It’s been more than a year now, and a new board, created by the Department of Defense (DoD) to review the disputed disability claims of thousands of service members, has received plenty of attention – but surprisingly, few applications from the more than 77,000 people who are eligible to have their disability ratings reviewed, are submitted.
The Physical Disability Board of Review (PDBR) was created by Congress to look into disputed claims after investigations – prompted by numerous service members and their advocates – revealed inconsistencies in the way the military assigned ratings for the disability levels of injured service members before they were discharged.
For individual service members, the stakes in disability ratings are high: Those assigned a rating below 30 percent disability are given a one-time, lump sum payout and individual medical care from the Veterans Health Administration; those with ratings of 30 percent and higher are separated from service as military retirees, regardless of the number of years of service, and receive both a monthly retirement pension and health coverage for themselves and their families through TRICARE, the military health system.
As of May 2010, according to the PDBR’s president, Col. Michael LoGrande, (USAF), the board had received 1,184 applications, and completed reviews of 273 cases since it began issuing recommendations in June 2009. While this rate of adjudication, so far, is not that encouraging, a new injection of funding from the Office of the Secretary of Defense promises to quicken the pace.
Meanwhile, another number offers considerable hope for those service members who have left the military since Sept. 11, 2001, and are dissatisfied with their disability ratings: Of the cases resolved so far, around 60 percent have been decided in favor of improving the service member’s benefits.
How the PDBR Works
Among critics of the DoD’s Disability Evaluation System (DES), opinions have been mixed about the reasons for the inconsistencies that prompted the PDBR’s creation. Some claim that disability ratings were being manipulated by the military so that the Department of Defense could save on costs; others simply claimed widespread ineptitude, disparate standards among the different service branches, and, most significantly, differences between the ratings assigned by DoD and those assigned by the Department of Veterans Affairs’ (VA) Schedule for Rating Disabilities (VASRD).
The PDBR was created by the fiscal year 2008 National Defense Authorization Act to review certain separations for medical conditions where the rating was 20 percent or less and the member did not otherwise retire. Its purpose is to determine whether, under the applicable guidance in effect at the time, the rating awarded is fair and accurate. Any members with such ratings who were separated from service between Sept. 11, 2001, and Dec. 31, 2009, can apply to the PDBR by sending the appropriate form, DD 294, to the Central Intake and Tracking Unit at Randolph Air Force Base, Texas (DoD has named the Air Force as the lead component in implementing the PDBR).
The PDBR process includes several noteworthy features: First, it is essentially a document review by physicians. Neither the applicant nor a representative appear before the board to argue a case or influence its decision-making. By law, the PDBR does not make the final decision on an application – it makes a recommendation to the applicant’s service secretary, who makes the final decision (so far, service secretaries have concurred with more than 90 percent of the PDBR’s recommendations). If the secretary affirms the findings, the remedy is retroactive, says LoGrande: “In other words, if the authorities adopt our recommendations and flip their disabilities to 30 percent, let’s say, those monies they are owed will be paid retroactively back to the date – if they separated in 2002, the government will make up those payments to them, from 2002 to 2010.”
Significantly, a finding by the PDBR is considered final – it cannot be appealed, though it can be challenged in a federal court. For this and other reasons, critics of the military’s DES caution that the PDBR process should not be undertaken lightly – in its first year, it has experienced some growing pains, and at times, has been accused of simply replicating and further codifying mistakes made earlier by the physical evaluation boards (PEBs) of individual service branches.
Col. Mike Hayden, USAF-Ret., deputy director of Government Relations for the Military Officers’ Association of America, has observed the PDBR’s first year carefully, and believes it has improved. “They had a very narrow focus at the beginning,” he says, “on what they were going to review.” If an applicant’s medical record only included one condition that a PEB considered to make him or her unfitting for service, the PDBR would consider only that item – even if the service member believed he or she had several issues that made him or her unfit for service. “They’re now looking at all the medical conditions that were in the record at the time,” Hayden says. “To me, that’s probably the biggest thing they’ve done: They have expanded to include any medical conditions, to determine whether they should have been deemed unfitting – which would have changed the disability rating.” The board also has settled on using the ratings criteria set forth by the VASRD – a system widely considered to be more favorable to service members.
