The key issues in this week’s Outrage are:
1. The DES, and in particular the Army DES, are continuing to lowball disability ratings for migraines, a disabilities common with PTSD and traumatic brain injuries.
2. PEBs and DES review authorities are still refusing to address key issues raised by service members in their disability evaluation boards and in their appeals as required by 10 USC 1222a.
3. DoD is not proactively identifying service members affected by erroneous migraine disability ratings so that they can request a review by the DoD’s Physical Disability Board of Review.
In last week’s Outrage, I wrote about how the Physical Disability Board of Review (PDBR) is continuing the denial of DoD disability benefits for service members with PTSD. In this week’s Outrage, I will be discussing how the DoD’s DES (Disability Evaluation System) is continuing to improperly assess and rate migraine and other headache conditions which are often associated with PTSD and traumatic brain injuries. As in the past, DoD continues to find ways not to rate conditions thus keeping disability ratings and benefits low.
For the past several months I have been assisting an Army soldier, SPC Postell, with her disability evaluation case. Her DES experience continues to demonstrate that serious problems remain in how DoD adjudicates disability cases. Medical and physical evaluation boards (MEBs and PEBs) are the core of the DES and they continue to be wrought with errors and outright avoidance of information critical for the well being and benefits of wounded warriors. While DoD and the Services have established several recent policies to ensure the proper adjudication of disability cases, MEB and PEB officials are failing to follow the policies. Worse, DoD and Service leadership are failing to monitor and enforce these policies. SPC Postell’s case further illuminates how DoD and the Services are simply bending over backwards to do the least possible for our wounded warriors.
SPC Postell’s disability case illuminates just how arbitrary and capricious the DES remains. SPC Postell suffers from numerous service connected medical conditions. The VA ratings for these conditions will undoubtedly exceed 100% additively and around 70% under VA ratings combination procedures. However, the Army Disability Evaluation System is limiting her rating to a mere 10%, well below the 30% required for the benefits of military disability retirement. By cherry picking which conditions to rate, the Army will be able to eliminate her from service without having to give her disability retirement. It is true that VA and military ratings will often differ because the VA rates all service connected conditions while the military limits their ratings to disabilities that they deem unfitting for military systems. While one can debate the appropriateness of limiting DoD ratings to a subset of the service connected disabilities, it is obvious that DoD often uses disingenuous practices to avoid finding conditions unfitting. By arbitrarily finding conditions not to be unfitting, DoD keeps disability ratings artificially low and that cheats our wounded warrior out of proper disability benefits.
While there are several areas in which SPC Postell’s disability evaluation was improperly adjudicated, the adjudication of her migraine condition was particularly egregious. To appreciate these concerns, it is important to understand DoD’s troubled history of rating migraines. The law requires DoD to rate conditions per the Veterans Administrations Schedule for Rating Disabilities (VASRD). One of the many ways DoD kept ratings low was by replacing or modifying VASRD rating criteria. For migraines ratings, the VASRD requires the attacks to be “prostrating”, a term the VA has never specifically defined. DoD’s rating policy defined prostrating as a headache severe enough to require one to stop activities and seek medical attention. The Army further stated in their migraine rating policy that, for a migraine to be deemed prostrating, seven steps had to be met. These steps included a headache journal, a treatment plan written and updated by a doctor, and an impact statement written by the commander. If all of the seven steps were not completed in full, the PEB would not deem the migraines prostrating no matter the true impact of the attacks. This limited the DoD rating for unfitting migraines to 0% regardless of their true severity and duty impact. Many soldiers were given 0% ratings purely because soldiers, doctors and commanders were not aware of the requirements of the policy. The Army migraine rating policy, which was kept close hold, was extremely effective in low balling migraine disability ratings.
