NARSUM and PEB documents) are reasonable for Board recommendations as additional unfitting for service disability rating. With this precedence, no additional disability for this condition can be granted. Any request for reconsideration for reconsideration rests with the CI’s [Covered Individual] Service BCMR.

The PDBR’s rationale for denying the review of this condition is wrought with error. First, it perpetuates the error of MEBs failing to “document the full clinical information of all medical conditions” as required by DoDI 1332.38. If the MEB was done correctly, this would never have been an issue. Rather, the PDBR penalized the wounded warrior for the incompetency and mistakes of the MEB. Second, it ignores the VA’s assessment of the condition and its impact on his functionality. Third, PDBR law (10 USC 1554a) states the following in terms of what the PDBR can review:

“The review by the Physical Disability Board of Review under paragraph (1) shall be based on the records of the armed force concerned and such other evidence as may be presented to the Physical Disability Board of Review. A witness may present evidence to the Board by affidavit or by any other means considered acceptable by the Secretary of Defense.” [Emphasis added]

The PDBR’s rationale above limits their review to the self-imposed and self-defined definition of “the DES submission” vice the law’s standard of “the records of the armed force and such other evidence”. Further, their definition of “DES submission” is arbitrary and apparently doesn’t include all DES submission documentation, most notably, the service member’s medical treatment records. “The records of the “armed force” include the service member’s military medical records. Not only are the service member’s medical records “records of the armed force”, they are part of the “DES submission” and PEB members are required to familiarize themselves with the complete medical records prior to adjudicating a case. AR 635-40 states:

4–18. Initial processing
a. Upon receipt of a case by the PEB, the case file will be reviewed to ensure it is complete. If documents are missing, action will be taken to complete the file. When the case file is complete, it may be referred to the board for evaluation.

PDBR law also states:
“Upon the request of a covered individual, or a surviving spouse, next of kin, or legal representative of a covered individual, the Physical Disability Board of Review shall review the findings and decisions of the Physical Evaluation Board with respect to such covered individual.”

The very first decision the PEB makes is whether or not the MEB is complete. In SPC Jardon’s case, his MEB was obviously not complete as it failed to cover his right arm and other conditions. The PDBR position is that they will not review all the findings and decisions of the PEB as required by law. Rather they self-limit their review to only a subset of the findings and decisions of the PEB.

The PDBR’s rationale further exacerbated the issue by using circular logic when they stated the right arm condition, though not part of the “DES submission”, was included in the SPC Jardon’s medical records and should have been reviewed by the PEB. The PDBR rationale stated:

“The 20060117 electrodiagnostic study was in the Service medical records provided to the Board and should have been considered by the PEB.” [Emphasis added]

And,

“The CI’s right upper extremity sensation and diagnostic abnormalities in the records should have been available to the PEB even though his right cubitaltunnel syndrome with peripheral neuropathy was not listed on the CI’s MEB.” [Emphasis added]




The electrodiagnostic study stated:

“Electrodiagnostic evidence for peripheral polyneuropathies involving all distal nerves in the bilateral upper limbs with apparent sparing of the lower limb. The diagnosis was Polyneuropathy: Primarily demyelinating polyneuropathy involving all peripheral nerves tested in bilateral upper limbs but sparing the lower limb nerves. The CI was referred for orthopedic braces.” [Emphasis added]

SPC Jardon’s right arm condition was part of his DES submission as a component of his military medical records and per the PDBR’s own admission, should have been considered by the PEB. As such, SPC Jardon’s right arm condition was certainly fair game for PDBR review.

Let’s review the bidding so far on SPC Jardon’s right arm condition. SPC Jardon is right handed, his condition was rated by the VA at 10% disabling, his MEB failed to cover this condition, his PEB erroneously decided his MEB was complete when they should have returned his MEB so that it included “full clinical information of all medical conditions” per DoDI 1332.38, and the PDBR erroneously stated this condition was not in his DES submission and then admits it was in his medical records and reviewable by the PEB.

As discussed below, there was plenty of information available for the PDBR to review the condition and its impact on SPC Jardon’s fitness. Even if the PDBR did not have information needed to adjudicate the condition, they should have documented that the lack of necessary information was a result of an incompetent MEB and the PEB’s failure to properly review the MEB for completeness. Such a statement of fact would be invaluable to SPC Jardon in reviews by the ABCMR and the courts.

Another critical area of error in the PDBR’s review of SPC Jardon’s case was the fact that the PDBR depended heavily on the USAPDA advisory opinion as the basis for their decision rationale. The USAPDA is the parent organization of the Army’s PEBs and oversees PEB actions. It was the years of bogus and erroneous legal determinations, opinions and policies of the USAPDA that created the need for the PDBR in the first place. Three key examples:

Despite the law and the numerous court decisions to the contrary, the USAPDA opined that the VASRD did not have to be strictly applied for rating unfitting conditions. Rather, the USAPDA developed numerous non-VASRD rating criteria to lowball disability ratings. Thankfully, the PDBR is now forbidden from using any of the numerous bogus, non-VASRD rating policies created by the USAPDA.

Right after Congress reaffirmed in the 2008 NDAA that the unfitting conditions must be rated in strict compliance with the VASRD, the USAPDA immediately developed a new policy that stated they didn’t have to follow all of the VASRD’s PTSD rating criteria. Their policy allowed them to continue their low-balling practices on service members deemed unfit due to PTSD and other mental conditions triggered by highly stressful events. Fortunately, the previous USAPDA commander, then BG Reuben Jones, put a stop to his subordinates’ deceitful PTSD lowballing practices.

