DES Outrage of the Week # 3 - DoD Uses Fit but Unsuitable Practice to Deny Disability Benefits

maparker

Super Moderator
Staff Member
PEB Forum Veteran
Registered Member
This Week’s DES Outrage of the Week is a doozy. It covers perhaps the most blatantly disingenuous and corrupt practice in the Defense Disability Evaluation System (DES). It is the infamous fit but unsuitable policy. While the Navy and Marines lead the way in the use of this despicable practice, the Army and Air Force are also guilty of the practice, particularly with their guard and reserve members. The fit but unsuitable practice is the DES’s ultimate scam and DoD continues to condone and turn a blind eye to this deceptive practice that cheats our wounded warriors out of DoD disability benefits.

The fit but unsuitable practice simply has the Service Physical Evaluation Board (PEB) finding the service member “fit” for continued military service only to have the Service administratively discharge the member for being “unsuitable” for service. By administratively discharging these wounded warriors for unsuitability, the Service avoids paying them DoD disability benefits. DoD disability benefits come out of the defense budget and it is infinitely easier to kick a wounded warrior to the curb than it is to tell a defense contractor no.

If Congress really wants to help wounded warriors, they are going to have to put a tight fence around funding for DoD disability benefits. Last week, Mr. Noel Koch, The Deputy Under Secretary of Defense (Wounded Warrior Care and Transition Policy), once again testified at a congressional hearing that there are continuing problems in the administration of disability benefits. He then testified that DoD did not need any more funding to address these problems. He knows that any additional funding would likely come out of hide from the defense budget, further challenging DoD’s operational and acquisition budgets. Again, it is easier to kick a wounded warrior to the curb than it is to tell a defense contractor no.
The fit but unsuitable problem, like other wounded warrior issues, centers around the abuse of certain policies coupled with the lack of enforcement of others. In the case of the fit but unsuitable situation, the genesis is Enclosure 5 of DoD instruction 1332.38. The key passage from this enclosure states:

Certain conditions, circumstances and defects of a developmental nature DESIGNATED BY THE SECRETARY OF DEFENSE (emphasis added) do not constitute a physical disability and are not ratable in the absence of an underlying ratable causative disorder. If there is a causative disorder it will be rated in accordance with other provisions of this Instruction.

The specific conditions, defects and circumstances identified in Enclosure 5 are:

Enuresis, sleepwalking and/or somnambulism, dyslexia and other learning disorders, attention deficit hyperactivity disorder, stammering or stuttering, incapacitating fear of flying, airsickness, motion, and/or travel sickness, phobic fear of air, sea and submarine modes of transportation, uncomplicated alcoholism or other substance use disorder, personality disorders, mental retardation, adjustment disorders, impulse control disorders, sexual gender and identity disorders, including sexual dysfunctions and paraphilias, factitious disorder, obesity, overheight, psuedofolliculitis barbae of the face and/or neck, medical contraindication to the administration of required immunizations, significant allergic reaction to stinging insect venom, unsanitary habits including repeated venereal disease infections , certain anemias (in the absence of unfitting sequelae) including G6PD deficiency, other inherited anemia trait, Von Willebrand’s disease, allergy to uniformed clothing and homosexuality.

There are well documented examples of abuses of the conditions above to deny DoD disability benefits, such as calling PTSD a personality or adjustment disorder. However, the fit but unsuitable issue is a different type of abuse. It involves the Services administratively calling an unfitting condition, not listed above, fitting and then discharging the member due to the impact of the same condition.

While DoDI 1332.38 states the list of conditions in Enclosure 5 is not all inclusive, it does specify that such conditions must be approved by the Secretary of Defense. It further specifies that conditions on the list that have an underlying causative disorder, as well as conditions not on the list, must be rated per the provisions of DoDI 1332.38. The Secretary of Defense has not, at least publically, approved any other conditions, defects or circumstances for administrative separation. Further, DoD has not enforced the proper use of administrative discharges for Enclosure 5 conditions. Rather, the Services have developed policies that exploit Enclosure 5 so that they can eliminate service members without having pay DoD disability benefits for conditions that are compensable under the DES. Again, the Navy and Marines lead the way in this despicable practice.

A great example of the fit but unsuitable problem is the case of ET1 Kevin Stein. In 2004, after 14 years of active duty service, his Navy PEB found him fit despite an array of medical conditions to include a neurological condition that causes involuntary muscle movements. He was then immediately administratively separated, without DoD disability benefits, because of the same condition his PEB found not to be unfitting. Immediately after separation, the Veterans Administration (VA) rated his service connected conditions at 130% additively and 80% under VA combination rules.

As an electronic technician, ET1 Kevin Stein’s job required him to work on small components and on high voltage equipment, something that involuntary muscle movements makes extremely difficult and dangerous. His Medical Evaluation Board (MEB) stated his condition interfered with the performance of his duties and referred his case to the PEB. The PEB determines if a condition is unfitting and DoDI 1332.38 states the standard for unfitness as follows:

A Service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating (hereafter called duties).

