Military Health, Tricare programs - Military Times

Board to reassess disability ratings for some service members

Service members given a disability rating of 20 percent or lower during their medical evaluation boards since Sept. 11, 2001, may have their cases reviewed by a new Defense Department board.

A rating of 30 percent or higher means lifetime health benefits, as well as medical retirement pay based on the rating, years served and rank when retired.

The Physical Disability Board of Review was mandated by the 2008 National Defense Authorization Act after several investigations — including an analysis of five years’ worth of Defense Department budget records by Military Times — showed discrepancies across the services in average amounts of disability benefits awarded.

“The purpose of the [board] shall be to reassess the accuracy and fairness of the combined disability ratings assigned service members who were discharged as unfit for continued military service,” wrote David S.C. Chu, undersecretary for personnel and readiness, in a memo dated June 27. “The [board] shall operate in a spirit of transparency and accountability, and shall impartially readjudicate cases upon which review is requested or undertaken on its own motion.”

The Air Force is to recommend someone to lead the board immediately, and then the other services will determine who will represent them on the board. According to the legislation, the new board was supposed to be in place by the end of April.

One sentence of the new directive already has veterans service organization representatives concerned: “Only the medical condition(s) determined to be specifically unfitting for continued military service, as previously determined by the Military Department [physical evaluation board], will be subject to review by the [board].” The legislation makes no such limitations.

Retired Army Lt. Col. Mike Parker, who has worked as an advocate for service members going through the physical evaluation board process, said there are at least two categories of veterans who could be hurt by this limitation.

He gave an example of a sergeant who was originally sent to the medical evaluation board because of a congenital cornea condition that caused his vision to be distorted. According to the surgeon general of the Army’s policy, soldiers may not wear hard contact lenses to the field, as this soldier was required by his doctor to do. But when he went to the board, he was found fit for his cornea condition, which would have brought him a rating of at least 30 percent, and found unfit for two other lesser conditions and given a total rating of 10 percent.

“They’ve been cherry-picking which unfitting condition to use,” Parker said. The new board would not be allowed to make sure the ‘fit’ determination for the soldier’s cornea problem was fair.

Parker raised a second concern: The Physical Evaluation Board is required to include all current medical conditions, but the Walter Reed scandal showed that often, medical records were lost or not included in board packets. If that happens, the Physical Evaluation Board doesn’t get a chance to rate for all conditions, but those cases would not be covered by the new board.

“Conditions that were not identified as unfitting are not within the scope of this board,” Pentagon Spokesman Lt. Col. Les Melnyk said in an e-mail. “A determination of unfitting is generally unique to the demands of the service member’s military department. These decisions are best made by the military departments.”

However, he said conditions that were not rated because they were determined to be pre-existing, as was the case of thousands of service members discharged with no benefits for personality disorders, would be eligible for review by the new board.

Parker said the new board needs to address all situations that can lead to a combined disability rating of less than 30 percent — otherwise, service members may have to take their cases to several boards to try to correct specific errors in their cases.

“If the new board does not address all of these factors, I fear a service member may have to spend years going to multiple review boards to fix all the issues that led to an erroneous rating,” Parker said, which is exactly the kind of bureaucratic quagmire the Wounded Warrior legislation sought to correct.

Melnyk said a different board should, in fact, look at those other issues.

“Service members may appeal those issues to the Military Department Board of Corrections for Military Records or the Discharge Review Boards,” he said.

But that could also cause a problem: After they receive a recommendation from the new review board, service members will not be eligible for review by the Board for the Correction of Military Records, according to Chu’s directive and the legislation.