Open Forum Statement of Michael Parker to the Veterans' Disability Benefits Commission - 19 May 2006.
First, I would like to emphasize that while I am an active duty officer, I am here today, while on leave, acting in a private capacity. My views are mine and not necessarily the views of any governmental agency, the Department of Defense, the Army or the Joint Staff.
Thank you for this opportunity to address this commission. My name is LTC Michael Parker and I am an active duty Army officer. I would like to speak to you about the Defense Disability Evaluation System. In short, the system is broken on many fronts. The bill payers for this are our disabled service members and their families.
I went through the DES last year. This experience, coupled with those of service members I have assisted with their disability cases, has exposed some very disturbing issues with DES law and the military's execution of this law. I obviously cannot go through the many painful details in this forum. I can only hit the high points. I have, however, provided an initial package of background information and documents to back my concerns. There are certainly other concerns and information I am willing to share with you at your convenience.
In July of 2005, DoD and the Services briefed this commission on the Defense Disability Evaluation System. I would like to take exception to some key points from these briefings and illuminate other DES issues as well.
First, the briefs stated that one of the purposes of the DES was to compensate careers cut short by service-connected disabilities. Nothing could be further from the truth.
Military disability compensation does nothing of the sort. It is an illusion. Under current law, service members with unfitting disabilities rated under 30% are separated vice retired. They are given separation pay based on their grade and years of service. However, their DoD separation pay is, by law, recovered by the VA before VA disability compensation is paid. This DoD "career compensation" is nothing more than an advance on their VA disability pay. An E-1 with one year of service and a E-8 with 18 years of service, separated with the same disability rating, will get the same amount of compensation - The only difference is who is paying it and when. In fact, one can argue that the E-1 will get more cash on the barrelhead as he or she will likely be younger and collect for many more years.
Likewise, few Chapter 61 disability retirees will actually get any career compensation, limited mostly to those who have qualified for retirement from years of service. Ironically, under current law, a 15 year TERA retiree can get both career and disability compensation, but an 18 year vet separated or retired for a combat injury cannot.
I could have easily been separated at 18 years of service for my medical condition. If that had happened, around $800,000 of retirement equity earned to that point would have simply evaporated. Instead, at a 10% disability rating, I would have received $118 a month in disability pay from the VA. Granted, I would have gotten a large advance on this disability pay from DoD, but my career retirement equity would have vanished.
Had I known then what I know now, I would have thought long and hard about making the military a career given the huge financial risk to my family and me. Under the current disability law, when a soldier in Iraq loses his legs to an IED, he or she also loses tens, if not hundreds of thousand's of dollars, in net worth as well in lost retirement equity - This in unacceptable.
If I worked for a decent employer, I would get disability insurance as well as company paid retirement contributions. If I was run over by a bus on the way to work, I would get a disability check as well as my company paid retirement contributions earned to date. This is not so for our career military members who are forced out by service-connected disabilities short of normal retirement. DoD needs to be a decent employer to our disabled service members. This cannot happen as long as these limiting disability laws remain on the books.
Career compensation needs to compensate careers and disability compensation needs to compensate disabilities, period!
Congress has already figured this out with concurrent receipt. Concurrent receipt law for disabled retirees, otherwise eligible for retirement, is fair and equitable. VA disability compensation only offsets DoD disability retirement for amounts above what was earned from years of service. The same needs to apply to those who are forced out due to service-connected, career ending disabilities. At a minimum, DoD separation pay should not be off-set with VA disability pay.
The statement that DES compensates for loss of career is not based in reality.
While the DES career compensation point is misleading, the DES brief explanations for variances between VA and DoD disabilities ratings is strangely incomplete. The rationale presented in the DES briefs is based on reasonable issues. For example:
- VASRD rating criteria for convalescence situations do not work in the DES model.
- DoD quantification of subjective VASRD criteria is also prudent and reasonable to keep ratings consistent among Services.
But that is not the whole story. What they didn't brief is very concerning, and I argue, illegal.
Chapter 61 law requires a service member to be retired if his unfitting disability rates 30% or greater per VASRD criteria. In some cases, DoD has blatantly removed VASRD criteria and substituted with their own, ratings lowering, criteria. A comparison of VASRD and DoD rating criteria for sleep apnea and narcolepsy will prove out this point. More often, subtle provisions or obscure interpretations are used to lower ratings to separation levels.
For example, it is obvious that some Services do not feel compelled to consider Deluca criteria when evaluating limitation of motion based disabilities despite this requirement being in the VASRD for many years. Apparently, the Army believes their regulations and policies supercede DoD regulations and federal law.
In the package I provided, you will find an OP ED I recently wrote that argues that DoD's substitute criteria is illegal. Attached to that OP ED is a DoD General Council opinion that backs my position. I encourage you to read it and to quickly get this issue into objective and authoritative hands to determine the legality of DoD's substitute criteria.
I fear thousands of service members have already been illegally denied disability retirements through the years due to DES's self-authenticated position that their substitute rating criteria is legal.
The DES briefs also point out that a reason for rating variances with the VA is due to DoD's policy of only rating unfitting conditions. While this argument has some merit, it is ripe for abuse. By arbitrarily picking out which disabilities are unfitting, ratings can be held to separation levels.
An Air Force NCO I assisted suffered from a autoimmune, inflammatory, arthritic condition which also manifested with severe osteoporosis. At 26 years of age, his bone density was significantly less then that of 85-year-old women. The porous nature of his lumbar region increased his risk of spinal fracture over 700% when compared to his peers. However, his formal PEB, without further explanation, ruled that his osteoporosis was not unfitting for military service. The PEB rated his unfitting arthritis at 20% and ordered him separated. Another unfitting condition would have certainly raised his disability rating to a retirement level.
On appeal, we argued to the SECAF Personnel Council that his case was not adjudicated correctly. They agreed and he was ordered permanently retired at a 40% disability rating. Strangely, his rating was elevated to this level from other issues raised. His osteoporosis was apparently never considered an unfitting condition or factored into his disability rating.
Many of you may have seen DES reform changes in the House 2007 Defense Bill.
One proposal requires conditions rated less than 30% on TDRL reevaluations to be permanent and stable before a service member's retirement is terminated. Currently, Services terminate TDRL retirements if the disability rating falls below 30%. Without the stability requirement, a temporary, but short-lived improvement will lead to the loss of retirement regardless of the future progression of the disability.
Once separated, one cannot regain disability retirement even if the condition deteriorates to a 100% rating the very next day. This clarification in Congressional intent is long overdue.
However, this same "permanent and stable" requirement is needed in 10 USC 1203 for initial disability separations as well. Currently, a disabled service member can be kicked to the curb via disability separation if his rating is less than 30%. It does not have to be stable.
If the service member is evaluated early in the disease process, he can be separated during the early stages of what may be a chronic and deteriorating service-connected condition. Ironically, disability law states this service member cannot be permanently retired unless the condition is stable. The deck is certainly stacked against the equities of the disabled service member.
The House DES reform provisions, adds section 1222 of Chapter 61 disability law. This codifies requirements that already exist in DoD and Service DES regulations. Many argue this is not necessary. My opinion is that, aside from substitute rating criteria, DoD DES regulations and instructions provisions do a fairly good job in protecting the equities and due process rights of service members going through the DES process.
The problem is that some Services do not feel compelled to following the DoD regulatory requirements.
Included in the information package provided is two cases. One involving a TDRL soldier removed from the retirement roles and the other involves a soldier denied disability compensation due to a PEB finding that his condition existed prior to service and was not aggravated by service.
I assisted both of these soldiers with their cases. These cases are complicated and rich in detail. However, a study of the details will clearly demonstrated the egregious adjudication errors made by their PEB’s. With the permission of the soldiers involved, I shared their case information and other concerns with a HASC professional staffer. He then visited Service DES agencies and quickly confirmed the nature and severity of the issues raised. That insight reinforced the need of many of the House DES reform provisions in their 2007 Defense Bill.
However, we cannot be satisfied in just fixing the future. We are obligated to fix the past as well. How many service members have been denied the appropriate disability compensation due to incorrectly adjudicated cases? I shudder to think.
In the folder you will find a recent federal court case that further illustrates the problem of PEB’s not doing what they are suppose to be doing. This soldier paid the price with years of fighting for her due yet the PEB is not held accountable for being wrong. After years of delay, they are only ordered to go back and do it right. Who is paying her legal bills?
We cannot accept a system that makes these kinds of errors without fear of accountability. Service members should not have to go out-of-pocket to a federal claims court to get justice all the while going without compensation, medical and other due and needed benefits. Justice delayed is justice denied.
This soldier was only allowed to seek relief from a federal claims court due to another service member’s efforts. LTC Frank Fisher, a medical officer, had to go all the way to the Supreme Court to win the right to address his DES case in a civilian claims court. The military argued that DES cases are purely a military function and, therefore, not judicable by civilian courts. Last July he prevailed and continues his fight in a federal claims court. I would suspect an avalanche of similar cases now that the artificial barrier for civilian court relief has been lifted.
