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COL Joyce Hamel, Judge Advocate, USAR
Staff Judge Advocate (DIMA)
Uniform Services University of Health Sciences
* * *
Chief, Office of Soldiers’ Counsel & Legal Assistance
Office of the Center Judge Advocate
Walter Reed Army Medical
DoD-DVA Disability Evaluation System (DES) Pilot
&Army Application and Overview
- Title 10 U.S.C., Chapter 61 - National Defense Authorization Act for FY 08 & FY 09- Directive-Type Memorandum (DTM) for the Disability
Evaluation System (DES) Pilot Program, signed 21 NOV 07
- DoD Action Memo for DES Expansion dated 25 SEPT 08- DoD Policy & Procedural Update for DES Pilot Program
dated 11 DEC 08- DoDI 1332.38- AR 635-40
References
DES Reform Chronology• April 2006 – GAO Report on the Disability Evaluation System• Fall 2006 – BPR on DES (facilitated by P&R IM/BAH) • December 2006 – Disability Advisory Council (DAC) charter update• February 2007 – Washington Post headlines• March 2007 – Senior Oversight Committee chartered and Lines of
Action initiated• May 2007 – Published P&R DES Report and Directive Type
Memorandum (DTM) on DAC, reporting & timeliness• August 2007 – Devised and tested alternative DES processes in joint
DoD-VA Table Top exercise• November 2007 – Published DES Pilot DTM and initiated Pilot in
National Capital Region• December 2007 – Published DES DTM on deployability standards• March 2008 – Published initial DES Pilot report to Congress and first
DTM on 2008 National Defense Authorization Act (NDAA)• September 2008 – Published Disability Advisory Council Charter
update• October 2008 – Published second DTM on 2008 NDAA, expanded Pilot• November 2008 – Published interim DES Pilot report to Congress,
expanded Pilot
UNCLASSIFIED/FOUO
DES Pilot Justification
• The following reviews all recommended a single medical examination:– The Dole-Shalala Commission– SECDEF’s Independent Review Group (IRG)– VA Secretary’s Global War on Terrorism
Returning Heroes Task Force– Veterans’ Disability Commission
UNCLASSIFIED/FOUO
DES Pilot Justification
• With the exception of Dole-Shalala, all groups recommended that the DVA shall assign disability percentages– Dole-Shalala recommended that all unfit
Service Members receive DoD annuity payments, the dollar value of which would be based solely on rank and length of service.
DES Pilot Vision / Goals
• VISION: A seamless and transparent DES, administered jointly by DoD & VA
• GOALS:– Less complex and adversarial
– Faster, more consistent evaluations & compensation
– Single medical exam & single-source disability rating
– Seamless transition to Veteran status
– A continuum of care - advocacy & expectation management
UNCLASSIFIED/FOUO
DES Pilot Concept
• One Integrated & Comprehensive Medical Evaluation Report– Must Meet DoD & DVA Requirements for Adjudication
• Military Departments Retain Authority to Determine Service Member’s Fitness for Duty & Compensability
• Single-Sourced Rating Determination from the DVA
• DoD Adopts Rating for those Conditions Determined “Unfitting”
Joint DoD/DVA DES Pilot• Initially only a NCR pilot program starting with the MEB
process on or after 26 NOV 07:
– Walter Reed Army Medical Center (WRAMC)– NMC Bethesda & – Malcolm Grow Medical Center at Andrews AFB
9
Expansion Schedule