The USAPDA has stated they did not have to follow DoD’s long standing policy requiring clear and unmistakable evidence before declaring that a condition existed prior to service. Rather, they used lesser evidentiary standards and often ignored even the lesser standards to avoid paying disability benefits.

The USAPDA legal advisor, who wrote the USAPDA advisory opinion, fails to mention that the DES processing of SPC Jardon was noncompliant with numerous regulations and policies. Rather, as a person who doesn’t even sit on PEBs, he determined over three years later, what the decision of that particular PEB would have been had the MEB and PEB been complete and accurate. What he should have done was state that the MEB and PEB were not compliant with DoDI 1332.38 and recommended a new evaluation be done in compliance with all applicable laws, regulations and policies.

Why the PDBR would put any stock in the advisory opinions of the USAPDA is beyond me. You don’t go back to the same poisoned well that created the review problems in the first place. This makes as much sense as depending on legal opinions from Lehman Brothers to determine if they broke any banking regulations or laws. If the PDBR needs advisory opinions, they should get them from DoD’s general counsel who can better provide unbiased and uniformed DES legal opinions. Service advisory opinions perpetuate non-uniformed Service positions and standards in violation of DoDD 1332.18, which states:

3.7. 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. [Emphasis added]

USAPDA advisory opinions would be more appropriately titled the “USAPDA cover our ass statements”. They are light-years away from being a competent and unbiased source of information. Again, had the USAPDA been a competent, professional, and unbiased organization, the DES component of the Walter Reed scandal, and the need for the PDBR, would have never come to be.

The USAPDA advisory opinion on SPC Jardon’s case concluded as follows:

“The PEB’s findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation in existence at the time of the applicant’s separation.”

Unfortunately, the PDBR ignorantly bought off on the accuracy of the USAPDA’s advisory opinion. The USAPDA advisory opinion makes no mention of the DoDI requirement to cover all medical conditions with full clinical data. It also forgot to mention another critical requirement of DoDI 1332.38 dealing with “combined effect” which is discussed below. The USAPDA advisory opinion also distorted a provision in DoDI 1332.39 to the detriment of SPC Jardon’s case.

Perhaps the USAPDA advisory opinion was deliberately misleading as it states SPC Jardon’s case was not in “violation of any statute, directive or regulation”. The USAPDA advisory opinion is suspiciously silent on whether or not SPC Jardon’s case was in violation of any “instruction”, such as DoDI 1332.38, which is the primary DoD policy on DoD disability evaluation. The USAPDA is either ignorant of key DES disability provisions or they are deliberately downplaying them. Neither situation is acceptable. If the PDBR or any other agency wants to get any valid use out of USAPDA advisory opinions, they need to print them out on really soft paper.

Another DES provision in DoDI 1332.38 critical to the proper evaluation of SPC Jardon’s case is paragraph E3.P3.4.4 which 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.

DES officials often use the cherry-picking technique as a method to lowball disability ratings and SPC Jardon’s case is a great example of this method. They completely ignore the DoDI provision to consider the overall effect of all conditions in determining unfitness. Again, SPC Jardon is rated at 60% by the VA yet the position of the various DES officials, to include the PDBR, is that the 10%, non dominant, left arm condition is the only contributing factor to his unfitness. Baloney! Do they really believe that none of the other conditions that account for the remaining 50% of his VA disability rating have any impact whatsoever on his military unfitness? They rate only the straw that broke the camel’s back while turning a blind eye to all the other straws!

The PEB and the PDBR rationales in SPC Jardon’s case never mention nor consider “overall effect” or “combined effect” of his disabilities. It is as if they are ignorant of, or deliberately ignoring, this critical fitness and rating provision. Even more disturbing, the USAPDA advisory opinion distorted a key provision in DoDI 1332.39 involving combined effect. The USAPDA advisory opinion 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]

How suspicious is it that the part of the DoDI 1332.39 provision most beneficial to SPC Jardon’s case is mysteriously missing from the USAPDA’s advisory opinion? .
A 14 October 2008 DoD Directive-Type Memorandum (DTM) rescinded DoDI 1332.39 because it violated the lawful requirement to rate unfitting conditions in strict compliance with the VARSD. However, the provision in paragraph 6.1.7 was maintained in the 14 October 2008 DTM by stating:

E7.1.2. The Department of Veterans Affairs Schedule for Rating Disabilities
(VASRD) shall be used in making ratings determinations for each of the medical conditions determined to be unfitting independently or due to combined effect, to include in combination with an independently unfitting condition. [Emphasis added]

The DTM had to make it clear that any condition that contributes to unfitness would also be rated by the VASRD. This is because USAPDA officials opined that if a member was deemed unfit solely by combined or overall effect, they would receive a disability rating of 0% regardless of the rating requirements of the VASRD.

Another statement from the USAPDA advisory opinion on SPC Jardon’s disability evaluation, quoted in the rationale of the PDBR decision rationale, stated:

“Even if the peripheral polyneuropathies were listed on the applicant’s MEB they would not have been found unfitting as there was no evidence of any adverse functional impairment relating to the upper extremities.”

