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New Physical Disability Board of Review for those Separated since 2001

maparker

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SEC. 1643. REVIEW OF SEPARATION OF MEMBERS OF THE ARMED FORCES SEPARATED FROM SERVICE WITH A DISABILITY RATING OF 20 PERCENT DISABLED OR LESS.

(a) BOARD REQUIRED.—

(1) IN GENERAL.—Chapter 79 of title 10, United States Code, is amended by inserting after section 1554 the following new section:

§ 1554a. Review of separation with disability rating of 20 percent disabled or less

(a) IN GENERAL.—

(1) The Secretary of Defense shall establish within the Office of the Secretary of Defense a board of review to review the disability determinations of covered individuals by Physical Evaluation Boards. The board shall be known as the ‘Physical Disability Board of Review’.

(2) The Physical Disability Board of Review shall consist of not less than three members appointed by the Secretary.

(b) COVERED INDIVIDUALS.—For purposes of this section, covered individuals are members and former members of the armed forces who, during the period beginning on September 11, 2001, and ending on December 31,
2009—

(1) are separated from the armed forces due to unfitness for duty due to a medical condition with a disability rating of 20 percent disabled or less; and
(2) are found to be not eligible for retirement.

(c) REVIEW.—

(1) 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. Subject to paragraph (3), upon its own motion, the Physical Disability Board of Review may review the findings and decisions of the Physical Evaluation Board with respect to a covered individual.

(2) 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.

(3) If the Physical Disability Board of Review proposes to review, upon its own motion, the findings and decisions of the Physical Evaluation Board with respect to a covered individual, the Physical Disability Board of Review shall notify the covered individual, or a surviving spouse, next of kin, or legal representative of the covered individual, of the proposed review and obtain the consent of the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual before proceeding with the review.

(4) With respect to any review by the Physical Disability Board of Review of the findings and decisions of the Physical Evaluation Board with respect to a covered individual, whether initiated at the request of the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual or initiated by the Physical Disability Board of Review, the Physical Disability Board of Review shall notify the covered individual or a surviving spouse, next of kin, or legal representative
of the covered individual that, as a result of the request or consent, the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual may not seek relief from the Board for Correction of Military Records operated by the Secretary concerned.

(d) AUTHORIZED RECOMMENDATIONS.—The Physical Disability Board of Review may, as a result of its findings under a review under subsection (c), recommend to the Secretary concerned the following (as applicable) with
9 respect to a covered individual:

(1) No recharacterization of the separation of such individual or modification of the disability rating previously assigned such individual.

(2) The recharacterization of the separation of such individual to retirement for disability.

(3) The modification of the disability rating previously assigned such individual by the Physical Evaluation Board concerned, which modified disability rating may not be a reduction of the disability rating previously assigned such individual by that Physical Evaluation Board.

(4) The issuance of a new disability rating for such individual.

(e) CORRECTION OF MILITARY RECORDS.—

(1) The Secretary concerned may correct the military records of a covered individual in accordance with a recommendation made by the Physical Disability Board of Review under subsection (d). Any such correction may be made effective as of the effective date of the action taken on the report of the Physical Evaluation Board to which such recommendation relates.

(2) In the case of a member previously separated pursuant to the findings and decision of a Physical Evaluation Board together with a lump-sum or other payment of back pay and allowances at separation, the amount of pay or other monetary benefits to which such member would be entitled based on the member’s military record as corrected shall be reduced to take into account receipt of such lump-sum or other payment in such manner as the Secretary of Defense considers appropriate.

(3) If the Physical Disability Board of Review makes a recommendation not to correct the military records of a covered individual, the action taken on the report of the Physical Evaluation Board to which such recommendation relates shall be treated as final as of the
20 date of such action.

(f) REGULATIONS.—

(1) This section shall be carried out in accordance with regulations prescribed by the Secretary of Defense.
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(2) The regulations under paragraph (1) shall specify reasonable deadlines for the performance of reviews required by this section.