The true impact of the DoD and Army migraine rating policies became evident in 2007 when the Veterans Disability Benefit Commission (VDBC) released the results of a study that compared DoD and VA ratings from the 2001 through the 2005 timeframe. For migraines, the study identified 442 cases where the service member received a DoD rating for migraines of less than 30% and then subsequently rated by the VA for the same migraine condition. Since both the DOD and the VA are required to rate conditions per the same VASRD standards, the individual should receive the same migraine rating from both departments. However, of the 432 cases identified in the VDBC study with DoD ratings of less than 30%, 319 of them (72%) received ratings of 30% of more from the VA. This means 319 wounded warriors found unfit by DoD should have been medically retired vice separated without disability retirement. There are countless other service members over the years that were not covered in the study that should have also received retirement level disability ratings from DoD. A recent lawsuit forced DoD to identify over 4,300 service members improperly rated for PTSD. Unfortunately, it appears wounded warriors will require similar legal action before DoD will identify the service members improperly rated for migraines. I have seen no evidence of DoD efforts to identify and notify service members who were separated for migraines so that they can have their DoD ratings reviewed by DoD’s Physical Disability Board of Review.
The Walter Reed media exposure and legislative action has forced DoD to be compliant with the requirement to rate unfitting conditions in strict compliance with the VASRD. In 2008, DoD rescinded their non-VASRD rating policies, to include their migraine rating policy. In 2009, the Army rescinded their migraine rating policy. Revised MEB guidance from the United States Army’s Physical Disability Agency generally deems migraines that are unfitting for military service to be prostrating as well. Per the VASRD, prostrating migraines that occur at a rate of once a month or more garners a 30% disability rating. Prostrating migraines that occur at a rate of once every two months garners a 10% rating. A lesser frequency garners a 0% rating. Now that DoD has been forced to follow the law and rate in strict compliance with the VASRD, the vast majority of unfitting migraine cases will be rated at 30% or more, something it appears DOD does not want to do.
DoD and the Services are now avoiding migraine ratings and compensation altogether when PEBs deem the condition not to be unfitting or when MEBs deem that migraines meet retention standards. The change in migraine retention and fitness standards to avoid paying compensation is more than obvious. The 442 migraine cases identified in the VDBC study mentioned above all received DoD disability ratings, indicating the service member suffered prostrating migraines at a frequency of one every two months or less. All 442 service members were found not to meet retention standards by their MEBs and then found unfit by their PEBs because of these low frequency migraine attacks. SPC Postell has 4-8 prostrating migraines a month but was not found unfit for this condition by her PEB.
Except in very rare exceptions, PEBs will not declare a condition unfitting if the MEB did not first declare that it failed to meet retention standards. This is an important fact that illuminates how the Army’s disability evaluation process is again bastardizing the system to continue to deny proper disability compensation for migraines. SPC Postell’s case is a prime example of this scheme of lowering retention and fitness standards which keeps the Army from awarding retirement level disability ratings.
SPC Postell’s migraine rating problem centers on her MEB’s nonsensical position that her headaches meet retention standards. Army Regulation 40-501 states that migraines fail to meet retention standards if they are frequent and incapacitating. Frequent and incapacitating are subjective terms that DoD and the Army have refused to further define. Such subjective terms lead to different DES results and ratings for similar situations. Whether a service member becomes eligible for benefits becomes a matter of their doctor’s personal attitude and standards, rather than on the nature and impact of the condition. And, while DoDD 1332.18 requires uniformity in the DES, DoD leadership has done little to established, monitor or enforce DES uniformity.
SPC Postell suffers from four to eight debilitating migraines every month. However, her neurologist, Dr. La Mancusa, stated he will not find migraines to fail retention standards unless the frequency is two to three migraines a week. (Remember, there were 442 cases indentified in the VDBC study found that service members failed retention standards and were found unfit with migraines that occurred at a frequency of once every two months or less.) Apparently Dr. La Mancusa’s retention standard for migraines is driven by the amount of work it would require of him. When SPC Postell asked Dr. La Mancusa why he felt her migraines met retention standards, he wrote in her medical records the following:
"If I boarded every SM [Service Member] at Fort Hood who claimed to have chronic daily headaches I would be boarding - 9 soldiers per day (or 2,400 SMs per year); therefore, MEDICALLY ACCETABLE!
