LAW REVIEW November The Physical Disability Board of Review for Medical Retirement Reevaluation

Size: px

Start display at page:

Download "LAW REVIEW November The Physical Disability Board of Review for Medical Retirement Reevaluation"

Margaret Stephens
5 years ago
Views:

1 LAW REVIEW November 2013 The Physical Disability Board of Review for Medical Retirement Reevaluation By 1 st Lt. K.N. Barrett, USMC 1 Q: I served on active duty in the Army and was deployed to Iraq, and I suffer from Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), and multiple other physical ailments. I separated from the Army in 2007, and I believe that I was misdiagnosed by the military and improperly separated. What options are available for me to correct this misdiagnosis and obtain my medical retirement? A: In the last decade, there has been serious improvement in the understanding and diagnosis of PTSD and TBI in the medical profession and the United States armed forces. Two prevalent conditions that were commonly ignored and misdiagnosed are now being given extra attention by both medical professionals and Congress. Recently, Congress passed the Dignified Treatment of Wounded Warriors Act, which charged the Secretary of Defense and the Secretary of Veterans Affairs to develop a comprehensive policy on the care, management, and transition from the military to civilian life of severely injured service members. 2 In addition, this legislation requires the Secretary of Defense and the Secretary of the Veterans Affairs to develop a comprehensive plan on the prevention, diagnosis, mitigation, and treatment of TBI and PTSD, including training and education to reduce the negative stigma. It further requires the Secretary of Defense to establish two centers of excellence, one for TBI and one for PTSD and also authorizes $50 million dollars for improved diagnosis, treatment, and rehabilitation of service members with TBI or PTSD. This is a dramatic step in the right direction on behalf of the federal government in protecting against disabilities that have troubled our veterans for generations. President Bush signed the Dignified Treatment of Wounded Warriors Act on January 28, In an attempt to ensure fairness and accuracy during a period of time when Congress felt the Armed Forces were mishandling these two sensitive disabilities, a portion of the Act was designed for veterans who suffered from PTSD and TBI. The Act created the Physical Disabilities Board of Review (PDBR) for veterans who were 1 First Lieutenant Barrett is a 2013 graduate of the William & Mary School of Law in Williamsburg, Virginia and a member of ROA. In 2014, he will report to active duty in the Marine Corps as a judge advocate. The views expressed in this article are those of the author and should not be attributed to the United States Marine Corps, the Department of the Navy, the Department of Defense, or the United States Government USCA 1554a - Dignified Treatment of Wounded Warriors Act / PL National Defense Authorization Act for Fiscal Year

2 medically separated from the U.S. Military between September 11, 2001 and December 31, This period of time was chosen because this was the period following the United States entering into a global war against terror and the time prior to the medical advancements in the areas of PTSD and TBI. It was also believed that this was the period of time when the most misdiagnoses of these disabilities were made for service members returning home from the wars. This legislation gives these qualifying veterans the opportunity to have their disability ratings reviewed by a specially created Board sensitive to these specific matters. Qualifying for review by the newly created board is easily established. As previously stated, first a veteran must have been medically discharged from the military between the dates of September 11, 2001 and December 31, Medically discharged refers to a service member being unfit for duty in the armed forces for a medical condition. The discharge from the military must have a combined disability rating of 20% or less. 3 The 20% mark is the highest rating possible from the Medical Disability Board (MEB) and Physical Disability Board (PEB) without qualifying for official medical retirement, which provides full medical coverage for the veterans and their families as well as other retirement benefits (i.e., access to military bases and shopping stores). To be eligible for medical retirement from the armed forces, a rating of 30% or higher is needed and the progression is in increments of 10 (10%, 20%, 30%, etc.). These are the only qualifying factors required of a PDBR evaluation. It is important to keep in mind that although this review board may have been created because of disparities in PTSD and TBI evaluations during this time period, they are not the only qualifying disabilities eligible for review. Any veteran who meets all of these requirements for any disability rating equaling 20% or less is eligible for review. The Department of Defense designated the Air Force as the lead component to establish and operate the PDBR and they are responsible for reviewing cases from all of the services. 4 The Secretary of the Air Force is responsible for designating a president of the board for this review process and for working with all involved branches and parties to ensure transparency and efficiency of the board. Representatives from three separate military departments, including the department of the applicant, jointly review each case. In addition to the maintenance responsibilities of programming, obtaining and providing necessary personnel, finances and publicity for the board to support its operations, the Department of the Air Force is also responsible for establishing a process for the collection, storage and release of relevant evidence and information for the review process. The process for the PDBR begins with a veteran who qualifies for review completing the application which can be found on the PDBRs government website. The application (a signed DD-294) is submitted to the PDBR Central Intake Unit (CITU) to begin application process. 5 CITU, upon receipt of the application, then requests medical 3 10 U.S.C DoD Instruction PDBR Official Website 2