(3) The regulations under paragraph (1) shall specify the effect of a determination or pending determination of a Physical Evaluation Board on considerations by boards for correction of military records under section
1552 of this title.’’.

(2) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 79 of such title is amended by inserting after the item relating to section 1554 the following new item:

‘‘1554a. Review of separation with disability rating of 20 percent disabled or less.’’.

(b) IMPLEMENTATION.—The Secretary of Defense shall establish the board of review required by section 1554a of title 10, United States Code (as added by subsection (a)), and prescribe the regulations required by such section, not later than 90 days after the date of the enactment of this Act.
 

Jason Perry

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2008 NDAA Establishes Review Board for Separated 20% or Less Since 2001

Mike,

Thanks for posting this! I think this is a really positive development in that it represents another opportunity to review decisions. It will be interesting to see if the BCMRs will start requiring appeals at the 1554a board before appealing directly.
 

mgbemt

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2008 NDAA Establishes Review Board for Separated 20% or Less Since 2001

This will definately be something to follow closely. I would really like to see the amount of soldiers who will have a change in rating/ retirement.

What's your thoughts on them going back and medically retire anyone who is 30 percent or over with the VA, but discharged with less than 30?

I am new to this site and wanted to give everyone a hello and wish all the best of luck in getting what is deserved.


Respectful,

Fellow medical discharged, 7 yrs 2 mos active duty/ zero percent
 

Jason Perry

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mgbemt,

I think that the opportunity for review is a good thing, but I don't see the DOD or Services suddenly handing out more retirements without a fight. One difficulty facing those at the Physical Disability Board of Review will be that the review will be focused on the Servicemember's condition when they were separated.

Greatly helping them will be the provisions of the 2008 NDAA directing the services to use the VASRD as interpreted by the Court of Appeals for Veterans Claims. For those who were clearly rated inappropriately under the VASRD and those with a VA rating at or above 30% issued at or around the time of discharge, it should be easier to get a fair rating. I still have reservation though about how DOD will react to VA pronouncements based outside of the actual text of the VASRD or its interpretation.
For example, there are administrative pronouncements made by the VA that are considered binding on the Board of Veterans Appeal but not on the VA itself (if you are interested, a case that discusses this is Splane v. West, 216 F. 3d 1058 (Fed. Cir. 2000)). These pronouncements include some VA Gen Counsel Opinions and parts of the Adjudication Procedures Manual. So, there is still wiggle room for DOD to deny the validity of a VA rating.

This is another chance to get a proper rating. But it will still take presenting good evidence and arguing the law correctly to get the best result. With the new laws and the necessity for implementing regulations, though, there will be many places for DOD to make legal error. This will also work to the Servicemembers advantage.
 

mgbemt

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2008 NDAA Establishes Review Board for Separated 20% or Less Since 2001

Thanks Jason !!!!
 

Tom in DC

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2008 NDAA Establishes Review Board for Separated 20% or Less Since 2001

Is it a sure thing that the VASRD will apply to the Physical Disability Board of Review?

The provision providing for the utilization of the VASRD states that it will be utilized "for purposes of this chapter." That provision, Section 1216a, is part of Chapter 61 - Retirement of Separation for Physical Disability. The Physical Disability Board of Review, Section 1554a, is part of Chapter 79 - Correction of Military Records.

Any thoughts?

Tom
 

Jason Perry

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I am certain that the VASRD will apply. That is the only rating scheme authorized, and even though you point that the Physical Disability Review Board (PDRB) resides in another chapter, the review is on the propriety of the decisions made by the PEB and the Service Secretary using the criteria from Chapter 61.

What I am less sure about (and anxious to see) is whether they will apply the rules as they existed before the 2008 NDAA, or give retroactive application to this law. Under normal rules, they would not give retroactive application, though I think there is an independent argument that the VASRD as currently applied should have been applied back then. Ironically, the passage of the 2008 NDAA may have actually undercut this argument, but this is mainly speculation on my part.

