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The Army Physical Disability Evaluation System.

Purpose

This article provides a working knowledge of the Army's Physical Disability Evaluation System (APDES) and discusses changes in the APDES mandated by the National Defense Authorization Act for Fiscal Year 2008 (1) and disability-related provisions of the National Defense Authorization Act for Fiscal Year 2009. (2)

Overview

Chapter 61, 10 USC provides the Secretaries of the military departments of the United States with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The US Army Physical Disability Agency (PDA), under the operational control of the Commander, Human Resources Command, is responsible for operating the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in Chapter 61, 10 USC. Department of Defense Directive 1332.18, (3) Department of Defense Instruction 1332.38, (4) Army Regulation 40-400, (5) Army Regulation 40-501, (6) Army Regulation 635-40, (7) and Army Regulation 600-60 (8) set forth the policies and procedures implementing the statute. The PDA is currently located at the Walter Reed Army Medical Center, Washington, DC.

As delineated by Army Regulation 635-40, the objectives of the APDES are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits for eligible Soldiers whose military service is terminated because of service connected disability; and provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected. (7(p1))

REFERRAL INTO THE PHYSICAL DISABILITY EVALUATION SYSTEM

The Joint Department of Defense (DoD) and Department of Veterans Affairs Disability Evaluation System Pilot Project involves a different process and is discussed later in this article. The next several sections will focus on the "legacy" disability evaluation system. In the legacy system, Soldiers can be referred into the APDES in 1 of 5 ways:

* Medical Evaluation Board (MEB)

* Military Occupational Specialty/Medical Retention Board

* Command Directed Fitness Determination

* Department of the Army Directed Fitness Determination

* Reserve Component Nonduty-Related Fitness Determination

Medical Evaluation Board

The medical treatment facility initiates a MEB when a Soldier has reached "Optimum Hospital and Medical Treatment Benefit" and has a P3 or P4 permanent medical profile (see discussion on page 6). (9) The MEB determines if, under the provisions* of chapter 3, Army Regulation 40-501, (6(pp20-38)) the Soldier meets Army retention standards for each of his or her medical conditions.

The MEB will issue a Medical Evaluation Board Proceedings report on Department of the Army (DA) Form 3947 which itemizes each medical condition and states whether they meet or do not meet Army retention standards. If all medical conditions on the DA Form 3947 meet retention standards, the Soldier is returned to duty or referred for Military Occupational Specialty (MOS)/Medical Retention Board processing for possible MOS reclassification. If at least one condition does not meet medical retention standards, then the Soldier is referred to the Physical Evaluation Board (PEB) to determine if he or she is fit for duty.

Please note that even though the MEB will make preliminary findings for each condition whether they were service incurred, existed prior to service, or if there was any service aggravation, under Army Regulation 635-40, (7(pp96-98)) the ultimate decision whether a condition is compensable is reserved for the PEB. (9) Additionally, under Army Regulation 635-40, the ultimate decision of a Soldier's fitness is the province of the PEB and PDA. A Soldier is not automatically unfit because of a failure to meet Army retention standards.

Practice Points for Medical Evaluation Boards

Report of Medical Evaluation Board Proceedings (DA Form 3947). All Soldiers are encouraged to consult with an MEB outreach counsel or Soldiers counsel upon receipt of their DA Form 3947 and supporting documentation. All medical conditions, regardless of severity, should be listed on the DA Form 3947 and analyzed by the MEB. (7(pp3,96)) Normally, the PEB can only determine if a medical condition is "unfitting" (preventing the Soldier from performing PMOS duties and/or basic soldiering skills) if they are listed on the form as "medically unacceptable" under Army Regulation 40-501. (6) While the PEB has the authority to find any medical condition unfitting, they normally only consider those medical conditions which have been vetted through the MEB process as "medically unacceptable" in accordance with chapter 3, Army Regulation 40-501. (6(pp20-38)) If the Soldier disagrees with the MEB, he or she may appeal by indicating their nonconcurrence on the DA Form 3947 itself and submitting a written statement. The Deputy Commander of Clinical Services (DCCS) is obligated to consider the Soldier's appeal and indicate what action has been taken, including confirmation of the original MEB findings. The DCCS is the designated authority for the MEB process. If a condition is missing or if a new condition which could likely be medically unacceptable arises after referral to the PEB, the Soldiers counsel or MEB outreach counsel should insist on having the case pulled back by the MEB or returned by the PEB.

Physical Profile. When the Soldier is seeking disability retirement, it is extremely important that block 1 of the physical profile (DA Form 3349) lists all of the medically unacceptable conditions as found in the MEB report (DA Form 3947). In some cases the PEB has determined that a medical condition is not unfitting just because it was not addressed in the profile as limiting the Soldier's abilities, even if it was addressed in the narrative summary and DA Form 3947 as medically unacceptable. Obviously, for a Soldier who is seeking a finding of fit, it is better to have fewer medical conditions listed in block 1.

If the Soldier is seeking a finding of unfit, it is crucial that a permanent 3 (P3) or higher rating is assigned in the appropriate PULHES (see inset) category for the corresponding medical condition on his or her physical profile DA Form 3349 (top right corner). (6(pp73-83)) Each PULHES criteria is assigned a number from 1 to 4 indicating the level of restriction. Further, each restriction is categorized as temporary or permanent. Level 1 indicates a high level of medical fitness, and level 2 indicates some medical condition or physical defect that may require some activity limitations but not so severe as to make fitness for duty questionable (it is important to note that P1 and P2 conditions are not considered unfitting by the PEB). Level 3 indicates one or more medical conditions or physical defects which may require significant duty restrictions or assignment limitations. Level 4 indicates one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.

Independent Physician Review. Section 1612(a)(2)(D) of the National Defense Authorization Act for Fiscal Year 2008 (1) provides Soldiers, upon request, a physician who is independent of the MEB to review the MEB records and provide counsel on the findings and recommendations. (10) Further, the independent physician advises the Soldier on whether the findings of the MEB adequately reflect the complete spectrum of his or her injuries and illness. After review of findings with the assigned impartial health care professional, the Soldier shall be afforded an opportunity to request a rebuttal of the earlier MEB results. The Soldier, upon receipt of the independent medical review report, shall be afforded 7 calendar days to prepare a rebuttal, if appropriate, to the convening medical authority.