It appears Dr. La Mancusa has raised the frequency standard to one which met his comfort level in terms of the amount of work required. However, Dr. La Mancusa’s rationale is also faulty as SPC Postell is well beyond merely claiming to have headaches. She has a diagnosis of migraines and her attacks have been severe enough to require emergency room treatment and they have caused a significant amount of lost duty time. Her migraines require the use of strong prescription medicines and her attacks accompanied with vomiting, severe fatigue and visionary impairments.
At her formal board, SPC Postell testified that heat, lack of sleep, hunger and dehydration trigger her migraine attacks. These conditions are common in military environments, especially in her primary duties as a chemical decontamination specialist which requires the wear of encapsulating protective equipment for hours on end. Her PEB stated that her testimony was truthful and accurate but then completely ignored it when they deemed her migraines not to be unfitting. Her PEB mysteriously stated her migraines did not prevent her from performing the duties of a chemical decontamination specialist despite evidence to the contrary and the fact she has not performed these duties since 2005.
Her commander stated in his impact assessment that SPC Postell’s medical conditions and physical limitations prevent her from performing her primary military duties and they impair the accomplishment of the unit’s mission. Her commander specifically mentioned only two of her conditions in his assessment; her migraines and her back condition. Despite being the only two conditions specifically mentioned in her commander’s impact assessment, her PEB refused to find her back or migraine conditions as contributors to her unfitness. Doing so would have led to a DoD disability retirement level rating. Instead, her PEB arbitrarily declared these conditions not to be unfitting. In the PEB’s rationale for finding her migraines not to be unfitting, they cite her MEB’s finding that her migraines met retention standards; bogus PEB rationale based on a bogus MEB determination.
Dr. La Mancusa’s retention standard is particularly troubling given he is at Fort Hood. Fort Hood is home to the III Corps and two combat divisions and undoubtedly has a large number of soldiers impacted by PTSD and traumatic brain Injuries. Migraines and other headache conditions are highly correlated with both PTSD and traumatic brain Injuries. Soldiers stationed at Fort Hood with PTSD and traumatic brain Injuries will undoubtedly be cheated out of proper disability benefits if they also become victims of Dr. La Mancusa’s two to three migraines a week retention standard.
The United States Army Physical Disability Agency (USAPDA) is ultimately responsible for the quality and integrity of SPC Postell’s MEB, which they use to determine her fitness and disability rating. They accepted a substandard MEB and that led to erroneous PEB determinations. The USAPDA and its PEBs are empowered to send MEBs back to the medical treatment facilities if they are incomplete or lack the required quality. To their credit, the USAPDA has established very good standards and policies to ensure the content and quality of MEBs. Unfortunately, as demonstrated in SPC Postell’s and numerous other disability cases, the USAPDA has done nothing to enforce these standards at the expense of wounded warriors and their families. It appears these policies are for show only.
More troubling, the USAPDA and her PEB have completely ignored issues raised by SPC Postell in her formal board and in her subsequent appeals that demonstrated her MEB and PEB were improperly adjudicated. 10 USC 1222a requires PEBs and other review authorities to specifically address the issues she has raised in her board and in her appeals. The USAPDA and her PEB are simply refusing to follow the legal requirement to specifically address the issues she has raised. If they did address her issues, their answers would tend to expose their continuing deceitful practices that cheat wounded warriors out of disability benefits. To date, the USAPDA and her PEB have refused to specifically address the key issues raised in her appeal. This not only keeps her in the dark on the details of their rationale, but it will impair her ability to get the issues properly addressed in court.
Three years after the Walter Reed press coverage, DoD and the Services continue to bend over backwards to do the least possible when it comes to the payment of disability compensation and benefits. They talk a good talk for public consumption but their actions continue to demonstrate that they really don’t have the backs of our wounded warriors.
In next week’s Outrage, I will be writing about a despicable practice used primary by the Department of the Navy to deny disability benefits. The PEBs simply declare the condition fitting and then the Service administratively discharges the member for “unsuitability” because of the same condition. The Services use this practice to kick wounded warriors to the curb without having to pay them disability benefits. Truly Shameful!