The two soldiers I assisted have not received their lawfully due benefits. The system is rigged to “just say no” and make them fight long and hard to get what should have been easily adjudicated. After all, only a few will have the resources, strength and perseverance to succeed. Again, when a DES wrongly denies benefits, there is no penalty. They only have to go back do and what they should have done years ago. Until there is a penalty for DES failures that makes them accountable, there will be no change.
This Commission needs to examine, in detail, Title 10 disability laws as well if it is to understand completely compensation issues affecting disabled veterans. The Defense Disability Evaluation System has flown under the radar too long. It is in desperate need of illumination.
Again, I certainly have more to discuss with you and would welcome the opportunity to do so.
Thank you very much.
Here is my July 13 2006 Statement to the VDBC.
Congress charged this commission to produce a comprehensive evaluation of US laws that provide benefits to disabled veterans and their families.
Chapter 61 of Title 10 is a central pillar of disability law. It was enacted in the 1949 Career Compensation Act to compensate military members whose careers are cut short by disability. Last year the military evaluated over 23,000 members under these laws. I was one of them. There are now hundreds of thousands of veterans who have been rendered lifetime disability decisions under Title 10.
For your report to be comprehensive as Congress requires, this commission needs to conduct a detailed and thorough examination of Title 10 disability laws, the interaction of these laws with other disability laws and, most importantly, the military's application of these laws.
So, as a start, let me recommend five Title 10 related issues this commission needs to explore in depth to ensure that its report is both comprehensive and credible.
Issue 1. Title 10 requires the military to use the current VA Schedule to determine an unfit service member's type and amounts of compensation. This requirement is repeatedly upheld in federal courts yet DoD and the Services continue to publish and enforce their own rating criteria that produces lower ratings and benefits.
DoD and the Services need to explain their rationale for using substitute rating criteria. Even a DoD General Council opinion has stated that this is illegal, yet they continue to do it.
Issue 2. DoD requires uniformity among the Services when adjudicating disability cases. However, the Services are not following these standards and DoD oversight and control of the disability evaluation system is completely dysfunctional. A March 2006 GAO report and the GAO's April 6th testimony to the HASC confirm this point. If you haven't read either of these documents, you need to. You also need to get briefings from the GAO and DoD on these findings.
But not all issues were addressed by the GAO. For example, Army rating criteria states they cannot rate joint conditions under the VASRD range of motion criteria unless there is a “mechanical basis” for the condition. The VASRD, DoD, and other Service rating criteria do not have this limitation. In fact, the VASRD specifically requires evaluation of other causes and manifestations of joint limiting conditions. Countless soldiers have been denied retirements and appropriate disability compensation due to this Army specific provision. Airmen, Sailors and Marines are more apt to receive correct ratings for these conditions as these Services apply the current VASRD criteria as required by law.
The Army and DoD are aware of this situation but have failed to correct it. Why?
Why do DoD and the Services have their own rating criteria if Title 10 requires the use of the VASRD?
Issue 3. In May, the GAO briefed this commission on a study that compared civilian and military disability compensation programs. Unfortunately, a fatal flaw in this study negated its validity. It did not consider earned retirement equity when comparing disability compensation received.
To illustrate, DoD civilians with career ending disabilities receive disability payments to replace their lost earning capacity. They also keep the government contributions and earnings in their retirement accounts. This combination of benefits protects their future earning capacity as well as their career retirement equity. The value of a civilian's thrift savings account derived from government contributions can be in the hundreds of thousands of dollars. Under current law, the disabled service member's earned retirement equity, which comes in the form of disability retirement or separation pay, is eliminated or greatly reduced by the VA disability compensation off-set.
Is this fair? Is it really career compensation that protects retirement equity earned to date as intended? Should not military members have the same level of disability protection as their DoD civilian counterparts?
Issue 4. Title 10 requires the VA and DoD to establish service connection before they can compensate disabilities. Both DoD and VA regulations grant service connection for conditions identified or aggravated while in service. These presumptions can only be overcome by developing and documenting specific and unerring medical evidence to the contrary. However, military disability evaluations are not complying with these standards.
There are countless examples where DoD denies service connection, without proper basis, evidence or documentation, for conditions that the VA later determines are, in fact, service connected.
Should federal law codify standards for service connection to ensure the intent is not changed in application?
Issue 5. Under Title 10, conditions that qualify for retirement level ratings must be stable before a final decision is made on the type and amount of compensation.
Should not the law required stability for separation level ratings as well?
Is it fair to deny disability retirement to an unfit service member when the condition will get much worse in the near future? Current law allows the military to separate disabled service members and avoid awarding retirements for service-connected conditions that will becoming more disabling.
In conclusion, disabled service members and their families are being denied appropriate and legally due disability benefits due to the inadequacy of Title 10 disability laws and flawed application of these laws by the military. In my future statements to you, I will provide real life examples from disabled service members to illustrate the severity of the situation. Thank you for your time.
I am an active duty army officer here today, on leave, to present concerns I have with current military and veteran disability law and application.
Statement # 3, given 14 July 2006.
In yesterday's statement to this commission I outlined some of my concerns with Title 10 Disability law and how it was being applied by the military. Today I wish to expand and give a few examples.
First, if a service member disagrees with their Services disability ruling, they have to go out of pocket to federal court to get justice. The justice received will be case specific. The military is not held accountable, there are no penalties for multi year delays of legally due benefits, nor are they obligated to apply the court's decision on future or past cases.
When disabled service members have to go to court, at best they end up with the same compensation they were originally due but then they must pay the expenses necessary to pursue their case in court.
Consider the case of Santiago v US from May of this year. This NCO had to go all the way to federal court to get the Army to adjudicate her disability case per law and well established DoD and Army regulations. Justice delayed is justice denied.
This process is like a thief who must only make amends by paying for what he is caught stealing. No accountability, no penalty, no action to amend or prevent past or future thefts. This is a very good deal for the military as most disabled service members do not have the knowledge, skills, or financial resources to pursue their cases in court.
I worked with a soldier who was placed on the temporary disability retirement list in July 2003 with a 40% rating based on long established VASRD criteria for rating his condition. In 2005 he was reevaluated, given a 20% rating, his retirement terminated and he was separated. The Army stated his condition had improved to this level. His condition had actually degraded, a fact that was medically documented.
The army had actually pulled a slight of hand. They claimed that a 2003 change to the VASRD for rating the spine had forced them to eliminated much of the previous criteria used to rate his condition. In fact, the VASRD change for his condition had only clarified the criteria for one aspect of residual damage due to his disease. This was clearly documented by the VA in the Federal Register when they posted the change. But the Army exploited the change to reduce benefits. They made no attempt to validate their position with the VA who had authored the change.
The soldier submitted a 15 page well cited appeal, proving his case was erroneously adjudicated and documented. The Army sent him a form letter back stating his case was "legally sufficient". They made no attempt to address or counter the arguments raised in his appeal. Case closed, take us to court if you don't like it was the attitude. He submitted this appeal to this commission for review.
I wrote the Secretary of Veteran's Affairs and I have submitted this correspondence for your review. The VA confirmed in writing that the Army was not applying the VASRD correctly for this disease. This information was given to DoD and an Army DES official who have thus far failed to act to ensure the situation is corrected. This soldier and his wife have lost his retirement and TRICARE coverage and now must walk down the long road for justice via the ABCMR and Courts.
It is interesting to note that the same Army PEB rated an officer with this same condition at 40% in early 2005 using the criteria the Army claimed became obsolete in 2003.
However, in August of 2003, the Army rated a SFC with this same condition at 10% using the same VASRD change "logic" as the basis. Even more troubling, however, is the fact that this VASRD change did not take effect until September 2003.
The Army rated the SFC again for this condition in late 2005 and maintained the same 10% rating. Within one month of leaving the Army, the VA awarded him a 40% rating for the same condition using the long established criteria for this condition.
An Air Force NCO with 12 years with this condition was rated at 10% and separated. The VA immediately rated him at 30% for the same condition. He and his family lost his healthcare and retirement based on this erroneous military rating process.
An E-7 with 17 years service with a related condition was given a 10% rating and separated. The VA then rated this condition at 50%. She also lost her retirement and health coverage.
DoD will point out that one reason for rating variances with the VA is due to DoD's policy of only rating unfitting conditions. While this argument has some merit, it is ripe for abuse. By arbitrarily picking out which disabilities are unfitting, ratings can be held to separation levels.
An Air Force NCO suffered from this same autoimmune, arthritic condition which also manifested severe osteoporosis. At 26 years of age, his bone density was significantly less then the average bone density of 85 year old women.
