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SERVICE AS SOLDIERS' COUNSEL: ADVOCACY BEFORE
THE PHYSICAL EVALUATION BOARD
This material prepared by Dennis E. Brower
and LTC Arthur Reynolds, JA, USAR (April 99)
I. REFERENCES:
· The Department of Veterans Affairs Schedule for Rating
Disabilities
(the "VASRD")-CFR Title 38, Part 4. (http://www.va.gov/regs/tle38pt4.htm)
· AR 635-40, Physical Evaluation
for Retention, Retirement or Separation. (http://books.army.mil/cgi-bin/bookmgr/shelves)
(This site can be used for all Army
Regulations)
· AR 40-3, Medical, Dental and Veterinary Care
· AR 40-501, Standards of Medical Fitness
· AR 600-60, Physical Performance Evaluation System
· AR 608-9, The Survivor Benefit Plan (SBP)
· AR 608-25, Retirement Services Program
· DOD Dir. 1332.18, Separation or Retirement for Physical
Disability (4 Nov 96)
· (http://web7.whs.osd.mil/text/d133218p.txt)
· DOD Inst. 1332.38, Physical Disability Evaluation (14 Nov 96) (http://web7.whs.osd.mil/text/i133238p.txt)
· DOD Inst. 1332.39, Application of the Veterans Administration
Schedule for Rating Disabilities (14 Nov 96) (http://web7.whs.osd.mil/text/i133239p.txt)
· Title 10, United States Code, Chapter 61, Retirement or
Separation for Physical Disability
· DA Pam 360-506, Disability Separation
· Title 38, United States Code
· Selected Medical References: Most recent Merck Manual; DSM IV (Diagnostic
& Statistical Manual in Psychiatry, IV ed.); Most recent Physicians
Desk Reference; and Taber's Medical Dictionary (most recent
edition)
· Most recent edition of Department of Veterans Affairs Guide to
Benefits & Services
· The Army Physical Disability Evaluation System Deskbook (Army
LAAWS CD-ROM, September 1998)
· Military Disability in a Nutshell, Military Law Review
Vol. 109, @ p. 149 (1985)
II. INTRODUCTION: Some "basics" about the disability
system.
A. Important financial and career decisions are made concerning the
soldier.
B. Officially a "non adversarial" fact-finding forum, but
skilled representation is nonetheless
essential.
C. The decision-makers are usually combat arms officers and
physicians who are not bound by formal rules of evidence.
D. Formal boards in the disability evaluation system are fairly
brief and the system is fast-paced; the soldiers' counsel (SC) must
master the client's particular situation, the applicable rules and
medical data, and create a strategy in relatively short order.
E. The soldier's counsel, whether a JA or counsel-of choice,
establishes an attorney-client relationship with the soldier, and
represents the interests of the soldier; not the command's.
III. AN OVERVIEW OF THE U.S. ARMY DISABILITY SYSTEM
A. Military Occupational Specialty (MOS) Reclassification and the
MOS Medical Retention Board (MMRB)
1. The PEB can not reclassify a soldier to a new MOS. The PEB is
limited to finding a soldier fit or unfit within their primary MOS.
If unfit, a soldier is separated, with or without benefits. If fit,
the soldier returns to their unit in the same MOS.
2. Soldiers desiring to reclassify their MOS can appear before an
MMRB. These boards, as discussed in AR 600-60, are conducted at the
installation level. MMRB referral to MEB/PEB can occur even if the
soldier meets medical retention standards.
3. IAW para 2-1d, AR 600-60, a "P3" profile results in
referral to the MMRB.
B. The Medical Evaluation Board (AR 635-40,
para. 4-10; AR 40-501, Chap. 3; AR 40-3, Chap. 7 & 8; and, DODI
1332.38, Part 1, para B).
1. Unlike the PEB proceedings, for which administrative due process
is afforded, MEBs are conducted with minimal JA involvement.
2. MEBs are convened to ascertain a soldier's medical status and
duty limitations within a soldier's primary MOS.
3. If the soldier's commander or physician believes the soldier is
unable to perform in his/her MOS, a referral to a MEB is indicated.
(AR 635-40, para. 4-7; 4-8) The
MEB determines whether the soldier meets the medical retention
standards specified in AR 40-501, Chapter 3. The MEB is not
authorized to opine on the ultimate question of fitness.