The reason there was no evidence of adverse functional impairment is because the condition wasn’t properly covered in the MEB. The commander’s statement, addressing the impact of SPC Jardon’s medical conditions on his duty performance, is limited to the conditions that were listed on the MEB; his left arm conditions and his sleep issues. No evidence on functional impairment on his right arm condition was in his DES file simply because no evidence was sought. Further, SPC Jardon’s commander’s statement was obtained from the commander of his medical hold unit, a person who never witnessed the impact of his medical conditions on the performance of his common military duties or of his specific MOS duties as an aircraft pneudraulics repairer. The USAPDA advisory opinion, in reference to all the medical conditions not covered by his MEB states:

All other complaints not listed on his MEB were properly noted by the examining physician were found not to substantially affect his functioning as to require listing as a current condition on his MEB. The applicant’s profile and commander’s statement re-affirm these exam findings. [Emphasis added]:

The physician does not get to choose which conditions get covered in the MEB. Further, how would the physician know how these conditions impact his MOS and soldier duties? How can the physician note the conditions yet fail to ensure these conditions were covered in his MEB with full clinical information per DoDI 1332.38? Again, why didn’t the USAPDA legal advisor mention the fact that the failure to cover all conditions in the MEB violates DoDI 1332.38? Why did the USAPDA legal advisor state that the commander’s statement re-affirmed this position given true content of the commander’s statement as follows:

SPC Jardon has performed adequately during his time in the Detachment. He has not performed the duties of his PMOS, 15H, Hydraulics Technician due to the limits of his profile. He has been assigned to work in the Occupational Therapy Clinic, where he performs administrative duties such as processing patients, answering the phone, mail distribution, and filing.

SPC Jardon’s APFT performance has not been evaluated due to the limitations of his profile.

The PDBR’s rationale echoed word-for-word the passage from the USAPDA advisory opinion. This is poisoned fruit from a very poisonous tree. The PDBR looked only as far as a convenient way to say “denied”, satisfied that a medial holding unit commander’s performance statement, that specifically states he can’t comment on his MOS duty performance, was appropriate evidence on how his multiple conditions affected his ability to perform his MOS and soldier duties. Preposterous! DES officials never obtained a commander’s statement from his past commander, whom he served under in Iraq, on the performance of his MOS and soldier duties. Why not?

Was there independent evidence available to the PDBR on the functional impairment caused by SPC Jardon’s right arm condition? Absolutely there was. First, the VA rated this condition as 10% disabling, the same rating the VA and the PEB gave for his left arm conditions. Both the military and the VA prescribed braces for these conditions. Again, SPC Jardon is right handed. As such, his functional impairment is driven more by the condition of his right arm than of his left arm. The PDBR was also aware of the fact that his arm conditions forced him to leave his civilian job as a remote oil rig operator due to the heavy manual dexterity requirement of the position. The PDBR ignored the condition by stating their review must be limited to conditions covered in the “DES submission” records when they are required by law to review all evidence submitted for review. They are artificially narrowing the pipe so that fewer get through.




For SPC Jardon’s PTSD condition, the PDBR stated:

The CI’s AHLTA problem list (20060111) carried the diagnosis of adjustment disorder with anxiety, adjustment disorder, anxiety disorder NOS, and adjustment disorder with anxiety and depressed mood.

And,

The CI’s diagnosis of PTSD and Major Depression in 2008 does not indicate any missed diagnosis at the time of separation. There is evidence in the VA records and material supplied by the CI that his mental health conditions worsened following service discharge. There is no evidence in the record that difficulty from any mental health condition adversely impacted the CI’s performance of duties, or would/should have led to separation. No mental health condition rose to the level of being unfitting.

Of course the PTSD diagnosis by the VA in 2008 indicates a missed diagnosis at separation. The reason SPC Jardon did not initially file for PTSD is because the Army erroneously told him he had adjustment disorder rather than PTSD. The VA stated in his PTSD rating that the “Joint Services Records Research Center (JSRRC) coordinator memorandum dated December 31st, 2008, confirms your in-service stressors”. The VA rating rational for SPC Jardon’s PTSD states:

The examiners diagnosis is post traumatic stress disorder (PTSD) with major depression. The examiner noted the diagnoses are related and that the secondary diagnosis does represent a progression of the primary diagnosis. You are unable to separate your symptoms and the beginning of both appears almost simultaneously. The symptoms of each mental disorder cannot be delineated from each other. [Emphasis added]

How can the PDBR state that the VA’s diagnosis of PTSD and major depression does not indicate a missed diagnosis by his MEB when the VA clearly states the two diagnoses are intertwined and began “almost simultaneously”. Again, SPC Jardon’s depression was documented as starting well before separation. Further, the VA’s decision rational stated one of the many manifestations of SPC Jardon’s PTSD is difficulty falling or staying asleep, a condition documented in his MEB and PEB. Again, how in the world can the PDBR state there is no evidence of a missed diagnosis? Why isn’t the PDBR reading or properly considering evidence from the VA submitted by the service member?

In a similar fashion to SPC Jardon’s other submitted conditions, the PDBR blows off his PTSD by stating, “No mental health condition rose to the level of being unfitting.” First, the reason there is no evidence is the fact none was sought. The MEB NARSUM did not include the condition, the commander’s statement did not address this or any other condition, and the PEB rationale never addressed the issue. The first time it even gets mentioned is years later on appeal. Again for the PTSD condition, the USAPDA advisory opinion and the PDBR both ignore the provision to consider combined or overall effect of all disabilities.