Optimum Medical Treatment Benefit v "One Year Rule." Department of Defense Instruction 1332.38 defines "optimum hospital and medical treatment benefits" as the point of hospitalization or treatment when a member's progress appears to be stabilized, or when, following administration of essential initial medical treatment, a determination can be made of the patient's medical prognosis for capability of performing further duty. (4(p8)) Also, under the changes to Department of Defense Instruction 1332.38 mandated by the Under Secretary of Defense for Personnel and Readiness on October 14, 2008, (10(p3)) referrals for MEB processing will occur within one year of a diagnosis of a medical condition(s) that does not appear to meet medical retention standards. However, a referral may be earlier if the examiner determines that the member will not be capable of returning to duty within one year. The 2 provisions sometimes conflict with each other. We have seen Soldiers referred into the Physical Disability Evaluation System even though they have not yet reached Optimum Hospital and Medical Treatment Benefit, due to the sole fact that they have been in a Warrior Transition Unit for more than a year. In those instances, we attempt to contact the medical treatment facility (MTF) to have the case pulled back or ask the PDA to return the case to the MTF. A clear case of lacking Optimum Hospital and Medical Treatment Benefit is the scheduling, after the Soldier's referral to the PEB, of surgery which has the potential to keep him or her on active duty.

Military Occupational Specialty/Medical Retention Board

A Soldier cannot reclassify his or her MOS at an MEB or PEB. Military Occupational Specialty/Medical Retention Boards (MMRBs) are not part of the APDES, they are part of the US Army's Physical Performance Evaluation System and operate under Army Regulation 600-60. That regulation stipulates that MMRBs only evaluate Soldiers who have been issued a permanent physical profile with a P3 or P4 and whose medical conditions are medically acceptable. (8(ppi,2-4)) An MMRB referral is made by the Soldier's servicing MTF when those conditions are met. The MMRB determines if a Soldier has the physical ability to satisfactorily perform their PMOS (primary military occupational specialty) or branch duties worldwide and in a field environment. The MMRB may take one of 4 actions when reviewing a case: a direct referral to an MEB/PEB, retain in PMOS/Branch, trial of Duty/Probationary status, or reclassification. To be recommended for retention, probation, or reclassification, Soldiers at a minimum must be able to perform the following common tasks: fire individual weapon; wear the ballistic helmet, load-carrying equipment and protective mask; and perform one of the alternate aerobic events of the Army physical fitness test when the profile precludes the standard 2-mile run. If a Soldier cannot be retained in his or her PMOS or reclassified to another, they will be referred to the PEB to determine fitness for duty. The PEB is not bound to find MMRB-referred Soldiers

unfit. If the MMRB refers a Soldier to the MEB, the MEB cannot directly return the Soldier to duty unless the physical profile is changed by the MTF to a P2 or lower. MEB outreach counsel and Soldiers counsel do not participate in MMRB proceedings, however, they can counsel Soldiers going through the process. Under Army Regulation 600-60, Soldiers are not entitled to legal counsel at MMRB proceedings. (8(p11))

Command Directed Fitness for Duty Examination

Pursuant to paragraph 5-4.c.(7)(c) of Army Regulation 600-20, (11(p37)) commanders may direct a medical examination at an MTF to determine a Soldier's fitness for duty. This occurs when a commander questions the Soldier's ability to perform his or her PMOS or branch duties due to a medical condition. The Soldier may or may not be under temporary or permanent profile. This examination may cause referral to the PEB if the findings show that the Soldier's condition falls below Army retention standards.

Headquarters, Department of the Army Directed Fitness Determination

The Commander, Human Resources Command (HRC), upon recommendation of the Office of The Surgeon General, may also direct an MTF medical examination to determine a Soldier's fitness for duty. The Commander, HRC, may also disapprove the MMRB's recommendation to reclassify a Soldier's PMOS and directly refer the Soldier into the MEB or PEB.

Reserve Component Nonduty-Related Fitness Determination

Department of Defense Directive 1332.18 (3(p3)) and Department of Defense Instruction 1332.38 (4(p27)) address Reserve Component (RC) members pending separation for failure to meet medical retention standards completely due to medical impairments incurred outside of military service and involve no issue of aggravation while in a duty status. (12) Such cases usually arise when a Soldier is mobilized and cannot deploy pursuant to a Soldier readiness processing medical examination. They also arise when RC members undergo their mandatory 5-year examination. If the PEB determines that the RC member is unfit, he or she is separated without entitlement to benefits. The PEB hearing is to solely determine fitness, not compensability.

Practice Point for Nonduty-Related Fitness Determinations

In nonduty-related fitness determination cases, Soldiers do not undergo MEB processing (a duty-related process). Accordingly, the evidence file will include neither a DA Form 3947, narrative summary, nor an addendum. In these types of cases, the PEB can only determine fitness, as compensation is not an issue. However, if the PEB discovers evidence that the medical conditions for which the RC Soldier was referred for nonduty adjudication may be service-incurred or service-aggravated, they must return the case to the Soldier's RC command to evaluate the new evidence for possible referral into the duty-related MEB process. Reviewing the RC member's civilian medical records is extremely important, especially if the treatment notes establish a service-connected medical condition or show no degree of restriction if the Soldier wants to be found fit for duty. Obtaining civilian job performance data from the Reservist's civilian supervisors and letters supporting retention from their military chain of command may also help support a fit for duty finding.

THE PHYSICAL EVALUATION BOARD

If a Soldier has a P3 or P4 profile and the MEB determines that he or she has at least one medically unacceptable condition, the case is forwarded to the PEB for adjudication. There are 3 PEB sites: Walter Reed Army Medical Center, Washington, DC; Brooke Army Medical Center, Fort Sam Houston, Texas; and Madigan Army Medical Center, Fort Lewis, Washington. The PEBs issue both informal and formal determinations. If a Soldier disagrees with a PEB's informal determination, the Soldier can request a formal hearing with the assistance of appointed legal counsel. Soldiers may opt to have their own counsel of choice without expense to the Department of the Army. In addition, many veterans service organizations, such as the Disabled American Veterans, American Legion, and Paralyzed Veterans of America, offer free nonattorney representation to Warriors in Transition.

Presiding Physical Evaluation Board Membership

The PEB will empanel 3 members to make a determination in each case: Presiding Officer, Personal Management Officer, and Medical Member. The Presiding Officer and Personnel Management Officer for the panel will be either a DA civilian adjudication officer assigned to the PEB, or a field-grade officer of any component and of any branch, except the Army Medical Corps (MC). The medical member for the panel will be an MC officer or Army civilian physician, preferably with uniformed service MC experience. The medical member must not have served in any capacity as the Soldier's physician or as a member of the Soldier's MEB. If the case involves an RC Soldier, at least one of the PEB presiding members must be an RC member. (7(p13))

Minority, Female, or Enlisted Board Members

A Soldier may request that the presiding board include either enlisted, female, or minority members of the same minority group. For enlisted membership, if available, the enlisted PEB voting member will be ranked sergeant first class to sergeant major, and senior to the Soldier being evaluated. When enlisted PEB membership is provided, the PEB will increase to 5 members, all of whom will have a vote. The fifth member may be enlisted or officer. Requests to include female, minority, or enlisted PEB membership must be in writing and will be granted where reasonably available. The board's determination must include a statement of the Soldier's request, and whether the request for PEB membership was or was not granted.