4. The MEB examines the soldier and documents the soldier's
conditions and limitations, producing the Narrative Summary (or
NARSUM), described in AR 635-40,
para. 4-11 as "the heart of the disability evaluation
system." (See DODI 1332.38, Encl 4, Attach 1 – minimum
Requirements for MEB).
5. The MEB will refer soldiers to a PEB when medical
retention standards are not met. (AR 635-40,
para. 4-13) The DA Form 3947 will reflect the MEB proceedings and
diagnoses. If not referred to a MEB by a MMRB, soldiers found to
meet retention standards within their MOS are returned to their
units retaining any profile.
6. Soldiers must be provided an opportunity to review and comment on
their MEB before final action occurs by the approval authority (Chap
7, AR 40-3).
7. This stage of the disability evaluation process is critical,
albeit the key counselor at this stage is most likely the
installation or MTF Physical Evaluation Board Liaison Officer (PEBLO).
The decision of fitness by the PEB is subjective and variable,
despite the regulatory guidance available, and the documentation of
the soldier's medical condition and his ability to perform his MOS
duties are essential. The PEBLO may or may not have been effective
in documenting this status. The soldiers' counsel normally does not
begin representation until well into the documentary development of
the soldier's case and must often rely upon the PEBLO to assist in
any further gathering of information, or, more likely, advocate
directly with the soldier's physician and command. See Appendix C
of AR 635-40 (Counseling) for
considerations in "building a record" for the PEB
proceeding.
C. The Physical Evaluation Boards (AR 635-40,
para. 4-17).
1. The PEBs are the administrative boards which determine fitness or
unfitness; that is, whether a soldier's disability, which fails
retention standards, also prevents adequate performance in a
soldier's primary duties.
2. If the PEB determines that a soldier is no longer fit for duty,
and further determines that the soldier is eligible for disability
benefits, the PEB rates the severity and extent of the disability (para.
4-19, AR 635-40).
3. The PEB is usually composed of at least two field grade officers
and a physician (one or more of these may be a GS employee). If a
reserve components soldier is being evaluated, the PEB must contain
a reserve officer. The non-physician board members normally are from
the combat arms, with the president of the board a colonel.
4. A full-time JA is assigned to represent soldiers
at each PEB as soldiers' counsel.
D. The U.S. Army Physical Disability Agency (USAPDA) manages and
provides appellate review for the Army's disability system.
1. Headquarters (effective May, 1999) is at Walter Reed Army Medical
Center. There is an Agency Legal Advisor (ALA) with whom JA
officers, and soldiers' counsel can consult and confer. Although the
ALA cannot be an advocate for a soldier, he can provide valuable
information to those that have that responsibility.
2. The USAPDA oversees the Army's three currently operating Physical
Evaluation Boards (P.E.B.). These are located at Walter Reed Army
Medical Center, Washington, D.C.; Fort Sam Houston, San Antonio,
Texas; and, Fort Lewis, Washington.
3. The USAPDA has both general supervisory and specific, plenary
responsibilities under AR 635-40.
Para. 4-22 delineates the scope of review by the USAPDA. The Agency
serves as the primary appellate avenue under AR 635-40.
The Army Council of Review Boards (the ACRB), through the Army
Physical Disability Appeal Board and the Army Physical Disability
Rating Review Board, also provides appellate review to cases
adjudicated before a PEB.
IV. THE ADJUDICATION PROCESS & THE
"TYPICAL CASE"
A. The PEBLO
1. Critical link between the Army disability
evaluation system and the soldier.
2. Assembles or facilitates assembly of key disability adjudication
file materials, and counsels soldiers regarding their options and
rights.
3. The SC/JA should become very familiar with the PEBLO at their
installation and their strengths and weaknesses.
4. AR 635-40 discusses the role of
the PEBLO.
B. The Informal Board Phase of the Physical Evaluation Board.
1. The principle determination of the PEB is
whether the soldier is fit to perform the duties of the
soldier's office, grade, rank and, within reasonable
expectations, requirements of the primary MOS (AR 635-40,
para. 4-19d). This determination must be made individually for
each diagnosis that does not meet medical retention standards
IAW AR 40-501, Chapter 3.
2. A case referred to a PEB for any reason is first evaluated under
so-called
informal board procedures (AR 635-30, para.