The porous nature of his lumbar region increased his risk of spinal fracture over 700% when compared to his peers. However, his formal PEB, without further explanation, ruled that his osteoporosis condition was not unfitting for military service. The PEB did find his arthritis unfitting at 20% and ordered him separated. If the PEB had ruled his osteoporosis unfitting, it would have certainly raised his disability rating to a retirement level.
On appeal, the SECAF Personnel Council agreed that his case was not adjudicated correctly and ordered him permanently retired at a 40% disability rating. Strangely, his rating was elevated to this level from other issues raised in the appeal. His osteoporosis was never considered a unfitting condition nor factored into his disability rating.
I thank you for your time today. I have more I want to tell you and await the next opportunity to do so.
I am an active duty army officer here today, on leave, to present concerns I have with current military and veteran disability law and application.
14 September 2006 Statement
I was not intending to make a statement today. However, I wanted to take this opportunity to provide a couple of insights to aid your future discussions on topics covered over the past two days.
First, as discussed in yesterday's Bradley Commission report, I would like to thank the Commission for your future examination into why VA and DoD disability ratings are different given the same condition and timeframe. I believe if you drill down on this issue, it will reinforce the concerns I have raised in my previous statements to this commission.
Second, this morning you discussed the issue of defining service connection. The issue was phrased in terms of "how should the VA define service connection?". I believe the question should be expanded to "how should the VA and DoD define and apply service connection and is there any reasons they should differ?". Currently they are different standards. While the VA's and DoD's definitions on paper are nearly identical, the application of the definition is quite different. Because of these differences, there are numerous VA service connected veteran's who were denied DoD service connection for the same condition. DoD and the Services have provisions to deny service connection for diseases they have deemed "genetic" even if these diseases do not manifest until many years after entering active duty. (e.g. AR 635-40, Para B-45d).
The GAO and CBO position referenced this morning stated genetic diseases such as Crohn's disease should not qualify for service connection. This position is both ignorant and dangerous. Crohn's disease is a form of spondyloarthropathy. I have a form of spondyloarthropathy called reactive arthritis. While some individuals are more genetically susceptible to developing a form of spondyloarthropathy, only a small minority of these genetically susceptible individuals will develop any form of spondyloarthropathy. The genetic trait is not even required to contract these diseases. In addition, spondyloarthropathy requires an environmental trigger for the disease to manifest, usually certain forms of bacteria. Studies posted on DoD's anthrax website demonstrated a probable or possible link between anthrax inoculations and the onset and aggravation of spondyloarthropathy. I personally know an OIF veteran who was medically separated for spondyloarthropathy after redeploying from Iraq. DoD denied him service connection and he was denied DoD disability compensation. Not only did he receive anthrax inoculations, he was repeatedly exposed to water laced with the types of bacteria known to trigger spondyloarthropathy. This water was provided by a base support contractor who failed to correctly decontaminate base camp water supplies. A detailed information paper on his case is attached to this statement. Also attached is a fact paper on Crohn's disease and the cover page from one of the anthrax inoculation studies referenced above.
You discussed this morning if combat related diseases and injuries should be compensated at higher rates. Title 10, not Title 38, provides for more lucrative compensation stemming from combat related conditions. CRSC was discussed as an example. Another example is the fact Title 10 makes disability retirement tax free if the injury or disease is combat related. Otherwise, disability retirement is taxed as ordinary income.
Finally, if the 24/7 definition of service connected was changed to the GAO/CBO definition, service members and their families would be at extraordinary and unacceptable financial risk. A service member with 18 years of service became unfit due to an off-post/non duty car accident, he or she would lose future earning capacity and hundreds of thousands of dollars in retirement benefits earned to date. For members of the armed services, commercial disability coverage is unobtainable due to the high probability of injury/disease coupled with high duty fitness standards. Members of the military depend on the government providing disability coverage to protect their earning capacity as well as their retirement equity as there is no other option a service member could afford.
Thank you for you time and I will provide other feedback from this weeks meeting via written submittals.
I am an active duty army officer here today, on leave, to present concerns I have with current military and veteran disability law and application.
Thanks Michael for your input. It is appreciated.
19 October 2006
On Tuesday the President signed the 2007 National Defense Authorization Act. This new law contains a section to help reform the Defense Disability Evaluation System. While this a positive step, it is but the tip of the iceberg. Two House DES provisions did not make it through conference and many critical DES issues were not addressed at all. I would like to review this new law and what this Commission and Congress still need to address.
The new law mandates Physical Evaluation Boards to adequately convey their findings and conclusions, paying particular attention to issues raised by the service member. This action by Congress addressed a disturbing due process concern of PEB's withholding specific decision rationale, thus impairing the service member’s ability to appeal.
This new law also mandates DoD to develop and enforce regulations dealing with the conduct of the DES. In addition, the conference report recommended that the Service Inspectors General make the performance of the DES an item of special interest.
While this new law is encouraging, DoD has a very dubious track record for interpreting and implementing disability laws. Therefore, I ask that this commission be briefed on DoD’s plan for applying this law.
The House version of the Act included a stability provision for all members on the Temporary Disability Retirement List. Currently, TDRL members lose their disability retirements if they have an unstable condition that rates less than 30% during any reevaluation. The Conferees did not approve this provision but directed DoD to provide a report on this issue by May 1st.
Another House provision protected reserve and national guard members who become unfit due to combat. This provision awarded disability benefits based on years of reserve service instead of equivalent active duty service. While not adopted by the Conferees, they did direct DoD to provide a report on this issue by February 1st.
While the actions and interest by Congress is deeply appreciated and welcomed, there are several other DES issues that need desperate attention.
The most glaring issue is DoD's position they are not required to use VASRD criteria to assign disability ratings. Despite Title 10 establishing and numerous federal court decisions upholding this requirement, DoD continues to publish and enforce their own, ratings lowering criteria. DoD believes a DoD instruction, that they wrote, allows them to do so. This is absolute nonsense as DoD implements law. They do not have the authority to ignore or change law.
Another issue is the DES process for determining unfitting conditions. DoD only compensates unfitting conditions. Arbitrary and baseless methods for determining unfitness leads to lower ratings and benefits for disabled service members.
These two issues are key to understanding the variances between VA and DoD disability ratings. Both you and the Bradley Commission have identified this as an issue. I therefore encourage you to dig deep on these two drivers of rating variances.
While Congress expressed concern on the TDRL stability issue, this exact same issue needs to be addressed for initial evaluations as well. The Services often separate members before their unstable conditions can reach retirement level ratings.
Finally, Congress did not address concurrent receipt for disability retirees with less than twenty years service. It is ironic that non-disability retirees with less than twenty years can collect concurrent receipt, but our most disabled service members, those so disabled they are forced to end their careers, are denied this benefit by law.
I firmly believe that all retired service members deserve to have concurrent receipt. Why Congress specifically denied concurrent receipt for only one class of retirees is disturbing and perplexing. I am encouraged that this commission is addressing concurrent receipt. I ask that your review address concurrent receipt eligibility for all disability retirees as well as for those receiving disability separation pay.
Thank you for your time today and I look forward to providing further statements to you in the future.
Michael A. Parker
United States Army, (Retired)
I gave the below brief to the VDBC on 16 November 2006 during the public comment session. I have covered this topic before at a high level in previous statements to the VDBC. However, I wanted to give a specific brief on the topic as it is a critical reason why disabled service members are not receiving the disability benefits they are due by law. Progress being made on this front. The VDBC has directed research be done by the Center for Naval Analysis comparing ratings service members receive from DoD and the VA. This brief generating a lot of cross talk amongst the commissioners. They stated it was a very legitimate concern affecting disability benefits that was suppose to be, and still needs to be, examined by the commission.
The Legality of Substitute Military Disability Rating Criteria
What the Law Says
What the Courts Say
What DoD Says
What DoD and the Services Do
Presented to the Veterans Disability Benefits Commission
16 November 2006
What the Law Says
10 USC 1201
A service member is entitled to disability retirement if:
....the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination;
10 USC 1203
A service member will receive disability separation pay if:
....the disability is less than 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination...
What the Courts Have Said
McHenry v. United States, 367 F.3d 1370 (Fed. Cir. 2004).
10 U.S.C. § 1201 requires that disability ratings by the Secretary of the pertinent military department be based on the VASRD schedule. Section 1201 provides: “Determinations [that a service member is unfit for duty because of a physical disability] are determinations by the Secretary that . . . the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination . . . .” 10 U.S.C. § 1201(b) (emphasis added).
Thompson v. United States, 195 Ct. Cl. 468 (1971),
The statute “requires by specific reference, that the rating of disability be made ‘under the standard schedule of rating disabilities in use by the Veterans Administration.’” Thompson, 195 Ct. Cl. at 477 (quoting 10 U.S.C. § 1204(4)(B)).
Wolf v. United States, 168 Ct. Cl. 24, 32 (1964).
There is no authority for reducing percentages beyond those found in the schedule itself.”