Physical Evaluation Board Evaluation Process

The PEB determines 4 issues:

* Is the Soldier fit for duty?

* If the Soldier is unfit, are the Soldier's unfitting injuries/conditions compensable?

* If the Soldier is compensable, what level of compensation (rating) will he or she receive?

* Are any of the soldier's unfitting conditions combat-related or caused by an instrumentality of war?

For RC nonduty-related cases (which do not undergo MEB processing), the PEB will only make a determination of fit or unfit. As stated earlier, nonduty-related cases involve impairments incurred completely outside of military service and involve no issue of aggravation while in a duty status. In all cases, the PEB will issue an informal determination and, if requested, a formal hearing with personal appearance with appointed military counsel or counsel of choice.

FIT OR UNFIT FOR DUTY

The mere fact that a Soldier has impairments that fall below Army medical retention standards or appear in the Veterans Affairs Schedule for Rating Disabilities (13) does not automatically result in an unfit finding. The PEB makes a fitness determination based upon the Soldier's performance data, such as evaluation reports, Army physical fitness test results, and awards. The PEB must make a determination in each case whether the Soldier is reasonably capable of accomplishing both basic soldiering skills and those tasks specific to his or her PMOS, skill level, branch, or specialty duties. DA Pamphlet 611-21 (14) provides the physical requirements and minimum PULHES scores for each MOS and branch specialty. The PEB will take into account a Soldier's ability to execute basic soldiering skills, such as firing/carrying an M-16, road marching for 2 miles with a full battle load, wearing chemical defense equipment, performing 3-5 second rushes, and constructing an individual firing position. Another factor the PEB will consider includes the Soldier's ability to take an Army physical fitness test, both standard and alternative aerobic events. Soldiers should be able to participate in at least one aerobic event (standard or alternate). The PEB shall take into account all medical conditions, whether individually or in combination, that render the Soldier unfit to perform the duties of their office, grade, rank, or rating.

It should be noted that under a Directive-Type Memorandum revising Department of Defense Instruction 1332.38 signed on December 29, 2007, by David Chu, Under Secretary of Defense for Personnel and Readiness, the military departments can now consider deployability as a sole consideration when evaluating if a service member is fit or unfit for continued duty. This means that a Soldier who can otherwise perform their assigned duties, but who is nondeployable, can be found unfit. However, please note that at the time of this writing, the Assistant Secretary of the Army for Military and Reserve Affairs has yet to staff the memorandum for application in the Army.

Strategies for Soldiers Seeking Fit For Duty Determination

A Soldier in the MEB/PEB process who wants to be found fit and returned to duty can benefit from gathering useful evidence for the PEB. Soldiers should gather the following to show that they are fit:

1. Physical profile (DA Form 3349), with as few physical restrictions as possible. Soldiers should review a copy of their most recent physical profile with their chain of command and their treating physician. If the Soldier believes that the profile is too restrictive, he or she should request the physician to make it less restrictive, if appropriate. If the doctor will not provide a less restrictive profile, the Soldier's unit commander has the authority to write in block 20 of the profile that "physical condition does not prevent the Soldier from performing assigned and PMOS duties."

2. A commander's statement supporting a finding of fit. The Soldier should discuss his or her desire to be found fit with his or her chain of command. Many times, unit commanders presume that an injured Soldier wants to be found unfit, and the commander's statement reflects this belief. The Soldier who wants to be found fit should also execute as many PMOS duties and basic soldiering skills as possible to show the chain of command that he or she is fit for duty. A commander's statement indicating that the Soldier has been regularly performing military duties, despite a physical condition, is generally very helpful for a finding of fit.

3. A scorecard indicating that the Soldier recently passed the Army physical fitness test. The Soldier who wants to be found fit should take and pass the Army physical fitness test (APFT) in order to showcase his or her capabilities if the physical profile allows him or her to do so. If the physical profile restricts the Soldier from taking the APFT, the Soldier should obtain the approval of the chain of command prior to violating the profile. The APFT should be conducted to standard under the supervision of the Soldier's chain of command. The APFT card should be completed and signed by the Soldier's training NCO, [a] NCOIC, [b] 1SG, [c] or unit commander.

4. Noncommissioned Officer Evaluation Reports (NCOERs) and Officer Evaluation Reports (OERs). The Soldier should provide the Board with recent OERs or NCOERs, especially if the evaluations indicate that the Soldier continues to perform military duties despite his or her physical condition.

5. Letters to the PEB from the Soldier's military supervisors stating that the Soldier can perform PMOS duties, Basic Soldier Skills, and pass an APFT. These statements should also address the Soldier's motivation, duty performance, and potential. Photos of the Soldier performing these duties are effective tools for supplementing written statements.

6. Letters to the PEB from the Soldier's supervisor at his or her civilian job. Service members on the Temporary Disabled Retired List, or Soldiers with nonduty-related fitness cases who want to be found fit should submit letters from their current or recent employers stating that their duty performance is not limited by their physical condition. This is especially helpful when the Soldier's civilian occupation is similar to his or her military occupation.

7. Letters to the PEB from physicians stating that the Soldier can perform military duties despite a condition. The Soldier's treating physician may believe that the Soldier can perform military duties despite a physical condition, even if the MEB narrative summary and DA Form 3947 say the Soldier cannot. If so, the Soldier should obtain a note from his or her doctor providing that opinion and the reasons supporting it. The Soldier should also look to other health care providers as well. Physical therapists, chiropractors, counselors, and others who have been working with the Soldier for a long time may know the Soldier's condition very well and may provide valuable information to the Board.

8. Letters to the PEB from people who share physically demanding activities or intellectually challenging hobbies with the Soldier. Soldiers should gather letters from friends who perform with the Soldier in the church choir, the office softball team, or the friendly bowling league, for example, specifying that the Soldier is involved in physically demanding activities or intellectually challenging hobbies. Such statements may provide support that the service member can perform assigned military duties.

General, Flag, and Medical Officers

Paragraph E3.P3.4.2. of Department of Defense Instruction 1332.38, states:
   An officer in pay grade 0-7 or higher or a medical
   officer in any grade shall not be determined unfit
   because of physical disability if the member can be
   expected to perform satisfactorily in an assignment appropriate
   to his or her grade, qualifications, and experience.
   Thus, the inability to perform specialized duties
   or the fact the member has a condition which is cause
   for referral to a PEB is not justification for a finding of
   unfitness. (4)(p27)


For example, a surgeon who no longer has a steady nondominant hand due to left-hand carpal tunnel syndrome can still perform family medicine or a teaching function.

