PHYSICAL EVALUATION BOARD REVIEW

Anyone have an opinion of the PEBR. Came out of the NDAA. Seems like a good idea.

`Sec. 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.
 
The statute seems designed to do a good thing. My concerns are that the statute, in not setting forth what is the scope of the review (is it a start over of the case from the beginning or is it a review of whether are not there were errors) and the standards to be used (the case is presumed to be correctly decided or no presumption) and what evidence will be allowed, leaves it up to DoD to decide many of these issues. So, whether this will be a meaningful review remains to be seen. I also wonder if this will then be used to block BCMR review unless you go to the review board first. If so, this may complicate many decisions as the general rule is that there is a six year statute of limitation in seeking review in Federal Court of Claims.

Basically, I am hopeful that this will be a good tool, but reserve judgment until I see how it is implemented.
 
I am hoping this is the one thing that will enable me to return to active duty. It seems that the presumtion of fitness clause for medical boards sometimes gets glazed over for expediance of seperating the soldier and not having to deal with whatever medical conditions they might have.
 
All; below is from the Warrior Handbook at Walter Reed that is given out to soldiers entering their WTU.

[FONT=&quot]PHYSICAL DISABILITY EVALUATION SYSTEM (PDES)/DES PILOT:[/FONT]
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[FONT=&quot][/FONT]*NOTE: Upon arrival, each Warrior in Transition should be issued the
[FONT=&quot][/FONT]Physical Disability Evaluation System Handheld Guide.
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[FONT=&quot][/FONT]The medical board process is officially called the PDES, Physical Disability Evaluation System. A Warrior is directed to the PDES if they have a medical condition that fails to meet retention standards IAW AR 40-501, Chapter 3. The determination of failing to meet medical retention standards is made by a physician.
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[FONT=&quot][/FONT]Questions regarding the Medical Board System should be directed to your chain of command, case manager, or PEBLO. You should receive a pocket-size handbook on the PDES during in-processing.
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[FONT=&quot][/FONT]A. Once a physician determines a Warrior has reached optimal medical care but still fails to meet retentions standards, they will refer the Warrior into the DES. This can be done through a referral form and/or a permanent profile with a “3” or “4” designator in the PULHES portion. This designation identifies the Warrior with significant limitations in their physical ability in that particular section. The referral or permanent profile is then forwarded to the PEBLO (Physical Evaluation Board Liaison Officer) who will contact the Warrior telephonically and arrange an appointment to start the Medical Evaluation Board MEB) process. Warriors are required to attend a mandatory process briefing.
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[FONT=&quot][/FONT]B. On November 26, 2007 the Army revamped its physical disability evaluation program at Walter Reed Army Medical Center, streamlining the process Warriors must follow to determine their fitness for service or eligibility for military and veterans’ benefits. Following referral into the DES, DVA (Department of Veterans Affairs) doctors will conduct the medical examination using VA physical worksheets and templates in either a DOD or DVA facility. The Warrior will also be required to meet with a DVA Military Services Coordinator (MSC) for counseling and to fill out a VA/DOD Joint Disability Evaluation Board Claim (VA Form 21-0819). Warriors are encouraged to seek legal counsel at anytime during the DES process.
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[FONT=&quot][/FONT]C. Once the physical is completed, results will be forwarded to the MEB. The MEB will review DVA physical and prepare a NARSUM (narrative summary) and a DA Form 3947 (Medical Evaluation Board Proceedings). The MEB can result in the following: (1) If the Warrior meets retentions standards within the limits of his/her profile, they will be returned to duty; (2) If the Warrior does not meet retentions standards, the case will be referred to the Physical Evaluation Board (PEB) for further disposition. A Warrior will be permitted to review the NARSUM and any addenda regarding the medical condition that has been prepared for referral to the PEB. When the MEB is complete, the Warrior will have the opportunity to review its findings and recommendations. If the Warrior disagrees with the MEB or feels there is information missing or not adequately addressed, he/she will have three working days to submit a rebuttal. A Warrior can request legal counsel to assist in preparing their rebuttal. Warriors have 72 hours after notification of MEB results to rebut the board decision. When making a rebuttal to the MEB findings, the Warrior has several options: (1) CONCUR (AGREE) with the MEB’s findings and recommendations. In this case the MEB is then forwarded to the PEB for adjudication; (2) NONCONCUR (DISAGREE) with the MEB’s findings and recommendations. The Warrior may present a written appeal or any new evidence concerning the case to the informal board through the PEBLO. If a Warrior does not respond to the MEB in the prescribed time, he or she is presumed to agree with the findings. Warriors who disagree with MEB’s findings and recommendations will have their case reviewed by the Deputy Chief of Clinical Services (DCCS). The DCCS may take one of the following actions: (1) Original findings and recommendations are confirmed; (2) The report of the board is returned for reconsideration; (3) The report of the board is forwarded to the PEB with the Warrior’s comments attached as enclosures. (See paragraph 7-12, AR 40-400). In all cases, the actions of the hospital Deputy Commander for Clinical Services (DCCS) will be explained to the Warrior in block 30 of the DA 3947 and the appeal. All related documents should be made a permanent part of the MEB.
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[FONT=&quot][/FONT]D. Under the new Pilot DES, the PEB at Walter Reed Army Medical Center will use the DVA physical exam worksheets, the NARSUM and DA Form 3947, along with other performance and administrative documentation to determine a Warrior’s fitness or unfitness to continue military service. If the PEB finds the Warrior FIT because his/her medical condition does not affect their performance; does not create a risk for the Soldier; or place an undue burden on the unit, the Warrior will be returned to duty within the limits of their profile. If the PEB finds the Warrior UNFIT to continue in the Army, and finds the Warrior is eligible for disability benefits, the PEB will inform the Soldier of their findings through their PEBLO, and request a disability rating from the DVA Rating Board. The DVA Rating Board will evaluate the Warrior’s referred and claimed conditions and provide a rating percentage (with rationale) to the PEB within 15 calendar days. Once the PEB receives the DVA Rating Boards rating decision, the PEB will apply DVA’s rating(s) to unfitting conditions, and recommend a final disposition. Final dispositions include: if found fit, the PEB will recommend the Warrior be returned to duty. If found UNFIT, the PEB may recommend one of the following if eligible for disability benefits: Separate with Severance Pay (SWSP); Permanent Disability Retirement (PDR); or that the Warrior be placed on the Temporary Disability Retirement List (TDRL). If found UNFIT, but NOT eligible to receive disability benefits, the PEB will recommend the Warrior be Separated without Benefits (SWOB).
 
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