Mike,
Thanks for clarifying my clarification! I omitted discussion of that because by definition, to get a DoD rating, it has to be an unfitting condition...which gets you to separation. But, it is good to note this...
Basically, that means there are two classes of PDBR cases out there where this provision impacts the outcome.
1) Those who were unfit for PTSD (or other condition) due to highly stressful event at the PEB and were erroneously rated at less than 50%. There is no question that the DoD acknowledges this as of Jan. 28, 2008 (effective date of 2008 NDAA). However, I think that the previous regulations were in conflict with the plain language of the law that they apply VASRD. So, it is worth arguing in either circumstance.
2) Those who were not unfit at the PEB. Now, with the PDBR, there are two further issues. Will the PDBR even entertain the claim? And if so, was the member unfit at the time of separation due to PTSD (or other condition).
From the DoDI 6040.44, it appears that you have to ask for the review. This whole issue is a subset of the issue of what the PDBR has to review. I argue that the statutory language is clear..."(c) REVIEW.—
Upon the request of a covered individual, or a surviving spouse, next of kin, or legal representative of a covered individual, the Physical Disability Board of Review shall review the findings and decisions of the Physical Evaluation Board with respect to such covered individual." To me, this indicates that the PDBR must review any finding or decision of the PEB. This would include EVERYTHING, from conditions, diagnosis, rating, admin data, combat-related findings, etc.
The problem I see is that if you do not ask them to review something, it will be difficult to win on appeal to a reviewing court that the PDBR failed to review something you never asked them to review. (This is enormously complicated and touches on many different concepts and laws)...But, even IF you could later appeal, I see no reason that you would not raise it in the original PDBR application (of course, I understand that many claimants will not have an attorney when they file, so they will likely miss some of the issues). But, for those going forward, it is safe to say you want to file as complete of an application asking for the relief you want as early as possible in the process.
And, of course, the final step would be proving the unfitness at the time of separation. A high VA rating for the same condition, limited or non-existent work history starting at or near in time after separation, occupational impairment reports, and medical treatment notes, as well as your lay written testimony, all may be evidence that shows the unfitness.