Although the armed forces must use the VASRD guidelines when the service member’s disabilities “come within” them, the Secretary may make upward departures from the VASRD guidelines in particular cases.
Hordechuck v. United States, 144 Ct. Cl. 492, 495 (1959)
Finn v. United States, 212 Ct. Cl. 353, 356 (1971)
Cooper v. United States, 178 Ct. Cl. 277 (1967)
What DoD said when the Navy wanted to modify VASRD criteria leading to higher disability ratings:
-There is no reported cases holding that DoD is free to establish a substitute rating schedule for particular diseases.-
DoD CG Opinion dated 11 October 1994, authored by Mr. John Casciotti.
What DoD says when defending their substitute criteria that leads to lower disability ratings.
-VASRD is the primary reference source for rating disabilities.- (It is the only source mentioned by Title 10 and the Courts)
-DoDI 1332.39 does not establish the VASRD as the exclusive criteria for rating disabilities.- (Title 10 does establish the VASRD as the standard and the Courts concur)
-Title 10 only requires VASRD criteria for ratings at exactly 30%.- (Not true. "at least 30%" and "less than 30%" is the language of Title 10)
-DoDI 1332.39 only supplements the VASRD for clarity.- (Partially true, but not the whole story. DoD replaces VASRD criteria with their own. See next slide for comparison of VASRD and DoDI 1332.39 criteria for sleep apnea and narcolepsy.)
Comparison of VASRD and DOD 1332.39 Criteria for Rating Sleep Apnea.
VASRD Rating Criteria for Sleep Apnea
Chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy............... 100%
Requires use of breathing assistance device such as continuous airway pressure (CPAP) machine................. 50%
Persistent day-time hypersomnolence........................ 30 %
Asymptomatic but with documented sleep disorder breathing........0%
DoDI 1332.39 Rating Criteria for Sleep Apnea
Total industrial impairment .........100%
Considerable industrial impairment .........50%
Definite industrial impairment ..........30%
Mild industrial impairment .........0%
Comparison of VASRD and DOD 1332.39 Criteria for Rating Narcolepsy.
VASRD Rating Criteria for Sleep Apnea
Averaging at least 1 major seizure per month over the last year...........100%
Averaging at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly.......................................................................................80%
Averaging at least 1 major seizure in 4 months over the last year; or 9-10 minor seizures per week..................................................................................................60%
At least 1 major seizure in the last 6 months or 2 in the 40 last year; or averaging at least 5 to 8 minor seizures weekly................................................................. 40%
At least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months....................................................................................................20%
A confirmed diagnosis of epilepsy with a history of seizures...............10%
DoDI 1332.39 Rating Criteria for Narcolepsy
Profound industrial impairment ........ 80%
Severe industrial impairment .............60%
Considerable industrial impairment ...40%
Definite industrial impairment ...........20%
Mild industrial impairment ................10%
The next two slides show examples of Service Specific Disability Rating Criteria that that is not in compliance with the VASRD or DoDI 1332.39 standards.
Range of Motion Conditions Due to Pain (VASRD DC 5003)
VASRD. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.
E2.A18.104.22.168. Each major joint (or grouping of minor joints) with objective
limitation of motion plus radiographic evidence is rated at 10 percent. (The bilateral factor applies.)
Army (USAPDA I&G #1).
AR 635-40, paragraph B-29c. allows rating limitation of motion only when that limitation is the result is the result of mechanical limitation. (loss of joint integrity; muscle loss; contracture; malunion). Limitation of motion that is the result of pain alone is not ratable. If a case involving "some" limitation is rated under DC 5003 at 10% per joint (versus 0%) based on pain alone, the intent of AR 635-40 is violated.
When rating degenerative arthritis or other disorders that use the 5003 schema for rating purposes, limitation of motion that is the result of pain alone is not to be rated at 10% per joint.
The Army is stating they will follow neither the VASRD (the law) nor DoDI 1332.39 because it would conflict with an Army regulation.
VASRD Migraines Criteria:
With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.........50%
With characteristic prostrating attacks occurring on an average once a month over last several months.................. 30%
With characteristic prostrating attacks averaging one in 2 10 months over last several months.............................. 10%
With less frequent attacks........................... 0%
So what is the definition of prostrating?
DoDI 1332.39 - "Prostrating" means that the Service member must stop what he or she is doing and seek medical attention.
Army (USAPDA I&G #2) - When rating cases in which the soldier is determined unfit because of headaches, headaches may be considered to be "prostrating" if the following conditions are met.
1. There must be a valid diagnosis and detailed description of the soldier's migraine events historically and currently.
2. There must be evidence that the soldier's headache episodes met the DoDI definition of "prostrating" prior to initiation of the program described below.
3. The soldier must have undergone a rationale medical treatment program aimed at controlling the migraine headaches.
4. The soldier must have been, and is. currently compliant with treatment.
5. The attending physician (preferably a neurologist) must provide a written plan of instruction for the soldier, with a copy in the health record, detailing what the soldier is to do when experiencing a headache.
6. The plan above must include a requirement that the soldier stop activities and use appropriate medications or other acceptable modalities. The stopping of activities must clearly interfere with the soldiers performance of duty and be documented by the soldiers chain of command. A brief period of rest (20 min to an hour), once a week or so, would not likely meet the "interference" criterion.
7. There must be evidence that the management plan has been reviewed by the attending physician at least every six months.
My Comment during this brief: The Army requires these additional seven steps be met before they will consider headaches are prostrating. Soldiers are dependent on the their Doctors and MEB’s doing these steps if they are to receive the proper rating. Complicating matters is the fact that USAPDA’s additional rating criteria for defining prostrating headaches is not known by soldiers, their counsel, MEB personnel or medical staff. This guidance is only found in an internal USAPDA document that has not be shared with outside of the USAPDA or made publicly available.
Attached to the brief was USAPDA Issue and Guidance #1 (Musculoskeletal Conditions - DC 5003) and USAPDA Issue and Guidance #2 (Migraines-DC 8100)
Michael, if there were a salute icon it would be showing right HERE!
THE AIR FORCE IS RECCOMENDING I GET A PERMANET RETIREMENT. I HAVE OVER 21 YEARS IN THE AIR FORCE. I HAVE BEEN PREVIOUSLY BOARDED FOR SLEEP APNEA AND ASTHMA AND RETUNED TO DUTY. NOW I WAS DIAGNOSED WITH TYPE 2 DIABETES. THE PEB SAYS THAT EVEN THOUGH NONE OF THESE WOULD WARRANT ME UNFIT FOR DUTY, THEY SAY THE TOTALITY OF THEM ALL DOES WARRANT ME TO BE UNFIT. THEY RATED MY DISABLITY AT 20 PERCENT FOR THE TYPE 2 DIABETES ONLY AS THE MOST ADVANTAGEOUS FOR ME. WHY IS THAT MOST ADVANTAGEOUS? WHY WOULD THEY NOT RATE ON ALL 3 IF ALL 3 ARE THE REASONS FOR GIVING ME A PERMANENT RETIREMENT? SHOULD I ASK FOR A HIGHER RATING? THANKS
You need to discuss these issues with your veterans organization service officer. The rating is based on degree of impairment.
Below is the text from my briefings to the VDBC during the public comment period. I provided feedback on the concurrent receipt and line of duty (service connection) information papers the VDBC put out for public comment. I also gave an open forum brief on DoD's convalescent rating policy and how it is being used to deny disability benefits.
I apologize as it is a little disjointed due to copy paste from power point to text. If anyone can educate me on how to post power point slides on this forum I would be grateful. If anyone wants these presentations emailed to them, I will be happy to send them to you. Please request a copy at firstname.lastname@example.org
Concurrent Receipt Information Paper Feedback - Research Question 21
“Should veterans that are paid at the 100 percent level because of entitlement to individual unemployability be eligible for full concurrent receipt (like scheduler 100 percenters)? Should all veterans who have retired from the military based on longevity be eligible for concurrent receipt (instead of only the 50 percenters and higher)? Should all veterans who have retired from the military based on disability be eligible for concurrent receipt? Should phase-in rates and time periods change? Should surviving spouses who are receiving Dependency and Indemnity Compensation payments be eligible to also receive full payments under the DoD’s Survivor Benefit Plan?”
DoD Pay is for Lost Career Equity VA Pay is for Loss of Civilian Earning Capacity
OUSD P&R Brief to VDBC in July 2005 on Disability Evaluation System
Backs This Position
OUSD P&R brief states:
- DoD Compensation is for career service
- VA compensation is for lost earning capacity and quality of life due to service connected disabilities.
Current Requirements for CRDP
Non Disability Retirees:
- Retired and a 50% or Greater VA Rating
- No Requirement to Have Twenty Years of Service*
TERA Retirees, members retired due to age limitations, and reservist retired for non-service connected disabilities are examples of retirees with less than 20 years of service who are eligible for CRDP if VA rating = 50%+.