I am also curious as to the standards they will use: Presumption of regularity for previous proceedings, or de novo review (or perhaps some other standards). Will these be full boards, with an opportunity to appear and present evidence, or will these be "paper boards" with a review of submissions and the case file? (I think the latter is likely). But we will have to wait and see. This may end up being a great tool to get benefits wrongfully denied...or it may be more of the same.
 

builtgypsy

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2008 NDAA Establishes Review Board for Separated 20% or Less Since 2001

It says a lot that even with the 2008 NDAA it's still hard to paint a good picture for the DES.
 

Tom in DC

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2008 NDAA Establishes Review Board for Separated 20% or Less Since 2001

Thanks Jason, I hope you're right about the applicability of the VASRD. I agree that the standards to be applied remain a big question mark. I suppose that opting for review at the PD Board of Review will expedite the ability to exhaust administrative remedies and get into court. However, because giving up the right to seek relief at the BCMR is a significant consequence, it's going to be tricky advising clients about the costs/benefits of entering unknown territory, at least at the outset.
 

Rangersigo

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Has anyone gone through the Physical Disability Board of Review process yet? Does anyone know the process or regulation to get started?

K
 

Jason Perry

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Rangersigo,

DoD has not stood up the board yet, nor published the regulations. They are about two months behind their mandated deadline, so I would hope that it will be soon when we have more info.

I will be posting the regs and giving analysis when they do get published. Check back to see developments.
 

Pandora's Box

PEB Forum Regular Member
I recently heard from someone in the VA-OSD liaison office, that the Air Force now has cog on setting and establishing the DBR for all service. (I guess you could say that OSD has outsourced this project to the USAF.) But there is still no ETA on when we will have some sort of directive/regs published with guidelines (similar to AR 15-185 for the BCMR) and/or when the Board will begin accepting applications. I've been holding off on filing a BCMR petition while waiting to see the regs for the DBR in order to determine which would be a better venue.
 

Rangersigo

PEB Forum Regular Member
Jason, hope to get your opinion the the Disability Review Board that is standing up. In 2002, the PEB returned a 30% disability rating for me and recommended retirement. I accepted this and began out-processing. I was within 3 weeks of my retirement date, when I am called back in to the PEBLO office and they decided to change my rating to 20% with severance. It was weird. I had served 15 years, 12 active and 3 reserve, had never wanted to to anything else in my life - still don't. My last assignment was as an aide-de-camp and my enlisted and officer ratings were exceptional, honor grad from ranger and just about every other course I attended. By this point I had made the mental break and had already sent my family back home. I accepted the results, but have felt it was unjust - and thought about it everyday since then. The VA rated me later that same month at 30%. Do you feel that I would have a good case for this board? I have the original 30% rating paperwork still...

Thanks
 

Jason Perry

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Rangersigo,

You actually sound like the ideal candidate for the Physical Disability Board of Review.

Just to clarify, I am assuming that your VA rating was for the same conditions the Army found unfitting? If this is the case, then I would encourage you to apply.
 

Rangersigo

PEB Forum Regular Member
Rangersigo,

You actually sound like the ideal candidate for the Physical Disability Board of Review.

Just to clarify, I am assuming that your VA rating was for the same conditions the Army found unfitting? If this is the case, then I would encourage you to apply.

Correct - exact same condition. Thanks
 

armyjag

PEB Forum Regular Member
After a quick review, I see two glaring problems with the PDBR:

1) Only unfitting conditions are reviewable. The PDBR does not review determinations of fitness – only disability ratings. Therefore, even if the VA subsequently rated a condition at 100%, the PDBR has no authority to review it if the PEB determined the condition was not an unfitting.

2) VASRD does not strictly apply – the modified version of the VASRD applies for cases decided prior to 28 January 2008.