In conclusion, the PDBR review process is seriously flawed in too many areas. The PDBR needs to review all conditions covered either by the DES, the VA or independent medical records and evidence. The PDBR needs to disregard USAPDA advisory opinions as the USAPDA will only tell them what the USAPDA wants them to hear. The PDBR would be better served by reading and understanding DES law, regulations and applicable court decisions. It is disturbing that the words “combined effect” nor “overall effect” do not appear once in the PDBR’s decision rationale even though SPC Jardon specifically asked them to cover that issue in their review. Any mistakes made by the PDBR will affect a wounded warrior and his family for the rest of their lives. They need to get it right the first time and settle for nothing less.

In my next Outrage, I will cover the errors and omissions made by the ABCMR when they reviewed SPC Jardon’s case. Many of the ABCMR issues are similar to the PDBR issues. Others are unique to the ABCMR’s devious way of doing business. Again, in a future Outrage, I will cover DoD’s despicable practice of diagnosing PTSD as adjustment disorder to avoid paying disability benefits.



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

fdhall

PEB Forum Veteran
Registered Member
I believe this to be more the "norm" for the PDBR process...this is similar to what happened with my PDBR decision. My question I posed to them was: "What's my recourse for blatant PDBR errors that contributed to my PDBR decision?"
 

Elwayb13

Registered Member
This week’s DES Outrage of the Week will illuminate issues covered in past Outrages on how practices by the Physical Disability Board of Review (PDBR) cheat our wounded warriors out of fair and honest reviews of their disability cases. The very recent review of SPC Louis Jardon’s disability case by the PDBR demonstrates continuing problems with the way this agency evaluates disability claims and issues.
SPC Jardon served in the Army for five years, to include a tour in Iraq. He was separated from the Army in 2006 for physical disability. He received a 10% disability rating from the Army for left wrist pain. Initially, the VA gave SPC Jardon a 40% rating effective the day after he left active duty. (10% for left arm issues, 10% for right arm issues, 10% for vertigo and 10% for bilateral tinnitus.) The VA also assigned an additional 1.9% bilateral rating as both his left and right arms were impacted by the same condition. In 2008, the VA assigned a 30% rating to SPC Jardon for PTSD, a condition he did not originally file for due to a misdiagnosis by the Army. The additional 30% VA rating increased his total VA rating to 60%.
The difference between the Army’s 10% rating and the VA’s initial 40% rating and subsequent 60% rating can be attributed to one common root cause; an incompetent Medical Evaluation Board (MEB). The Physical Evaluation Board (PEB) further exacerbated the problem when they adjudicated SPC Jardon’s case without demanding a full and correct MEB. The PDBR review of his case ignored both laws and provisions that would have benefitted SPC Jardon’s disability determination.
DoDI 1332.38 states:
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)).

Per the VA ratings, we know for a fact that SPC Jardon had at least five service connected medical conditions: Right and left arm conditions, PTSD, vertigo, and bilateral tinnitus. His MEB narrative summary only included his left arm conditions and his difficulty in sleeping. His MEB narrative summary and DA 3947 failed to identify and cover his other medical conditions. Of particular concern was the fact the Army “diagnosed” his PTSD as “adjustment disorder”. Adjustment disorder is listed as a non-compensable condition in DoDI 1332.38. The use of adjustment disorder as a diagnosis for combat veterans is much akin to calling PTSD a personality disorder which is another non compensable condition listed in DoDI 1332.38. By calling PTSD a personality or adjustment disorder, DoD can avoid compensating wounded warriors with PTSD. I will write more about the problem of adjustment disorder being used in lieu of a proper PTSD diagnosis in an upcoming DES Outrage of the Week.

In SPC Jardon’s appeals to the PDBR had a simple request; that the Army ensure all his service connected medical conditions are properly assessed and evaluated via the DES. SPC Jardon contends that his unfitness was due to more than just one of his left arm conditions. The PDBR is continuing the logic that only one condition out of many contributed to his unfitness despite the fact that other conditions were rated just as high or higher by the VA. It is a classic case of cherry- picking unfitting disabilities to avoid awarding disability retirement.

The PDBR’s review of SPC Jardon’s disability case had three major areas of errors. The first area was the PDBR’s self-imposed limitation on the conditions they would review. The second area was the PDBR’s failure to consider “combined effect” of all his service connected conditions on his fitness. The third area was the PDBR’s reliance on the advisory opinion of the United States Army Physical Disability Agency (USAPDA); a document not even worth the paper it is written on from an agency that still has light years to go to be truly fair, balanced and unbiased.

The PDBR refused to review SPC Jardon’s right arm condition stating the following rationale:

As this condition was not addressed in the DES file, it is outside the scope of the Board to adjudicate. Only conditions specifically noted in the DES submission (MEB Physical, NARSUM and PEB documents) are reasonable for Board recommendations as additional unfitting for service disability rating. With this precedence, no additional disability for this condition can be granted. Any request for reconsideration for reconsideration rests with the CI’s [Covered Individual] Service BCMR.