Presumption of Fitness

The disability evaluation system compensates disabilities when they cause or contribute to career termination prior to retirement. Continued performance of duty until a Soldier is approved for length of service retirement creates a rebuttable presumption that a Soldier's medical condition has not caused career termination. Paragraph E3.P3.5.1. of Department of Defense Instruction 1332.38 states:
   Service members who are pending retirement at the
   time they are referred for physical disability evaluation
   enter the disability evaluation system under a rebuttable
   presumption that they are physically fit. (4(p27))


A rebuttable presumption of fitness will apply in a Soldier's case if the dictation of the narrative summary occurs after one of the following instances:

* Soldier's request for retirement is approved

* Selection of officer for selective early retirement was approved

* Officer is within 12 months of mandatory retirement due to age or length of service

* Enlisted Soldier is within 12 months of retention control point and will be retirement eligible at that point.

Rebuttal of the Presumption of Fitness

The presumption of fitness rule shall be overcome when any of the following situations occur: (4(pp27-28))

* Within the presumptive period a new acute, grave illness or injury occurs that would prevent the member from performing further duty if he or she were not retiring.

* Within the presumptive period a serious deterioration of a previously diagnosed condition, to include a chronic condition, occurs and the deterioration would preclude further duty if the member were not retiring.

* The condition for which the member is referred is a chronic condition and the preponderance of evidence firmly establishes that the member was not performing duties befitting of either his or her experience in the office, grade, rank, or rating before entering the presumptive period.

PHYSICAL EVALUATION BOARD LIAISON OFFICERS

The Physical Evaluation Board Liaison Officers (PEBLOs) are the administrative liaisons between Warriors in Transition* and the MEB/PEB processes. The PEBLO works under the patient administration division at each medical treatment facility. Despite their name, PEBLOs are US Army Medical Command personnel and are neither PEB nor PDA assets. They are not attorneys, however, they counsel Soldiers undergoing physical disability processing. PEBLOs also serve as the point of contact between Soldiers and MEB members, the Deputy Commander of Clinical Services (DCCS), PEB members, and the PDA adjudicators. PEBLOs collect and prepare Soldiers' MEB packets for presentation to the PEB. A Soldier's MEB packet consists of medical and nonmedical evidence, both administrative and performance data, to assist PEB members in the adjudication of their case.

PEBLOs are available to provide counseling to Warriors in Transition from the time they are referred for MEB processing through the time they are separated from military service. PEBLOs will work with Soldiers counsel, primary care physicians, PEB members, and nurse case managers to obtain required documentation and other medical information.

COMPENSABILITY

Generally, a condition is compensable when it was either incurred in the line of duty or permanently aggravated by military service. Factors affecting compensability include conditions existing prior to service, misconduct, noncompliance with prescribed medical treatment, and conditions not constituting a physical disability.

Condition Existing Prior to Service

All Soldiers on active duty orders more than 30 days with at least 8 years of equivalent active duty service will overcome any finding that a current medical condition was not caused nor aggravated by the Army and is solely the result of the natural progression of a condition that existed prior to service (EPTS). (4(p32)) Unless a medical condition is noted at the time of entry, all Soldiers have the presumption of soundness upon entry into military service. (4(p32)) Stated another way, all conditions are presumed to originate while on active duty. Even when it can be shown that a medical condition did exist prior to military service, all EPTS conditions are presumed service-aggravated. The presumption of soundness upon entry into military service and the presumption of service aggravation are rebuttable presumptions. Both National Defense Authorization Acts 08 (1) and 09 (2) modified the compensability rules regarding EPTS conditions and elevated the PEB's evidentiary burden of proof necessary to rebut both presumptions and deny compensation. In order to deny compensation due to EPTS without service aggravation, the PEB must show by "clear and unmistakable evidence" that both the disability existed before the member's entrance on active duty and the disability was not aggravated by active military service. (10(p6))

Misconduct

The PEB may also determine that a condition is noncompensable if the injury was caused by the Soldier's own misconduct. (4(p32)) In those cases, a formal line of duty investigation is required before compensability is denied.

Failure to Follow Prescribed Medical Treatment

Under paragraph B-3, Appendix 3 of Army Regulation 635-40, (7(p66)) the PEB may deny or reduce compensation for Soldiers who fail to comply with prescribed medical treatment. The Army will not compensate the portion of disability that results if a Soldier unreasonably fails or refuses to take prescribed medications; submit to medical or surgical treatment or therapy; or observe prescribed restrictions on diet, activities, or the use of alcohol, drugs, or tobacco.

This reduction or denial of compensation can only occur if the Soldier was clearly and understandably advised of the proper medical course of treatment, and the Soldier's failure or refusal was willful or negligent and not the result of mental disease or a physical inability to comply.

Conditions not Constituting a Physical Disability

The DoD has determined that the conditions presented in the Table do not constitute a compensable physical disability. (4(pp72-73))

Rating and Level of Compensation

Once the PEB determines a Soldier is unfit and compensable, the PEB assigns a disability rating percentage for each unfitting condition, according to the present degree of severity, based upon the Veterans Affairs Schedule for Rating Disabilities (VASRD). (13) In situations where a certain medical impairment is not listed in the VASRD, the PEB will apply an analogous VASRD code which most closely resembles the Soldier's condition. If a case involves 2 or more ratable conditions, the PEB will use a mathematical formula to determine the overall combined rating. (7(pp67-68)) The mathematical formula is commonly referred to by practitioners as "fuzzy math."

Section 1642 of the National Defense Authorization Act 081 states that the service secretaries shall, to the extent feasible, only use the criteria in the VASRD to rate compensable disabilities, including any applicable interpretations by the United States Court of Appeals for Veterans Claims. Further, service secretaries can only deviate from the rating criteria in the VASRD if the use of such criteria will result in a determination of a greater percentage of disability than would be otherwise determined through utilization of the VASRD. (15)

Determination of Tax Free Benefits

For both severance and disability retirement, the PEB will determine that a Soldier is entitled to tax exempt benefits only when their unfitting injuries are combat related, incurred as a direct result of armed conflict, or caused by an instrumentality of war. Soldiers are also entitled to tax exempt benefits if, on September 24, 1975, they were a member or obligated to become a member of an armed force or reserve (of any nation), National Oceanic and Atmospheric Administration, or US Public Health Service. (4(p36)) The PEB will normally require command corroboration if a Soldier is asserting combat related or instrumentality of war injuries. However, the PEB may accept Purple Heart citations, Combat Infantry Badges, or Combat Action Badges in lieu of command corroboration, depending on the nature of a Soldier's specific injury.

INFORMAL PHYSICAL EVALUATION BOARD DECISION

Each case is first considered by an informal, 3-member PEB panel that issues an informal decision on the DA Form 199. An informal decision is based solely upon a paper review of the case, including the Soldier's service medical record, the MEB report, any narrative summaries, available civilian and veterans affairs medical records, and any relevant service performance data (evaluation reports, commander's letters, APFT scorecards).

The PEB can issue the following dispositions:

1. Return to medical treatment facility. The PEB can return a case to the MTF if it determines that the Soldier has not yet reached maximum medical benefit or if additional medical evidence is required to adjudicate the case.