Michael A. Parker
LTC, US Army (Retired)
Wounded Warrior Advocate
1. The DES, and in particular the Army DES, are continuing to lowball disability ratings for migraines, a disabilities common with PTSD and traumatic brain injuries.
2. PEBs and DES review authorities are still refusing to address key issues raised by service members in their disability evaluation boards and in their appeals as required by 10 USC 1222a.
3. DoD is not proactively identifying service members affected by erroneous migraine disability ratings so that they can request a review by the DoD’s Physical Disability Board of Review.
In last week’s Outrage, I wrote about how the Physical Disability Board of Review (PDBR) is continuing the denial of DoD disability benefits for service members with PTSD. In this week’s Outrage, I will be discussing how the DoD’s DES (Disability Evaluation System) is continuing to improperly assess and rate migraine and other headache conditions which are often associated with PTSD and traumatic brain injuries. As in the past, DoD continues to find ways not to rate conditions thus keeping disability ratings and benefits low.
For the past several months I have been assisting an Army soldier, SPC Postell, with her disability evaluation case. Her DES experience continues to demonstrate that serious problems remain in how DoD adjudicates disability cases. Medical and physical evaluation boards (MEBs and PEBs) are the core of the DES and they continue to be wrought with errors and outright avoidance of information critical for the well being and benefits of wounded warriors. While DoD and the Services have established several recent policies to ensure the proper adjudication of disability cases, MEB and PEB officials are failing to follow the policies. Worse, DoD and Service leadership are failing to monitor and enforce these policies. SPC Postell’s case further illuminates how DoD and the Services are simply bending over backwards to do the least possible for our wounded warriors.
SPC Postell’s disability case illuminates just how arbitrary and capricious the DES remains. SPC Postell suffers from numerous service connected medical conditions. The VA ratings for these conditions will undoubtedly exceed 100% additively and around 70% under VA ratings combination procedures. However, the Army Disability Evaluation System is limiting her rating to a mere 10%, well below the 30% required for the benefits of military disability retirement. By cherry picking which conditions to rate, the Army will be able to eliminate her from service without having to give her disability retirement. It is true that VA and military ratings will often differ because the VA rates all service connected conditions while the military limits their ratings to disabilities that they deem unfitting for military systems. While one can debate the appropriateness of limiting DoD ratings to a subset of the service connected disabilities, it is obvious that DoD often uses disingenuous practices to avoid finding conditions unfitting. By arbitrarily finding conditions not to be unfitting, DoD keeps disability ratings artificially low and that cheats our wounded warrior out of proper disability benefits.
While there are several areas in which SPC Postell’s disability evaluation was improperly adjudicated, the adjudication of her migraine condition was particularly egregious. To appreciate these concerns, it is important to understand DoD’s troubled history of rating migraines. The law requires DoD to rate conditions per the Veterans Administrations Schedule for Rating Disabilities (VASRD). One of the many ways DoD kept ratings low was by replacing or modifying VASRD rating criteria. For migraines ratings, the VASRD requires the attacks to be “prostrating”, a term the VA has never specifically defined. DoD’s rating policy defined prostrating as a headache severe enough to require one to stop activities and seek medical attention. The Army further stated in their migraine rating policy that, for a migraine to be deemed prostrating, seven steps had to be met. These steps included a headache journal, a treatment plan written and updated by a doctor, and an impact statement written by the commander. If all of the seven steps were not completed in full, the PEB would not deem the migraines prostrating no matter the true impact of the attacks. This limited the DoD rating for unfitting migraines to 0% regardless of their true severity and duty impact. Many soldiers were given 0% ratings purely because soldiers, doctors and commanders were not aware of the requirements of the policy. The Army migraine rating policy, which was kept close hold, was extremely effective in low balling migraine disability ratings.