The PDBR’s rationale for denying the review of this condition is wrought with error. First, it perpetuates the error of MEBs failing to “document the full clinical information of all medical conditions” as required by DoDI 1332.38. If the MEB was done correctly, this would never have been an issue. Rather, the PDBR penalized the wounded warrior for the incompetency and mistakes of the MEB. Second, it ignores the VA’s assessment of the condition and its impact on his functionality. Third, PDBR law (10 USC 1554a) states the following in terms of what the PDBR can review:

“The review by the Physical Disability Board of Review under paragraph (1) shall be based on the records of the armed force concerned and such other evidence as may be presented to the Physical Disability Board of Review. A witness may present evidence to the Board by affidavit or by any other means considered acceptable by the Secretary of Defense.” [Emphasis added]

The PDBR’s rationale above limits their review to the self-imposed and self-defined definition of “the DES submission” vice the law’s standard of “the records of the armed force and such other evidence”. Further, their definition of “DES submission” is arbitrary and apparently doesn’t include all DES submission documentation, most notably, the service member’s medical treatment records. “The records of the “armed force” include the service member’s military medical records. Not only are the service member’s medical records “records of the armed force”, they are part of the “DES submission” and PEB members are required to familiarize themselves with the complete medical records prior to adjudicating a case. AR 635-40 states:

4–18. Initial processing
a. Upon receipt of a case by the PEB, the case file will be reviewed to ensure it is complete. If documents are missing, action will be taken to complete the file. When the case file is complete, it may be referred to the board for evaluation.

PDBR law also states:
“Upon the request of a covered individual, or a surviving spouse, next of kin, or legal representative of a covered individual, the Physical Disability Board of Review shall review the findings and decisions of the Physical Evaluation Board with respect to such covered individual.”

The very first decision the PEB makes is whether or not the MEB is complete. In SPC Jardon’s case, his MEB was obviously not complete as it failed to cover his right arm and other conditions. The PDBR position is that they will not review all the findings and decisions of the PEB as required by law. Rather they self-limit their review to only a subset of the findings and decisions of the PEB.

The PDBR’s rationale further exacerbated the issue by using circular logic when they stated the right arm condition, though not part of the “DES submission”, was included in the SPC Jardon’s medical records and should have been reviewed by the PEB. The PDBR rationale stated:

“The 20060117 electrodiagnostic study was in the Service medical records provided to the Board and should have been considered by the PEB.” [Emphasis added]

And,

“The CI’s right upper extremity sensation and diagnostic abnormalities in the records should have been available to the PEB even though his right cubitaltunnel syndrome with peripheral neuropathy was not listed on the CI’s MEB.” [Emphasis added]




The electrodiagnostic study stated:

“Electrodiagnostic evidence for peripheral polyneuropathies involving all distal nerves in the bilateral upper limbs with apparent sparing of the lower limb. The diagnosis was Polyneuropathy: Primarily demyelinating polyneuropathy involving all peripheral nerves tested in bilateral upper limbs but sparing the lower limb nerves. The CI was referred for orthopedic braces.” [Emphasis added]

SPC Jardon’s right arm condition was part of his DES submission as a component of his military medical records and per the PDBR’s own admission, should have been considered by the PEB. As such, SPC Jardon’s right arm condition was certainly fair game for PDBR review.

Let’s review the bidding so far on SPC Jardon’s right arm condition. SPC Jardon is right handed, his condition was rated by the VA at 10% disabling, his MEB failed to cover this condition, his PEB erroneously decided his MEB was complete when they should have returned his MEB so that it included “full clinical information of all medical conditions” per DoDI 1332.38, and the PDBR erroneously stated this condition was not in his DES submission and then admits it was in his medical records and reviewable by the PEB.

As discussed below, there was plenty of information available for the PDBR to review the condition and its impact on SPC Jardon’s fitness. Even if the PDBR did not have information needed to adjudicate the condition, they should have documented that the lack of necessary information was a result of an incompetent MEB and the PEB’s failure to properly review the MEB for completeness. Such a statement of fact would be invaluable to SPC Jardon in reviews by the ABCMR and the courts.

Another critical area of error in the PDBR’s review of SPC Jardon’s case was the fact that the PDBR depended heavily on the USAPDA advisory opinion as the basis for their decision rationale. The USAPDA is the parent organization of the Army’s PEBs and oversees PEB actions. It was the years of bogus and erroneous legal determinations, opinions and policies of the USAPDA that created the need for the PDBR in the first place. Three key examples:

Despite the law and the numerous court decisions to the contrary, the USAPDA opined that the VASRD did not have to be strictly applied for rating unfitting conditions. Rather, the USAPDA developed numerous non-VASRD rating criteria to lowball disability ratings. Thankfully, the PDBR is now forbidden from using any of the numerous bogus, non-VASRD rating policies created by the USAPDA.

Right after Congress reaffirmed in the 2008 NDAA that the unfitting conditions must be rated in strict compliance with the VASRD, the USAPDA immediately developed a new policy that stated they didn’t have to follow all of the VASRD’s PTSD rating criteria. Their policy allowed them to continue their low-balling practices on service members deemed unfit due to PTSD and other mental conditions triggered by highly stressful events. Fortunately, the previous USAPDA commander, then BG Reuben Jones, put a stop to his subordinates’ deceitful PTSD lowballing practices.

The USAPDA has stated they did not have to follow DoD’s long standing policy requiring clear and unmistakable evidence before declaring that a condition existed prior to service. Rather, they used lesser evidentiary standards and often ignored even the lesser standards to avoid paying disability benefits.

