Earlier this week, the United States Army Physical Disability Agency sent out the email below. It rescinds policies that allowed them to rate unfitting conditions with modified rating criteria that resulted in lower ratings. These lower ratings resulted in lower benefits and often seperation instead of disability retirement. This is great news and long overdue.

Mike


ALL:

As per direction of BG Jones, the guidance found at paragraph B-29e, AR 635-40 (mechanical ROM rating); DoDI 1332.39, E2.A1.2.21 (Sleep Apnea rating guidance); and, DoDI 1332.39, E2.A1.4.1.5 (Narcolepsy rating guidance) will no longer be followed.

Disability cases at the PEB that have been decided IAW this guidance, but not yet forwarded to the PDA, should be reconsidered using only the VASRD rating guidance for the respective VASRD rating codes. Cases yet to be decided should only use the VASRD rating code. If additional information or medical data is needed to properly rate these cases the cases may be returned to the MTF for the required information/data.

I & G #s 1 and 6 and PDA Policy Memorandum #7 are deleted.

Issues regarding the new severance pay criteria has been addressed previously and additional guidance will be forthcoming when it is obtained. MEDCOM is being contacted to correct the PEBLO Counseling Checklist to incorporate these severance pay changes.

Additional guidance regarding other issues will be forthcoming from DoD and will be passed on as soon as we receive them.

Dennis E. Brower
Agency Legal Advisor
U.S. Army Physical Disability Agency

Thanks for the info!

I don't really understand the email so maybe you can relate it to my situation. I had sleep apnea and was called Non-deployable in January of 2006, so the army MEB'ed me and gave me 0%. I tried to stay in at any MOS I could get but I still got the boot. Va gave me 60% but would my situation be any different, for better or worse, with this letter from Mr. Brower if I got MEB'ed today.
Thanks

VA-DoD Disability Reforms
Tom Philpott | July 26, 2007
Commission: Remove DoD From 'Disability Business'


"Any disability ratings awarded since 9/11 that resulted in payment of lump sum severance rather than a disability retirement would be reviewed again."

Is this part of the deal that is discussed in this forum?

If, today, the PEB found you unfit for sleep apnea that required the use of a CPAP, the PEB would have to rate you at 50%.

My argument has always been that they never had the right to give you anything less than what the VASRD provided for to begin with. Mr. Brower would argue that, despite 10 USC 1201 dictate that unfitting disabilities are required be rated per the VASRD, the Services were empowered to assigned disability ratings however they pleased.

Congress disagreed with positions like Mr. Brower's and put in the 2008 NDAA language to clarify the VASRD rating criteria requirement. When the President signed this bill at the end of January, this forced the Army to rescind their non VASRD rating policies.

The 2008 NDAA also established DoD level 10 USC 1554a Disability Review Board. This board is available to those who received a rating of less than 30% since Sep 11, 2001. DoD has until the end of April to establish this baord so stay tuned for details.

Mike

Thanks Mike
I never really understood why they had to medically discharge me, but I wasn't disabled enough for retirement. When the Army gave me a 0% rating, I keep telling them to give me a job I could do. In fact, they told me I could fly with the Sleep Apnea but Since I was non-deployable, they had to give me the boot. One Flight surgeon even said I could instruct for the next 15 years but because I was non-deployable I had to go.

One more question on this.
If I got the retirement from the Army. would my family get Tricare? I found out my son needs an operation, and I've been trying to put together the money since I don't have insurance for him. So if this goes through, would I be able to get his operation through Tricare?

Thanks

Yes, if you are medically retired, you and your family are eligible for tricare.

BTW: You cannot be found unfit strictly becuase you are nondeployable. While DoD recently changed their policy allowing the Services to find one unfit due to nondeployability, the Army has yet to change their policy. They may do so in the very near future.

Mike

quote:

BTW: You cannot be found unfit strictly becuase you are nondeployable. While DoD recently changed their policy allowing the Services to find one unfit due to nondeployability, the Army has yet to change their policy. They may do so in the very near future.

Thanks Mike,
This sound to good to be true right now.
When they sent my paperwork to get PEB'ed. The only thing I remember was them saying I was non deployable. The flight surgeon told me if I'm on CPAP I could still fly. Maybe their was something else and I didn't understand what they were talking about.

What was the rationale on your DA 199?

Mike

I sure I would need to pay the Severance back which I'm already doing through my VA compensation. But how do they figure out the retirement pay and back retirement pay which would be deducted from the severance? I was in about 5 years. and I've been out about 2 years now. Is their a calculation for medical retirement for less than 20 years?

If awarded disabilty retireemnt, the amount of retirement is a % of your base pay for retirement purposes (high three for most). The % is either 2.5% times years served or the % of disability rating (30% minimum) awarded whichever is higher.