3 and disability evaluation documentation from the Department of Veteran Affairs (VA) and the Veteran s Military Department (VMD). Once these documents are received, they are uploaded into the PDBR central database where the PDBR downloads the case documentation at Joint Central Adjudication Unit (JCAU). The PDBR will then review the case, adjudicate any issues within the case and recommend action to the Designated Decision Authority (DDA). The DDA is typically the Office of the Secretary for each of the respective branches. The DDA of Veteran s Military Department will ultimately make the final decision on each case and inform the Veteran. It is important to keep in mind that the PDBR only makes a recommendation to the DDA. The DDA reserves the right to disagree with the PDBR and officially take a different stance. If the veteran s prior disability separation is re-characterized as a disability retirement, the DDA coordinates correction of the veteran s military record as well as pay with DFAS and the VA. 6 However, if the veteran s disability is not re-characterized, there will be no change in status (with the VA or the individual s Military Department). By law, the PDBR may not recommend a lower disability rating for any rating reviewed. In regards to the way the actual board is structured, it is composed of a career military or senior civilian member who has a grade equivalent to an 0-5 or 0-6; the military branch they represent appoints this person. Also, as previously stated, there will be at least one member from each of the military branches who is also appointed by the Secretary of their respective branches. When the board is evaluating a case, no member shall have any personal interest in the case, including having formally reviewed the case in any other situation prior to the PDBR hearing. One of the major goals of the board is complete transparency and fairness. These rules were established to help ensure a fair and unbiased evaluation of the evidence presented. In addition to the at least 3 voting members on the board, there may also be an additional non-voting member. This nonvoting member can be a legal advisor, a person who is familiar with the Veterans Administration Schedule for Rating Disabilities (VASRD) or military medical officer who can provide advice and clarification to the voting board members. The board will review all of the relevant medical records pertaining to the unfitting disabilities of the applicant. There are specific pieces of evidence that are mandated for the board to take into consideration, however, they have the liberty to accept other, relevant pieces of evidence as they see fit. In terms of required documents, the PDBR must request the complete record of medical and non-medical materials that have been recorded in the applicants PEB record. This documentation can be requested from the individual branches of the applicant veteran. Also, the board must evaluate all rating decisions made by the Department of Veteran Affairs (VA). This information will be located in the C-File, which is held at the regional office for the specific applicant. The board may also review new or newly discovered evidence not included in previous records. This new evidence may take the form of memos and briefs, affidavits, statements, and medical files not included in military records. This may be extremely important when dealing with undiagnosed PTSD and TBI evaluations that may have been privately acquired by the applicant but not in his previous medical files because he was not tested for it during his MEB or PEB process. 6 DoD Instruction

