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New Physical Disability Board of Review for those Separated since 2001

maparker

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PEB Forum Veteran
Registered Member
I posted this to a related MHS thread about DoD wounded warrior care and commitment. DoD states they will post a response as soon as they get one from DES officials. It has been over a week and there has yet to be a response from DoD. You can see the online post here:

Press Releases/Advisories - Gates Promises Continued Commitment to Wounded Warrior Care



Secretary Gates, I am going to have to wave the BS flag on this one. While I believe you are sincere in your commitment to wounded warriors, the actions of your staff shows a severe lack of commitment for doing the right thing for wounded warriors.

DoD has continually interpreted disability laws to do the least for the wounded warriors. It was this money first, soldiers last culture that lead to the Walter Reed problems and this culture is unfortunately still alive and well despite promises of reform. When it comes to disabled service members, there are only two things DoD will do; What they want to do and what Congress makes them do. DoD has not done much on their own and when Congress creates new disability laws, DoD continually interprets them so that they can delay, dilute or distort the mandate of Congress in order to save money at the expenses of wounded warriors.

The new Physical Disability Board of Review (PDBR) is a perfect example of this problem. Congress passed the law creating the PDBR in the 2008 NDAA. Congress did this because the disability evaluations system used dishonest, if not criminal, techniques to lower disability ratings below 30%. By keeping these ratings below 30%, DoD avoided having to pay disability retirement benefits. The PDBR was created to correct these bogus DoD disability rating determinations.

Since the PDBR law was signed into effect via the 2008 NDAA, DoD has done nothing but slow roll implementation and poison the PDBR process. DoD is clearly doing this to save money at the expense of our wounded warriors. How can you continue to state wounded warriors are your second highest priority if your staff continues to delay, dilute and sabotage the PDBR and other DES reforms?

Here are a few examples of PDBR problems:

1. Congress mandated in law that DoD would have the PDBR up and running by 28 April 2008. To date, the PDBR has yet to accept an application let alone review a case. Your second highest priority is getting very little priority from your staff.

2. DoD recently posted an update to the PDBR (MHS - Physical Disability Board of Review (PDBR)). Integrated into this announcement are DoD plans to further screw the wounded warrior. DoD has stated that if the PDBR process corrects the disability rating leading to higher disability benefits, they will not allow retroactive payments. This is absolute crap! DoD and the Services were getting away with dishonest, if not illegal, techniques to lower ratings and deny disability benefits. They got caught and Congress took action to correct the past. Now DoD is stating that if the PDBR determines a wounded warrior’s rating was not compliant with law, they will not make back payments to rectify the mistake. DoD has wired the PDBR such that the longer it takes them to get the PDBR up and running, the less money they have to pay to wounded warriors. DoD is already 6 months past the 28 April deadline established in law. Secretary Gates, is this really your intent?

3. When Congress created the PDBR, they stated the intent was “to review the disability determinations of covered individuals by Physical Evaluation Boards.” There were many “techniques” the Service PEB’s used to lower disability rating below 30%. Again, DoD has diluted the intent of Congress by limiting the PDBR to a review of just the DoD rating as compared to the VASRD rating criteria. They have prohibited the PDBR from looking at other factors that lead to artificially low disability ratings such as cherry picking which disabilities are deemed unfitting and rated. Your staff is once again doing the least possible for wounded warriors.

4. The DoD instruction for the PDBR indicates they will not be applying the legal requirement to rate unfitting conditions per the Veterans Administrations Schedule for Rating Disabilities (VASRD). It appears DoD will only rate conditions per the VASRD for decisions decided after 28 January 2008, the date the 2008 NDAA was signed into law. The law (10 USC 1201, 1203) and several court decisions have always required DoD to rate unfitting conditions per the VASRD. Instead, DoD and the Services created substitute rating criteria and policies (despite the fact the DoD General Counsel opinions stating such criteria was illegal) to avoid having to give ratings of 30% or more and paying higher disability benefits. Now it appears that DoD has arranged it so the PDBR can continue to apply illegal DoD substitute rating criteria and policies thus continuing to deny legally due disability benefits.

Secretary Gates, actions speak louder than words and your staff’s actions do not match your words. For the sake of wounded warriors, do something about it.

From November of 2005 to the September of 2006, I wrote several emails and letters and conducted briefings with Army and DoD DES officials illuminating grave concerns with the DES. They refused to do a damn thing about it. In September 2006 I wrote the Washington Post about my concerns and they in turn launched a four month investigation that resulted in the story you and the nation found so disturbing. You should know your staff new about the Washington Post involvement back to at least October 2006 when I personally notified DoD that I had contacted the press due to their lack of action. Again they refused to take any action and DoD and the Army took a big hit that could have been easily avoided by doing what all leaders should do; take care of the service members, especially those who become disabled while serving this country.