Chapter 61 Disabled Retirees:
- Retired, 20 Years of Service, and a 50% or Greater VA Rating*
- Chapter 61 Retirees, those so disabled they were forced out of service, are the only class of retirees required to have 20 years of service to be eligible for CRDP
*See attached CRDP Law Language and DFAS Email
CRDP For Disabled Retirees with Less Than Twenty Years Service Model for CRDP for All Disabled Retirees
From CDRP Law:
“The retired pay of a member retired under chapter 61 of this title
with 20 years or more of service otherwise creditable under section 1405 of
this title, or at least 20 years of service computed under section 12732 of this
title, at the time of the member’s retirement is subject to reduction under sections
5304 and 5305 of title 38, but only to the extent that the amount of the member’s
retired pay under chapter 61 of this title exceeds the amount of retired pay to
which the member would have been entitled under any other provision of law
based upon the member’s service in the uniformed services if the member had
not been retired under chapter 61 of this title.”
The Key Point: Current law protects only the amount of retirement earned from Service from VA off-set. This same provision needs to apply to Chapter 61 Retirees under 20 years of service as well. If Concurrent Receipt was expanded to included Chapter 61 disability retirees with less than 20 years of service then:
- An E-2 with two years would have $43.86 protected from VA off-set.
- An E-7 with 17 years would receive $1,391.88 protected from VA off-set.
Both would receive VA compensation based on their VA rating.
The more time served, the more retirement equity is protected from VA off-set.
Under current law the E-2 and E-7 end up with the same monthly compensation when the entire DoD retirement pay is off-set by VA compensation. The E-7 loses hundreds of thousands of dollars in retirement pay earned by service.
Concurrent Receipt Plan for Service Members Medically Separated Due to Service Connected Disabilities
- Currently, 70% of soldiers found unfit for continued service receive military disability ratings of 20% or less.*
- Current law (10 USC 1212c) off-sets DoD disability severance pay with VA compensation.
- An E-1 and an E-8, both medically separated for the same condition. Both receive the same amount of compensation for their service and disability. The only difference is who is paying it (DoD or VA) and when.
- The E-1 will likely receive more lifetime compensation as he will live to collect longer.
- The E-8 is forced to forfeit his retirement equity for VA disability compensation.
Commission needs to recommend elimination of 10 USC 1212c and allow separated disabled service members keep career severance pay without VA offset.
*The percentage of unfit service members receiving 20% or less disability ratings has increased from 35% to nearly 60%1 since 2000 despite the dramatic increases in the severity of disabling conditions brought on by the War on Terror.
Data source GAO Reports 01-22 and 06-362.
CRDP Law Language
SEC. 641. PHASE-IN OF FULL CONCURRENT RECEIPT OF MILITARY RETIRED PAY AND VETERANS DISABILITY COMPENSATION FOR CERTAIN MILITARY RETIREES.
(a) CONCURRENT RECEIPT.—Section 1414 of title 10, United States Code, is amended to read as follows:
‘‘§ 1414. Members eligible for retired pay who are also eligible for veterans’ disability compensation for disabilities rated 50 percent or higher: concurrent payment of retired pay and veterans’ disability compensation
‘‘(a) PAYMENT OF BOTH RETIRED PAY AND COMPENSATION.—
‘‘(1) IN GENERAL.—Subject to subsection (b), a member or former member of the uniformed services who is entitled for any month to retired pay and who is also entitled for that month to veterans’ disability compensation for a qualifying service-connected disability (hereinafter in this section referred to as a ‘qualified retiree’) is entitled to be paid both for that month without regard to sections 5304 and 5305 of title 38. During the period beginning on January 1, 2004, and ending on December 31, 2013, payment of retired pay to such a qualified retiree is subject to subsection (c).
‘‘(2) QUALIFYING SERVICE-CONNECTED DISABILITY.—In this section, the term ‘qualifying service-connected disability’ means a service-connected disability or combination of service-connected disabilities that is rated as not less than 50 percent disabling by the Secretary of Veterans Affairs.
‘‘(b) SPECIAL RULES FOR CHAPTER 61 DISABILITY RETIREES.—
‘‘(1) CAREER RETIREES.—The retired pay of a member retired under chapter 61 of this title with 20 years or more of service otherwise creditable under section 1405 of this title, or at least 20 years of service computed under section 12732 of this title, at the time of the member’s retirement is subject to reduction under sections 5304 and 5305 of title 38, but only to the extent that the amount of the member’s retired pay under chapter 61 of this title exceeds the amount of retired pay to which the member would have been entitled under any other provision of law based upon the member’s service in the uniformed services if the member had not been retired under chapter 61 of this title.
‘‘(2) DISABILITY RETIREES WITH LESS THAN 20 YEARS OF SERVICE.—Subsection (a) does not apply to a member retired under chapter 61 of this title with less than 20 years of service otherwise creditable under section 1405 of this title, or with less than 20 years of service computed under section 12732 of this title, at the time of the member’s retirement.
DFAS EMAIL on CRDP Eligibility
From: "DISBROW, DENNIS (CONTRACTOR)" <DENNIS.DISBROW@DFAS.MIL> ￼Add to Address Book ￼Add Mobile Alert To: email@example.com CC: "CCL-MB-RETIRED-PAY" <CCL-MB-RETIRED-PAY@DFAS.MIL>
Col. Parker, All non-disability retirees are considered to be career retirees and are therefore eligible for the CRDP, provided they meet all other criteria. We do not maintain a separate count of such members, just the total count of 193,742 CRDP recipients.
Policy and Legislation Retired and Annuity Pay
Greetings, I am doing research for a veterans benefit website on Concurrent Retirement and Disability Payments (CRDP). My question deals with eligibility and how many non disability retirees with less than twenty years of service are currently collecting CRDP.
CRDP law states:
''§ 1414. Members eligible for retired pay who are also eligible for veterans' disability compensation for disabilities rated 50 percent or higher: concurrent payment of retired pay and veterans' disability compensation
''(a) PAYMENT OF BOTH RETIRED PAY AND COMPENSATION.-
''(1) IN GENERAL.-Subject to subsection (b), a member or former member of the uniformed services who is entitled for any month to retired pay and who is also entitled for that month to veterans' disability compensation for a qualifying service-connected disability (hereinafter in this section referred to as a 'qualified retiree') is entitled to be paid both for that month without regard to sections 5304 and 5305 of title 38. During the period beginning on January 1, 2004, and ending on December 31, 2013, payment of retired pay to such a qualified retiree is subject to subsection (c).
''(2) QUALIFYING SERVICE-CONNECTED DISABILITY.-In this section, the term 'qualifying service-connected disability' means a service-connected disability or combination of service-connected disabilities that is rated as not less than 50 percent disabling by the Secretary of Veterans Affairs.
''(b) SPECIAL RULES FOR CHAPTER 61 DISABILITY RETIREES.-
''(1) CAREER RETIREES.-The retired pay of a member retired under chapter 61 of this title with 20 years or more of service otherwise creditable under section 1405 of this title, or at least 20 years of service computed under section 12732 of this title, at the time of the member's retirement is subject to reduction under sections 5304 and 5305 of title 38, but only to the extent that the amount of the member's retired pay under chapter 61 of this title exceeds the amount of retired pay to which the member would have been entitled under any other provision of law based upon the member's service in the uniformed services if the member had not been retired under chapter 61 of this title.
''(2) DISABILITY RETIREES WITH LESS THAN 20 YEARS OF SERVICE.-Subsection (a) does not apply to a member retired under chapter 61 of this title with less than 20 years of service otherwise creditable under section 1405 of this title, or with less than 20 years of service computed under section 12732 of this title, at the time of the member's retirement."
As I read the law, to qualify for CRDP you must:
1. Be a non disability retiree, regardless of years served.
2. Have a VA disability rating of 50% or more.
3. If you are a disability retiree (Chap 61), you must have twenty years of service and a 50% VA rating to qualify for CRDP.
Is this interpretation correct?
I can think of three categories of non disability retirees that would be eligible for CRDP if they have a 50% or greater VA rating:
1. TERA retirees.
2. Those who are forced to retire with less than 20 years because of age limitations.
3. Reservist, with less than 20 but more than 15 years, who are allowed to retire due to a non service connected condition causing them to be unfit. (See Title 10 Sec. 12731b. Special rule for members with physical disabilities not incurred in line of duty)
Can you tell me:
1. Do the above non disabled categories of retirees in fact qualify for CDRP if they have a VA rating of 50% or more.
2. Are there are any other categories of non disability retirees under twenty years of service that are eligible for CDRP given a 50% VA disability rating?
3. How many retirees with under twenty years of service are currently collecting CRDP?
Thanks for your assistance,
Michael Parker LTC, USA (Retired)
Line of Duty Information Paper Feedback Brief
- Commission needs to thoroughly examine differences between VA and DoD LOD standards.
