Scope of the PDBR board

Cassdw70

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
Before applying, please note what the PDBR is looking for and what their scope is! (Located in detail at the bottom). This will help in your formulation of a claim and getting the most favorable outcome.

The board is limited in what it can look at. You MUST request that "not unfitting" conditions be considered in your contention or legally they cannot consider them, I have seen in my research where this has literally been the difference between 20% and 30%. They cannot look at conditions that are outside of their scope and ONLY what the condition was like at the time of discharge (up to 12 months post discharge, but only to the effect that it supports your unchanged condition at the time of separation). They will first look at each condition and determine whether that condition, if it were the only condition you had, would alone be unfitting. Your NARSUM should give you a good idea of what the board is considering as evidence, along with the physicals, profiles and notes of clinicians.

Including terms on your 294 like: "My condition is worse", "continues to deteriorate", "I also have another condition", "these things weren't looked at", etc. will not help and could, in fact, hurt. EX: If you left the military with a PEB of 20% and were never seen by the VA that's almost better than if you were seen by the VA and were rated lower (this happens quite frequently) if they used the same rating criteria, although I have seen it go both ways. Get your medical records and look at CFR 38 to see what they're looking for under each condition that the PEB rated. Prepare your contention in accordance with the wording in the Statute.

If your PEB was for one joint (knee, elbow, ankle, etc) and no other conditions, it's unlikely to hit the 30%. If it was 0% your chances of getting it raised to 10% are good, 20% has to be clearly documented limitation of use or range of motion/or arthritic, degenerative type conditions. The exception I've seen thus far is for a back (spine is broken into 3 categories for evaluation) that has severely limited range of motion or very specific other measures, such as observed spasms, abnormal gait, scoliosis or abnormal curvature or nerve involvement with radiculopathy . They're relying heavily on ROM vs. Painful motion per CFR 38. and specifically whether the PEB improperly coded your condition.

If you have any "not unfitting" conditions on your PEB or had several conditions subsumed under something else, if they rated your knees, ankles, etc. as bilateral and less that 10% each they'll be looking at whether they can unbundle them, first by checking if they were BOTH symptomatic, treated and would have been unfitting individually (seems to be random whether they do or don't unbundle them, though).

If you have a MH condition of ANY kind on your PEB apply to the PDRB!! They are specifically looking for incorrectly rated Mental Health conditions and ones that were found "not unfitting".

Here is the actual wording that is used on the board for scope:


SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

Don't do anything without researching!!! You only get ONE SHOT!! No appeals, their decision is final. Afterwards you'll still have the BCMR, but why push it. Get it as close to perfect as possible, it's going to be about 2 years before you get a decision, and you don't want to regret not having given everything you had to make it the best outcome!
 

Cassdw70

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
Curious about what your research has included.
I am going through every single decision that the board has made and keeping notes on what evidence was used and how they applied that evidence. I have a spreadsheet that I'm creating. The notes above are the observations thus far. I'm up to PD-2013-01344 and continuing on. It is a very subjective board, even though it's congressionally mandated not to be. You can certainly tell if the board is trying to keep the covered individual (CI) from getting their 30%. Mostly, they're finding reasons to NOT retire the applicants unless the evidence is extremely overwhelming that it's warranted (and even then, in a few cases, they seem to have found a loophole.)
 

Talynhawk

PEB Forum Regular Member
Registered Member
What you are doing is worthwhile and you may uncover systematic downgrading yet again, but you are up against a large machine. And your data will be skewed from the get-go. Here's why:

1) These people were discharged with a 0-20% rating initially. In some cases, this applied even when the VASRD was used in their PEB determination. So as long as the VASRD was applied correctly, there will be likely no change in rating.

2) It is the job of the board to correct ratings, yes, but it is also in the best interest of the board to save the DOD money. If we could all be retired based on our injuries, that would be a huge chunk of change. Some cases (to be clear probably even my own as recorded by the PEB) do not warrant full retirement benefits. Improvements have been made to the PDBR system over the years as it was found that they were still low-balling ratings. That is probably the reason for the long audit we all saw happening last year. This includes the years that you are currently compiling, so again, this will tilt your information to the negative.