4-20). Soldiers are not
entitled to any legal representation at this point, as the
informal board is
only a document review. Consequently, it is only at the formal
hearing
stage that the JA/SC will be representing dissenting soldier's
who, by
definition, are dissatisfied with the informal PEB findings
and
recommendations. While the process is not adversarial, from
the soldier's perspective, the Army has taken a position
financially or career wise at odds and adverse to that
desired, realistically or not, by the soldier.
3. The PEB, without input from the soldier or
counsel, makes its decision
based strictly on the soldier's medical and
personnel records. The soldier does not appear before the
informal board. The informal board will review a variety of
documents such as the line of duty determination, NARSUM,
profiles, medical history (essential to ascertain injuries
which occurred or existed prior to entering the service, the
so-called "EPTS" illnesses, which are not
compensable by the Army) and any other relevant material
(for example, the unit commander's statement). Voting need
not be unanimous to dispose of a case.
4. If the results of the informal board satisfy the soldier, the
case is usually
at an end. The DA Form 199 reflects the
informal board determination. NOTE: While not very
frequently exercised, the USAPDA retains inherent
supervisory authority to review and revise, or refer to
formal board proceedings, those informal determinations it
deems suitable for such attention. In addition, the
President of the PEB may reconsider an informal decision or
direct a formal board sua sponte, as long as the
soldier's case remains at the PEB level. However, a
directed formal board does not compel a soldier's appearance
or testimony.
5. If the results of the informal board do not
satisfy the soldier, the soldier
may nonconcur and offer no rebuttal, may nonconcur with a
written
rebuttal (and waive a formal board hearing and the right to
appear) or
nonconcur and request a formal board. (AR 635-40,
para. 4-20c) Note,
however, that if a soldier is found to be fit, there is no
right to demand a formal board (DODI 1332.38, Part 1C.1.a(2)).
6. The informal board process may occur in multiple
stages, that is, a rebuttal
can result in a change in rating which, in turn, can lead to further
rebuttal
or a request for a formal board.
C. The Formal Board (AR 635-40,
para. 4-21).
1. Once a soldier is scheduled for a formal hearing, whether by
election or by direction, legal counsel is then assigned to the
case. While prior access is permitted, and authorized (AR 27-3,
paras 3-6b(4) and 3-6g(4)(q)) this is usually the first opportunity
the SC will have to confront the client and the file. However,
sometimes soldiers will wish to consult with an attorney prior to
electing a formal board. This is an important counseling opportunity
as some soldiers are not comfortable with only input from the PEBLO.
If requested the SC should advise soldiers at this stage, and within
10 days of notification of the informal, in regard to their rights
and meaning of the informal findings. Since no attorney has been
assigned to represent the soldier before his/her election there is
not a full case file prepared yet for the attorney's use. This
limits the SC's ability to provide definitive advice and soldiers
should be thus cautioned. Of special note, a formal board can reduce
the percentage rating of the informal board or find a soldier to be
fit when an informal board found him unfit. Each PEB hearing is a de
novo review of the case.
2. Some soldiers will elect to retain civilian
counsel, at their own expense. In this event, the SC will serve as
co-counsel, and shall remain so unless released by the soldier in
writing. Soldiers may also elect to be represented by non-attorney
advocates of the Disabled American Veterans (the DAV). The DAV by
its charter does not utilize military co-counsel. AR 635-40,
para. 4-21h specifically addresses election of counsel and their
duties. A soldier may waive appearing at the formal board, if
counsel is present in lieu, and also can argue the case without
counsel.
3. At this juncture, the client may come to you not only displeased,
injured, and confused, but unclear as to what realistically and
legally permissible can be done. The soldier may have no vision
as to what a good outcome or "victory" should include. The
PEBLO may not have been very helpful to the soldier in explaining
the process and the soldier may have had problems with the treating
physician and chain of command. Some clients may be unable to
articulate their concerns, let alone medical ramifications of their
predicament. Some soldiers steadfastly want to remain in the Army
while others have disciplinary issues and various conflicts with
only collateral medical issues. At any rate, the SC often confronts
a somewhat anxious and conflicted client with only limited resources
to assist the case.
4. After the soldier requests, and is granted, a formal hearing he
will be notified by the PEB in writing as to the date and location.
He will also be notified to contact his designated attorney; if SC,
the case file and copy of letter is provided by the PEB. If a JA at
another installation, letter and case file provided by PEBLO.