2. Fit for duty. Soldiers with medical conditions that do not prevent them from reasonably performing military duties, including primary military occupational specialty duties, basic soldiering skills, passing an APFT, and deploying will be found fit and retained in the Army.

3. Unfit, separation without benefits. If a Soldier's illness or injury is determined to be noncompensable, he or she will be discharged without entitlement to disability benefits.

4. Unfit, separation with severance pay. Unfit Soldiers with less than 20 years of active federal service and who have compensable conditions with a combined rating of 0% to 20%, will be separated from the Army with severance pay. Severance pay is calculated by 2x(monthly base pay)x(years of active duty service). For RC Soldiers, active federal service is computed by dividing the total number of active duty points by 365. A Soldier may elect length of service retirement in lieu of severance pay if he or she is otherwise entitled to length of service retirement.

Severance or Retirement Pay Decisions

Minimum Severance Pay Provisions under National Defense Authorization Act 08

Section 1646 of the National Defense Authorization Act 08 1 revises the calculation of disability severance pay for those Soldiers who are found unfit, but do not meet the criteria for disability retirement. The new law provides that the minimum number of years used to calculate severance pay shall be 6 years for those injured in a declared tax-free combat zone or during combat related operations, and 3 years for all others. In addition, the Act increased the maximum number of years calculable for severance pay from 12 to 19 years. Service of 6 months is rounded up, and service of less than 6 months is rounded down. The effective date for this provision is January 28, 2008.

No Department of Veterans Affairs Offset in Severance Pay for Combat Zone Incurred Conditions

Section 1646(b) of the National Defense Authorization Act 08 1 states that the Department of Veterans Affairs will not deduct severance pay received by a service member for unfitting line of duty disabilities incurred in a combat zone or incurred during the performance of duty in combat-related operations. The effective date for this section is January 28, 2008.

Unfit, Permanent Disability Retirement

Soldiers will be permanently retired for disability when their conditions are permanent and stable, and either the combined rating is 30% or higher or they have at least 20 years of active duty service. Permanent Disability Retirement (PDR) entitles Soldiers to all the benefits of a length of service retirement. Retirement pay is calculated by multiplying the combined rating by the Soldier's monthly base pay. By law, Soldiers cannot receive more than 75% of their monthly base pay for disability retirement. For example, an unfit Soldier with a combined rating of 100% can, statutorily, only receive a maximum of 75% of his or her monthly base pay. A Soldier may elect length of service retirement in lieu of PDR if the Soldier is otherwise entitled to a length of service retirement.

Unfit, Temporary Disability Retirement List

Soldiers will be placed on the Temporary Disability Retirement List (TDRL) when their conditions are unstable and their combined rating is 30% or higher, or they have at least 20 years of active duty service. A Soldier on the TDRL receives all the benefits of length of service retirement, including retirement pay. A Soldier on the TDRL with a combined rating of 50% or less receives retirement pay equal to 50% of the Soldier's active duty base pay. A Soldier on the TDRL with a combined rating of 60% or higher receives that percentage of base pay to a maximum of 75%. As discussed above, Soldiers cannot receive more than 75% of their monthly base pay for retirement. By law, Soldiers placed on the TDRL must undergo a periodic 18-month reevaluation by the PEB, with the exception of Soldiers found unfit by reason of post traumatic stress disorder (PTSD). Soldiers found unfit due to PTSD and placed on the TDRL will have a mandatory 6-month review. (4(p19)) Soldiers with unfitting PTSD may receive PDR rather than TDR only if they have an 80% or greater rating for non-PTSD related conditions. Qualified Soldiers can stay on the TDRL for a maximum of 5 years, however, there is no entitlement for a Soldier to stay on the TDRL for the entire period. The final disposition of TDRL cases may be fit for duty, separation with severance pay, separation without entitlement to disability benefits, or permanent disability retirement. A TDRL member found fit for duty upon periodic reexamination by the PEB will be given the option to separate without entitlement to disability benefits and not be required to complete the balance of their active duty or reserve service obligation. (7(pp47-48)) Therefore, completion of any remaining obligation is subject to the TDRL member's consent.

Election Period and Rebuttals to the Informal Decision

All Soldiers are encouraged to consult with an MEB outreach counsel or Soldiers counsel upon receipt of their DA Form 199. Generally, Soldiers have 10 days upon receipt of their informal PEB decision to file an election in their case, either concur, do not concur, or do not concur and submit a rebuttal. A Soldier can also demand a formal hearing with a personal appearance, or a formal hearing without a personal appearance. Additionally, Soldiers are entitled to assistance with their appeal by a regularly appointed Soldiers counsel. The Soldier may elect to have counsel of his or her own choice at no expense to the government.

Unless a Soldier obtains new medical evidence during their informal PEB election period or can show clear error on their informal DA Form 199, we suggest Soldiers elect "do not concur" and refrain from submitting a rebuttal at that time. Once an assigned Soldiers counsel has had an opportunity to review the service medical record, he or she can later submit a rebuttal statement with supporting evidence at any time prior to a hearing. The PEB can then issue a favorable informal reconsideration without the need for a hearing.

Even if a Soldier is unable to obtain new evidence or show clear error, we generally suggest that all Soldiers initially nonconcur with their informal PEB decision and request a formal hearing. Such a request can be waived later. Assigned Soldiers counsel are provided the same MEB/PEB evidence packet as the board members, as well as access to their client's entire service medical record. Soldiers counsel will review this evidence along with the Soldier's goals to determine if proceeding forward with a formal hearing is advisable.

FORMAL HEARINGS

Formal hearings are held de novo, the PEB is not bound by its previous decisions and recommendations. In addition, neither military nor federal rules of evidence are applied to PEB adjudication. The only standard for submission of evidence is that material submitted to the PEB must be relevant and material to the Soldier's case. Formal hearings are nonadversarial as there is not an opposing counsel representing the PEB.

On the day of the scheduled hearing, it is customary for Soldiers counsel to have a prehearing conference with the presiding PEB board members. The counsel will briefly discuss the merits of their case. Many times this informal discussion will lead to a revised reconsideration in favor of the client. If a hearing is still necessary, both counsel and client will appear before the board for a formal presentation of the case.

During the hearing, the Soldiers counsel makes opening statements highlighting the supporting evidence in their case, performs the initial direct examination, asks any necessary redirect questions after the board members have exhausted their line of questioning, and provides a summation of relevant regulations, evidence, and client testimony. The Soldier will have an opportunity to make a statement just prior to the board's adjournment for deliberations.

Soldiers are entitled to call witnesses to support their case, however, they must be relevant and material to the issues or facts in contention.