The true impact of the DoD and Army migraine rating policies became evident in 2007 when the Veterans Disability Benefit Commission (VDBC) released the results of a study that compared DoD and VA ratings from the 2001 through the 2005 timeframe. For migraines, the study identified 442 cases where the service member received a DoD rating for migraines of less than 30% and then subsequently rated by the VA for the same migraine condition. Since both the DOD and the VA are required to rate conditions per the same VASRD standards, the individual should receive the same migraine rating from both departments. However, of the 432 cases identified in the VDBC study with DoD ratings of less than 30%, 319 of them (72%) received ratings of 30% of more from the VA. This means 319 wounded warriors found unfit by DoD should have been medically retired vice separated without disability retirement. There are countless other service members over the years that were not covered in the study that should have also received retirement level disability ratings from DoD. A recent lawsuit forced DoD to identify over 4,300 service members improperly rated for PTSD. Unfortunately, it appears wounded warriors will require similar legal action before DoD will identify the service members improperly rated for migraines. I have seen no evidence of DoD efforts to identify and notify service members who were separated for migraines so that they can have their DoD ratings reviewed by DoD’s Physical Disability Board of Review.
The Walter Reed media exposure and legislative action has forced DoD to be compliant with the requirement to rate unfitting conditions in strict compliance with the VASRD. In 2008, DoD rescinded their non-VASRD rating policies, to include their migraine rating policy. In 2009, the Army rescinded their migraine rating policy. Revised MEB guidance from the United States Army’s Physical Disability Agency generally deems migraines that are unfitting for military service to be prostrating as well. Per the VASRD, prostrating migraines that occur at a rate of once a month or more garners a 30% disability rating. Prostrating migraines that occur at a rate of once every two months garners a 10% rating. A lesser frequency garners a 0% rating. Now that DoD has been forced to follow the law and rate in strict compliance with the VASRD, the vast majority of unfitting migraine cases will be rated at 30% or more, something it appears DOD does not want to do.
DoD and the Services are now avoiding migraine ratings and compensation altogether when PEBs deem the condition not to be unfitting or when MEBs deem that migraines meet retention standards. The change in migraine retention and fitness standards to avoid paying compensation is more than obvious. The 442 migraine cases identified in the VDBC study mentioned above all received DoD disability ratings, indicating the service member suffered prostrating migraines at a frequency of one every two months or less. All 442 service members were found not to meet retention standards by their MEBs and then found unfit by their PEBs because of these low frequency migraine attacks. SPC Postell has 4-8 prostrating migraines a month but was not found unfit for this condition by her PEB.
Except in very rare exceptions, PEBs will not declare a condition unfitting if the MEB did not first declare that it failed to meet retention standards. This is an important fact that illuminates how the Army’s disability evaluation process is again bastardizing the system to continue to deny proper disability compensation for migraines. SPC Postell’s case is a prime example of this scheme of lowering retention and fitness standards which keeps the Army from awarding retirement level disability ratings.
SPC Postell’s migraine rating problem centers on her MEB’s nonsensical position that her headaches meet retention standards. Army Regulation 40-501 states that migraines fail to meet retention standards if they are frequent and incapacitating. Frequent and incapacitating are subjective terms that DoD and the Army have refused to further define. Such subjective terms lead to different DES results and ratings for similar situations. Whether a service member becomes eligible for benefits becomes a matter of their doctor’s personal attitude and standards, rather than on the nature and impact of the condition. And, while DoDD 1332.18 requires uniformity in the DES, DoD leadership has done little to established, monitor or enforce DES uniformity.
SPC Postell suffers from four to eight debilitating migraines every month. However, her neurologist, Dr. La Mancusa, stated he will not find migraines to fail retention standards unless the frequency is two to three migraines a week. (Remember, there were 442 cases indentified in the VDBC study found that service members failed retention standards and were found unfit with migraines that occurred at a frequency of once every two months or less.) Apparently Dr. La Mancusa’s retention standard for migraines is driven by the amount of work it would require of him. When SPC Postell asked Dr. La Mancusa why he felt her migraines met retention standards, he wrote in her medical records the following:
"If I boarded every SM [Service Member] at Fort Hood who claimed to have chronic daily headaches I would be boarding - 9 soldiers per day (or 2,400 SMs per year); therefore, MEDICALLY ACCETABLE!