5. Logistically, the SC assigned at a PEB location will be in a
position to review the file weeks ahead of the hearing, although the
initial ( and usually only ) face-to-face client meeting will
normally occur one day prior to the hearing. This presupposes the
client is coming TDY to the PEB. "Preparation of the
client", such as it is, occurs on a tight schedule.
Transportation expenses to the formal boards for soldiers are paid
by their respective units, albeit additional expenses for other
travel, e.g., to a medical consultant, need not be paid by the unit.
For the JA assigned at a non-PEB installation, the attorney must
rely on the PEBLO to provide the soldier's complete file.
6. With certain limitations, the SC can build a case without the
constraints of conventional rules of evidence as long as
information/data presented is relevant and material (para. 4-21m).
Additional medical records, command input, performance evaluations,
and witness statements are relevant and often useful. NOTE:
Undisguised efforts to "shop" for additional favorable
medical testimony, after the informal finding, which does not
specifically and cogently address the soldier's theory of disability
neither enhances the case nor your credibility, and may have a
contrary impact. Board members, particularly the physician members,
and the physicians at USAPDA, often are highly experienced and such
transparently self-serving efforts may be counterproductive and can
dilute the effectiveness of the remainder of your case.
7. Scrutinize the case file, particularly the DA Form 199 from the
informal (or from prior formals) and the NARSUM. Attempt to
ascertain the basis of the informal board's rating decision.
Remember, the formal board members are usually identical to the
informal board membership.
8. At Block 8 of the Form 199 the disability which is unfitting, if
any, will be described, along with the VASRD code, if applicable.
The importance of the SC's grasp of the VASRD ( as amended by the
Army through AR 635-40, Appendix B
and DOD Instruction 1332.39 ) can not be overstated. The PEB uses
the VASRD as the basis for its disability ratings and, thus, the
level of compensation which may apply.
9. Block 9 of Form 199 addresses the disability rating and
disposition. Soldiers found fit are returned to duty. Persons found
unfit for reasons unrelated to their military service are not rated
(compensated) and are separated without Army disability benefits,
although the soldier may be eligible for VA benefits later. Soldiers
rated below 30% (to include 0%) are separated with severance pay.
Ratings at 30% or above result in either temporary ("TDRL",
Temporary Disability Retired List) or permanent medical retirement.
Soldiers who are retirement eligible may be placed on the TDRL even
if rated below 30%.
a. The financial stakes can be significant, either in terms of
direct lump-sum or monthly compensation and/or the potential of
non-taxation of otherwise taxable military retirement pay.
b. In addition, ratings by the Army can impact the
nature and extent of benefits payable through the Department of
Veterans Affairs and the various state governments (e.g. property
tax abatements for disabled veterans).
c. The decision-making processes of the Army and that of the VA
employ different criteria; e.g., the VA might very well rate someone
at a much higher total of disability. This is often the case as the
VA rates all impairments while the Army can only rate unfitting
impairments. Comparing VA and DA ratings is usually not helpful
(note: the SC normally will not see VA ratings as the soldier has to
be out of the service to be VA rated).
10. The PEB first must ascertain whether the soldier can perform
adequately in the soldier's grade, rank and MOS. Note that the MEB
determined only that the soldier fell below medical retention
standards as outlined in AR 40-501, Chapter 3. Failing to meet
retention standards does not equate to unfitness for duty in one's
MOS. Also, the mere presence of an impairment does not, of itself,
justify a finding of unfitness (para. 3-1, AR 635-40).
The PEB at this juncture will rely on performance data( e.g. OER,
EER, commander's letters ), not medical data alone, to determine MOS
duty potential. The MEB results (DA Form 3947) coupled with the
soldier's desires and evidence of duty performance will be central
in this assessment of fitness. A restrictive profile, or any
profile, is not incompatible with a finding of fitness. Thus, an
impaired soldier may still be found fit to perform in one's primary
MOS. Throughout this process, and particularly once the board
determines the soldier is unfit, medical records become salient.
