Jason, the BCMR attempts to be uniform in its decisions. Problem is with logistics. The ABCMR has an average of 2 boards a week 52 weeks a year. They have a constantly changing list of around 65 board members. So rarely is there 2 boards with the exact same membership. People have different backgrounds and experiences and may view the same situation in a different manner. So are there differences in ABCMR recommendations? Yes. The Board's Director and the DASA both attempt to keep some uniformity in the Board's decisions. But care has to be taken so the impartiality of the Board is not compromised.
I think the problem is that people view the BCMR as sort of a high court where the board members are highly specialized and constant. Nothing is further from the truth. This Tuesday's board may be comprised by a GS-14 logistitian, a GS-13 resource management analyst, and a GS-15 information management supervisor. Very possibly none of them ever wore a uniform. They have never seen a disability case before.
The analysts preparing the cases are GS-12s, most of which are retired Sergeants Major, CW4s, or LTCs. As a rule, none of them ever dealt in disability issues while on active duty.
This is why the BCMRs have to be approached in an entirely different manner than one would approach a board dedicated to adjudicating disability issues.
Ed
Completely understand your points. However, I have some issues/points-
One of the biggest issues is with the substance of decisions. That is, while I don't think there is a requirement that the BCMR's respond to everything, they should respond to everything raised that is relevant. What I see, way too often, is that the BCMR decisions will either ignore completely or acknowledge an argument but not analyze/discuss. (This is a similar problem with the PEBs by the way). It makes it so much harder for anyone (the member, an attorney, or a reviewing court) to address a decision if it does not directly discuss an issue. That is, I would much rather prefer a decision to state, "Yes, you raised this point, however, we disagree because we find [we don't believe the evidence, we credit other evidence over this point, we think the law does not require this because X,YZ,]. Way too often, you get conclusory opinions. Along the lines of "we disagree because there was insufficient evidence to show probable error." The decisions, as far as I see, also do not adequately address injustices. They tend to gloss over this issue (at least from what I have seen). The main problem, I see is that the decisions are, by and large "arbitrary." That is, I have presented (and read about) many cases with amazingly similar facts but the decisions come out as a crap shoot.
You raise an issue that is huge, I think. A big problem I see is that BCMR boards often, instead of independently accepting or rejecting or even explicitly ruling one way or another on an issue, simply defer to someone else's decision. Now, in some cases, it is fair to say, "the original decision maker found X, and I see no basis to disagree." However, and this is a huge issue I see the courts grapple with, is whether the BCMR is deciding the case in the first instance (i.e., a de novo review) or if they are acting as an appellate authority. I have seen first hand where the BCMR does not clarify how they are viewing the case and thus, reviewing the case is much harder than it should be. Also, you raise another important issue- the lack of subject matter expertise. I have mixed feelings about this- that is, my sense is that the BCMRs (or any boards, really- especially PEBs) should not be substituting their judgments on the evidence, they should - in a really straight forward matter- state whether they accept or reject evidence and then rule on that evidence. What I see is that way too often, they "interpret" evidence and then inject their own views. This may seem somewhat hard to grasp what I am suggesting, but I have a concrete example that may help. Years ago, at the Board for Veterans Appeals (BVA), they used to have doctors sit on boards and offer their input into cases on medical matters. This was the way it was for years (and, if you can guess where I am going with this, at the PEB's it is currently the same way). Eventually, the Court of Appeals for Veterans Claims shot this practice down- the court stated that doctors should not be substituting their opinions for the medical opinions of examiners. They are supposed to be adjudicators/decision makers on the weight and value of evidence before it. If the evidence weighs one way or another, the BVA must rule based on that evidence, and not inject its own views into what the evidence means. If the evidence is not clear, the case must be returned for additional evidence that clears up the issue. Well, I think, way too often, the BCMRs do this (and the PEBs definitely do this)- the BCMRs either do this directly or they do it by relying on advisory opinions. This is bogus, in my view, as the opinion should not be making new evidence- it should only address the evidence currently in the case (though, still including evidence submitted by the applicant).