3) You don't have the patient files in front of you to know if information is ignored or incorrectly applied. Likewise, you can not tell if information is taken into account this time that was ignored previously.

4) And probably the most important factor in all of this, the VASRD is flawed in and of itself. Trying to make something that is subjective such as pain or loss of functionality into an objective uniform rating system is ridiculous but the only feasible way the VA can see to give disability rewards. Add to this the fact that it is human doctors and rating specialists making the determination and you have more subjectivity. As an example, very few people can get a higher rating than 40% for back pain, but the back is one of the most important parts in any human movement so it would effect everything. I know the few times I have injured my back, I am absolutely useless. And I do not suffer anything approaching the chronic pain others do. To a reasonable person, being unable to move due to pain would constitute complete disability. To the VA, it constitutes a percentage.
 

Cassdw70

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
What you are doing is worthwhile and you may uncover systematic downgrading yet again, but you are up against a large machine. And your data will be skewed from the get-go. Here's why:

1) These people were discharged with a 0-20% rating initially. In some cases, this applied even when the VASRD was used in their PEB determination. So as long as the VASRD was applied correctly, there will be likely no change in rating.

2) It is the job of the board to correct ratings, yes, but it is also in the best interest of the board to save the DOD money. If we could all be retired based on our injuries, that would be a huge chunk of change. Some cases (to be clear probably even my own as recorded by the PEB) do not warrant full retirement benefits. Improvements have been made to the PDBR system over the years as it was found that they were still low-balling ratings. That is probably the reason for the long audit we all saw happening last year. This includes the years that you are currently compiling, so again, this will tilt your information to the negative.

3) You don't have the patient files in front of you to know if information is ignored or incorrectly applied. Likewise, you can not tell if information is taken into account this time that was ignored previously.

4) And probably the most important factor in all of this, the VASRD is flawed in and of itself. Trying to make something that is subjective such as pain or loss of functionality into an objective uniform rating system is ridiculous but the only feasible way the VA can see to give disability rewards. Add to this the fact that it is human doctors and rating specialists making the determination and you have more subjectivity. As an example, very few people can get a higher rating than 40% for back pain, but the back is one of the most important parts in any human movement so it would effect everything. I know the few times I have injured my back, I am absolutely useless. And I do not suffer anything approaching the chronic pain others do. To a reasonable person, being unable to move due to pain would constitute complete disability. To the VA, it constitutes a percentage.

While I appreciate your input and completely agree it's irrelevant to some. You are absolutely correct in all that you're saying, and yes it's showing that skew. The boards are obviously subjective, it's human nature, and they're definitely trying to save money by denying retirements, even when they are warranted. I also agree that the VAST MAJORITY of the claims that I'm looking at would have NEVER warranted retirement, which is also causing the board frustration, I'm sure. As you've mentioned about the audit, you can see definite periods of time (decisions in the CY2015 timeframe, especially) where the board members are just flat out pulling some BS out of their rear ends in their decision making. If a person has already filed and received a decision, the information may be interesting (if you're a statistics nerd, like me), but useless.

I'm gathering information for my own PDBR submittal, as I wait for my medical records to arrive. I'm sharing useful information with those that have yet to apply. Many people would have received higher ratings had they just known what criteria was being evaluated, and that's unfortunate that they've missed their one opportunity. In my specific case I had 5 unfitting conditions, I was not evaluated under the VASRD, and fell under the OLD VASRD, as my effective date of separation was January 2002 and the musculoskeletal ratings changed significantly that same year. My PEB threw 4 separately ratable unfitting conditions under one condition. They have to at least look at the unbundling of these conditions, per their scope, so I'm ensuring I have the right wording for each of those conditions added into my contentions, along with supporting documentation. Since my stellar NCOERs certainly don't support that I was unfit, and I've seen them use THAT against the service member, ignored commander's statements or used them against the service member, and applied the reasonable doubt context of the VASRD in the exact opposite way that it is intended! If this wasn't people's real lives it might be comical, but it really isn't, it's maddening.