Ft. Meade & Ft Belvoir Army Washington DC 1-Oct-08 20 YesSan Diego NMC Navy San Diego CA 30-Nov-08 50 YesFt Stewart Army Atlanta GA 30-Nov-08 30 YesCamp Pendleton Navy San Diego CA 31-Jan-09 30 YesNMC Bremerton Navy Seattle WA 28-Feb-09 11 YesVance AFB Air Force Muskogee OK 28-Feb-09 2 YesFt Polk Army New Orleans LA 28-Feb-09 40 NoNellis AFB Air Force Reno NV 31-Mar-09 22 NoMacDill AFB Air Force St. Petersburg FL 31-Mar-09 25 YesCamp Lejeune Navy Winston-Salem NC 31-Mar-09 25 YesFt Richardson/Ft Wainwright Army Anchorage AK 30-Apr-09 30 YesFt Drum Army Buffalo NY 30-Apr-09 47 YesElmendorf AFB Air Force Anchorage AK 30-Apr-09 6 YesTravis AFB Air Force Oakland CA 31-May-09 28 YesFt Carson Army Denver CO 31-May-09 120 YesBrooke Army Medical Center Army Houston TX 31-May-09 57 Yes
543Total Estimated Cases Per Month at all Sites:
Initial Operating Capability (IOC)
Est. # of Cases per Month BDD Site
VA Regional OfficeLocation
Host Military Department
10
DES Pilot Process
11
DEPARTMENT PILOT NCR FY07 DES FY2007 COMMENT
Army 811 (51%)
450(39%)
10,400 (52%)
Navy 555 (35%)
519 (45%)
4,931(25%)
Air Force 210 (14%)
184(16%)
4,591 (23%)
Overall 1,576 1,153 19,922
Completed - 301
Includes members returned to duty, separated from military service with or w/o benefits, and those placed on the TDRL/PDRL and issued their VA benefits letter
Removed from the Pilot - 59Includes members removed for
miscellaneous reasons (e.g. departed the NCR, administratively discharged)
Currently Enrolled in Pilot
1,216
DES Pilot Enrollment
As of March 15, 2009
UNCLASSIFIED/FOUO
DES Pilot Enrollment as of April 19, 2009
UNCLASSIFIED/FOUO
DES Pilot Process: MEB• The MTF determines and directs if the SM
requires an MEB (Permanent P3 & Maximum Medical Benefit)
• The MEB will determine what conditions fall below retention standards according to the Service’s regulations
• Soldiers are encouraged to consult with Solders Counsel upon entry and at any point during the DES Pilot process
DES Pilot Process: MEB• A PEBLO coordinates the DoD action on
the case and the MSC (Military Services Coordinator) coordinates the VA action on the case
• Both the PEBLO and MSC complete the Joint DES Pilot Claim Form (VA Form 21-0819) with the Service Member highlighting all of his/her conditions
UNCLASSIFIED/FOUO
DES Pilot Process: MEB
• In coordination with the MSC and PEBLO, the Service Member attends all required general and specialty medical examinations conducted by the VA
• The examinations will be performed to dual specifications:– DoD specifications to determine fitness – VA specifications to determine appropriate
disability ratingUNCLASSIFIED/FOUO
DES Pilot Process: MEB
• MTF Physician reviews the DVA exams for adequacy and dictates a NARSUM (“Narrative Summary”)
• A Medical Evaluation Board is then convened at the MTF to determine:– If Service Member meets retention standards:
SM is returned to duty– If SM fails to meet retention standards: case
forwarded to the PEB for fitness determination
UNCLASSIFIED/FOUO
DES Pilot Process: MEB• PEBLO informs the SM of the MEB’s
determination• SM has 7 working days to file an election,
indicating agreement or disagreement– Written rebuttals with non-concurrences are
not mandatory– Soldiers Counsel can assist Soldiers with
rebuttals
UNCLASSIFIED/FOUO
DES Pilot Process: MEB• SMs must include all medical conditions
on claims form– Problematic for SMs who want to be found fit
• New medical conditions claimed by SM after completion of MEB process– Only considered in Pilot if PEB re-refers case
to DVA for examination– If not, pursue compensation after separation
UNCLASSIFIED/FOUO
DES Pilot Process: IPEB• The Military Departments use their PEBs
for purposes of this Pilot• The PEB answers 4 questions for each
medically unacceptable condition:1) Fit or Unfit?
2) Military Compensability?
3) Combat related or incurred in a combat zone?