11. After a soldier is found unfit his records are reviewed to
determine the amount, if any, of his disability benefits.
a. If the PEB finds that a soldier is unfit, and the soldier is
further eligible for disability benefits, the PEB rates the severity
of the injuries or illness using the Veterans Administration
Schedule for Rating Disabilities (the VASRD), as modified by the
Army and DODI, with ratings ranging from zero to one hundred percent
disabled. The VASRD employs objective medical criteria to rate
hundreds of disabilities. AR635-40, para. 4-19i.
b. Soldiers can be separated without benefits if found to be unfit
for reasons unrelated to military service which are not permanently
aggravated by military service. The PEB will make a determination of
"existed prior to service" (EPTS) based upon AR 635-40,
paras. 3-2, 3-3, and 4-19, and DODI 1332.38, Part 4. In addition,
separation without benefits is indicated for unfitting impairments
sustained due to misconduct, and adverse line of duty
determinations.
c. For diseases manifesting prior to 23 Sep 96, a short-tour
reservist, not on active duty for over 30 days, may also be denied
benefits for injuries which are not proximately caused by military
service, even if a particular impairment manifests itself or is
discovered while on active duty. However, after 23 Sep 96,
impairments of short-term reserve soldiers are compensable if found
to be in Line of Duty. This is a different standard than
"proximate causation" and potentially more favorable to
the RC soldiers.
12. The Army only rates (compensates) for those conditions which are
unfitting for the soldier. Thus, a soldier may have multiple
problems and diagnoses, yet only is rated for those conditions which
render the soldier unfit, based upon the MOS. The board will either
rate the condition by exact diagnosis, if available in the VASRD, or
by an "analogous rating" if the exact diagnosis is not in
the VASRD.
13. Not unexpectedly, the SC may represent soldiers who agree they
are unfit, but who desire a greater rating than provided by the
informal board. It is not uncommon for the soldier to seek
evaluation from additional Army doctors who provide the PEB with a
MEB "addenda." These addenda may supplement the initial
MEB data with more recent, and presumably more accurate, medical
status data. The objective should be to bolster the soldier's claim
that a more generous VASRD rating is based upon competent and
objective current medical evidence, preferably from an Army doctor.
It should be noted that such "addenda" are not an official
part of the MEB unless reviewed and approved by the MEB appointing
authority just as in the original MEB process. Although it is not
required to have the additional medical information verified or
attached to the MEB in this manner, unsupported opinion or data may
be given lesser weight by the board.
D. The Hearing.
1. AR 635-40, para. 4-21j. through
r. discusses procedural and evidentiary aspects of the formal board.
2. The hearing is the soldier's "day in court". As such it
is coupled with significant economic and psychological overlays. No
matter how weak the SC may perceive the case to be (even after
dutifully advising the client of this fact), the hearing and the
soldier's needs demand serious attention and adequate preparation.
Remember that the Board may be repeatedly exposed to your advocacy
skills, or lack of them; the prudent JA appears prepared for all the
hearings. The relative informality of administrative boards should
not obscure the high stakes for the soldier, nor the need to master
the facts and orchestrate a desired result.
3. The hearing is intended to be non-adversarial. It is a
fact-finding board. Unlike boards constituted under AR 15-6 (Boards
of Investigation), for example, there is no counsel for the
government present. The usual participants, apart from an observer
from time to time, are the board members (i.e. President, PMO,
doctor), the client and the soldier's attorney(s), and witnesses.
a. The PEB does not have subpoena powers per se; the consent of the
witness to appear is required normally. However, should the PEB
decide that a soldier is an essential witness it becomes the
military's responsibility to produce the witness.
b. Witnesses can be called at any point in the proceeding.
c. If the witness is on active duty, the soldier's unit may fund
their travel to the board. However, since it is rarely shown that
the witness' presence is required at the board location, most
testimony is accomplished by statements or by phone.
d. Do not procure transparently useless medical evidence as an
addenda or last minute submission to the board; it can be
counterproductive.
e. The board should have the soldier's complete file before it,
including all medical records, portions of the personnel file, chain
of command statements, prior PEB and MEB results and the like, all
of which will be used by the PEB in its determinations. It is often
wise to check which documents the board has before it.
4. Soldiers will be in uniform, preferably Class "A's",
and observe military courtesies. Request a waiver from the Board
President if a client needs to be in civilian clothing, e.g., due to
special injuries. This will have to be justified.
5. The actual hearing begins with a script read by the PMO (Appendix
IV). This script reviews administrative data, introduces the board
members, and addresses the soldier's rights under the Privacy Act
and the right to testify. DA Form 5891-R, contained in AR 635-40,
addresses the soldier's rights and serves as your guide.
6. Most boards are completed within one hour. You must allocate your
time effectively. This is particularly true when the P.E.B.'s docket
is congested and/or complex cases are to be heard.
