Physical Disability Board of Review Update
- Thread starter Jason Perry
- Start date
The short history on a longstanding problem.
Since 1949, the law has required PEBs to rate unfitting conditions per the VASRD.
Since at least 1959, the DoD and the Services have been ignoring that law and rating conditions how they please; following the VASRD when they wanted and throwing it overboard at will. This problem worsened over time.
DoDI 1332.39 was the most recent DoD document for rating conditions. It often contradicted the VASRD. Numerous Service policies and regulations created even more non VASRD rating criteria that lowered disability ratings.
In the 2008 NDAA, Congress reemphasized, in law, the requirement to rate per the VASRD. Because of the VASRD issue and other rating problems, Congress also created the PDBR to review cases since 9-11-01 that resulting in ratings below 30%.
DoD decided the PDBR only had to apply the VASRD for case finalized after the enactment of the 2008 NDAA (28 January 2008). Press coverage exposed this problem. Congress got pissed. DoD backed down and promise to rate all PDBR cases per the VASRD. DoD change the DoD PDBR regulation making it so.
Bottom line. All DES cases from 01-28-08 and all PDBR cases must rate compensable unfitting condition per the VASRD.
Mike
Since 1949, the law has required PEBs to rate unfitting conditions per the VASRD.
Since at least 1959, the DoD and the Services have been ignoring that law and rating conditions how they please; following the VASRD when they wanted and throwing it overboard at will. This problem worsened over time.
DoDI 1332.39 was the most recent DoD document for rating conditions. It often contradicted the VASRD. Numerous Service policies and regulations created even more non VASRD rating criteria that lowered disability ratings.
In the 2008 NDAA, Congress reemphasized, in law, the requirement to rate per the VASRD. Because of the VASRD issue and other rating problems, Congress also created the PDBR to review cases since 9-11-01 that resulting in ratings below 30%.
DoD decided the PDBR only had to apply the VASRD for case finalized after the enactment of the 2008 NDAA (28 January 2008). Press coverage exposed this problem. Congress got pissed. DoD backed down and promise to rate all PDBR cases per the VASRD. DoD change the DoD PDBR regulation making it so.
Bottom line. All DES cases from 01-28-08 and all PDBR cases must rate compensable unfitting condition per the VASRD.
Mike
Mike,
Does the Coast Guard do the same thing? On my recommended disposition form it states they used the VASRD, obviously the didn't because the VA immediately upon discharge rated me 30% for the same thing. My discharge was in 2003, had i knew then what i know now i would have fought them tooth and nail. It makes me angry that they gave me sevpay which is basically a loan because i gotta pay it all back by witholding a chunk of VA Compensation.
Sorry if you covered this before. I looked in all your old posts. I saw that the Military rated you 20% and the VA 40%.
It was just unclear to me, and again if I missed it I apologize for asking, but how long after your discharge did you get your VA rating? And did the VA use the exact same VASRD code as the military (if you know).
I only ask because I am trying to track these issues as accurately as possible to get a feel for any trends. I really thought after congress dropped the hammer on them in April that the PDBR would have very little wiggle room. Obviously I was wrong! Never underestimate the DODs ability to completely ignore laws, rules, and orders when it suits them. Unlike us military people who would end up in Leavonworth if we tried making it up as we went along
.Still waiting to hear on our case. But here's the summary: Found unfit based on my hubby's medical condition. He was placed on TDRL (via board at Ft Sam Houston) Feb 2002, rating 30%. VA Award May 2002, same 30%, same VASRD code, same and only condition rated. 1st TDRL Review sometime in 2003 still rated 30%; same VASRD code, same condition, board still at Ft Sam Houston, recommended that we continue on TDRL. Then we moved. 2nd TRDL review in 2005. The board for the case was now the one at Walter Reed, based on our relocation. This board, same condition, same VASRD code, rated at 10% and permanent separation. We requested a formal hearing at this one since they changed the rating from 30% to 10%. Formal hearing in Jan 2006, they listened to the whole thing and still left him at 10% and permanent separation. VA re-reviewed case since he was "re-outprocessed" with the change from TDRL to permanent separation, and VA still used the same VASRD and still had the same 30%.
So it was only the folks at the WRAMC board that saw the need to change the rating to 10%. Same condition, still no different (even today) and everyone else, including all the initial boards, and re-checks on TDRL and twice through the VA were 30%.
We are HOPING that this is therefore a CLEAR case before the PDBR and maybe they fix the error. If not, maybe they can at least tell us how so many places and so many people had it wrong for 4 years, if they still disagree. Our completed packet with all records went to the board on Aug 5. So we should hear something in the next few months, supposedly. Will post when we do.
Sorry if you covered this before. I looked in all your old posts. I saw that the Military rated you 20% and the VA 40%.
It was just unclear to me, and again if I missed it I apologize for asking, but how long after your discharge did you get your VA rating? And did the VA use the exact same VASRD code as the military (if you know).
I only ask because I am trying to track these issues as accurately as possible to get a feel for any trends. I really thought after congress dropped the hammer on them in April that the PDBR would have very little wiggle room. Obviously I was wrong! Never underestimate the DODs ability to completely ignore laws, rules, and orders when it suits them. Unlike us military people who would end up in Leavonworth if we tried making it up as we went along
I recieved 20% both times for the same thing.
I only recieved 40% after I wrote the VA board of their error of viewing my med records. Before I left the military my doc wrote what needed for 40%. The defining words were limited activities. My doc never wrote what kind of activities that he expected I would limit. I'm Diabetic. I can't work non stop anymore. Im limited in what I can do. I went to Voc rehab because I can't be a jet mechanic anymore.