CONTINUATION ON ACTIVE DUTY OR ACTIVE RESERVE FOR UNFIT SOLDIERS

Soldiers who are determined unfit may continue, if approved, in a limited duty status in their respective active or reserve component. (7(p40-46)) Continuation on Active Duty (COAD) and Continuation on Active Reserve (COAR) offer Soldiers the opportunity to continue their military careers and/or possibly qualify for length of service retirement in lieu of disability severance or retirement.

In order for a Soldier to ensure that he or she is considered for COAD or COAR, the Soldier must request consideration in writing. Requests should be provided to the Soldier's PEBLO or Soldiers counsel for inclusion in the PEB file. If the Soldier is found unfit by the PEB, the COAD or COAR request will be forwarded to the appropriate approving authority for action before the Soldier is discharged. COAD and COAR requests are approved and disapproved at the highest levels, either at the Army Human Resources Command or at the National Guard Bureau.

Soldiers must meet one of 3 criteria to qualify for COAD or COAR consideration:

* At least 15 years of active federal service for COAD or at least 15 years of qualifying service for nonregular retirement (ie, "good years" in the Guard or Reserve) for COAR

* Qualified in a critical skill or shortage MOS

* Disability is the result of combat or terrorism

A Soldier who qualifies for consideration will not necessarily be approved for COAD or COAR. Consideration criteria include disability that is not the result of misconduct or willful neglect, or is not incurred while absent without leave; whether the Soldier is capable of working in a normal military environment without adversely affecting the Soldier's or other's health or requiring undue loss of time from duty for medical treatment; and whether the Soldier is physically capable of performing useful duty in the MOS for which he or she is currently qualified or is potentially trainable.

Requests for COAD or COAR do not require supporting documentation. However, in order to bolster a request, a Soldier may attach documents such as statements from commanders or supervisors addressing the Soldier's physical capabilities and requesting that the Soldier's request be approved, and letters from treating physicians addressing the Soldier's physical capabilities. Indeed, any evidence which would support a finding of fit should be attached to the COAD or COAR request.

A COAD or COAR may help Soldiers with significant investments in military careers by allowing those Soldiers to continue military service until they are qualified for length of service retirement (20 years). Soldiers with over 15 years of military service who may be discharged because of disability should strongly consider submitting a request. Soldiers with between 18 and 20 years of military service who do not request a COAD or COAR must submit a statement specifically declining COAD or COAR. As an alternative, the Soldier's PEBLO may submit a statement that the Soldier was counseled and declined to request a COAD or COAR. COAD or COAR denials for Soldiers with at least 18 active duty years or 18 good years toward reserve retirement require Secretary of the Army approval.

APPEAL OF FORMAL PHYSICAL EVALUATION BOARD DECISIONS WHILE ON ACTIVE DUTY

If a Soldier disagrees with the formal PEB decision, there is generally a 10-day election period to submit a rebuttal. If the rebuttal is submitted within the prescribed election period, the PEB will review the rebuttal and may issue a revised reconsideration in favor of the Soldier. If received after the 10-day election period, the PEB will forward the case to the Physical Disability Agency (PDA) for appellate review. Under current policy, the Army PDA will generally accept a rebuttal outside of the 10-day election period only if a Soldier has not yet received their final transition processing orders. The PDA can concur with the PEB decision, nonconcur and modify/reverse the PEB decision, or return the case to the PEB in its entirety.

The PDA designates certain cases for "own motion" (mandatory) review. Currently, the PDA reviews all cases awarded tax-free benefits due to combat-related disabilities in addition to all cases involving post traumatic stress disorder and traumatic brain injuries. Further, the PDA conducts a statistical sample review of all other cases for quality assurance purposes. The PDA's own motion review can result in an adverse modification of a Soldier's PEB decision.

The Army Physical Disability Appeals Board (APDAB) is another level of appellate review potentially available to Soldiers prior to separation. Unfortunately, the majority of Soldiers are denied access to this appellate body for procedural reasons. By regulation, Soldiers can only file an APDAB appeal if the PDA modifies or reverses the PEB decision, creating a discrepancy between the PEB and PDA. However, experience has shown that the PDA, rather than issuing a decision inconsistent with the PEB, returns the case to the PEB with a recommendation to issue a new decision consistent with the PDA's interpretation of the case. This process results in parity amongst the PEB and PDA's decisions and, ultimately, the Soldier's inability to file an appeal through APDAB. The PDA has acknowledged this potential for unfairness. Though not required by current regulations, under internal policy set by the current PDA leadership, Soldiers are granted access to APDAB if the PDA remands a case to the PEB, which then subsequently modifies the earlier PEB decision adverse to the Soldier's interests.

If an APDAB appeal is unsuccessful, the Soldier can then appeal PEB/PDA action after separation from active duty as discussed below.

APPEAL OF PHYSICAL EVALUATION BOARD OR PHYSICAL DISABILITY AGENCY DETERMINATIONS AFTER SEPARATION OR RETIREMENT

After separation, retired and former Soldiers may seek review of their PEB or PDA determinations through the Army Board for Correction of Military Records (ABCMR), Army Disability Rating Review Board (ADRRB), or the newly created DoD Physical Disability Review Board (DoD PDRB). ABCMR claims must be filed within 3 years of the first knowledge of an error or injustice and after the former Soldier has exhausted all administrative remedies offered by existing laws and regulations. The ADRRB reviews disability percentage ratings upon request for Soldiers who were retired due to physical disability. Requests for ADRRB review must be made within 5 years from the date of retirement.

Section 1643 of the National Defense Authorization Act 08 (1) established the DoD PDRB. The PDRB will evaluate cases upon request of a Soldier or through its own motion review where the Soldier was separated with a 20% or less disability rating and was not eligible for retirement. Only Soldiers separated between September 11, 2001, and December 31, 2009, are eligible for this review. The PDRB will consist of a 3-member panel and will make recommendations to the appropriate service secretary. The PDRB can make the following findings:

* Recommendation for no change or modification in disposition

* Recommendation that separation be recharacterized as retirement

* Recommendation for the modification of a disability rating (however, the PDRB is barred from recommending a modification of the disability that would reduce the Rating for that disability)

* Recommendation for the issuance of a new disability rating.

Upon receipt of the PDRB recommendations, the service secretary may modify the records of the individual effective the date of the original PEB.

Department of Defense Instruction 6040.44 designates the US Air Force as the lead DoD component for the establishment, operation, and management of the PDRB for DoD. The PDRB will only conduct a paper review of cases and will not hold in-person hearings. Initially, Department of Defense Instruction 6040.44 (2008) stated that the PDRB will only review the dispositions of medical conditions previously determined unfitting by the military department PEB. However, under the change incorporated in June 2009, the PDRB is allowed to review all medical conditions, not just those earlier found unfitting. (16(pp1-2)) Appellants must carefully choose their forum as DoD PDRB appellants may not seek subsequent nor concurrent relief from the ABCMR on the same issue. Further, the PDRB will not review any appeals that were previously adjudicated by the ABCMR on the same issue, with the exception of ABCMR claims filed prior to June 27, 2008 (the original effective date of Department of Defense Instruction 6040.44).