Tom

Select excerpts from DODI 6040.44 (Lead DoD Component for the Physical Disability Board of Review (PDBR)):

1. GENERAL. The PDBR is designed to reassess the accuracy and fairness of the combined disability ratings assigned Service members who were discharged as unfit for continued military service by the Military Departments with a combined disability rating of 20 percent or less and were not found to be eligible for retirement, and to recommend corrections where discrepancies and errors in such ratings exist. The PDBR, in accordance with section 3 of this enclosure, shall review the combined disability ratings of individuals covered by section 2 of this enclosure. The PDBR does not review the Military Departments’ determinations of fitness for continued military service; the PDBR only reviews the combined disability ratings assigned to the specifically military unfitting conditions acted upon by the Military Department PEBs.
. . .
5. ADMINISTRATION. The following minimum actions are required to operate the PDBR:
. . .
e. The PDBR shall conduct reviews of the disability rating(s) of the covered individual in accordance with the VASRD in effect at the time of separation.

(1) If the case was adjudicated by the final Military Department PEB and the covered individual was separated from military service prior to January 28, 2008, the PDBR shall also review the disability rating(s) of the covered individual, in accordance with the DoD application of the VASRD under DoDI 1332.39 (Reference (m)) and applicable Service regulations, if any, in effect at the time of separation for the covered individual. If the covered individual was separated from military service on or after January 28, 2008, the PDBR shall use the VASRD without application of Reference (m), along with any applicable interpretation of the VASRD by the United States Court of Appeals for Veterans Claims.

(2) Only the medical condition(s) determined to be specifically unfitting for continued military service, as previously determined by the Military Department PEB, will be subject to review by the PDBR.
 

Jason Perry

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Tom,

You are absolutely correct. I think both problems are open to challenge though.

As for them only reviewing conditions that were considered unfitting, this is an excerpt of the text of the legislation:

(1) IN GENERAL.—Chapter 79 of title 10, United States Code, is amended by inserting after section 1554 the following new section:
§ 1554a. Review of separation with disability rating of 20 percent disabled or less[/font]

(a) IN GENERAL.

(1) The Secretary of Defense shall establish within the Office of the Secretary of Defense a board of review to review the disability determinations of covered individuals by Physical Evaluation Boards. The board shall be known as the ‘Physical Disability Board of Review’."

In my opinion, the fitness determination is surely a "disability determination." So, I think this would be fertile ground for challenge in court.

As to the use of DoD and Service "interpretations" of the VASRD at the time of separation, I also believe that this is legal error. The law has always stated that the Services will use the schedule of disabilities used by the Department of Veterans Affairs. Ironically, by clarifying this is not the case in the 2008 NDAA, it may make challenging the use of "interpretations" more difficult. I think the analysis would be whether the "interpretations" were reasonable regulations properly promulgated at the time, or whether the DoD and the Services overstepped their bounds in deviating from the schedule published by the Secretary of Veterans Affairs. A great example is Sleep Apnea ratings. I see no authority (even pre-2008 NDAA) to deviate from the plain language of the VASRD and to substitute degree of industrial impairment for criteria such as use of CPAP device. I would also argue that the statute creating the Physical Disability Board of Review was designed to correct these types of earlier errors.

A positive thing, in my view, is that the decisons of the PDRB are considered "administratively final." This will open the doors to suing on errors (though there are some differences of opinion on whether the Darby v. Cisneros case requires exhaustion of administrative remedies in military disability cases or not).

This PDRB is a step forward, in my opinion, but still not a perfect solution as implemented.
 

maparker

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Jason,

Take note of the following statement in the article from the Pentagon spokesman.

Melnyk said a different board should, in fact, look at those other issues.
“Service members may appeal those issues to the Military Department Board of Corrections for Military Records or the Discharge Review Boards,” he said.


In the following passage, the author should have said "the Medical Evaluation Board is required to include all current medical conditions.

Parker raised a second concern: The Physical Evaluation Board is required to include all current medical conditions, but the Walter Reed scandal showed that often, medical records were lost or not included in board packets. If that happens, the Physical Evaluation Board doesn’t get a chance to rate for all conditions, but those cases would not be covered by the new board.