The PDBR, in April 2010, increased its capacity after Dr. Clifford Stanley, the undersecretary of defense for personnel, approving funding to hire more physicians to serve on the board – a move for which LoGrande had lobbied hard for more than a year, and which may have been made in anticipation of a ramped-up caseload: Recently, a class-action lawsuit against the government guaranteed an upgrade to the disability ratings of more than 4,000 veterans who were separated with a diagnosis of post-traumatic stress disorder (PTSD). (Look for our article, More Benefits for Vets with PTSD – Possibily, that discusses the suit in detail.)
“273 cases to date since June 4 of last year,” admitted LoGrande, “is not a lot. But we’re moving at the speed of the physicians. And with several more inbound, I feel very comfortable knowing that we’ll be able to probably triple our production as they come up to speed and get online.”
Should I Apply?
While things do appear to be looking up for the PDBR, vocal critics of the military’s Disability Evaluation System urge caution. Two of the most outspoken critics today are former military officers: Lt. Col. Mike Parker (USA-Ret.), who became a veterans’ advocate after going through the DES process himself after more than 20 years of service, found that the people deciding his future income did not know nearly as much about the applicable regulations as he did. Another is Jason Perry, a former Army JAG Corps officer who served as soldier’s counsel at the Texas Physical Evaluation Board before resigning his commission to represent service members privately and established the online PEB Forum, where he collects and offers free advice to service members going through the evaluation process. (You may also view/post on his discussion thread.) Parker is a frequent contributor to the PEB Forum, where he posts a weekly piece entitled, “DES Outrage of the Week.”
While Parker and Perry both believe in the PDBR’s good intentions, they have mixed feelings about its results. It’s not clear to them whether the PDBR has matured to a point where it can reliably be called the best option for service members who want their cases reviewed. Many members on the PEB forums believe their cases were decided unfairly, and of those who have had cases reviewed and denied by the PDBR, many think the board has simply perpetuated an injustice. In some cases, Parker – who knows a good number of DES cases in detail – agrees that the PDBR has been confronted with a glaring bureaucratic error, or with flimsy logic, and surprisingly, rubber-stamped it. “The problem [in the DES system] was easier to identify than the fix,” says Parker. “It’s an incremental fix, and a lot of it is driven by the availability of funds to start doing it right.”
The best candidates for PDBR review, says Parker, are the “no-brainer” cases – most often, cases in which there are discrepancies between the disability ratings of the PEB and the VA. Now that the VA’s system has been adopted by the PDBR, an applicant with a VASRD rating of 30 percent or higher stands a good chance of earning disability retirement status.
“Despite its warts,” Parker says, “the PDBR is probably the best option available for most eligible members. Remember, the PDBR so far, has recommended retirement to about 62 percent of the applications. The PDBR is a DoD-level board that focuses just on this one issue.”
Perry isn’t so sure. “When the PDBR was first announced,” he has written, “I was optimistic that this board would address many of the unfair and wrongly decided military disability evaluation cases. Though I have had several favorable outcomes from cases at the PDBR, I have also reviewed several cases where a change was warranted but not granted. Given that effective relief is available through the U.S. Court of Federal Claims [and, under the Equal Access to Justice Act, attorneys’ fees are available to claimants where the government’s position was not ‘substantially justified’], I am ambivalent about the PDBR as it is currently deciding cases.”
Depending on future developments – changes in the PDBR process mandated by Congress or the DoD, for example, or guidance from the courts as cases are challenged – Perry’s opinion might change. “In the meantime, I tend to favor the courts for addressing errors post-PEB.”
In LoGrande’s opinion, whatever shortcomings the PDBR has demonstrated thus far have not been attributable to unfairness. “I think we have done a more than fair job favoring the veteran in every case,” he says, “and our statistics prove that. It’s just that we were not resourced to continue to do so. Now we are, and I think when our doctors get on board, you’ll see our trend will continue. We’re taking care of the people the way Congress intended … as the president of the board, I think honesty and fairness and equity and due process are the least we can afford these people who have given the time that they’ve given and sustained injuries or illnesses as a result of it.”
If you’re considering applying to the PDBR for a review of your disability rating, be sure to read our article Preparing Your Case for the PDBR: Tips From the Experts that contains helpful tips provided by Mike Parker and Jason Perry of PEB Forum, and by Tom Moore of the Lawyers Serving Warriors Project.