4) Stability?UNCLASSIFIED/FOUO
DES Pilot Process: IPEB• Possible PEB Actions:
– Return for additional evidence– Informal Decisions (“IPEB”)– Revised Informal Reconsiderations after
Written Rebuttals to IPEB– Formal Hearing Decision (“FPEB”) (if SM non-
concurs)
UNCLASSIFIED/FOUO
DES Pilot Process: IPEB
• As soon as an informal PEB decision is issued, a DVA Rating Board in Baltimore, MD, or Seattle, WA, begins to rate all of the SM’s service-connected medical conditions.– Copy of case earlier forwarded to DVA Rating
Board at completion of MEB
UNCLASSIFIED/FOUO
DES Pilot Process: IPEB• Ultimately, the Service PEB must adopt
the DVA rating for military disposition for each unfitting condition unless:– EPTS– Misconduct– Non-Compliance
• The PEB will note on their informal decision if military compensation will be adjusted or denied.
UNCLASSIFIED/FOUO
DES Pilot Process: IPEB• 3 options upon receipt of their Informal
PEB Decision (10 day election period)1) Concur;
2) Do not concur and request a formal PEB hearing; or
3) Delay their election until receipt of the VA rating results (this prevents gaming the system and unnecessary PEB appeals)
UNCLASSIFIED/FOUO
DES Pilot Process: IPEB• If the SM opted to receive the DVA results
prior to election, 3 options upon receipt of DVA Rating (10 day election period):1) Concur with both IPEB & DVA Rating;
2) Do not concur with IPEB and request an FPEB hearing; or
3) Concur with IPEB and request DVA rating reconsideration
UNCLASSIFIED/FOUO
DES Pilot Process: FPEB• The PEB will hold a de novo formal
hearing answering the 4 core questions:1) Fit or Unfit?
2) Military Compensability?
3) Combat related or incurred in a combat zone?
4) Stability?• SMs are afforded right to appointed
Counsel at FPEBsUNCLASSIFIED/FOUO
DES Pilot Process: FPEB• After formal proceedings, the FPEB
releases their final determinations together with the VA Rating Board’s determination
• The PDA serves in an administrative role in the Pilot
• No PDA review of PEB decisions
UNCLASSIFIED/FOUO
DES Pilot Process: FPEB• Open question: Review under NDAA 08 by
DoD Physical Disability Board of Review (PDBR) for Warriors separated with
0-20% ratings• Under the Pilot, unfit Soldiers can still
submit requests for Continuation on Active Duty (COAD) or Continuation on Active Reserves (COAR) if eligible:– Combat-related injuries; 15 or more years; or
critical/shortage MOSUNCLASSIFIED/FOUO
DES Pilot Process: VA Rating
• SMs have 10 days to request a one-time reconsideration of their VA disability rating that will be used to determine military disposition prior to separation/retirement
• Right to appointed Counsel• Paper review: no in-person hearing before
DVA Rating Board
UNCLASSIFIED/FOUO
DES Pilot Process: VA Rating
• DVA Rating Board will only reevaluate ratings if:1) New medical evidence is received; or
2) VA mistake/error to warrant reconsideration• Subsequent appeals only after separation
and attainment of veteran status
UNCLASSIFIED/FOUO
DES Pilot Process: DVA Rating
• If the PEB denies or reduces compensability due (EPTS, Misconduct or Non-Compliance), the DVA can still fully compensate the Service Member for that condition for DVA purposes.– The PEB is only determining compensability
according to their own rules that affect military disposition.
– The PEB is not dictating DVA compensability.
DES Pilot Process: DVA Rating
• Under the DES Pilot’s Directive Type Memorandum, Judge Advocates and DoD civilian attorneys can assist Service Members with requests for rating reconsiderations with the DVA for all conditions, both fitting and unfitting, while the Service Member is on active duty.
Post-Separation Appeals Process
• After separation, veterans have one year to file Notice of Disagreement (NOD) with a DVA regional office.
• The BCMRs can use this post-separation appeal to warrant a change in military disposition from separation to disability retirement.