- Examination needs to cover both policies and practices of these organizations particularly in regards to conditions deemed to have Existed Prior to Service (EPTS).
- Commission needs to study options to cover gap in disability coverage for service members should LOD standards changed.
DoD v. VA LOD Standards
- Both appear quite similar in policy (DoDI 1332.38 and CFR 38)
- However, service EPTS practices are not compliant with requirements of DoD policies.
- As a result, numerous service members’ conditions are being found non service connected by DoD but Service connected by VA.
DoD EPTS Policies
- Designed to Protect the Rights and Equities of the Disabled Service Member
DoD EPTS Policies are generally fair and balanced. Examples below:
E3.P22.214.171.124.1. Presumption. Any injury or disease discovered after a Service
Member enters active duty -- with the exception of congenital and hereditary
conditions – is presumed to have been incurred in the line of duty;
E3.P126.96.36.199. Presumption of Aggravation. The presumption that a disease is
incurred or aggravated in the line of duty may only be overcome by competent
medical evidence establishing by a preponderance of evidence that the disease
was clearly neither incurred nor aggravated while serving on active duty or
Authorized training. Such medical evidence must be based upon well-
established medical principles, as distinguished from personal medical
opinion alone. Preponderance of evidence is defined as that degree of proof
necessary to fully satisfy the board members that there is greater than a
50% probability that the disease was neither incurred during nor aggravated by
E2.1.1. Accepted Medical Principles. Fundamental deductions, consistent with
medical facts that are so reasonable and logical as to create a virtual certainty
that they are correct.
E3.P188.8.131.52.3.1. For all cases with a finding of pre-existing condition without
aggravation, the specific accepted medical principle for overcoming the
presumption of Service aggravation shall be cited and explained.
Services Are Ignoring These Policies
- Not providing Specific Medical Principles to overcome presumptions of service aggravation.
- Not documenting their rational for overcoming presumption of service connection. Service member has a due process right to this information to challenge in boards and reviews.
- Finding conditions that manifest after entry to be EPTS without aggravation by claiming “natural progression” of a previously undiagnosed condition. Fail to provide or documenting rationale and specific medical principles to justify natural progression.
- Basing EPTS decisions on nonexistent EPTS entry waivers.
- Refusing to reconcile and document differences with MEB determination of service connection as required by DoDI 1332.39
- Ignoring testimony and evidence that supports service aggravation
Services Twist Provisions Leading to Denied Disability Benefits
AR 635-40 B-10c. Hereditary, congenital and other EPTS conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless service aggravated complications are clearly documented or unless a Soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnosed or should have been diagnosed.
USAPDA interprets this provision as follows:
“This provision only applies to conditions that have been determined to not meet retention standards under Chapter 3, AR 40-501, and have been fully treated. “
USAPDA response is nonsensical. AR 635-40 B-10c does not state requirements for a confirmed diagnosis or treatment. It clearly states, “diagnosed or should have been diagnosed” as the standard.
Case Example: An Army Staff Sergeant experienced a bloody stool in basic training and diagnosed with ulcerative colitis. He was allowed to stay on active duty without MEB/PEB action. Condition greatly worsened while deployed to Iraq leading to EPTS medical separation without benefits. Medical information on DoD Health Link website reports possibility anthrax inoculations and a common bacteria found in Iraq cause onset/aggravation of this condition. Board provides no specific medical principles to overcome presumption of service connection without aggravation as required. AR 635-40 B-10c provision above ignored.
Commercial Disability Insurance Not Available
- Mutual of Omaha will not provided individual disability coverage for active duty military.
- AFLAC will not provided individual disability coverage for active duty military.
- KF Financial, a disability insurance brokerage house, knows of no insurance companies that will provide disability insurance for military members.
Commission Needs Plan to Fill Disability Coverage Gap if LOD Changed from 24/7
- Service Members Need Disability Coverage to Financially Protect Self and Family
- Commercial Disability Insurance Unavailable or Unaffordable for Active Duty Military
- If 27/7 LOD changed then Government Sponsored Disability “Gap” Insurance Program Needed to Protect Service Members and Their Families from Financial Ruin
DoD & Service Convalescent Ratings Policy and Denial Disability Benefits Brief
Title 10 Requires Services to Assign Disability Ratings IAW Criteria of the VASRD
§ 1201. Regulars and members on active duty for more than 30 days:
(B) the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination…..
§ 1203. Regulars and members on active duty for more than 30 days:
(B) the disability is less than 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination….
VASRD Provides for Convalescent Ratings
VASRD DC 5054
Hip replacement (prosthesis). Prosthetic replacement of the head of the femur
or of the acetabulum: For 1 year following implantation of prosthesis...100%
VASRD DC 7017
Coronary bypass surgery: For three months following hospital
admission for surgery... 100%
VASRD DC 7531
Kidney transplant: Following transplant surgery...100%
Thereafter: Rate on residuals as renal dysfunction, minimum rating 30%
DoD Unilaterally Decided to Ignore VASRD Convalescent Ratings
DoDI 1332.39 paragraph 6.7. Convalescent Ratings.
“Under certain diagnostic codes, the VASRD provides for a convalescent rating to be awarded for specified periods of time without regard to the actual degree of impairment of function. SUCH RATINGS DO NOT APPLY TO THE MILITARY DEPARTMENTS. Convalescence will ordinarily have been completed by the time optimum hospital improvement (for disposition purposes) has been attained. If not, rate according to the manifest impairment.”
DoD Position is Nonsensical and Denies Disabled Service Members Lawful Benefits
- DoD/Services erroneously argue they can’t use convalescent ratings
because their disability ratings, unlike the VA’s are permanent.
- Title 10 established the Temporary Disability Retirement List (TDRL) to allow service members recover and/or stabilize before final disability assessment and assignment of a lifetime military disability rating.
- It is true that in most cases, convalescence would be complete before
military discharge. However, VASRD convalescent ratings, by law, must be
applied when this is not the case. In such situations, the service member should
receive a convalescent rating and placed on the TDRL until their condition is
stable for final rating purposes.
Army Exploits DoD Convalescent Policy to Deny Proper PTSD Ratings
4.129 Mental disorders due to traumatic stress.
When a mental disorder that develops in service as a result of a highly stressful
event is severe enough to bring about the veteran's release from active
military service, the rating agency shall assign an evaluation of not less
than 50 percent and schedule an examination within the six month period
following the veteran's discharge to determine whether a change in evaluation is
United States Army Physical Disability Agency Policy # 7 States:
“Convalescent ratings: The Army does not use convalescent ratings. Paragraph 4.129 of the new section states that “When a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran's release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six month period following the veteran's discharge to determine whether a change in evaluation is warranted.” This is essentially a convalescent rating and will not be used.
Navy PEB Separates Marine Unfit with PTSD at 10% Rating - No Disability
Retirement Pay or Benefits
- Marine sergeant was hit in the head by a mortar blast while performing combat operations in Fallujah, Iraq.
- The sergeant suffered a brain injury, loss of memory and balance, cognitive disorder, chronic daily headaches as well as PTSD from this injury.
- Navy PEB find him unfit for PTSD and assigned and separated him with a 10% disability rating.
- PEB Findings “POSTTRAUMATIC STRESS DISORDER (30981) 9411 10%” No further rationale for the fitness determination and rating provided.
- PEB findings states traumatic brain injury, posttraumatic headaches, abnormal vestibular balance function, overall cognitive decline did not contribute to his unfitness for further military servcie.
- VA Rates his PTSD w/cognitive disorder secondary to traumatic brain injury due to shrapnel wound at 50%. Rating based on manifestations and impact of condition vice removal from active duty. Rating rationale detailed and 2 ½ pages long. VA rating based on same medical reports used by Navy PEB.
- Navy PEB rating was arbitrarily low resulting in separation vice retirement. Navy failed to assign a 50% TDRL rating based for removal from active duty. Navy arbitrarily cherry picks unfitting disabilities resulting in a low disability rating. The Navy provided no rationale for their decision as required.
Military Disability Evaluation System Out of Control
- Culture of Budget Preservation Preventing Delivery of Lawfully Due Disability Benefits
- Refusal to Use VASRD Criteria as Required by Title 10
- Failing to Follow DoD and Service Policies and Regulations that Protect Service Members Rights and Equities
- Finding Service members fit and then administratively separated them without disability benefits stating required medicines or treatments to treat the condition make them administratively unacceptable
- Failing to Properly Document Decision Rationale
- Finding Unfit Service Members Fit to Avoid Retirement Costs
- Arbitrarily Limiting Unfit Conditions to Keep Ratings Low
- No Accountability by DES Elements for Failures – No Motivation to Get it Right
- DES Elements Failing to Perform Their Mission - Keep a Fit Force and Compensate per Law and Regulation
DoD VA Ratings Comparison
- The VDBC has tasked CNA to compare DoD and VA ratings:
- Is DoD cooperating and providing necessary data?