Prior to the June 6, 2009, modification to the Department of Defense Instruction 6040.44, (16) if the contested separation occurred prior to January 28, 2008 (the date the Defense Authorization Act 08 (1) was signed into law), the PDRB would have conducted reviews in accordance with the Veterans Affairs Schedule for Rating Disabilities (VASRD) in effect at the time of separation, Department of Defense Instruction 1332.39* and any other applicable service regulations in affect at the time of the contested separation. This has since been changed. The DoD PDRB will ignore any DoD and service regulations that were inconsistent with the VASRD in effect at the time of the adjudication. This is a significant change as many of the older DoD and service-specific regulations were inconsistent with the VASRD, yielding lower ratings.

JOINT DEPARTMENT OF DEFENSE/DEPARTMENT OF VETERANS AFFAIRS DISABILITY EVALUATION SYSTEM PILOT PROJECT

On November 26, 2007, the Department of Defense and Department of Veterans Affairs (DVA) implemented the Disability Evaluation System (DES) Pilot (17,18) for disability cases originating at the 3 major military treatment facilities in the National Capitol

Region: Walter Reed Army Medical Center, National Naval Medical Center, and Malcolm Grow Medical Center (USAF). On September 25, 2008, the Deputy Secretary of Defense and the Deputy Secretary of Veterans Affairs approved the expansion of the DES Pilot to 19 military installations, including 9 Army posts: Fort Meade, Maryland; Fort Belvoir, Virginia; Fort Stewart, Georgia; Fort Polk, Louisiana; Fort Richardson and Fort Wainwright, Alaska; Fort Drum, New York; Fort Carson, Colorado; and Brooke Army Medical Center, Fort Sam Houston, Texas. In November 2009, a further expansion of the program to 6 additional installations was announced, including Fort Benning, Georgia; Fort Bragg, North Carolina; Fort Hood, Texas; Fort Lewis, Washington; and Fort Riley, Kansas.

Key features of the developing DoD/DVA DES Pilot include a single comprehensive medical examination and a single-sourced disability rating. The DVA will conduct a single comprehensive exam and will rate all medical conditions. The military departments will accept the DVA rating for all medical conditions determined unfitting for continued military service unless the condition involves noncompliance, misconduct, or a nonservice aggravated medical condition which existed prior to service. The military retains authority to determine if a portion of a Soldier's disability, or its entirety, is a result of an EPTS condition, misconduct, or noncompliance. Soldiers counsel will continue to provide services at all steps throughout the DoD/DVA DES Pilot until separation from active duty.

Once a Soldier receives a permanent P3 profile and achieves maximum medical benefit, he or she is referred for MEB processing. During MEB processing, the Soldier will undergo a comprehensive physical examination conducted by the DVA. An Army physician will then review the DVA exams along with the Soldier's service medical records to determine if he or she has any conditions that fall below Army retention standards. The Army physician will then issue an MEB report. If even one condition falls below Army retention standards or is medically unacceptable, the Soldier will be referred for PEB adjudication to determine if the Soldier is fit for continued duty for each condition falling below medical retention standards.

Cases referred by the MEB will first be informally adjudicated by the PEB to determine fitness. The PEB will consider the Soldier's MEB report, the DVA's comprehensive exam, as well as the Soldier's commander's statement, profile, recent APFTs, and other performance and personnel documents. The PEB determines which conditions are unfitting; which unfitting conditions are compensable; and whether any unfitting compensable conditions are combat-related or occurred in a declared tax-free combat zone. The PEB's informal findings will be documented on a DA Form 199 and be provided to the Soldier. The Soldier may elect to either concur with the informal findings of fitness, or nonconcur and also request a formal hearing with representation by Soldiers counsel. Alternatively, the Soldier can elect to have a representative of his or her own choice at no expense to the government. If the Soldier is determined unfit, he or she may elect to postpone concurrence or nonconcurrence until receipt of the DVA ratings. If the Soldier does not concur with the fitness determination, Soldiers counsel can help the Soldier identify and gather evidence which might support the accomplishment of their goals. Soldiers counsel may also present this evidence to the PEB on the Soldier's behalf, along with oral arguments during the formal hearing, if elected.

Soldiers can concur with the PEB's informal fitness determination and nonconcur with the DVA rating. Soldiers can also concur with the DVA rating and request a formal hearing to contest the PEB's fitness determination.

All Soldiers determined unfit have a one-time opportunity to appeal their DVA rating, which the Army will accept for disposition purposes (severance versus disability retirement). This one-time rating reconsideration must occur prior to the Soldier's separation. Any successful DVA appeals the Veteran makes after separation will not be accepted for military disposition purposes unless the DVA appeal (notice of disagreement) was filed within 1 year of separation. In addition, if the postseparation appeal is successful, the Veteran must file a claim to change his or her military disposition through the Army Board for Correction of Military Records.

Soldiers counsel can assist service members with reconsideration requests regarding their initial DVA ratings prior to their separation from military service. The request for reconsideration is a paper review by a DVA Decision Review Officer (DRO). Soldiers are not afforded an in-person DVA hearing to contest their rating. Further, the DVA DRO will only reconsider evaluations of ratings if new medical evidence is received, or if there is evidence of an error sufficient to warrant reconsideration.

CONCLUSION

Soldiers are best served by MEB outreach counsel and Soldiers counsel who handle physical disability cases on a daily basis. Many factors impact a Soldier's disposition in the Army Physical Disability Evaluation System. There are specific evidence-driven strategies involved with trying to accomplish a Soldier's goal of either continuing his or her military career or maximizing the disability rating. It is important to note that MEB outreach counsel and Soldiers counsel represent Soldiers. They do not advise or represent commanders, nor do they advise or represent the MEB/PEB. The PEB and the PDA are components of the Army Human Resources Command and fall under a different chain of command. Accordingly, neither the PEB nor PDA rate Soldiers Counsel performance for officer or civilian evaluation purposes.

MEB outreach counsel and Soldiers counsel stand ready to assist Soldiers throughout the Army Physical Disability Evaluation System. Offices of Soldiers counsel are located at the Walter Reed Army Medical Center, Madigan Army Medical Center, Brooke Army Medical Center, Evans Army Hospital at Fort Carson, Tripler Army Medical Center in Hawaii, Darnall Army Medical Center at Fort Hood, Landstuhl Regional Medical Center and the Bavaria Warrior Transition Unit (Germany).

