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Little Change Expected From Disability Board

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Little change expected from disability board

By Kelly Kennedy - Staff writer

Posted : Monday Feb 2, 2009 6:13:50 ESThttp://www.armytimes.com/news/2009/02/army..._board_020209w/After more than a year of delays, the Defense Department has stood up a new review board meant to help service members who think they received an incorrect rating on their disability retirement claims.

“Service members who have been medically separated since September 11, 2001, will have the opportunity to have their disability ratings reviewed to ensure fairness and accuracy,” the new regulation states.

But veterans’ advocates say the new board misses the mark in certain important respects.

The Physical Disability Board of Review came about after media reports, including one by Military Times, showed that the services’ ratings varied wildly, with Air Force officers consistently getting the highest disability ratings, and the lowest going to enlisted Marines and soldiers — troops bearing the brunt of combat injuries in Iraq and Afghanistan.

A closer look at the numbers showed the Veterans Affairs Department often gave much higher ratings than the Defense Department for the same injuries or illnesses, even though both used the same ratings schedule.

The new board was mandated by Congress in 2007 to look at cases of troops separated after Sept. 11, 2001, to make sure their ratings are correct, but it did not begin accepting applications until just this month.

One potential point of confusion about the board has to do with the effective date of changes in disability ratings, and their associated payments. As of Jan. 23, the board’s Web site states: “Any change to the rating is effective on the date of final decision by the service secretary,” which could be taken to mean that higher payments based on corrected ratings will begin only when a final decision is rendered.

But in an e-mail response to questions, Capt. Michael Andrews, an Air Force spokesman, verified that the effective date of the correction, as well as any additional back pay as a result of the decision, “will be retroactive to the date of the action taken on the original physical evaluation board.”

The Air Force is the executive agency for the new board.

Three other pieces of the new regulation also are likely to prove controversial:

• The board will review only cases of service members found to have conditions that made them unfit for military service, which means if a member had several conditions — such as post-traumatic stress disorder, a back problem and sleep apnea — the board only has to look at what the military rated the first time around. According to the VA ratings schedule, the military was supposed to rate for every condition that is unfitting, not just the one that could result in the lowest disability rating.

“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 when the new board was announced.

“A determination of unfitting is generally unique to the demands of the service member’s military department,” he said. “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 for thousands of troops discharged with no benefits for “personality disorders,” will be eligible for review by the new board.

Under new regulations, the military now is also required to look at all disabilities, regardless of whether the disability is unfitting for continued service.

• The board will not look at anyone rated at 30 percent or higher — the level required for a service member to get lifetime medical retirement pay and health care.

Those rated 20 percent and below typically get a one-time. Lump-sum payment and no further benefits.

• The Defense Department has always been required by law to follow the VA Ratings Schedule. Congress reiterated that law and required the Pentagon to follow it in the provision of law creating the new review board in 2007.

But the new regulation includes this sentence: “For separation cases prior to the effective date” of that provision of law, “the rating will be upheld if the rating was fair and accurate using the Services’ (or DoD) supplemental guidance to the VA rating.”

In other words, the new board will not require the services to change ratings assigned under their old rules — the same rules that led to the disputed ratings in the first place.

The regulation does state that ratings cannot be lowered upon review by the board.

Applications and information about the board can be found at http://www.health.mil/Pages/Page.aspx?ID=19.

"Keep on, Keepin' on"

Dan Cedusky, Champaign IL "Colonel Dan"

See my web site at:


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