The USAPDA legal advisor, who wrote the USAPDA advisory opinion, fails to mention that the DES processing of SPC Jardon was noncompliant with numerous regulations and policies. Rather, as a person who doesn’t even sit on PEBs, he determined over three years later, what the decision of that particular PEB would have been had the MEB and PEB been complete and accurate. What he should have done was state that the MEB and PEB were not compliant with DoDI 1332.38 and recommended a new evaluation be done in compliance with all applicable laws, regulations and policies.

Why the PDBR would put any stock in the advisory opinions of the USAPDA is beyond me. You don’t go back to the same poisoned well that created the review problems in the first place. This makes as much sense as depending on legal opinions from Lehman Brothers to determine if they broke any banking regulations or laws. If the PDBR needs advisory opinions, they should get them from DoD’s general counsel who can better provide unbiased and uniformed DES legal opinions. Service advisory opinions perpetuate non-uniformed Service positions and standards in violation of DoDD 1332.18, which states:

3.7. 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. [Emphasis added]

USAPDA advisory opinions would be more appropriately titled the “USAPDA cover our ass statements”. They are light-years away from being a competent and unbiased source of information. Again, had the USAPDA been a competent, professional, and unbiased organization, the DES component of the Walter Reed scandal, and the need for the PDBR, would have never come to be.

The USAPDA advisory opinion on SPC Jardon’s case concluded as follows:

“The PEB’s findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation in existence at the time of the applicant’s separation.”

Unfortunately, the PDBR ignorantly bought off on the accuracy of the USAPDA’s advisory opinion. The USAPDA advisory opinion makes no mention of the DoDI requirement to cover all medical conditions with full clinical data. It also forgot to mention another critical requirement of DoDI 1332.38 dealing with “combined effect” which is discussed below. The USAPDA advisory opinion also distorted a provision in DoDI 1332.39 to the detriment of SPC Jardon’s case.

Perhaps the USAPDA advisory opinion was deliberately misleading as it states SPC Jardon’s case was not in “violation of any statute, directive or regulation”. The USAPDA advisory opinion is suspiciously silent on whether or not SPC Jardon’s case was in violation of any “instruction”, such as DoDI 1332.38, which is the primary DoD policy on DoD disability evaluation. The USAPDA is either ignorant of key DES disability provisions or they are deliberately downplaying them. Neither situation is acceptable. If the PDBR or any other agency wants to get any valid use out of USAPDA advisory opinions, they need to print them out on really soft paper.

Another DES provision in DoDI 1332.38 critical to the proper evaluation of SPC Jardon’s case is paragraph E3.P3.4.4 which 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.

DES officials often use the cherry-picking technique as a method to lowball disability ratings and SPC Jardon’s case is a great example of this method. They completely ignore the DoDI provision to consider the overall effect of all conditions in determining unfitness. Again, SPC Jardon is rated at 60% by the VA yet the position of the various DES officials, to include the PDBR, is that the 10%, non dominant, left arm condition is the only contributing factor to his unfitness. Baloney! Do they really believe that none of the other conditions that account for the remaining 50% of his VA disability rating have any impact whatsoever on his military unfitness? They rate only the straw that broke the camel’s back while turning a blind eye to all the other straws!

The PEB and the PDBR rationales in SPC Jardon’s case never mention nor consider “overall effect” or “combined effect” of his disabilities. It is as if they are ignorant of, or deliberately ignoring, this critical fitness and rating provision. Even more disturbing, the USAPDA advisory opinion distorted a key provision in DoDI 1332.39 involving combined effect. The USAPDA advisory opinion 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]

How suspicious is it that the part of the DoDI 1332.39 provision most beneficial to SPC Jardon’s case is mysteriously missing from the USAPDA’s advisory opinion? .
A 14 October 2008 DoD Directive-Type Memorandum (DTM) rescinded DoDI 1332.39 because it violated the lawful requirement to rate unfitting conditions in strict compliance with the VARSD. However, the provision in paragraph 6.1.7 was maintained in the 14 October 2008 DTM by stating:

E7.1.2. The Department of Veterans Affairs Schedule for Rating Disabilities
(VASRD) shall be used in making ratings determinations for each of the medical conditions determined to be unfitting independently or due to combined effect, to include in combination with an independently unfitting condition. [Emphasis added]

The DTM had to make it clear that any condition that contributes to unfitness would also be rated by the VASRD. This is because USAPDA officials opined that if a member was deemed unfit solely by combined or overall effect, they would receive a disability rating of 0% regardless of the rating requirements of the VASRD.

Another statement from the USAPDA advisory opinion on SPC Jardon’s disability evaluation, quoted in the rationale of the PDBR decision rationale, stated:

“Even if the peripheral polyneuropathies were listed on the applicant’s MEB they would not have been found unfitting as there was no evidence of any adverse functional impairment relating to the upper extremities.”