Board to reassess some disability ratings

By Kelly Kennedy - Staff writer
Posted : Wednesday Jul 2, 2008 14:49:53 EDT

Service members given a disability rating of 20 percent or lower during their medical evaluation boards since Sept. 11, 2001, may have their cases reviewed by a new Defense Department board.
A rating of 30 percent or higher means lifetime health benefits, as well as medical retirement pay based on the rating, years served and rank when retired.
The Physical Disability Board of Review was mandated by the 2008 National Defense Authorization Act after several investigations — including an analysis of five years’ worth of Defense Department budget records by Military Times — showed discrepancies across the services in average amounts of disability benefits awarded.
“The purpose of the [board] shall be to reassess the accuracy and fairness of the combined disability ratings assigned service members who were discharged as unfit for continued military service,” wrote David S.C. Chu, undersecretary for personnel and readiness, in a memo dated June 27. “The [board] shall operate in a spirit of transparency and accountability, and shall impartially readjudicate cases upon which review is requested or undertaken on its own motion.”
The Air Force is to recommend someone to lead the board immediately, and then the other services will determine who will represent them on the board. According to the legislation, the new board was supposed to be in place by the end of April.
One sentence of the new directive already has veterans service organization representatives concerned: “Only the medical condition(s) determined to be specifically unfitting for continued military service, as previously determined by the Military Department [physical evaluation board], will be subject to review by the [board].” The legislation makes no such limitations.
Retired Army Lt. Col. Mike Parker, who has worked as an advocate for service members going through the physical evaluation board process, said there are at least two categories of veterans who could be hurt by this limitation.
He gave an example of a sergeant who was originally sent to the medical evaluation board because of a congenital cornea condition that caused his vision to be distorted. According to the surgeon general of the Army’s policy, soldiers may not wear hard contact lenses to the field, as this soldier was required by his doctor to do. But when he went to the board, he was found fit for his cornea condition, which would have brought him a rating of at least 30 percent, and found unfit for two other lesser conditions and given a total rating of 10 percent.
“They’ve been cherry-picking which unfitting condition to use,” Parker said. The new board would not be allowed to make sure the ‘fit’ determination for the soldier’s cornea problem was fair.
Parker raised a second concern: The Physical Evaluation Board is required to include all current medical conditions, but the Walter Reed scandal showed that often, medical records were lost or not included in board packets. If that happens, the Physical Evaluation Board doesn’t get a chance to rate for all conditions, but those cases would not be covered by the new board.
“Conditions that were not identified as unfitting are not within the scope of this board,” Pentagon Spokesman Lt. Col. Les’ Melnyk said in an e-mail. “A determination of unfitting is generally unique to the demands of the service member’s military department. These decisions are best made by the military departments.”
However, he said conditions that were not rated because they were determined to be pre-existing, as was the case of thousands of service members discharged with no benefits for personality disorders, would be eligible for review by the new board.
Parker said the new board needs to address all situations that can lead to a combined disability rating of less than 30 percent — otherwise, service members may have to take their cases to several boards to try to correct specific errors in their cases.
“If the new board does not address all of these factors, I fear a service member may have to spend years going to multiple review boards to fix all the issues that led to an erroneous rating,” Parker said, which is exactly the kind of bureaucratic quagmire the Wounded Warrior legislation sought to correct.
Melnyk said a different board should, in fact, look at those other issues.
“Service members may appeal those issues to the Military Department Board of Corrections for Military Records or the Discharge Review Boards,” he said.
But that could also cause a problem: After they receive a recommendation from the new review board, service members will not be eligible for review by the Board for the Correction of Military Records, according to Chu’s directive and the legislation.
 

Jason Perry

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Mike,

I am not sure that Lt.Col Melnyk understood that the law states after review by Physical Disability Board of Review, you may not appeal to Board for Correction of Military Records. I suppose they could interpret this to mean "on the rating issue" only. We will have to see how they actually implement the law. But, I certainly agree: why make the Servicemember go through multiple admin boards on closely related issues? I just don't buy that the Services are the only ones who can make a fitness determination. The current PDBR as described in regulation is made up of officers from each service. Seems to me that that would give the boards the knowledge neccesary to make fitness determination. Besides, the 2008 NDAA directs the DoD to see that standards are uniform across the Services.
 
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