7. Following the scripted portion (see attached "
boilerplate"), the SC presents the soldier's "case-in-
chief." The SC should articulate the client's precise objective
coupled with specific medical or command data which supports your
theory of the case. Lengthy oratory is not productive, and not
welcomed. Remember, this is de novo so even if the soldier agreed
with the informal finding on the issue of fitness for duty the SC
will have to present evidence towards this issue prior to arguing
for a disability percent change.
8. Both sworn and unsworn testimony can be given although, as a
practical matter, only sworn testimony carries real weight with the
board. The board will only examine soldiers who are under oath. AR 635-40,
para. 4-21e.(1)(B). The SC/JA will guide the client through the
direct examination attempting to elicit key supporting facts for the
record. Note: The board proceedings are audiotaped and/or
videotaped. There is no stenographic record made.
9. The scope of examination by Board members of either the soldier
or attorney is virtually unlimited; it includes anything relevant
and material, even if not brought forth on direct. There is no set
format. Questions can and do address both medical and non-medical
aspects of the soldier's situation. The SC can employ leading
questions. Given that many clients will be nervous and/or
inarticulate, the SC may have to fully explore the strengths of the
case, as the Board is under no obligation to protect the record.
10. Witnesses need to be handled in the style and manner most
appropriate to the circumstances. The attorney may employ both
leading and non-directive questioning. The board has the same broad
latitude to examine witnesses. The prudent SC will fully appreciate
what the witness will testify to, how it supports the theory of the
case and possible areas of impeachment/questioning from the board.
11. Following questioning by board members and the soldier's
representative, the soldier will have a last opportunity to address
the board. The hearing can generate intense emotions for the soldier
and it is expected the soldier, not the representative, will do most
of the talking.
12. There is no "one best way" to either advise a soldier
or present a case. The definition of fitness is subjective, and PEBs
have a certain amount of latitude in how they determine the
appropriate VASRD rating. The point is for the SC to be flexible,
personable, credible, prepared, and in tune with the chemistry of
the particular board.
13. After final presentation the board is closed for deliberation.
The board's deliberations are closed and unrecorded. After findings
are reached, the board is reopened and the findings and
recommendations of the board will be announced. As with the informal
PEB, the decision need not be unanimous. If a member dissents, a
minority report can be prepared. However, such a report is optional
for the dissenter. The board will conclude the proceeding by
informing the soldier of appellate and rebuttal rights. A DA Form
199 is then given to the soldier. (The last sequence may be slightly
different for boards conducted by video-teleconference technology).
The soldier thus departs the PEB offices with full knowledge of the
board's findings. Note that the disability determination/award is
not final until approved by the USAPDA. The soldier should be
cautioned about the interim nature of any PEB decision.
14. After the formal board, the soldier has ten days within which to
submit a rebuttal, unless more time is granted by the board
President in writing. A soldier may non-concur with the P.E.B. with
or without furnishing additional data to the board. The SC remains
responsible to assist the soldier with appellate avenues. If the
rationale on the DA Form 199 appears to be insufficient, the SC
should attempt to obtain the additional information about the PEB's
rationale behind its decision. While not obligated to do so, the
board members can perhaps better explain how the rating was
determined.
V. POST-HEARING/APPELLATE STAGES
A. At each stage of the disability process, the soldier can appeal
the decisions made in the case. NOTE: Strategically, this may be
an unwise election for the soldier. The SC should advise the client
that, for example, PDA reviews of boards may result, unlike UCMJ
proceedings, in decisions adverse to the client!
B. Soldiers dissatisfied with the decisions of a formal PEB can
submit a rebuttal to the PEB within the 10 day period. If that is
denied the case is automatically reviewed by the USAPDA. There is no
need to file an additional appeal to the USAPDA under these
circumstances unless new evidence or argument is to be used. The
soldier or JA/SC can appeal in writing to the USAPDA at any time
until the case has completed its review process and is forwarded for
final administrative processing. The USAPDA may also review cases
sua sponte and by regulation must review certain types of cases
(e.g. physician and general officer claimants). (AR 635-40,
para.4-21t, 4-22).
1. The USAPDA can revise the finding of a PEB by reducing or
increasing a rating (AR 635-40,
para. 4-22e.).
2. If revised, the soldier can appeal to the Army
Physical Disability Appeal Board (the APDAB) located in Falls
Church, Virginia (AR 635-40, paras.
4-22f and 4-25).