The reason there was no evidence of adverse functional impairment is because the condition wasn’t properly covered in the MEB. The commander’s statement, addressing the impact of SPC Jardon’s medical conditions on his duty performance, is limited to the conditions that were listed on the MEB; his left arm conditions and his sleep issues. No evidence on functional impairment on his right arm condition was in his DES file simply because no evidence was sought. Further, SPC Jardon’s commander’s statement was obtained from the commander of his medical hold unit, a person who never witnessed the impact of his medical conditions on the performance of his common military duties or of his specific MOS duties as an aircraft pneudraulics repairer. The USAPDA advisory opinion, in reference to all the medical conditions not covered by his MEB states:

All other complaints not listed on his MEB were properly noted by the examining physician were found not to substantially affect his functioning as to require listing as a current condition on his MEB. The applicant’s profile and commander’s statement re-affirm these exam findings. [Emphasis added]:

The physician does not get to choose which conditions get covered in the MEB. Further, how would the physician know how these conditions impact his MOS and soldier duties? How can the physician note the conditions yet fail to ensure these conditions were covered in his MEB with full clinical information per DoDI 1332.38? Again, why didn’t the USAPDA legal advisor mention the fact that the failure to cover all conditions in the MEB violates DoDI 1332.38? Why did the USAPDA legal advisor state that the commander’s statement re-affirmed this position given true content of the commander’s statement as follows:

SPC Jardon has performed adequately during his time in the Detachment. He has not performed the duties of his PMOS, 15H, Hydraulics Technician due to the limits of his profile. He has been assigned to work in the Occupational Therapy Clinic, where he performs administrative duties such as processing patients, answering the phone, mail distribution, and filing.

SPC Jardon’s APFT performance has not been evaluated due to the limitations of his profile.

The PDBR’s rationale echoed word-for-word the passage from the USAPDA advisory opinion. This is poisoned fruit from a very poisonous tree. The PDBR looked only as far as a convenient way to say “denied”, satisfied that a medial holding unit commander’s performance statement, that specifically states he can’t comment on his MOS duty performance, was appropriate evidence on how his multiple conditions affected his ability to perform his MOS and soldier duties. Preposterous! DES officials never obtained a commander’s statement from his past commander, whom he served under in Iraq, on the performance of his MOS and soldier duties. Why not?

Was there independent evidence available to the PDBR on the functional impairment caused by SPC Jardon’s right arm condition? Absolutely there was. First, the VA rated this condition as 10% disabling, the same rating the VA and the PEB gave for his left arm conditions. Both the military and the VA prescribed braces for these conditions. Again, SPC Jardon is right handed. As such, his functional impairment is driven more by the condition of his right arm than of his left arm. The PDBR was also aware of the fact that his arm conditions forced him to leave his civilian job as a remote oil rig operator due to the heavy manual dexterity requirement of the position. The PDBR ignored the condition by stating their review must be limited to conditions covered in the “DES submission” records when they are required by law to review all evidence submitted for review. They are artificially narrowing the pipe so that fewer get through.




For SPC Jardon’s PTSD condition, the PDBR stated:

The CI’s AHLTA problem list (20060111) carried the diagnosis of adjustment disorder with anxiety, adjustment disorder, anxiety disorder NOS, and adjustment disorder with anxiety and depressed mood.

And,

The CI’s diagnosis of PTSD and Major Depression in 2008 does not indicate any missed diagnosis at the time of separation. There is evidence in the VA records and material supplied by the CI that his mental health conditions worsened following service discharge. There is no evidence in the record that difficulty from any mental health condition adversely impacted the CI’s performance of duties, or would/should have led to separation. No mental health condition rose to the level of being unfitting.

Of course the PTSD diagnosis by the VA in 2008 indicates a missed diagnosis at separation. The reason SPC Jardon did not initially file for PTSD is because the Army erroneously told him he had adjustment disorder rather than PTSD. The VA stated in his PTSD rating that the “Joint Services Records Research Center (JSRRC) coordinator memorandum dated December 31st, 2008, confirms your in-service stressors”. The VA rating rational for SPC Jardon’s PTSD states:

The examiners diagnosis is post traumatic stress disorder (PTSD) with major depression. The examiner noted the diagnoses are related and that the secondary diagnosis does represent a progression of the primary diagnosis. You are unable to separate your symptoms and the beginning of both appears almost simultaneously. The symptoms of each mental disorder cannot be delineated from each other. [Emphasis added]

How can the PDBR state that the VA’s diagnosis of PTSD and major depression does not indicate a missed diagnosis by his MEB when the VA clearly states the two diagnoses are intertwined and began “almost simultaneously”. Again, SPC Jardon’s depression was documented as starting well before separation. Further, the VA’s decision rational stated one of the many manifestations of SPC Jardon’s PTSD is difficulty falling or staying asleep, a condition documented in his MEB and PEB. Again, how in the world can the PDBR state there is no evidence of a missed diagnosis? Why isn’t the PDBR reading or properly considering evidence from the VA submitted by the service member?

In a similar fashion to SPC Jardon’s other submitted conditions, the PDBR blows off his PTSD by stating, “No mental health condition rose to the level of being unfitting.” First, the reason there is no evidence is the fact none was sought. The MEB NARSUM did not include the condition, the commander’s statement did not address this or any other condition, and the PEB rationale never addressed the issue. The first time it even gets mentioned is years later on appeal. Again for the PTSD condition, the USAPDA advisory opinion and the PDBR both ignore the provision to consider combined or overall effect of all disabilities.

In conclusion, the PDBR review process is seriously flawed in too many areas. The PDBR needs to review all conditions covered either by the DES, the VA or independent medical records and evidence. The PDBR needs to disregard USAPDA advisory opinions as the USAPDA will only tell them what the USAPDA wants them to hear. The PDBR would be better served by reading and understanding DES law, regulations and applicable court decisions. It is disturbing that the words “combined effect” nor “overall effect” do not appear once in the PDBR’s decision rationale even though SPC Jardon specifically asked them to cover that issue in their review. Any mistakes made by the PDBR will affect a wounded warrior and his family for the rest of their lives. They need to get it right the first time and settle for nothing less.