It has been almost two years since the Walter Reed story broke and I find that not much has changed in the DoD culture. I have found the only way to get DoD and the Services to do the right thing is to go to the press and expose them. It is truly shameful that the only problems that get fixed are those that get the attention of the press. It is a lesson I have learned and relearned over the past 3 years. The inaction and shenanigans of your staff compels me to redouble my efforts to expose wounded warrior issues in the press so that they can be properly addressed. Of course, I would very much prefer for DoD do the right thing the first time on their own.

The PDBR issue is just the tip of the iceberg of issues where DoD continues to do the least possible for wounded warriors. I am standing by to brief you on other DES issues at your convenience.


V/R,

Michael Parker
LTC, USA (Retired)
[email protected]
 

wilsonle61

PEB Forum Regular Member
PEB Forum Veteran
Let me guess..... as of this date Mr. Gates nor his representatives have deigned to contact you huh?

Big surprise there.
 

TBObie

PEB Forum Regular Member
PEB Forum Veteran
Physical Disability Board of Review opened its doors today for business, you can find the info at the following link, a copy is copied below...hope this helps...OB

MHS - Physical Disability Board of Review (PDBR)


Physical Disability Board of Review
Service members who have been medically separated since September 11, 2001 will have the opportunity to have their disability ratings reviewed to ensure fairness and accuracy.

The new Physical Disability Board of Review (PDBR) will examine each applicant’s medical separation, compare DoD and VA ratings, and make a recommendation to the respective Service Secretary (or designee.) A disability rating cannot be lowered and any change to the rating is effective on the date of final decision by the Service Secretary.

To be eligible for PDBR review, a service member must have been medically separated between September 11, 2001 and December 31, 2009 with a combined disability rating of 20 percent or less, and not found eligible for retirement.

There are significant differences between this new PDBR review and a Board for Correction of Military (or Naval) Record (BCMR/BCNR) review. These differences are outlined here and are also in the instructions accompanying the application (form DD-294).

While the Air Force is the lead for the PDBR process, case tracking and reporting, a joint service board will conduct the evaluation and review of each case. Applicants will not be able to appear in person, but may include any statements, briefs, medical records or other supporting documents with their application. After the document review is completed and a final decision is made, each applicant will be notified of the decision and any further information regarding a change of rating.

A final version of the application (form DD-294) was approved on January 9, 2009 and is available at Forms Program Home Page (under "DoD Forms Inventory 0001-0499"). Applications are now being accepted.

Please refer to the FAQ document for more information about the Physical Disability Board of Review.

You may contact the PDBR intake unit at the following address:
SAF/MRBR
550 C Street West
Suite 41
Randolph AFB, Texas 78150-4743

Please keep in mind that this office cannot discuss the merits of your application. You may wish to contact your local veterans’ service organization for advice or guidance.

The DoD Instruction on the PDBR process is available here: http://www.dtic.mil/whs/directives/corres/pdf/604044p.pdf.
 

cvma544

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
At least it is up and running, however it still comes up way short of what is the right thing to do.
 

Crash

PEB Forum Regular Member
Jason,
Long time reader, first time posting.

I was medically discharged in 07/2002 with a 10% rating for an L4 compression fracture and L1 burst fracture from a parachute accident.

VA has me at 30% for the back with an additional 40% for "others" which are related to my back for a total of 60%. The "others" were not evaluated by the board at the time.

Even though I was found unfit for service I tried to stay in and transfer to a different career field. The board said no and sent me on my way.

Question - do you think I have a good shot at having this new board change my rating to 30%?
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
Crash,

Good to have you as a poster!

Based on what you said, I think it is difficult to say. The question turns on what effective date the VA assigned your rating and if your condition worsened after leaving military service. If you were rated with an effective date within 12 months of separation, I think you have a good chance (based on just that information, the actual underlying facts may change my opinion). That is, I think if you were rated soon after leaving the service, you have a good chance of ultimately succeeding, whether at the PDBR or with a judicial appeal.

I think it is still to early to judge how the PDBR will rule on cases. I try to be optimistic, but I think that the system still suffers from a big flaw- the officials sitting on the PDBR are new at their jobs. I have been a several PEB Formal hearings now where PDBR board members sat in as observers. On the one hand, this strikes me as a good thing, in that they are getting some training/exposure to the process. But it also gnaws at me that these are not experienced adjudicators with any particular legal training. They are senior officers, which speaks to their military experience, but it is not necessarily an indicator of the quality (good or bad) of the decisions that will come from the PDBR. Time will tell on that one.