So, I recieved the 40% retro to my seperation date as I wrote them a letter explaining their faulter.
The new board said since no activities were posted they saw no need to give me an increase.
I wish all of you the best of luck. I just know some of you guys and gals (my brothers and sister) are going to recieve fair justice in your favor.
Mike
In rating mental illness, does the DOD use GAF scores?
Hi, Mike. In case this was directed at me, I guess I was unclear ... the VA rating for my husband was effective on his separation date; we just received notification when they awarded it which was in May. Thanks!
Jen
I believe they might have eluded to that. They brought into the fact that my A1c was very good before I got out of the USAF. Still very confusing.
No Jen,
That was towards me, that was the main reason I was given a 10% raise to only 20% DOD because the 40% VASRD that was given to me 6 months after separation was because my conditioned "worsened." A BS ploy to go around the policies.
Just to let everyone know, I received confirmation that my congressman is getting involved on the Air Force level.
I can't...can I? Its over a year from that determination (it was 2006). To much leg work on that end, I'm getting exhausted fighting the VA for the severance issue and this PDBR for the policy issues. I have been fighting the VA hard for 3 years on certain issues and its been a cat and mouse chase back and forth.
That reminds me...a little advice to everyone challenging the VA, STAY ON THEM! They will find everything possible to try and ruin your case or cases. I was declined and almost had my IU and PTSD thrown out a few times because they tried to be sneaky and not notify me of certain things needed to be done to progress my case further. Luckily I have American Legion and my Congressmans Office both firing at them and getting me the info I need.
Now I still got a severance pay fight on my hands and they are screwing that up too. I will get whats coming to me, I feel good about it all. It will all work out. But Mike, you think I can appeal the date since it was several years ago?
I was back dated 40% to the time of my sep from the VA. So I don't know how much it will help.
Yeah, and plus mine was changed to a new diagnosis, they deleted the Low Back Pain and put in Degenerative Disk Disease, hell if they did that, they should have added PTSD in with it. But thats the PDBR illegally playing with our lives.
So a time line.
I Mailed request for PDBR Feb. 24, 2009. (return Recipt Requested)
March 5th, 2009 I recieved a docket number of 190.
The letter was dated on March 2nd and the mail stamp on the envelope states the same.
On June 30th the board made a less than favorable decision.
On Aug. 11 2009 I recieved the PDBR notice in a vanilla documents envelope.
I Mailed request for PDBR Feb. 24, 2009. (return Recipt Requested)
March 5th, 2009 I recieved a docket number of 190.
The letter was dated on March 2nd and the mail stamp on the envelope states the same.
On June 30th the board made a less than favorable decision.
On Aug. 11 2009 I recieved the PDBR notice in a vanilla documents envelope.
Sorry if you covered this before. I looked in all your old posts. I saw that the Military rated you 20% and the VA 40%.
It was just unclear to me, and again if I missed it I apologize for asking, but how long after your discharge did you get your VA rating? And did the VA use the exact same VASRD code as the military (if you know).
I only ask because I am trying to track these issues as accurately as possible to get a feel for any trends. I really thought after congress dropped the hammer on them in April that the PDBR would have very little wiggle room. Obviously I was wrong! Never underestimate the DODs ability to completely ignore laws, rules, and orders when it suits them. Unlike us military people who would end up in Leavonworth if we tried making it up as we went along
The USAF awarded PEB (VASRD code 7913)
The VA also tried to award this to me. I wrote a letter showing that I had their exact definition of what would award me 40% (code?) for type 1 diabetes in my med records before I was discharged.
The Pdbr board agreed with the original findings of the PEB and ignored the fact that the VA awarded me retro to seperation 40% for the very same Type 1 diabetes cause of seperation.
It is very disheartening, but not surprising that no one has gotten good news from the board. Based on current funding issues, I don't expect anyone who is going to receive an increase in rating to get it before October due to budget constraints. Hope not...but I wouldn't put it past them.
Update for everyone...I have docket number 5. Mailed my initial package the same day the application came out. My package has been with the board in DC since May and I still haven't heard anything back.
My status...received 20% from PEB back in April 2008 for Degenerative Disc Disease following 2 back surgeries. Rated by the VA in July 2008 on the same condition at 40%...not to mention other issues that have bumped me up to 80%. I will let everyone know as soon as I hear something...but to everyone out there just remember that we are all in this together...and Big Will don't give up on fighting with the VA. Sometimes we just have to fight harder than we should for what we deserve.
OBIE
Update for everyone...I have docket number 5. Mailed my initial package the same day the application came out. My package has been with the board in DC since May and I still haven't heard anything back.
My status...received 20% from PEB back in April 2008 for Degenerative Disc Disease following 2 back surgeries. Rated by the VA in July 2008 on the same condition at 40%...not to mention other issues that have bumped me up to 80%. I will let everyone know as soon as I hear something...but to everyone out there just remember that we are all in this together...and Big Will don't give up on fighting with the VA. Sometimes we just have to fight harder than we should for what we deserve.
OBIE
OBIE,
I hear ya! Let us know how everything goes, especially your case because its the very same as mine! If you get it, I have a huge bullet for them in my arsenal. Did the VA give you retro since separation, or just snowball you with the increase?
Big Will
O, did you try for COAD? did you want to stay active? i am in the same boat at just under 15 yrs and i want to be fit and keep me at my P2 profile. or if unfit give me COAD. did you try for this or not. thanks and be safe.........ed