November 22, 2008 – Defense Secretary Robert Gates has issued a policy stating that the military will follow a new law requiring that service members being medically retired for post-traumatic stress disorder be rated at least 50 percent disabled, a provision of the 2008 Defense Authorization Act.
But the Pentagon is ignoring another provision of the Act that requires a review board to be set up for medical evaluation cases, and has even added some pain to service members who feel they have been wronged: Decisions by the board, whenever it is formed, will not be retroactive.
The Physical Disability Board of Review was mandated by Congress to check the fairness and accuracy of troops’ disability cases. The Defense Department decided that the board will review only conditions found unfitting – which advocates for service members say leaves out any diagnosis that should have been included but wasn’t.
They say it also excludes cases in which lower-rated conditions were found unfitting while higher-rated conditions were found fitting – allowing the military to spend less money on medical separation cases.
Now a new memo states that decisions of the board, which was supposed to be set up in April, will not be retroactive. The memo, posted on the Military Health System Web site, states: “Any change to the rating is effective on the date of final decision by the service secretary.”
In other words, service members will not receive back pay for incorrect ratings.
Retired Army Lt. Col. Mike Parker, who has worked as an advocate for troops going through the medical retirement system, said the situation is maddening because the longer the Defense Department takes to set up the new board, the less back pay it will have to hand out.
Parker said the new memo on PTSD ratings is better news. According to the 2008 Defense Authorization Act, all the services are required to follow the rules of the Veterans Affairs Schedule for Rating Disabilities.
According to those rules, anyone being medically discharged with a diagnosis of PTSD must receive a disability rating of 50 percent and then be re-examined six months later.
In the past, according to Army documents, many soldiers with PTSD have been found unfit for service, rated 10 percent disabled and immediately booted out. Not long ago, rumors were rampant that defense officials soon would issue guidance stating that this was, in fact, how those cases should be handled.
But after the threat of a lawsuit and calls from veterans’ groups for the Pentagon to obey the letter of the law, an Oct. 14 policy was incorporated into Defense Department Instruction 1332.38, stating that the military will abide by the VASRD rules.
The rules state: “When a mental disorder that develops on active duty as a result of a highly stressful event is severe enough to bring about release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six-month period following discharge to determine whether a change in rating and disposition is warranted.”
The only exceptions will be those found to have a permanent and stable condition and a rating of 80 percent or higher, who will be permanently retired.
The memo, signed by David Chu, undersecretary of defense for personnel and readiness and effective immediately, also states that troops in the Disability Evaluation System may request an impartial physician or other health care professional not involved in his or her case to review the medical evidence for a Medical Evaluation Board.
That was also mandated by Congress in the 2008 Defense Authorization Act.
The memo states: “In most cases, this impartial health professional should be the service member’s primary care manager,” and adds that the adviser has five days to review the evidence.
The new guidance also:
* Lays out time limits for how long each task should take to perform. For example, the entire process, from the date of the first medical summary for the Medical Evaluation Board to the final review board, excluding appeals review, “should not exceed” 70 days for active-duty members and 130 days for reserve-component members. Each appeal should take no longer than 30 days from the day the final Formal Physical Evaluation Board is completed.
* Asks the services to create a new Medical Evaluation Board or Physical Evaluation Board to process cases if they encounter backlogs.
* States that Physical Evaluation Board legal counselors will consult with the service members they counsel “at least one day in advance of the scheduled formal hearing.” Troops have complained that their counseling came just hours before their hearings, and often took place by phone.