- How will VDBC capture and report the results of this effort?
VDBC previously stated there were going to have high level DoD officials brief the VDBC on the defense disability issues. Is this still true?
Thank you so much for all of this information. I was recently moved from TDRL to permanent list for migraine headaches at a disability of 30%. I am having a hard time with the fact that my pay has actually decreased now that I have been deemed "sick enough" to be permanently disabled.
I have an appointment set up with the VA and was wondering if it is worth it for me to file with them. I have been unable to work for several months due to the severity of my migraines so economic hardship is definitely occurring! Thanks again!
Yes it is worth you while. Include all service connected issues as well.
VDBC Brief 22 Feb 2007
DoD Disability Case Dispositions
A Comparison of the Years 2000 and 2005 for Unfit Service Members
Percent Discharged w/o Medical Retirement Benefits-1
Percent Receiving Temporary Medical Retirement Benefits-1
Percent Receiving Permanent Medical Retirement Benefits-1
Total Number of Disability Retirees and Pay (2000-2005)-2
Data derived from:
1. GAO Reports: GAO-01-622 and GAO-06-362
2. DoD Office of the Actuary http://www.dod.mil/actuary/
Presented to the Veteran’s Disability Benefit’s Commission
Michael A. Parker
LTC, USA (Retired)
22 February 2006
• Number of unfit service members was derived from total disability evaluation cases.
• Numbers expressed as a percentage of unfit service members.
• Unfit service members receive disability ratings from their Service.
• Disability ratings below 30% result in separation unless service member has at least 20 years of service.
• Disability ratings 30% or greater result in temporary or permanent retirement.
• Temporary disability retirees can be returned to duty, separated w/o retirement or permanently retired.
Case Outcomes of Service Members Found Unfit for Continued Military Service
Medical Retirement 43% 63%
Retirement 29% 21%
Retirement 17% 5%
(About 10-11 % of unfit service members were separated without compensation in 2000 and 2005.)
DoD Disability Retirees and Disability Retirement Pay
FY Number Total Monthly Pay
2000 102,435 $100 Million
2001 98,406 $110 Million
2002 93,648 $100 Million
2003 88,855 $100 Million
2004 92,081 $100 Million
2005 89,510 $100 Million
• War is Hell
• War is also very expensive (and budgets must expand to meet these costs)
• Number of disabled retirees is dropping despite high number of war casualties
• DoD disability retirement costs are remaining constant
• DoD is obviously managing disability retirees to a set budget
• DoD is making disabled service members pick up the cost of the war
Below is the text from my 20 April 2007 VDBC statement.
Feedback on 12 April 2007 Senate Hearing on the Disability Evaluation System
Michael A. Parker
• Option four of the Concurrent Receipt issue expands CR for Chapter 61 with less than 20 years of service.
• This is a good step forward but it fails to address the CR issue for those separated under twenty years service with ratings less than 30%. This is the vast majority of personnel discharged for disability.
• Under current law (10 USC 1212e) every dollar of DoD separation pay (career compensation) is forfeited when the individual receives VA disability compensation.
• The VDBC’s CR options needs to address CR for those who receive disability separation pay.
• Chairman Scott recommended that the Military determine fitness and let the VA rate the disabilities.
• This is a great step forward but it only addresses part of the problem. Under this plan, we still have this inequity:
– An E-8 with 19 years or service and a 20% disability will be separated without retirement benefits.
– An E-1 with less than one year of service and a 30% disability rating will receive life time retirement.
• Given the schizophrenic nature of the VASRD rating structure coupled with the lack of a stability requirement for conditions rated less than 30%, a serious inequity remains.
• The basis for whom should be retired vice separated needs to consider more than the disability rating. Time in service is just as important as degree of disability.
• C N A analysis showed the Department of the Navy had the highest percentage of members receiving retirement level disability ratings.
• However the Department of the Navy finds many members fit for their specific job but then administratively separates them because their condition makes them unsuitable to perform common tasks of Naval/Marine service. These members do not receive disability ratings or benefits.
• Army/USAF evaluates fitness in terms of specific job and common tasks of military service.
• C N A needs to determine how many Navy/Marine personnel who were found fit but then administratively separated because their medical conditions made them unsuitable for service.
• C N A analysis data did not include members found unfit and separated without benefits due to a determination that the condition existed prior to service (EPTS).
• The VA later determines the unfitting condition is service connected.
• In these cases the member receives a VA rating but no DoD rating.
• C N A should determine how many EPTS separations were later deemed service connected by the VA.
• Secretary England stated that 11% of DES cases were due to combat injuries and the remaining 89% were career members transitioning to retirement.
• This is wrong. The only people who go through the DES are service members who do not meet retention standards. Personnel retiring for length of service are not evaluated by the DES.
• Secretary England should have stated that 89% of the DES cases are service members in who no longer meet retention standards due to non combat injuries and diseases.
• Secretary England speculated that the differences in ratings was driven by the different nature of service by the different branches of the military.
• This may drive different fitness standards but once found unfit, all Services are required to use the same standards to assign disability ratings.
• A bigger driver is the fact the Army further modifies established rating criteria which lead to lower ratings.
• The Army had 13,000 cases that resulted in unfit but only a 0% rating. The Air Force and Navy each only had about 400 unfit cases with 0% ratings.
• Again, this is driven by the Army further modifying establish rating criteria which leads to lower ratings.
Below is the text from my 09 May 2007 Power Point Brief to the VDBC.
Streamlining the VA Ratings Process
Correct Ratings the First Time
Reducing VA Workload
A Perspective from the VA Rating Experiences of a Recent Retiree Under the Benefits at Discharge Program
Michael A. Parker
LTC, USA (Retired)
• Benefits at Delivered at Discharge (BDD) is a good program and should available if not mandatory for all to include those retired/separated under Chapter 61.
– My time line:
• DoD retirement physical in February 2006
• Filed with VA in April 2006
• C&P exams in August 2006
• Retired 01 October 2006
• Received rating in December 2006
• Without BDD, I would have to waited until 01 OCT 2006 to file
• However, one goal of BDD program was to have single disability physical address DoD and VA needs. This did not happen and I was required to have a physical with both the DoD and the VA.
• Develop a single physical that covers all DoD and VA information needs
• Empower both DoD and the VA to conduct these physicals
• Share the burden of conducting combined needs exit/comp physicals between DoD & VA
• Win/Win/Win solution for DoD/VA/service member
Rating Process is the Weak Link in Timely/Correct Ratings
• Current system has the VA physicians conducting a physical and non medical personnel rating conditions based on the physical, medical history and service connection evidence.
• Most of the rating criteria are based exclusively on medical factors.
• Physicians conducting physicals are better qualified to match medical factors with ratings criteria.
• Physicians should be empowered to assign interim ratings for conditions where possible.
• Compensation and benefit program qualifications can begin immediately after C&P exam.
• VA raters can check these ratings as well as finish ratings on conditions with complex rating criteria.
Example 1 - Kidney Stones
Rate as hydronephrosis*, except for recurrent stone formation requiring one or more of the following: (30% rating)
1. diet therapy
2. drug therapy
3. invasive or non-invasive procedures more than two times/year
I have recurrent stones which are treated with both diet and drug therapy. The
VA Urologist confirmed these factors during my C&P exam.
There is no reason a interim 30% rating could not be awarded on the spot. The
VA rater could later audit the rating for validation.
* Hydronephrosis ratings cap out at 30%
Example 2 - Diabetes
7913 Diabetes mellitus
100% Requiring more than one daily injection of insulin, restricted diet, and regulation of activities
(avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or
hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic
care provider, plus either progressive loss of weight and strength or complications that would be
compensable if separately evaluated
60% Requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or
hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a
diabetic care provider, plus complications that would not be compensable if separately evaluated
40% Requiring insulin, restricted diet, and regulation of activities
20% Requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted
10% Manageable by restricted diet only
All of the above bolded factors are required to be addressed by the physician in the C&P exam.
There is no reason an interim rating cannot be assigned by the physician. VA rater can validate the rating.
Example 3 - Migraine Headaches
50% With very frequent completely prostrating and prolonged attacks
productive of severe economic Inadaptability.
30% With characteristic prostrating attacks occurring on an average
once a month over last several months.
10% With characteristic prostrating attacks averaging one in 2 months
over last several months.
0% With less frequent attacks.
Most of the factors in migraine ratings are based on severity and frequency of attacks which the physician is required to address in the C&P exam. The economic adaptability factor probably requires more data and research than can be obtained in a C&P exam. The physician should be able to assign interim ratings up to 30%. If the attacks are frequent and completely prostrating, the physician can note the frequency and severity and the VA rater can raise the rating to 50% if he/she determines these attacks produce severe economic inadaptability.
Current VA Process Delays Correct Information for Rating
• Current Process
– Apply for compensation
– Conduct C&P Exam
– Rater Rates (3-4 cases if not more a day)
– Service Member appeals providing his position and supporting information (months if not years long)
• Nobody knows the medical case better than the service member!