Mike

quote:

Originally posted by INADMIAC:
What was the rationale on your DA 199?

Mike

Mike,
I'm still looking for the paperwork.

When the DOD establishes a board, when and how will a vet be able to have there packet reviewed? Will I need to go through my DAV rep or the VA since they have my records.

When they do, I would expect that they will notify all persons who are eligible, and may even do a paper review - that is review their file (PEB record) and determine if there is a mistake.

Since they have been told they did this and that wrong and under-rated people, a staff review for many should be enough to determine it.

This is my guess based on how other Boards run in the government.

i am with you mcvikair i was medically discharged for shin splints with a 0% rating from the army, they told me that my chronic plantaar fasciitis was not a boardable issue, well the VA disagreed and rated me at 70% for the same injuries that the army gave me 0% for. even after 2 foot surgeries, my feet still bother me to this day.

I hear ya 1976. The funny thing is, I wanted to stay in, but once the command figures your a goner, Your as good as gone. I got some of the worst jobs and looks from command while on hold. It wasn't anything like **** detail but when your flying a helicopter one day, anything is less the next day. Dave_m mentioned that they might find mistakes in my PEB, I wonder if their going to reenlist me if their is? LOL. The 2 years of back pay wouldn't be to bad!

I hear ya, I wanted to stay in as well, but during my MEB my commander let me know that in addition to the MEB i was also flagged for re-enlistment due to the my being a permanent L-3 profile, I know what you mean by being treated like crap, my NCOIC told me to face that I useless and broken which is funny because she was on a permanent profile as well, hell she even made me to special ops PT in the evening on top of normal PT in the morning even though my weight was never an issue.

The Army sure does strange things to its people. I did some work with Boards at a Naval Hospital, and then had it done to me only shorter and real fast.
I went from Shipboard Firefighting training to Ortho in San Diego because right leg gave out. 1 hour later had orders removing me form the ship and to Temporary Personnel Unit (TPU) in San Diego. 1 week later back to Hosp and they want me to sign my Med Board papers. I said no in writing (a page and a half, single space). Out to BuMed, wait a few months, orders to Whidbey, rearranging of my NEC's [again]. Sat there for a year and out the door in JUL 89 at 20yrs day for day. Only they didn't tell me until OCT that I was TDRL. Placed PDRL 8 months later. The % was left off my 214, the board had a laundry list but no numbers. That ended our plan (Liberty Officer * I) going to 25 yrs.

That's my .02% of a cent mumbling on the subject. Mine seems straight forward compaired to most I read in here.

A good article but it does have a couple of errors. The most significant one was from the following passage:

He cited as an example the Army’s previous refusal to use what it calls “convalescent ratings.” According to VA, if someone develops a mental disorder because of a highly stressful event that happened in service and is harsh enough to cause the person to leave the military, he should be rated at least 50 percent disabled, discharged and then examined again six months later to see if the rating should be changed. Previous Army policy stated, “This is essentially a convalescent rating and will not be used.” Instead, the Army parked such soldiers on the temporary disability retirement list.

The Army was not parking these soldiers on the temporary disability retirement list. That is actually the correct action given the VASRD criteria. Rather the Army and other Services were rating most of these members below 30% and separating them.

Mike

Army drops rules, aligns with VA disability ratings


Change mandated by 2008 Defense Authorization Act
By Kelly Kennedy - kellykennedy@militarytimes.com
Posted : February 25, 2008

The Army will no longer use its own disability ratings rules in addition to the Veterans Administration Schedule for Rating Disabilities, according to guidance from Army Brig. Gen. Stephen Jones, commander of the Army Physical Disability Agency.

The policy change may even out some of the differences in ratings assigned by the Army and the Department of Veterans Affairs, which became a contentious issue in the wake of the Walter Reed Army Medical Center controversy last year.

The change was prompted by a provision of the 2008 Defense Authorization Act that states the services must comply with VA’s disability ratings schedule in assessing injured troops, said Col. Andy Buchanan, Army Physical Disability Agency deputy commander.

Under the new law, all the services will have to update their policies so that their own rules do not override VA’s ratings schedule. Buchanan said Defense Secretary Robert Gates will send guidance to all the services making the change retroactive to Jan. 28, the date President Bush signed the 2008 Defense Authorization Act into law.

Retired Army Lt. Col. Mike Parker, who has long supported equal ratings across the services and VA and has assisted many service members going through the disability evaluation process, said the change is “huge and long overdue.”

He said the fact that the services were allowed to use their own ratings rules was a major reason military disability ratings often have tended to be lower than VA ratings.