In my next Outrage, I will cover the errors and omissions made by the ABCMR when they reviewed SPC Jardon’s case. Many of the ABCMR issues are similar to the PDBR issues. Others are unique to the ABCMR’s devious way of doing business. Again, in a future Outrage, I will cover DoD’s despicable practice of diagnosing PTSD as adjustment disorder to avoid paying disability benefits.



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

How are these issues being addressed? Is a congressional investigation a possibility or has any communication with the legislative body on these matters occurred at this point? Thank you for your amazing service to us all. This is a great concern for us in the MEB process and heartbreaking to hear about our fellow Brothers and Sisters.
 

fdhall

PEB Forum Veteran
Registered Member
Sir,

How are these issues being addressed? Is a congressional investigation a possibility or has any communication with the legislative body on these matters occurred at this point? Thank you for your amazing service to us all. This is a great concern for us in the MEB process and heartbreaking to hear about our fellow Brothers and Sisters.
LOL...so know we need a congressional investigation to investigate the congressional investigation? I'm actually taking the step today to approach ARBA directly. My packet is very succinct and at least for mine, it's clear and blatant errors (some could call it fraud) that were missed. Someone could look at this packet and in a matter of minutes determine the fraudulent errors missed.
 

Elwayb13

Registered Member
LOL...so know we need a congressional investigation to investigate the congressional investigation? I'm actually taking the step today to approach ARBA directly. My packet is very succinct and at least for mine, it's clear and blatant errors (some could call it fraud) that were missed. Someone could look at this packet and in a matter of minutes determine the fraudulent errors missed.
My apologies I must have missed the fact a congressional investigation was already underway.
 

fdhall

PEB Forum Veteran
Registered Member
My apologies I must have missed the fact a congressional investigation was already underway.
I was being funny, but I thought the whole point of the PDBR was to try to correct the errors/fraud that these MEBs had going on during this timeframe. I know so certain in my case the most superficial errors were missed. Example: My appealed condition showed up on the original PEB paperwork in a different size and font clearly showing that it could've been fraudulently added after the fact. The commander's summary spoke nothing of the appealed condition...further showing that it wasn't a part of the original MEB. And the real smoking gun was: the condition they added on the form, by the date on the form I hadn't even been diagnosed yet. These docs are ALL clearly documented and available in my medical records an ALL we're missed by the PDBR process. Disgusting
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
Do you guys realize that this thread was started over 8 years ago?
This is probably the most important post- much has changed as far as regulations, case law, and statutory changes to the issues regarding the PDBR and the DES generally

I believe this to be more the "norm" for the PDBR process...this is similar to what happened with my PDBR decision. My question I posed to them was: "What's my recourse for blatant PDBR errors that contributed to my PDBR decision?"
There may be other potential recourse...however, generally, post-PDBR decision, the next stop is to file suit in Federal Court.

Sir,

How are these issues being addressed? Is a congressional investigation a possibility or has any communication with the legislative body on these matters occurred at this point? Thank you for your amazing service to us all. This is a great concern for us in the MEB process and heartbreaking to hear about our fellow Brothers and Sisters.
See above. Yes, a Congressional inquiry is always possible. However, post-PDBR decision, the "next stop," is normally Federal Court.

LOL...so know we need a congressional investigation to investigate the congressional investigation? I'm actually taking the step today to approach ARBA directly. My packet is very succinct and at least for mine, it's clear and blatant errors (some could call it fraud) that were missed. Someone could look at this packet and in a matter of minutes determine the fraudulent errors missed.
Sounds insane, but, yes, I guess that further Congressional complaints and inquiries could be made. However, procedurally, post-PDBR, normally you need to appeal in Federal Court (almost always to the US Court of Federal Claims) to challenge the denial of disability benefits. There are specific jurisdictional requirements to file an appeal before the US Court of Federal Claims.
My apologies I must have missed the fact a congressional investigation was already underway.
Even so, that does not stop the clock for the statute of limitations and if anyone is going to proceed with their full range of appeal options they must keep in mind the time limits for pursuing actions in the Federal Courts.
 

fdhall

PEB Forum Veteran
Registered Member
There may be other potential recourse...however, generally, post-PDBR decision, the next stop is to file suit in Federal Court.

Sounds insane, but, yes, I guess that further Congressional complaints and inquiries could be made. However, procedurally, post-PDBR, normally you need to appeal in Federal Court (almost always to the US Court of Federal Claims) to challenge the denial of disability benefits. There are specific jurisdictional requirements to file an appeal before the US Court of Federal Claims.
Jason,
Are you saying the DD Form 149 packet I just sent to The Army Board for Correction of Military Records is going to fall on deaf ears then? If so, that's bullshit that the government committed fraud, followed it up by being incompetent, and now it's on the service-member to correct blatant errors. My entire packet is about 8pgs to include the DD 149, an explanation of all the submitted docs, and highlighted docs from my medical records. Again, for my case the forgery and falsification of documents are very obvious. The only thing that would've made it worse is if it were done in crayon

Are you know making your legal services available for taking on these sort of issues? If so, I would be interested in retaining your services.
 
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