POINTS OF CONTACT

Office of Soldiers Counsel

Walter Reed Army Medical Center

(202) 782-1550

Email: soldierscounsel@amedd.army.mil

Landstuhl Regional Medical Center, Germany

DSN 314-486-6049 Comm: 011-49-6371-866049

Bavaria, Germany Warrior Transition Unit

DSN: 476-3358 Comm: 011-49-9662-83-3358

Fort Lewis, Washington

(253) 968-4441/4442

Email: max.peb@amedd.army.mil

Tripler Army Medical Center, Hawaii

(719) 526-5572

Fort Carson, Colorado

(719) 526-5572

Fort Sam Houston, Texas

(210) 221-9392 or (210) 295-0432

Fort Hood, Texas

(254) 287-8887

Offices of MEB Outreach Counsel and Warrior Transition Legal Assistance

Collocated with Warrior Transition Units at the medical facilities at the following Army installations:
Ft Benning
Ft Bliss
Ft Bragg
Ft Campbell
Ft Drum
Ft Gordon
Ft Hood
Ft Knox
Ft Lewis
Ft Polk
Ft Richardson
Ft Riley
Ft Sam Houston
Ft Stewart
Heidelberg
Tripler Army
 Medical Center
Walter Reed Army
 Medical Center


PULHES

P - Physical capacity or stamina

U - Upper extremities

L - Lower extremities

H - Hearing and ears

E - Eyes

S - Psychiatric
Enuresis

Sleepwalking and/or somnambulism
Dyslexia and other learning disorders
Attention deficit hyperactivity disorder
Stammering or stuttering
Incapacitating fear of flying confirmed by
  a psychiatric evaluation
Airsickness, motion, and/or travel
  sickness
Phobic fear of air, sea, and submarine
  modes of transportation
Uncomplicated alcoholism or other
  substance use disorder
Personality disorders
Mental retardation
Adjustment disorders
Impulse control disorders
Sexual gender and identity disorders,
  including sexual dysfunctions and
  paraphilias
Factitious disorder
Obesity
Overheight
Psuedofolliculitis barbae of the face and/
  or neck
Medical contraindication to the
  administration of required
  immunizations significant allergic
  reaction to stinging insect venom
Unsanitary habits including repeated
  venereal disease infections
Certain anemias (in the absence of
  unfitting sequelae) including G6PD*
  deficiency, other inherited anemia
  traits and Von Willebrand's disease
Allergy to uniform clothing
Homosexuality

* Glucose-6-phosphate dehydrogenase

Conditions which do not constitute a compensable
physical disability as determined by the Department
of Defense.


Acknowledgments

Special thanks to CPT Robert E. Webb, Jr, and MAJ David C. White, authors of "Physical Disability Separation," published in the 1999 US Army Medical Command Legal Deskbook, and Ms Frances Dennis, Policy Advisor of the Physical Disability Agency and author of the "Information Paper: Overview of PDES," dated April 11, 2007, for providing a useful framework and knowledge used in writing this article.

[ILLUSTRATION OMITTED]

References

(1.) Pub L No. 110-181, 122 Stat 3 (2008).

(2.) Pub L No. 110-417, 122 Stat 4617 (2008).

(3.) Department of Defense Directive 1332.18: Separation or Retirement for Physical Disability. Washington, DC: US Dept of the Army; November 4, 1996.

(4.) Department of Defense Instruction 1332.38: Physical Disability Evaluation. [Change 1]. Washington, DC: US Dept of Defense; July 10, 2006.

(5.) Army Regulation 40-400: Patient Administration. Washington, DC: US Dept of the Army; February 6, 2008.

(6.) Army Regulation 40-501: Standards of Medical Fitness. Washington, DC: US Dept of the Army; December 14, 2007 [revised September 10, 2008].

(7.) Army Regulation 635-40: Physical Evaluation for Retention, Retirement or Separation. Washington, DC: US Dept of the Army; February 8, 2006.

(8.) Army Regulation 600-60: Physical Performance Evaluation System. Washington, DC: US Dept of the Army; February 28, 2008.

(9.) Policy Guidance for the Disability Evaluation System and Establishment of Recurring Directive-Type Memoranda. Washington, DC: Under Secretary of Defense for Personnel and Readiness, US Dept of Defense; May 3, 2007:4. Available at: https:// www.hrc.army.mil/SITE/Active/TAGD/Pda/ DoD_DTM_3_May_2007.pdf. Accessed December 14, 2009.

(10.) Policy Memorandum on Implementing Disability-Related Provisions of the National Defense Authorization Act of 2008 (Pub L. 110-181). Washington, DC: Office of the Under Secretary of Defense, US Dept of Defense; October 14, 2008. Available at: http://prhome.defense.gov/docs/ NDAA%2008%202%20PM%20sm.pdf. Accessed December 8, 2009.

(11.) Army Regulation 600-20: Army Command Policy. Washington, DC: US Dept of the Army; March 18, 2008 [revised November 30, 2009].

(12.) US Army Human Resources Command. Policy/ Guidance Memorandum #4: Processing Reserve Component (RC) Nonduty Related Cases. Washington, DC: US Dept of the Army; September 26, 2002. Available at: https://www.hrc.army.mil/ site/active/tagd/pda/pgm_04.htm. Accessed December 9, 2009.

(13.) Dept of Veterans Affairs Schedule for Rating Disabilities, 38 CFR Part 4. Available at: http:// www.warms.vba.va.gov/bookc.html. Accessed December 15, 2009.

(14.) Department of the Army Pamphlet 611-21: Military Occupational Classification and Structure. Washington, DC: US Dept of the Army; January 22, 2007.

(15.) 10 USC [section]1216a (2009).

(16.) DoD Instruction 6040.44: Lead DoD Component for the Physical Disability Board of Review. [change 1]. Washington, DC: US Dept of Defense; June 2, 2009:1-2. Available at: http://www.dtic.mil/whs/ directives/corres/pdf/604044p.pdf. Accessed December 14, 2009.

(17.) Under Secretary of Defense for Personnel and Readiness. Memorandum: Policy and Procedural Directive-Type Memorandum (DTM) for the Disability Evaluation System (DES) Pilot Program. Washington, DC: US Dept of Defense; November 21, 2007.

(18.) Under Secretary of Defense for Personnel and Readiness. Memorandum: Policy and Procedural Update for the Disability Evaluation System (DES) Pilot Program. Washington, DC: US Dept of Defense; December 11, 2008.

* Chapter 3 of Army Regulation 40-501 provides objective criteria to determine the standards for medical retention for a number of medical conditions.

[a.] Noncommissioned officer

[b.] Noncommissioned officer in charge

[c.] 1st sergeant

* For detailed discussions of the structure and processes of the Warriors in Transition program, see the January-March 2008 issue of the Army Medical Department Journal, available at http://www.cs.amedd.army.mil/dasqaDocuments.aspx?type=1.

* Department of Defense Instruction 1332.39: Application of the Veterans Administration Schedule for Rating Disabilities. Cancelled, no longer in effect.

Author

Mr Dorotheo is Assistant Chief, Office of Soldiers Counsel and Legal Assistance, Office of the Center Judge Advocate, Walter Reed Army Medical Center, Washington, DC.
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