3. The Army Disability Rating Review Board (ADRRB) is also available
to the soldier upon separation up to a five year post-discharge
period (AR 635-40, para. 4-26).
4. The soldier may also petition the Army Board for Correction of
Military Records (ABCMR) for correction of his military records (AR 635-40,
para. 2-12).
VI. RESERVE COMPONENTS ISSUES.
A. DODI, 1332.38, Part 4, and Chapter 8, AR 635-40,
specifically addresses the special rules for RC personnel who are
processed within the Army disability system for duty related
impairments. The system may be the same, but rules concerning
eligibility for compensation are different for reservists and
National Guard personnel on active duty orders of thirty days or
less duration. All informal, formal, and procedural rules remain the
same.
B. The PEB has a voting, line officer Reservist member (the PMO
usually) who can explain the nuances of USAR/NG duty. AR 635-40
requires RC voting membership for RC claimants.
C. In addition to showing that a soldier's illness or injury was
incurred in the line of duty, an RC soldier on orders of 30 days or
less, whose injury or disease manifested itself before 23 Sep 96,
must also show that the disability was the proximate result of
military service (para. 8-3a. and 10 USC 1204). In consequence, EPTS
issues will be more salient for short-tour RC personnel for those
types of pre Sep 96 cases. For injuries and diseases incurred after
23 Sep 96, DODI 1332.38, Part 4, A-C discusses how the claimed
disability of RC soldiers shall be adjudicated. The key point is
that an RC soldier on orders of less than 30 days after 23
Sep 96 shall have his or her claim adjudicated following a
Line-of-Duty determination or a "proximate
result"analysis. Soldiers on active duty in excess of 30 days
are treated just like other active component soldiers, i.e.,
"incurred or aggravated" analysis.
D. An RC soldier can receive compensation for EPTS
impairments by establishing that it was permanently aggravated by
military service and was not the result of natural progression.
E. For disease or injury discovered before 23 Sep 96, line of duty
determinations, while important for some purposes (e.g. VA care),
are not commensurate with a proximate cause finding. In practice,
for such cases under the former rule, given that RC personnel
usually serve for short tours, EPTS findings, and thus a lack of
compensation, are not unexpected unless a strong case is presented.
F. RC personnel eligible for military retirement in the RC
(so-called "20 good years") who are awarded severance pay
by the PEB must elect between the usual retirement at age 60 or
severance pay (10 USC 1206 ).
VII. OTHER ISSUES RELATING TO BENEFITS, RETIREMENT &
COMPETENT REPRESENTATION BEFORE THE PEB
A. Soldiers retiring from the Army for non-disability reasons
usually are ineligible for medical separation. The "Fitness by
Presumption Rule" is a legal artifice (rebuttable presumption)
employed by the PEB in such instances that prevents soldiers who
have continued to perform their duties until separation from
receiving disability benefits. (See AR 635-40,
para. 3-2b, and DODI 1332.38, Part 3, para E, for more specifics on
what qualifies as "retirement" and what is considered the
"presumption period.").
1. The "Presumption of Fitness" can be overcome in one of
three ways. First, a soldier can demonstrate that because of their
current, acute, grave disability, they have been unable to perform
their MOS-defined duties for a period of time within the presumption
period; second, a serious deterioration of a previously diagnosed
condition occurs within the presumption period and duty performance
is precluded; or third, for a chronic condition, a soldier was not
performing in his/her grade or office before the presumption period.
Note, however, if no deterioration occurs within the period of
presumption, the ability to perform duty in the future is not
considered.
2. Given the applications of this presumption,
soldiers should attempt to complete their MEBs in advance of
submitting retirement applications. A MEB is complete on the day of
its dictation.
B. The PEBLO, using the PEB findings and formulas and forms in AR 635-40,
should compute projections of retirement and severance pay for
active duty and RC personnel. Note: RC severance is based only upon
active duty time of the soldier, not upon the "LES pay."
In general, current severance pay is one month's basic pay
(excluding allowances) for each 6 months of service up to a maximum
of 12 years of active duty service counted.
C. The SC should appreciate the tax ramifications of disability pay,
as they often are considered important to the client. Such
considerations may even persuade a dissatisfied client to concur
with a board (for example, upon discovering the host of VA benefits
available and local property tax and license fees abatements).