• Positions and information from the service member should be front loaded into the process.
Service member could provide a simple form for each condition claimed
Condition Claimed: Kidney Stones
Evidence of Service Connection: First attack occurred in July 1997, over 12 years
after entering active duty. (See attached emergency room report dated 12 July 1997).
Evidence Condition is Current: See attached urologist report dated 13 March 2006.
Rating sought: 30%
Supporting Evidence for Rating: I have recurrent stones which are currently being
treated with diet and drug (potassium citrate) therapy. See attached CT scan from
December 2005 showing six stones. See attached urologist follow up report dated
13 March 2006 showing dietary restrictions and prescription for potassium citrate.
Form given to C&P physician and included in claim file for rater.
Physician/rater don’t have to dig through medical records to find
Military, VA and VSO counselors could assist SM’s preparing these forms.
VA Bureaucracy and Attitude Prevents Sensible Solutions thus Increasing Workload and Denying Due Benefits
• Over 1 year after filing my claim, my most significant medical condition, Reactive Arthritis, has yet to be addressed by the VA raters.
• My Reactive Arthritis led to a MEB/PEB. It is a long standing and well documented condition.
• Reactive Arthritis is rated under VASRD DC 5009 Titled “Arthritis, Other Types”. Only experienced and well trained raters know this. VASRD does not specifically list the “other types” of arthritis rated under DC 5009.
• Despite being the first medical condition listed on my compensation application and being well documented in my C&P exam, my rater did not rate or even address this condition in the decision rationale. No doubt because the rater did not understand the types of conditions rated under DC 5009. The words “Reactive Arthritis” do not appear in the VASRD.
• I have recommended to the VA to make a simple administrative adjustment in the VASRD to list the types of conditions covered under DC 5009 and/or to send a memo to the field rating agency explaining the problem and proper rating procedures for DC 5009 conditions.
• After over one year or repeated attempts with Secretary Nicholson’s office on down, they have failed to act to fix this problem.
• As I result, I and countless others have to appeal our ratings adding unnecessary work to an overburdened system. We also must wait years for proper compensation.
This is the first time I have ever heard anyone speak of solutions I have been campaigning for years.
I use a couple of my own ratings, diabetes that was backed up by several doctors, medication, etc. Any fool could have seen by a glance that it was a 20% rating in the making. After a year and a half, and a C&P that made a decision ONLY by merely looking at the medical record, the VA finally decided that it was a 20% disability. A case of ED worked about the same.
My point is that rather than having such simple obvious ratings clogging up the system for years, by making those easy ones go away in a day, the VA would then have time to devote to the complicated hard to decide cases. Do you suppose ANYONE at the VA is listening?
I agree Michael. I have 4 disabilities. Now that one is rated at 100% I can not get to to look at their mistake 9 years ago. My disability says that An FEV1 or DLCO below 40% of expected is 100%. I think 50% is 60%. When I was evaluated 5 years ago, my FEV1 was 21%. I was evaluated for a lung transplant during the process, and listed for a lung transplant the same week my new rating came in. Yet it took 6 months and another C&P to change my rating from 70% to 100%. Waste of time and money and they had to pay me for those 6 months.
I wish they had the process you suggested when I was discharged. I know how hard is is for a confused, sick, broke veteran to get it done. I was lucky - someone who used to work for my father worked for the VA in Columbus and helped me get through it.
Can I nominate you for Undersecretary of the VA?
Below is the text from my June 8th, 2007 briefing to the VDBC. I am little late posting this so my apologies.
Mr. Bradley Mayes, Director Compensation & Pension (C&P) for the VA was briefing at the July VDBC meeting. I was able to talk to him briefly after his presentation and handed him this brief along wiht the one I gave the VDBC in May. I hope he will read them and consider my thoughts on the problems.
Streamlining the VA Disability Compensation Decision Process
Front Loading the Service Connection Decision Process
A Perspective from the VA Rating Experiences of a Recent Retiree Under the Benefits at Discharge Program
Michael A. Parker
LTC, USA (Retired)
• Determination of service connection is an important but often lengthy step in the disability compensation process
• Currently, service connection decisions are made by the VA at the end of a veteran’s military career
• Decision is often made years/decades after the condition manifested
• Memories become foggy
• Medical records are often lost or destroyed
• Determine service connection at the onset of a condition
• Allow military medical personnel to determine service connection based on an established protocol
• Record service connection determinations in shared DoD/VA database
• Allow VA to review and modify decisions as necessary
• Allows service connection decision to be made while relevant information is fresh and available
• If service connection is denied, the service member can challenge the ruling well in advance of separation
• With service connection established, departing service member need only to have the condition rated as part of a joint DoD/VA exit physical. (See my VDBC brief from May 2007 for details of this recommended process)
• Real time service connection decisions coupled with exit physical ratings will lead to:
– More accurate service connection decisions and ratings
– Timely awarding of disability benefits (A true benefits at discharge program)
– Reduction and eventual elimination of ratings backlog
– Fewer appeals
Below is the text from my brief to the VDBC on 18 July, 2007
Feedback on Senate Bill 1606
Dignified Treatment for Wounded Warriors Act
The Senate’s Dignified Treatment for Wounded Warriors Act is a positive step in the right direction with many great provisions. However, some of the provisions miss the mark and require modification if they are to truly protect and benefit disabled service members. This brief will cover some of the key problem areas.
Michael A. Parker
LTC, USA (Retired)
Section 301 - Existed Prior to Service Disabilities
• Current law (10 USC 1207a) states that for a service member with eight years of active duty service, all conditions are deemed service connected and compensable even if they existed prior to service (EPTS) and were not further aggravated. This law made EPTS moot after eight years of active duty.
• Section 301 lowers the active duty requirement to six months except for cases where “medical evidence or judgment” states the condition existed prior to service. S. 1606 does not define or provide the standard for this medical evidence or judgment. This provisions erroneously takes a step backwards in protecting the equities of disabled service members.
• If this provision passes as written, a service member with 19 years in service member could loss all disability benefits based on someone’s “judgment” that the condition existed prior to service.
• Current DoD policy requires that EPTS decisions be based on more than opinion. These decisions must be based on “clear and unmistakable evidence” that the condition was in fact EPTS and not aggravated. This unmistakable evidence must be based on accepted medical principles that create a virtual certainty the evidence is correct.
• S. 1606 should eliminate the medical evidence/judgment clause and make all EPTS cases compensable except in cases of fraud.
Section 302 - Use of VASRD for Rating Decisions
• Section 302 mandates the use of VASRD criteria for assigning disability ratings.
• Section 302 mandates DoD follow federal court decisions on the application of the VASRD.
• Section 302 allows DoD to use substitute rating criteria only if it leads to a higher rating than allowed by the VASRD.
• The problem is that section 302 states “to the extent possible” follow the VASRD and court decisions. The words “to the extent possible” are unnecessary and could lead to an artificial loop hole used to deny disability benefits.
Section 303 - Review of Separation of Members
• Section 303 establishes the Physical Disability Board of Review. This provision is in response to the Independent Review Group’s recommendation for DoD to review past disability cases that resulted in separation level ratings or denial of all benefits due to EPTS determinations.
• The “new” Physical Disability Review Board” is a Service specific board that is an exact copy of the current Board for the Correction of Military Records. BCMR’s were already available to disabled services members but these boards consistently failed to recognize and fix problems with erroneous disability evaluation decisions.
• Section 303 does not call for an automatic review of past cases. The board or the service member has to initiate the case. Many disabled service members are not even aware of the problem. EPTS cases are not covered by this new board. Cases where the Navy found members fit for their job but unsuitable for service (thus deny all disability benefits) are also not covered.
• The Independent Review Group wanted DoD to review these cases to ensure uniformity of decisions. Having each Service review these cases independently will continue the problem of inconsistent standards and decisions amongst the Services.
• To fix the problem, the review board must be at the DoD level and it needs to automatically review separation, EPTS and Navy “fit but unsuitable” cases.
Section 311 - Enhancement of Separtion Pay
• Section 311 eliminates the twelve years of service cap for calculating severance pay and enhances the minimum amount of severance pay due.
• Section 311 established the minimum years of service for calculating separation pay for disabilities incurred in combat zones at six years and three years for non combat zone disabilities. It also eliminates the recoupment of severance pay by VA disability compensation but only for disabilities incurred in combat zones.
• The “Combat Zone” requirement in section 311 is nonsensical. A service member who trips and injures himself walking out of the Green Zone dinning hall will get enhanced separation pay that will not be off-set by VA compensation. However, a service member who is injured in a live fire exercise stateside will get less severance pay and it will be recouped by the VA.
• S.1606 should ensure all service members receive severance pay that compensates their retirement equity earned to date and it should ensure severance pay for service is never off-set by VA compensation for disability.
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