To a degree, though, I think that a huge problem with arbitrary results are in part (probably a large part) of the fact that BCMR decisions are not precedential. That is, if cases were binding or at least persuasive on other cases decided before, then there would be some sort of guide- almost a "Darwinian" survival of the fitness for "correct" decisions. As it stands now, the decisions do not relate to each other- and therefore, there is no process of decisions getting better. It is almost akin to a lack of an "after action review" or feedback loop for the quality of decisions. If each decision stands on its own, it makes it very difficult to have any sort of meaningful quality control built into the system.
Another aspect, though, that I would love to hear your input on is the role of the analysts. Do they make substantive recommendations? Do they prepare briefs or reports in some or all cases? Do the board members themselves personally read and review ALL of the evidence? I have my hunches and I think I know what should happen in this part (though, strictly speaking, this is a gray area for whether it legally matters- I think there are two issues here- what is the ultimate decisions is way more important and also, whether the BCMR decides directly or if a higher authority ultimately makes the decision on behalf of the Service Secretary).
so the system is corrupt and inconsistent, a medical crapshoot?
It is much more complicate than this. But, many decisions are arbitrary and capricious, in my opinion.
LOL, no it keeps them from being lazy and getting too comfortable like the PEBLO's and the people working at the PEB. They really don't care about soldiers, all they want to do is get paperwork done everyday, clock out at 5 p.m. and go home.
I wouldn't call it corrupt, incompetent yes, incomplete yes, broken HELL YES!
There are many aspects that are broken in the process. I would not say that everyone involved is corrupt/lazy/out to get servicemembers. My opinion, I don't believe that most folks wake up in the morning and say, "How can I screw someone today?". I know of many PEB board members, and many staff at the higher headquarters that are straight shooters. I won't/can't say who they are, but I rely on some of these folks to know that I can pick up the phone, ask a questions and get a good faith answer. The problem with many of the issues are that there is a general lack of accountability/quality control/feedback loop to correct problems.
A few examples- I raised for years that pain was compensable for joints. It eventually was accepted that I was right. However, all of the board members on my original cases where I raised the issue had moved on/PCS'd/retired before it was shown that my position was correct. This is a huge problem. If it takes 2-5 years to correct a bad decision and the feedback never gets back to the original adjudicator, then there is no opportunity to learn the "lesson learned." (Though, in this case, the lesson learned was promulgated in specific policy memos and DoDI's...the point is not that the message never gets to the decision-makers- its that they end up thinking what they are doing now is always right and the lag time makes them less inclined to see errors or ways to improve decisions).
Now to be sure there are many dirtbags/slugs/oxygen thieves that I have come across in the system. And there are a few rotten apples that I think fight tooth and nail to keep people from getting the right outcome. But, these are few and far between (don't get me wrong, though; a few of them have outsize impact and should be shown to a new career in anything but a position of responsibility). I know the frustration that people have with the system. But, it is an error to think that all involved with the system are lazy or corrupt. Some are, but most are good- and of those who are good, if they get issues wrong, they are convinced they are doing the right thing. In my view, it is really systemic errors and lack of leadership fixing relatively simple issues that is to blame (and attendant to this is the fact that the MTOE/TDA is broken- there is not a sufficiently powerful officer/UnderSecretary in charge who will exert their power to fix readily apparent problems; a huge issue is that so many decision-makers in the process can point to someone else as the "decider" or reason why things are AFU).
Okay, I wrote a ton on this issue. It is somewhat cathartic for me, too, to "vent" (I have just come off an incredible week, with travel to JBLM in Seattle, then to Washington DC for two FPEBs, an astounding win at one of the FPEBs, two briefs filed in Court of Claims, my first brief before Court of Appeals for the Federal Circuit accepted (which is no mean feat- the formal briefing process is complicated there and often first briefs are rejected), notice of several wins at the BCMR and in Court of Claims, and much work ahead to be done).
The system does "suck" in many ways. But, there are clear paths to success in fighting claims. It sure does not always work out the way it should. And it takes waaaaaay to long to resolve anyway. But, as someone smarter and tougher than me once said, "if it were easy, anyone could do it."