It appears Dr. La Mancusa has raised the frequency standard to one which met his comfort level in terms of the amount of work required. However, Dr. La Mancusa’s rationale is also faulty as SPC Postell is well beyond merely claiming to have headaches. She has a diagnosis of migraines and her attacks have been severe enough to require emergency room treatment and they have caused a significant amount of lost duty time. Her migraines require the use of strong prescription medicines and her attacks accompanied with vomiting, severe fatigue and visionary impairments.
At her formal board, SPC Postell testified that heat, lack of sleep, hunger and dehydration trigger her migraine attacks. These conditions are common in military environments, especially in her primary duties as a chemical decontamination specialist which requires the wear of encapsulating protective equipment for hours on end. Her PEB stated that her testimony was truthful and accurate but then completely ignored it when they deemed her migraines not to be unfitting. Her PEB mysteriously stated her migraines did not prevent her from performing the duties of a chemical decontamination specialist despite evidence to the contrary and the fact she has not performed these duties since 2005.
Her commander stated in his impact assessment that SPC Postell’s medical conditions and physical limitations prevent her from performing her primary military duties and they impair the accomplishment of the unit’s mission. Her commander specifically mentioned only two of her conditions in his assessment; her migraines and her back condition. Despite being the only two conditions specifically mentioned in her commander’s impact assessment, her PEB refused to find her back or migraine conditions as contributors to her unfitness. Doing so would have led to a DoD disability retirement level rating. Instead, her PEB arbitrarily declared these conditions not to be unfitting. In the PEB’s rationale for finding her migraines not to be unfitting, they cite her MEB’s finding that her migraines met retention standards; bogus PEB rationale based on a bogus MEB determination.
Dr. La Mancusa’s retention standard is particularly troubling given he is at Fort Hood. Fort Hood is home to the III Corps and two combat divisions and undoubtedly has a large number of soldiers impacted by PTSD and traumatic brain Injuries. Migraines and other headache conditions are highly correlated with both PTSD and traumatic brain Injuries. Soldiers stationed at Fort Hood with PTSD and traumatic brain Injuries will undoubtedly be cheated out of proper disability benefits if they also become victims of Dr. La Mancusa’s two to three migraines a week retention standard.
The United States Army Physical Disability Agency (USAPDA) is ultimately responsible for the quality and integrity of SPC Postell’s MEB, which they use to determine her fitness and disability rating. They accepted a substandard MEB and that led to erroneous PEB determinations. The USAPDA and its PEBs are empowered to send MEBs back to the medical treatment facilities if they are incomplete or lack the required quality. To their credit, the USAPDA has established very good standards and policies to ensure the content and quality of MEBs. Unfortunately, as demonstrated in SPC Postell’s and numerous other disability cases, the USAPDA has done nothing to enforce these standards at the expense of wounded warriors and their families. It appears these policies are for show only.
More troubling, the USAPDA and her PEB have completely ignored issues raised by SPC Postell in her formal board and in her subsequent appeals that demonstrated her MEB and PEB were improperly adjudicated. 10 USC 1222a requires PEBs and other review authorities to specifically address the issues she has raised in her board and in her appeals. The USAPDA and her PEB are simply refusing to follow the legal requirement to specifically address the issues she has raised. If they did address her issues, their answers would tend to expose their continuing deceitful practices that cheat wounded warriors out of disability benefits. To date, the USAPDA and her PEB have refused to specifically address the key issues raised in her appeal. This not only keeps her in the dark on the details of their rationale, but it will impair her ability to get the issues properly addressed in court.
Three years after the Walter Reed press coverage, DoD and the Services continue to bend over backwards to do the least possible when it comes to the payment of disability compensation and benefits. They talk a good talk for public consumption but their actions continue to demonstrate that they really don’t have the backs of our wounded warriors.
In next week’s Outrage, I will be writing about a despicable practice used primary by the Department of the Navy to deny disability benefits. The PEBs simply declare the condition fitting and then the Service administratively discharges the member for “unsuitability” because of the same condition. The Services use this practice to kick wounded warriors to the curb without having to pay them disability benefits. Truly Shameful!
Michael A. Parker
LTC, US Army (Retired)
Wounded Warrior Advocate