D. The SC should appreciate the concept of being placed on the
Temporary Disabled Retired List (TDRL status). Soldiers who have at
least a 30% rate, or are retirement eligible, are placed on the TDRL
if the disability "may be permanent" and the soldier may
become fit for duty or the defect is expected to change in severity
during the next five years so as to effect the rating. Reevaluation
is generally every 18 months and is part of being on TDRL status,
which has a 5 year maximum. Soldiers are paid at a minimum of 50%
notwithstanding any ratings below that amount.
1. Soldiers on TDRL can be removed sooner if their condition
stabilizes for VASRD rating purposes, falls below the 30% rating
level, or the soldier is found fit. If maintained on the TDRL the
rating percentage cannot be increased or decreased from the original
percentage during the duration of the TDRL period (AR 635-40,
para. 7-20b).
2. Rating stability is not necessarily commensurate with medical
stability. A condition is stable for rating purposes if it is not
expected to impact rating categories within the remaining time of
TDRL eligibility.
3. The 30% minimum rating and the instability for rating purposes
must both be met for TDRL retention. Conditions rated below 30% will
result in severance pay even though a soldier may be medically
unstable. Changes expected beyond the expiration of the TDRL period
(i.e. very long term prognoses) can lead to removal from TDRL
status.
4. TDRL status is administrative "dead time". It does not
add towards severance or time-in-service for pay.
5. While on TDRL status, a soldier is actually retired. As such,
they may pursue whatever employment or interests they have.
6. If found fit the soldier is given the option of coming back on
active duty.
E. The SC should fully appreciate the benefit structure of the
Department of Veterans Affairs. There is an interrelation between VA
and DOD disability benefits which precludes multiple compensation.
Thus, the soldier must elect which type of compensation to receive.
Some clients will actually be quite content to receive, or continue
to receive, their VA compensation and are merely interested in
protecting that tax-free income by securing a favorable Army rating.
F. The SC should gain familiarity with disability as defined for
Social Security Act (SS) purposes. While the SS definition is
restrictive, many seriously injured soldiers are eligible under that
system. Unlike the VA dual compensation bar, there is no Social
Security offset.
G. Rules which impact on ratings.
1. There are several rules which can negatively impact a soldier's
disability rating. As legal counsel, you must be aware of these
rules. Perhaps the most important rule is "The Whole Man
Rule". This rule means that when the board rates an
individual they are looking at the whole person or 100% of an
individual. For example, if a soldier received a rating of 40% for
an injury to his back, what the board has done is to determine that
this individual is disabled as to 40% of his entire body not
just 40% of his back. Once a soldier received a rating of 40%, there
is only 60% of the person left to rate.
A. By using our back example, we can demonstrate how this concept
works. If the soldier receives a rating of 40% for a back injury,
and he also received a rating of 20% for some other disability, the
40% rating is not simply added to the 20% rating to get a combined
rating of 60%. What happens is the second rating of 20% is
considered to be only 20% disabling of the remaining 60% of the
whole man. Which means, 20% of the 60% equals only 12%. Therefore, a
40% disability added to 20% disability equals 52%, (40%+12%) which
is then rounded down to 50%.
B. The implications of this system are obvious. If a soldier
received an initial rating of 60% or greater, an additional rating
of 10% is not going to increase the overall rating. Therefore, if
the soldier already has a rating of 60% or more, you must be very
cautious about pursuing a formal board…as you may have nothing to
win, and a lot to lose.
2. In addition to the "Whole Man Rule", another rule
impacting on a soldier's disability rating is referred to as the
"Avoidance of Pyramiding". This rule
requires that disability ratings do not overlap with each other.
"Pyramiding is the term used to describe the application of
more than one rating to any area or system of the body when the
total functional impairment of that area or system is adequately
reflected under a single code," (AR 635-40,
Appendix B-5). The VASRD itself cautions against the duplicative
evaluation of the same disability under various different diagnoses
or codes.
3. In addition to the "Pyramiding Rule"
there is another rule which also affects disability ratings, the
"Amputation Rule". This requires that a
rating for an affected limb can not exceed the rating for the
amputation of that limb. For example, if a soldier has several
disabilities involving his lower left leg, these various
disabilities can not be added together to achieve a rating higher
than the soldier would receive if that portion of the limb had been
amputated.
H. The competent SC grasps both medical terminology and the dynamics
of military service. The SC will be diligent in contacting the PEBLO,
PEB, and pphysicians/witnesses to protect the client. In addition,
even in hopeless cases, the SC will be forthright with the client
and PEB.
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