All that said, I see no downside to applying for an upgrade to your rating. There really is nothing to lose.

If you appeal, I hope it goes well!
 

Crash

PEB Forum Regular Member
Jason,

Thank you for the quick reply. The VA assigned my rating literally 6 weeks after I got out - 30% back + 30% mental = 50%. Had another 10% tacked on earlier this year.

I am certainly going to apply for the new decision.
What sort of supporting documents should I submit?
Is the board going to want ALL of my records from the injury to now or just the records up until the boards original decision back in '02?
After looking at form DD-294 I think I can submit all records including from the VA.
thx again.
[email protected]
 

jackgately

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
I agree with Jason that it is too soon to tell how the new Board will function and have also had board members sitting in on my formal PEB hearings.

While I also agree that it would be good to have adjudicators with PEB experience sit on these panels, most DC area PEB members are in a a twighlight tour mode and homesteading in the local area. Thus, they usually retire after a tour at the PEB and are unavailable for reassignment.

However, I give new PDBR members credit for sitting in on formal hearings to get a feel for the system itself.

Good luck on your case!

v/r

Jack
 

Crash

PEB Forum Regular Member
Hi Jack,

Thank you for the tip.

I was rated 10% for Lumbar fractures, codes 5285+5299+5295 were listed on the side of my PEB.

However, the VA rated 30% 5 weeks later after being discharged.

Should I just send in the DoD form and see what happens or should I also prepare a brief and a legal document etc.?

Thank you. Any help is greatly appreciated.

Joshua Baskin
 

airbr762

PEB Forum Regular Member
Registered Member
well i guess i should start with i am a 11b1p i have been in for 6 years i have been hit with 1 ied no loc but daysed and knocked out 6 times from jumping my dictation was sent to dc but i am just worerd about what the army might give me i was diagnosed with post concussion syndrome ,sever migranse and daily tension headacks the thing is i wont at least 30% or tdrl becasue i planed on staying in because of the insorance my son is altsic does anyone have any knowlage oh this if so please help me out

ps sorry for my spelling but i am a grunt lol
 

albatross80

PEB Forum Regular Member
Hello all,
My Name is John
I went through the PEB process for the US NAVY in June of 2006. I received a 20% disability rating from the NAVY. 2 weeks later I received 80% from the VA. Some of the VA decisions were based on medical information that was not available at the time of my PEB. One Item of 50% alone. I know that if you add up all the individual ratings for each injury, I’m rated at 300% disabled.
I want to start the process to have my records reviewed. I have been reading a lot on this web page, but started to get a bit confused on what to fill out to get the process rolling. Also do I have to provide the records, (I have them) or do I have to wait till the board receives them from military records, say in a year or so.

Any help would be appreciated.
-john-
 

Jaxter

Member
Registered Member
All in all, from the posts on this board I can only conclude that the PDBR is nothing more than a cruel hoax giving veterans hope where there is none. The fact that not one success story has been posted here is most telling of the continuing contempt that DoD has for us.

Until the system is held up for public ridicule by the media on a national level nothing will change. The ONLY way that can happen is if we join together and work to bring these injustices before the public.

Anyone with me?
 

babyboots

PEB Forum Regular Member
I submitted my application for a review. I had 14.5 yrs in the Navy and placed on TDRL. At my first review, the doc found me unfit but the Navy found me fit. I requested a formal board and was given 10%. Yesterday, I got my results...they bumped mine up to 20%. Now I just have figure out what that means to me. Do I get severance pay for the extra 10% they just gave me or what?? Anyone have any ideas??

Thanks
Peggy :rolleyes:
 

babyboots

PEB Forum Regular Member
John,

You fill out the form and send in your VA final rating letter. They have a timeline to follow. They will request your board from the military board. Once they have everything they need they will send it to the board for review. They will notify you when they receive your application. They will notify you when they send it to the board and the board has six weeks. You can call to check on your application, they give you there phone number.

Hope this helps some.

