This thread is devoted to the relationship between PDES and VA benefits. It includes special areas such as Concurrent Retirement and Disability Pay (CRDP), Combat Special Compensation and Taxation of Benefits.
Military vs. VA benefits
- Thread starter Jason Perry
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Concurrent Retirement and Disabilty Pay (CRDP) Overview
http://www.military.com/benefits/military-pay/retired-pay/retired-concurrent-receipt-overview
http://www.military.com/benefits/military-pay/retired-pay/retired-concurrent-receipt-overview
Combat-Related Special Compensation
http://www.military.com/benefits/military-pay/special-pay/combat-related-special-compensation
http://www.military.com/benefits/military-pay/special-pay/combat-related-special-compensation
Jason Perry
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Military disability rating vs. VA rating
I have attached an interesting case, Rominger v. United States. This case, from the Court of Federal Claims, is an appeal from the ABCMR's denial of the Soldier's application to correct his records. Basically, the Soldier was rated at 20% by the informal PEB for back problems, disagreed and demanded a formal but after talking with assigned counsel decided to accept the informal findings (really bad advice in my opinion, but I will address that in a separate post). After getting separated with severance pay, SSG Rominger then applies to VA and is rated at 40% for substantially the same condition. He applies to ABCMR and is denied relief.
People often ask why did the VA rate me much higher than the military. There are in my opinion two basic reasons for this. The first is the fact that the military only rates unfitting conditions. This makes sense, if a condition is not rated, it means the military is highly likely to come up with a lower rating. The second reason is that the PEB and the APDA ruled incorrectly because they either made a mistake as to the facts or as to the law (the latter being more likely occurence in my experience). In defending the occurence of different ratings, the Army states in AR 635-40, "The VA makes its own decisions concerning entitlement to disability compensation and ratings based on the statutes and regulations which govern its operations. The VA is not bound by decisions of the Army; and likewise, the Army is not bound by VA decisions."
In the Rominger case, the Soldier gets rated in a short period of time from the Army and the VA for the same condition. Both agencies are bound to use the same criteria, the VASRD, to rate the disability. So, SSG Rominger says, "wait a minute, that can't be right." He then applies to ABCMR which denies his claim, telling him that he has not provided evidence that he was incorrectly rated and that the Army is not bound by the VA's decisions.
Well, the Federal Court of Claims makes some interesting findings. First, the Government says, we have case law that shows that he waived his right to review of the informal PEB when he elected to not demand a formal (remember that he changed his mind after talking to his attorney). Well, the Court says, he is not challenging the informal PEB- he is challenging the ABCMR. The Court then basically says that the ABCMR must explain why the condition was rated correctly. Notice how this basically shifts the burden to the ABCMR. In its ruling the ABCMR told Rominger he did not prove he was incorrectly rated. The Court in effect says, "Nope, YOU, ABCMR, did not explain why the same condition is rated differently by two agencies." The Court sends the case back to the ABCMR so that it may better explain itself.
This is not a clear win for SSG Rominger. This decision only sends the case back for a better explanation. But it is a great case for two reasons. It says that Servicemembers can still appeal their Board for Correction of Military Records cases after initially agreeing with the government (there are very few instances when the Servicemember should concur). It also seems to indicate that the Court is skeptical of claims that the VA got the rating for the same condition wrong. If your case is similar on the facts, it is worth keeping in mind that you may have a basis for appeal.
I have attached an interesting case, Rominger v. United States. This case, from the Court of Federal Claims, is an appeal from the ABCMR's denial of the Soldier's application to correct his records. Basically, the Soldier was rated at 20% by the informal PEB for back problems, disagreed and demanded a formal but after talking with assigned counsel decided to accept the informal findings (really bad advice in my opinion, but I will address that in a separate post). After getting separated with severance pay, SSG Rominger then applies to VA and is rated at 40% for substantially the same condition. He applies to ABCMR and is denied relief.
People often ask why did the VA rate me much higher than the military. There are in my opinion two basic reasons for this. The first is the fact that the military only rates unfitting conditions. This makes sense, if a condition is not rated, it means the military is highly likely to come up with a lower rating. The second reason is that the PEB and the APDA ruled incorrectly because they either made a mistake as to the facts or as to the law (the latter being more likely occurence in my experience). In defending the occurence of different ratings, the Army states in AR 635-40, "The VA makes its own decisions concerning entitlement to disability compensation and ratings based on the statutes and regulations which govern its operations. The VA is not bound by decisions of the Army; and likewise, the Army is not bound by VA decisions."
In the Rominger case, the Soldier gets rated in a short period of time from the Army and the VA for the same condition. Both agencies are bound to use the same criteria, the VASRD, to rate the disability. So, SSG Rominger says, "wait a minute, that can't be right." He then applies to ABCMR which denies his claim, telling him that he has not provided evidence that he was incorrectly rated and that the Army is not bound by the VA's decisions.
Well, the Federal Court of Claims makes some interesting findings. First, the Government says, we have case law that shows that he waived his right to review of the informal PEB when he elected to not demand a formal (remember that he changed his mind after talking to his attorney). Well, the Court says, he is not challenging the informal PEB- he is challenging the ABCMR. The Court then basically says that the ABCMR must explain why the condition was rated correctly. Notice how this basically shifts the burden to the ABCMR. In its ruling the ABCMR told Rominger he did not prove he was incorrectly rated. The Court in effect says, "Nope, YOU, ABCMR, did not explain why the same condition is rated differently by two agencies." The Court sends the case back to the ABCMR so that it may better explain itself.
This is not a clear win for SSG Rominger. This decision only sends the case back for a better explanation. But it is a great case for two reasons. It says that Servicemembers can still appeal their Board for Correction of Military Records cases after initially agreeing with the government (there are very few instances when the Servicemember should concur). It also seems to indicate that the Court is skeptical of claims that the VA got the rating for the same condition wrong. If your case is similar on the facts, it is worth keeping in mind that you may have a basis for appeal.