ET1 Stein’s informal PEB declared him fit without further explanation. ET1 Stein requested a formal PEB to present his case that he was unfit. The Navy PEB president denied his request stating formal boards are only mandatory when a PEB finds a member unfit. Less than two weeks after ET1 Stein was found fit by his PEB, the Navy deemed he was unsuitable for continued service. He was then notified he would be administratively separated for the convenience of the government due to his physical condition. In his administrative separation notification, the Navy stated the following:

Your physical or mental condition has been identified by Naval Medical Professionals specified in ICD-9 as codes 333.91, 530.81, and 780.57 and has been diagnosed as a condition, WHICH INTERFERES WITH YOU SERVING ADEQUATELY IN YOUR RATE, AND IN THE MILITARY (Emphasis Added).

ET1 Stein’s administrative separation notification stated his medical condition prevented him from performing his specific duties (and within the military at large) using nearly identical language of DoDI 1332.38’s standard for finding service members unfit for service. Despite really being unfit, ET1 Stein was administratively separated without any DoD disability benefits, to include Tricare medical coverage.

Another Navy fit but unsuitable case involves a 14 year in service sailor, IT1 Steven Davis. He came down with type 1 diabetes. His PEB found him fit for duty and then he was immediately told he could not reenlist because of the condition. He was separated without DoD disability benefits due to his diabetes, a DES compensable condition his PEB found fitting for continued service.

Another great example of the fit but unsuitable policy involves a marine with nine years of service. He served two tours in Iraq as an infantryman and suffered back pain throughout these tours. When he returned to the states after his second tour, he was properly diagnosed with an autoimmune arthritic disease called Ankylosing Spondylitis. The Anthrax Vaccine Expect Committee, in two different reports, linked anthrax inoculations to the onset and aggravation of Ankylosing Spondylitis. Regardless of the anthrax vaccination connection, his disease is a service connected condition covered and compensable under the DES.

Upon his diagnosis, he was referred to a MEB and PEB. The PEB found him fit pending a transfer to a less strenuous MOS, which he did. He has successfully served in his new career field where he completed his third tour in the CENTCOM area of responsibility. His Ankylosing Spondylitis requires that he take an immunosuppressive drug to help control the condition. The Marine Corps is now telling him that he will not be able to reenlist because his medicine requires refrigeration and suppresses his immune system, facts known to the PEB when they found him fit. He will be forced out of the Marine Corps without any DoD disability benefits due to a condition that is compensable under the DES.

While the Navy and Marines lead the way in the abuses of the fit but unsuitable policy, the Army and Air Force use a similar policy with their guard and reserve forces. A member of the Air Force National Guard was attacked while on temporary duty. He received burns to a third of his body. After a long recovery period, he was able to defy the odds and recertify in his MOS and received a waiver to continue in flight status. He then went to a MEB and PEB where he was found fit for duty. He then received word from the Air Guard Bureau that his condition makes him non world-wide deployable and he would be administratively separated without DoD disability benefits. If the Air National Guard is to dismiss him, it needs to be via a medial discharge with DoD disability benefits.

The practice of administratively discharging members for conditions found fitting by PEBs has gone on for decades. Well over ten years ago, the Board for the Correction of Naval Records (BCNR), in case 8271-98, stated “administrative discharge because of a condition for which [a member] has been found fit for duty is unjust”. Despite the ruling by the BCNR, the practice continues day in and day out. During the Walter Reed coverage in 2007, a report indicated that the Navy awarded disability retirement more often than the other Services. That statistic is deceptive because it does not account for the Navy members kicked out using the fit but unsuitable practice.

Driving the fit but unsuitable issue was a provision in DoDI 1332.38 that stated the inability to deploy could not be the sole reason for finding a member unfit. Often Navy PEBs would state a member could do their job, just not at sea or overseas. This was an abuse into itself as the ability to perform common military tasks, to include common shipboard skills, e.g. fire control, are part of the fitness determination considerations. To curb the fit but unsuitable abuses, DoD issued policy on 19 December 2007 that allows PEBs to find members unfit solely because the condition prevents deployment. It is important to note that this policy does not specifically require non deployable members to be found unfit. Rather, it allows PEBs to do so when it is appropriate. It has been over two years since DoD establish this policy and not a single Service has implemented it nor has DoD enforced it. It appears to be yet another wounded warrior show policy, design for public consumption rather that actual implementation or enforcement.

I have directly addressed the fit but unsuitable issue with the staff of my Senator, James Webb of Virginia, as well as with the Staff of the Senate Armed Services Committee. They appeared to be compelled by the issue. What they plan to do about it remains unknown. I would suspect if any action is taken it will be done as part of the 2011 National Defense Authorization Act. Since Senator Webb is now the Chairman of the SASC’s Personnel Subcommittee, I am hopeful he can take action to kill the Service’s ability to use the fit but unsuitable practice to deny DoD disability benefits. I also hope he can pass legislation to find and fix past victims of this practice.