UNCLASSIFIED/FOUO
Due Process Concerns
• Right to an In-Person Hearing– Legacy System: Fitness and Rating– DES Pilot: Fitness only
UNCLASSIFIED/FOUO
Due Process Concerns
• Essential to have a right to an in-person hearing with DVA rating determinations– Impacts military disposition (severance vs.
retirement)– Majority of legacy cases did not contest unfit
determinations, rather only contested ratings
UNCLASSIFIED/FOUO
Bonus Slides
• Walter Reed AMC (WRAMC)
• Ft. Polk (Ft. Sam)
• Tripler AMC (Ft. Lewis)
• Ft. Gordon (Ft. Sam)
• Ft. Benning (Ft. Sam)
• Ft. Stewart (Ft. Sam)
• Ft. Riley (Ft. Lewis)
• Ft. Campbell (Ft. Sam)
• Ft. Knox (Ft. Lewis)
• Ft. Drum (WRAMC)
• Ft. Bragg (WRAMC)
• Ft. Sam Houston (Ft. Sam)
• Ft. Hood (Ft. Sam)
• Ft. Bliss (Ft. Lewis)
• Ft. Lewis (Ft. Lewis)
• Heidelberg (WRAMC)
• Ft. Richardson (Ft. Lewis)
Co-located at 18 Brigade & Battalion Sized WTUs(Alignment w/ OSC)
36
War Injuries/
Conditions
Other
Has member reached a point where it is unlikely they will meet medical retention standards?
Continue Medical Treatment
No
Based on:
•Medical evidence/ Occupational Medicine review
•DoD Instruction Guidance
•Military Department Regulations
Member is treated or being treated for a medically limiting injury or condition No
Refer for Disability Evaluation/ Transition Exam
Yes Does the member meet medical retention standard?
Return to duty
Yes
Similar to old process
New process
Legend
Injury and Treatment “Permanent” Limitation? Qualified for Military Job? Initiate Exam
MEB
37
Member’s Medical Evaluation Package Completed (complete narrative summary of all potentially unfitting conditions)
+
Other required documentation No
P
E
B
Service Medical Experts perform final review, deliver final medical retention decision
Does member meet medical retention standards?
Return to duty
Yes
Member receives VA General Medical Exam & comprehensive evaluation of both potentially unfitting conditions & other conditions claimed by member as having been incurred in or aggravated by military
service.
All medical records and current diagnostic results forwarded for use by VA qualified provider
Results of VA Exam
MEB
VA Template
PEBNARSUM& LOD 38
UNCLASSIFIED/FOUO
Review of the MEB process under the DES Pilot
Dispositions:
Is the member fit for duty?
VA Rating Panel:Receives case file from PEB & rates all qualified conditions
PEB applies VA rating to unfitting conditions.
Return to duty
Yes (Fit)
Placed on the Temporary Disability Retired List (TDRL)
Placed on Permanent Disability Retirement
Separated with lump sum disability severance
Disability is stable
< 20 years
No
Yes≥ 20 years
No (Unfit)
0-20%30% or higher
Member’s years of active duty or equivalent service
Member may elect Formal PEB after unfitness determination
Necessitates Formal PEB Proceedings
DD214
Member can have any item or % reconsidered by VA DRO – one time only while on active duty
Veteran relationship with VA system already established.
Processing for compensation can immediately begin.
Veteran retains the right to appeal in VA.
P
E
BWhat is the applied disability rating?
RatingPanel
PEB
Various Appeal levels maintained per Military Department Regulations
40
VA Receives DD 214/
Verification of
Separation
Promulgate the Rating Decision and Issue Payment to the
Veteran
Appeal Process:
Notice of Disagreement
Received Within 1 Year of Rating
Decision?No
Yes
No Further Action
Statement of the Case issued
VA Form 9
Substantive Appeal Received?
Yes
No
No Further Action
Certify to the Board of Veterans Appeals
(BVA)
Appeal Granted
Promulgate the Decision and Issue
Payment to the Veteran
Refer to BCMR for adjustment of the DoD disposition under 10 USC,
Chapter 61.
Post-Separation Actions by VA
Yes
NoNo Further Action
BCMRs
VA Appeals
Note: Pre-discharge ratings used, concurrent process.decreases post separation processing time
for award processing by VA.
DD214