With a 20% overall, I only need 10% to push me over, and that's the case with many others as well. These cases and those with MH conditions that were improperly coded or evaluated are the ones I've seen with the most favorable outcomes. There were have been multiple instances where a little more documentation, unbundling of conditions or a request for evaluation of all conditions would have indeed lead to a retirement decision, based on historical data.

Since I didn't know what the heck the Board was doing back in 2001, and I trusted the "advice" or "counsel" of the PEBLO (when in reality their goal was to make their job easier, not get the Service Members the deserving outcome). I didn't know what to fight and what to accept, just like many others. I was an E7 with 12 years, highly decorated and a person who memorized regulations. I didn't do due diligence, I'm going to assume that MOST of those people didn't either. Bad advice from a PEBLO, bad NARSUM, bad evaluations, improper wording and just being tired of being poked, prodded and examined for over 14 months and just being done with the whole nonsense lead to some big mistakes and a single bad decision that's cost me over $100K over the last 15 years. I personally won't make the same mistake this time.

It's always good to evaluate historical data to formulate a rebuttal (knowing what to contend is half of the battle), and it's what lawyers are paid good money to do. It's evident in the outcomes that those that took the extra time to formulate a case had a favorable outcome, even though the board is clearly trying not to retire any of these people.

My goal with sharing the information is that at least one other person will properly formulate a fully developed claim and get a more desirable outcome. It's also my desire for people to understand what their historical chances are and whether they want to apply based on those outcomes. EX: If I was 10% for Chronic LBP (which is one of the subsumed conditions that I do have) only, properly rated by VASRD at 10% or even 20%, with no other conditions on my PEB I honestly would not apply. The reason I would not apply is because the VASRD for 30% for LBP is very specific (as you stated) and if there isn't anything to support it, what would be the point of getting my hopes up just to go through the process of feeling like your medical records and character are being called into question once again.

If you know the VASRD when you file a claim with the VA and you know what your percentage of disability should be based on your symptoms (as articulated in the CFR 38), you won't neglect to mention something that you think is inconsequential, but ends in a denied or lowered claim that needs to be appealed.

My desire is to help.
 

Talynhawk

PEB Forum Regular Member
Registered Member
I was only speaking to the statistics, and not your intentions. My point I guess, is that the PDBR is such a crapshoot in relation to what they will and won't do, that it behooves everyone to apply. I definitely think you agree. And your real-talk towards expectations is valuable. Even if there is no change or only going from 0-10%. There is a chance the rating could go higher, and there is a chance for retirement no matter how miniscule that chance could be. Someone like me for instance that was never rated or denied by the VA can use that as ammunition in an appeal, NOD, or reopening. Though I might not get retirement, it could help me establish evidence for an earlier effective date. Its like the lottery. You can't win if you don't buy a ticket. But sure as hell don't spend the money before you get it.
 

Cassdw70

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
I was only speaking to the statistics, and not your intentions. My point I guess, is that the PDBR is such a crapshoot in relation to what they will and won't do, that it behooves everyone to apply. I definitely think you agree. And your real-talk towards expectations is valuable. Even if there is no change or only going from 0-10%. There is a chance the rating could go higher, and there is a chance for retirement no matter how miniscule that chance could be. Someone like me for instance that was never rated or denied by the VA can use that as ammunition in an appeal, NOD, or reopening. Though I might not get retirement, it could help me establish evidence for an earlier effective date. Its like the lottery. You can't win if you don't buy a ticket. But sure as hell don't spend the money before you get it.
Amen!! Good luck to you on yours!! There have been a lot of situations where the overall has been raised, and that's always good. I definitely think everyone should at least apply! It never hurts to have more ammunition!
 
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