4 The PDBR may only take into account those disabilities that have been addressed either by the MEB or the PEB, even if those disabilities addressed were not the actual unfitting disabilities for separation. When originally created, it was actually decided that the PDBR would not evaluate claims to determine whether they were fitting or unfitting for a veteran. However, after evaluation and changes to its purpose were made, it was determined that as part of the review, the PDBR may, at the request of an eligible member, review conditions identified but not determined to be unfitting by the PEB of the Military Department concerned 7. An applicant is not able to bring new claims of disabilities not previously evaluated during their separation evaluations. The proper redress for disabilities not addressed during their evaluation period would be with the Veteran Board of Correction of Military (or Naval) records. A possible exception to this would be when aspects or symptoms of certain disabilities are mentioned, but the actual disability itself was not screened for. A prime example of this would be PTSD; where during an applicant s MEB evaluations, the doctors made note of tension, sleep issues, migraines and anxiety but did not give a diagnosis of PTSD. In a situation like this, PTSD could be argued as a valid claim to apply to the board for a review. During the evaluation, the board is mandated to use the VASRD to rate the disability. This is to ensure consistency between both the VA and the DoD regarding the veterans claims. Upon completion of the evaluation, the board may make one of five recommendations: 1- to not re-characterize the separation of the veteran, 2- to re-characterize the separation of the veteran, 3- to modify the combined disability rating previously assigned to the veteran, 4- to issue a new combination disability rating, or 5- to change the status of a fit disability to an unfit status. 8 It is important to make note of the timing when dealing with the VA and claims being processed through that agency. The PDBR has a set timeline that they are mandated to follow as well. The PDBR must schedule 80% of the documentary reviews within 45 days of obtaining the necessary records 9. When that task is complete, they will adjudicate and issue a recommendation report for 80% of the cases within 60 days of review. A recommendation is determined by a simple majority vote at the end of the review process. Once a recommendation is sent to the specific military branch, the Secretary shall accept or reject the recommendation within 45 days of receipt. Once that decision is made, the final step is for the Secretary to provide the veteran (or next of kin) notification of the decision within 10 days of making the decision. In accordance with Title 10 United States Code, Section 1554a, the veteran who signs the application to the Physical Disability Board of Review (PDBR) acknowledges his or her understanding that he or she can no longer appeal to the Service Board for Correction of Military Records for the same conditions that the Physical Disability Board of Review adjudicated. 10 This is a very important detail of this process that all veterans should be aware of and that the board is charged with ensuring that the veteran 7 DoD Instruction DoD Instruction DoD Instruction U.S.C

5 understands at the start of the review process. The last signature block on the application itself (block 10) also explains this fact for the veteran applicant. This essentially means that the PDBR determination is not appealable. This is an especially important detail to consider when a veteran has both the option to request a review with the Board of Correction for Military Records or Naval Records (BCMR/NR). If this is a viable option for the veteran he or she may want to take the time to start with a BCMR/NR request because if this fails, then he or she is still able to apply for a PDBR evaluation. However, the reverse is not allowed. After a recommendation has been made and the Secretary of a branch accepts or denies, that claim cannot be brought up before any other committees or review boards within the DoD. However, the veteran retains the right to file a lawsuit with the U.S. Court of Federal Claims. The good news associated with this rule is that veterans retain the right to appeal any medical conditions not adjudicated by the PDBR to the Board of Correction of Military or Naval Records. So any claims that the PDBR does not address in its evaluation can still addressed through other means. For some veterans this is the second chance they rightfully deserve; a chance to have a wrong corrected and to be properly evaluated for their medical disabilities. What is unique about the PDBR is that not just the veteran may apply for this process; the veteran s surviving spouse, next of kin, or legal representative can apply for a review on the veteran s behalf as well. Also, the PDBR has the ability to initiate a review itself without an application from the individual veteran. 11 This is, of course, rarely done; but they certain have the ability to do so. If the board initiates a review it will contact the veteran, explain why it believes that a review is appropriate and request consent to conduct the review. Without consent, no review will be conducted. However, if consent is initially denied and then the veteran changes his or her mind, he or she may subsequently request a board review. Since its creation in 2009, the PDBR has been very beneficial to the veteran community. Presently, more than 50% of cases reviewed by the PDBR have been upgraded resulting in disability retirement for many veterans. 12 However, what is truly shocking is that, to date, less than 5% of eligible veterans have applied for this review process. 13 Any veterans who fall within the reviewable time period and criteria are strongly encouraged to start the application process with the PDBR as soon as possible. 11 PDBR Official Website 12 PDBR Official Website 13 PDBR Official Website 5

Department of Defense INSTRUCTION

Department of Defense INSTRUCTION NUMBER 6040.44 July 2, 2015 Incorporating Change 1, December 4, 2017 USD(P&R) SUBJECT: Physical Disability Board of Review (PDBR) References: See Enclosure 1 1. PURPOSE.