Peg :cool:
 

lambda5555m

PEB Forum Regular Member
Hi All,

The system is probably stacked against us to begin with. I was a 40% disabled veteran before they sent me to Afghanistan for 9-months. I had two back surgeries and then they wonder why I had problems and it got worse after I got back. DUH!!! The do not have rocket scientists doing this stuff. Anyway they asked me why I went? Well, because I didn't know I had a choice other than go or go to JAIL? Geez, they should have told me it was optional???? Then they tell me that I probably shouldn't have been deployed, but only after I got back spending 9 months over there. The Army, even after it got worse, took the 40% and only gave me 10%. Then the VA said that they were going to go with what the Army said and they lowered my 40% to 10% too. I still got 60%, but they have my appeal and my other things that I found in my medical records like why the Army diagnosed me with osteoporosis in 1991 and the VA diagnosed me in 1994, but neither told me or treated me, so when I got back from Afghanistan I found it in my medical records and then had a bone density that came up as a -4.0, which is pretty severe, so make sure that you go back through and find everything. I am working on that to begin with. Needless to say, I have a TON of medical records from my primary care physicians, but can't find one that will aggregate all things together and rate them so I can go to the VA and the Army and get the right ratings and disability retirement. The VA and the Army have done a lot of "stupid" things that will eventually come out in my book, but I want my VA 100% Rating and my 75% Disability Retirement I should have gotten back in 2005. They will give it to me after I kick their butts, but it does take a lot of work to do and with all I have wrong with me now, takes longer than ever!

Good luck and keep us updated as to what is going on. There are things you can do to fight back if needed and I will answer what they are when I can.

Thanks!

Dave
 

as2ortiz

PEB Forum Regular Member
Hi guys,
I was medically discharge with severance pay back in September 22, 2004 with 20% for my back but not my legs from sciatica from the US Navy after 8 years of service. VA gave me 40% for my back and 40% for each leg for sciatica or peripheral neuropathy wich they said its on the same rating. 30% for my left shoulder, 20% for my left dominant hand surgery times 3, 30% for major depression, 0% for my right knee, 0% for scars, and 10% for IU for what the final its 100%. last year they made total and permanent. After getting out on September 2004 in January 2005 I got in a wheelchair due to loss of balance, leg weakness, excruciating pain on my legs, loss of sensitivity on both legs. EMG's and NCV's made it clear my condition on my legs its getting worst, plus now I got neuropathy on my arms too. It's like living in hell. I can't barely play with my daughter and that for me its killing me. No health plan for them either. I'm planning to do my paperwork for my PDBR but need a little guidance. How its possible for me to have a 100% from VA and only a 20% from the service, plus the social security. I got my 100% and the social security since the next day I got medically discharge from the service, which is September 23, 2004. Please help or advice me if you guys can. Thank you for this great forum.
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
as2ortiz,

Welcome! Sorry to hear about your disabilities and the lowball rating you got from the Navy.

Your question is complicated and it would be difficult to detail all of the issues you might raise. But essentially, you are going to argue that your condition was improperly rated in 2004. I would submit your rating decision letter and/or your C&P exam results.

It seems like you have a strong case for the 40% rating for your back. What I would consider is asking for an unfit finding for all of your VA rated conditions that interfered with your duty performance. You likely want to raise the issue of a 100% rating for unemployability.

One thing that makes your PDBR application "higher stakes" is that because you were separated on Sept. 22, 2004, your 6 years statute of limitations has passed for filing a lawsuit against the US Government. So, it may well be that the PDBR is your final venue for getting a proper result (there may be some novel arguments about the PDBR causing some sort of change for the trigger of the Statute of Limitations, but the statute generally runs from date of discharge when you have had a PEB before separation). So, it is important to present a strong case.

I hope all goes well and feel free to post any specific questions you might have. Good luck!
 

as2ortiz

PEB Forum Regular Member
Thank you for your fast response. So what you are telling me is to send my PDBR application letting them know that my back condition was rated incorrectly and ask for an unfit finding for all of my VA rated conditions that interfered with my duties, and raise the issue of the 100% unemployability since the day after the discharge. I will include my VA Award for my conditions backdated to September 23, 2004 day after the discharge in the 12 month period. I didn't know that I had a Statue of limitations to file a lawsuit against the US Government of 6 years. Can somebody help me build my case with the PDBR, I'm lost!!!! and thank you again.
 

Crash

PEB Forum Regular Member
Hi everyone, just wanted to let you know that I received my results from the PDBR. My separation was recharacterized as medical disability @ 30%. So yes, the PDBR unanomously agreed that my initial PEB rated me incorrectly. The entire process took a year and a half. I am to receive backpay minus my sevarance pay. I am 30% disabled from the Army and 60% disabled from the VA (30%+30%+10% = 60% VA math). If anyone can explain how that works it would be greatly appreciated.
Very Respectfully,
Joshua D. Baskin
 
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