The new policy will change the way the Army rates soldiers for sleep apnea, narcolepsy, joint pain and mental health disorders.

“The Army is taking the most soldier-friendly approach we can within the law,” Buchanan said.

The Army is reviewing personnel separations in January and February to ensure those cases meet the new rules. “This is slowing our cases processing a bit, but it ensures are soldiers are better served in the long run,” Buchanan said.

A memo signed by Dennis Brower, legal adviser for the Army Physical Disability Agency, states that the new rules for rating strictly under the VASRD apply to cases that have not yet been decided or are on appeal. Brower also said “additional guidance” will be issued soon.

Service members repeatedly have charged that service policies superseding VA’s ratings schedule often lead to lower disability ratings — and lower payments.

Last April, Eric Christensen, of the Center for Naval Analyses presented a comparison of VA and military disability ratings by percentage from 2000 to 2006 to the Veterans’ Disability Benefits Commission. He found that VA tended to rate disabilities at least 7 percent higher — even though VA and the military use the same rating schedules and have the same legal mandates.

For mental health issues, the differences were even more pronounced. Christensen found that the military tends to hand out ratings of 10 percent for bipolar disorder, which the VA ups on average to 38 percent. The military also tends to award 10 percent ratings for major depressive disorder, which the VA ups to 34 percent.

Parker said part of the reason for the differences is that the military tends to add rules. For sleep apnea, for example, VA says anyone using a device to help them sleep should get a disability rating of 50 percent. Military guidance has been more stringent, requiring a person to have “considerable industrial impairment,” regardless of whether they use a device.

The Army policy change also kills a series of previous mental health guidelines that Parker said have been used to “sweep soldiers under the carpet” instead of rating their mental health issues fairly.

He cited as an example the Army’s previous refusal to use what it calls “convalescent ratings.” According to VA, if someone develops a mental disorder because of a highly stressful event that happened in service and is harsh enough to cause the person to leave the military, he should be rated at least 50 percent disabled, discharged and then examined again six months later to see if the rating should be changed.

Previous Army policy stated, “This is essentially a convalescent rating and will not be used.” Instead, the Army parked such soldiers on the temporary disability retirement list.

Critics also have claimed the military has tried to keep ratings low by diagnosing soldiers with “adjustment disorders” — non-ratable disorders that hinder a person in adjusting to military life, or personality disorders that existed before they joined the military.

In both instances, a member can be forced out of with no disability retirement benefits. But sometimes, as in several cases at Fort Carson, Colo., last year, soldiers with post-traumatic stress disorder or traumatic brain injuries received improper diagnoses.

The old Army policy included a mandate that psychiatrists who diagnose soldiers with mental disorders had to check to see if the condition could qualify as an adjustment disorder, and, if not, they had to fully explain why they were “rejecting” adjustment disorder as a diagnosis.

Brower’s memo says the Army has stopped using the following regulations as of Jan. 28:

• The joint-motion rating in Army Regulation 635-40 which requires a mechanical basis for limited range of motion, rather than a service member saying, “That hurts, I can’t move my arm any further,” as the VA requires.

According to the Army’s previous rules, “joint pain resulting in loss of motion does not constitute a mechanical basis for restricted motion.”

• Defense Department Instruction 1332.39 pertaining to sleep apnea. VA says a person must be rated as 50 percent disabled if he requires the use of a breathing assistance device. The Defense Department exchanged “considerable industrial impairment” for that.

Parker has worked with service members who were found unfit for service or fit with stipulations because they used a breathing assistance device, but were still given a zero percent rating under the Defense Department instruction. Parker knows of at least one sailor who later received a rating of 50 percent from VA.

• The Defense Department instruction on narcolepsy. VA bases a disability rating for this condition on the average number of seizures a person has per week, month or year. Someone with one major seizure in the past six months, for example, would be rated at 40 percent. According to the Defense Department, troops are rated 40 percent disabled only if they have “considerable industrial impairment.”

• Army Physical Disability Agency Issues and Guidance No. 1, which also pertains to painful joint motion, and states: “Limitation resulting solely from pain is not ratable” — a violation of the VASRD.

• Army PDA Issues and Guidance No. 6, which pertains to muscle spasms and states: “The examining physician must reasonably conclude that the chronic muscle spasm is the medical cause of the limitation of motion and is not treatable.”

• Army Physical Disability Agency Policy Memorandum No. 7, which pertains to mental health issues, narcolepsy and sleep apnea. According to VA, narcolepsy is a neurological disorder. Until now, the Army classified “idiopathic” narcolepsy as a psychiatric disorder and said those with depression, boredom with duty, and substance abuse can be misdiagnosed with narcolepsy. It also stated that eating disorders begin in adolescence and are, therefore, pre-existing conditions.