The fit but unsuitable practice clearly demonstrates the ends DoD and the Services will go to avoid paying disability benefits. No doubt there have been thousands of victims of the fit but unsuitable practice over the years. Not only does the practice need be stopped immediately, DoD needs to identify past victims of this policy and make amends. The Physical Disability Board of Review (PDBR) would have been a perfect venue to correct recent victims of this practice by reviewing the validity of the PEB’s fitness determination. Unfortunately, DoD, continuing their do the least possible ways, has stated fit but unsuitable victims cannot have access to the PDBR. Who will stand up and make DoD do the right thing for these wounded warriors?

In next week’s Outrage, I will be writing about how DoD and the Services continue to deny DoD disability benefits by erroneously declaring the unfitting condition existed prior to service. Despite recent changes to the law to prevent this abuse, the practice continues.



Michael Parker
LTC, USA (Retired)
Wounded Warrior Advocate
New Article
 

emac

PEB Forum Regular Member

Mr. Parker,

I suggest going public i.e...The Bill O'Rielly Show on Fox News or another widely popular viewed program. This would gain not only public support but also put the DoD & Politicians on notice that they are being scrutinized. They only move when the spotlight is upon them!

Just a simple suggestion....one I think worth exploring.

Best regards,
E. McMann​
 

maparker

Super Moderator
Staff Member
PEB Forum Veteran
Registered Member
I send the Outrages via email to a whole host of people in DoD, Congress, Veteran Service Organizations and the press. I do not have Bill O'Riley's contact email. If anyone does, or any other emails that you think should be on the list, send them to me via a PM. Everyone has my permission to propagate my DES Outrages of the Week to anyone they think can help.

Mike
 

kstein

PEB Forum Regular Member
Thank you so much Mike, for keeping this issue in the limelight. The years since my discharge, I have encountered struggles & blessings. Some of the struggles may not have been as prevalent had I been able to have a medical retirement. For example, my wife's battle with cancer. So far she has been in remission for 2 years. The care has been excellent but it would have been nice to have Tricare as a backup for my civilian employer's health insurance. Hopefully, a process will be established soon to review these Administrative Discharges from the Fit but Unsuitable clause soon and correct the wrongs that have been done to me and so many others.

Kevin Stein
 

maparker

Super Moderator
Staff Member
PEB Forum Veteran
Registered Member
I would like to give a grateful salute of thanks to The Military Coalition (TMC). Last week, in their testimony to the Senate Armed Services Committee’s Subcommittee on Personnel, the TMC provided testimony that addressed the “Fit but Unsuitable” issue. This issue was covered in the DES Outrage of the Week # 3, which can be found above.

The relevant sections of the TMC testimony stated:

TMC was further encouraged that wounded, ill, and injured members would benefit from the 19 Dec 07 Under Secretary of Defense (Personnel and Readiness) Directive Type Memorandum (DTM) which added "deployability" as a consideration in the DES decision process – permitting medical separation/retirement based on a medical condition that renders a member non-deployable.
Unfortunately, several cases have surfaced indicating the Services have failed to incorporate the DTM in their DES process.


In this regard, the services continue to issue findings that a member is “fit, but unsuitable” for service. Under this system, a member found “fit” by the PEB, is deemed by the service to be “unsuitable” for continued service – and administratively separated – because the member’s medical condition prevents them from being able to deploy or maintain their current occupational skill.

The Coalition believes strongly that medical conditions which preclude servicemembers from continuing to serve should be deemed “unfitting” – not “unsuitable.”

And,

DoD-VA Disability Evaluation Systems (DES) – TMC recommends:

• Barring “fit, but unsuitable” separations when a member’s medical condition prevents continued service;


The complete TMC Testimony can be found here: http://armed-services.sen...March/MCS%2003-10-10.pdf

The complete hearing record can be found here: http://armed-services.sen..._witnesslist.cfm?id=4456

Thanks again to the TMC

Mike
 

dubber25

PEB Forum Regular Member
PEB Forum Veteran
I contacted My congressional rep about this article. I just received this email today:
Dear Mr. XXXXXl:

Thank you for contacting me regarding the Department of Defense disability evaluation system. I appreciate hearing from you.

As you may know, the fiscal year 2008 Defense Authorization bill (P.L. 110-181) contained a number of provisions aimed at addressing the needs of wounded warriors. Some of these provisions were designed to improve the disability evaluation system for service members returning from Iraq and Afghanistan.

The House Armed Services Committee, on which I serve as chairman, is currently preparing to mark up the fiscal year 2011 Defense Authorization bill. As this process proceeds, please know I will keep your concerns regarding the disability evaluation system in mind. In addition, if you would like my office to intervene on your behalf regarding this matter, please contact my office in Sedalia at 660-826-2675.

Again, thank you for contacting me. To keep in touch with me or track what I am doing in Congress, please feel free to sign up for my e-Newsletter or follow me on Facebook, Twitter, and YouTube. You may also visit my official House website at www.house.gov/skelton.

With kind regards, I remain

Very truly yours,

IKE SKELTON
Member of Congress
 
data-matched-content-ui-type="image_stacked" data-matched-content-rows-num="3" data-matched-content-columns-num="1" data-ad-format="autorelaxed">
Top