1 DoD-DVA Disability Evaluation System (DES) Pilot & Army Application and Overview COL Joyce Hamel, Judge Advocate, USARStaff Judge Advocate (DIMA)Uniform Services University of Health Sciences* * *Chief, Office of Soldiers’ Counsel & Legal AssistanceOffice of the Center Judge AdvocateWalter Reed Army Medical
2 References Title 10 U.S.C., Chapter 61 National Defense Authorization Act for FY 08 & FY 09Directive-Type Memorandum (DTM) for the DisabilityEvaluation System (DES) Pilot Program, signed 21 NOV 07- DoD Action Memo for DES Expansion dated 25 SEPT 08DoD Policy & Procedural Update for DES Pilot Programdated 11 DEC 08DoDIAR
3 DES Reform ChronologyApril 2006 – GAO Report on the Disability Evaluation SystemFall 2006 – BPR on DES (facilitated by P&R IM/BAH)December 2006 – Disability Advisory Council (DAC) charter updateFebruary 2007 – Washington Post headlinesMarch 2007 – Senior Oversight Committee chartered and Lines of Action initiatedMay 2007 – Published P&R DES Report and Directive Type Memorandum (DTM) on DAC, reporting & timelinessAugust 2007 – Devised and tested alternative DES processes in joint DoD-VA Table Top exerciseNovember 2007 – Published DES Pilot DTM and initiated Pilot in National Capital RegionDecember 2007 – Published DES DTM on deployability standardsMarch 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 updateOctober 2008 – Published second DTM on 2008 NDAA, expanded PilotNovember 2008 – Published interim DES Pilot report to Congress, expanded PilotAs an historical overview, one thing to recall from this slide is that the Departments were already engaged in evaluating and improving the DES process prior to the series of articles published in February 2007.As the Pilot has grown (in participants and locations), the Departments have updated the procedural guides in place to regulate the process to take better advantage of observations and needs identified by participants, providers, and stakeholders. Throughout, the Departments have sought to ensure that senior oversight (DAC, SOC) input is current and reflected in the day-to-day procedures of the Pilot.Additionally, as outlined on the next slide, the Departments have formally reported to Congress on two occasions, providing an analysis and status of the overall practicality, impact, and effectiveness of the DES Pilot.
4 DES Pilot Justification The following reviews all recommended a single medical examination:The Dole-Shalala CommissionSECDEF’s Independent Review Group (IRG)VA Secretary’s Global War on Terrorism Returning Heroes Task ForceVeterans’ Disability CommissionUNCLASSIFIED/FOUO
5 DES Pilot Justification With the exception of Dole-Shalala, all groups recommended that the DVA shall assign disability percentagesDole-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.UNCLASSIFIED/FOUO
6 DES Pilot Vision / Goals VISION: A seamless and transparent DES, administered jointly by DoD & VAGOALS:Less complex and adversarialFaster, more consistent evaluations & compensationSingle medical exam & single-source disability ratingSeamless transition to Veteran statusA continuum of care - advocacy & expectation managementThe Washington Post stories on conditions at Walter Reed Army Medical Center accelerated DoD’s efforts to reform the system by which wounded, ill, or injured service members are evaluated for disabilities and returned to duty or separated, compensated, and passed to the care of the VA. In response to the Washington Post series and informed by the various Congressional, Presidential, and Departmental commissions and study groups, the DoD and VA formed a senior oversight committee chaired by the Department Deputies with targeted subordinate lines of action to address the findings and recommendations of their own internal studies as well as the other major commissions, including those chaired by Senator Dole and Secretary Shalala and General Scott.The SOC and Line of Action dedicated to improving the Departments’ disability systems set the vision and goals you see here. The key elements of the vision are that the new process must be joint and seamless to prevent service members and new veterans from falling through the cracks as they transit the DoD system and transition to the care of the VA. The Departments set these goals based on the commission recommendations.A business process reengineering effort in summer, 2007, led DoD and VA to begin Piloting an integrated disability process in November, 2007 that implemented the recommendations of the commissions as closely as possible within current law. As you know, later that year, the Congress, through the 2008 NDAA, authorized the Departments to execute a joint Pilot program. The major element of the commission recommendations the current Pilot does not implement is the recommendation of the Dole-Shalala commission to divide the process so the DoD determines the fitness of the service member to serve and the VA executes all responsibilities for disability evaluation and compensation. The Departments support that recommendation and the VA is leading an legislative initiative to implement that recommendation.
7 DES Pilot ConceptOne Integrated & Comprehensive Medical Evaluation ReportMust Meet DoD & DVA Requirements for AdjudicationMilitary Departments Retain Authority to Determine Service Member’s Fitness for Duty & CompensabilitySingle-Sourced Rating Determination from the DVADoD Adopts Rating for those Conditions Determined “Unfitting”UNCLASSIFIED/FOUO
8 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 ScheduleThe Departments approved the expansion schedule and sites shown here, subject to their operational readiness. The expansion sites include small, large, and remote installations. Training at each site includes education on both the current DES and the DES Pilot. Training is conducted by each Service, augmented by the DES Pilot Support Team. The training session provides policy guidance as well as a hands on tutorial on the DES Pilot database to ensure consistent reporting of case processing data. Training for Camp Pendleton was conducted in conjunction with the standup of NMC San Diego in November.Training at February 2009 IOC sites is as follows:Vance AFB, January 14 & 15NMC Bremerton, February 10 & 11Fort Polk, February 17 & 18The presence of a previously operating Benefits Delivery at Discharge program at all but one of these sites mean that the VA has prepositioned resources it can apply to the DES Pilot. Many of these VA employees are already hosted at the military treatment facility, know the DoD personnel involved, and have established IT connections back to the VA. These things make the transition to the DES Pilot much easier.The Navy requested the expansion to Jacksonville be delayed to allow hospital construction project to wrap up before launching the Pilot. We anticipate approving their request.
10 DES Pilot ProcessThe bar at the top of the graphic depicts the current DES process wherein an individual must complete the entire DoD DES process prior to engaging with the VA. Typical durations are shown, with complex or disputed cases taking even longer.The lower portion of the graphic presents the DES Pilot process. This process combines the VA and DoD processes, eliminating the duplicate disability examinations and ratings. One of the primary improvements of the Pilot process is that Service member interaction with the VA immediately follows their referral into the DES. Once a DoD physician refers a service member in the disability system of the respective military service, DoD and VA case workers counsel the service member and the VA takes their disability claim and schedules them for the VA general medical exam and any specialty exams required by the service member’s referred and claimed conditions. A board of DoD physicians evaluates the results of the exam and determines whether to return the service member to duty or send the case on to a Physical Evaluation Board. If the informal board, which consists of a review of the case files by a DoD board, finds the service member unfit, VA disability experts rate the severity of the disabilities and the member receives the results before they decide whether to request a formal board that affords them legal representation, personal appearance before the board and the ability to present evidence on their behalf. The service member has the right to appeal the results of the formal board and to ask that the VA reconsider the ratings they determined for unfitting conditions.Reservists are provided more time in the Medical Evaluation Board phase because (typically) it can take much longer to consolidate the entire medical record, particularly if periods of treatment were provided at civilian facilities.The Reserve Component timeline ends with transition because a reservist is considered a veteran (and is eligible for benefits) at the point of separation.The Active Component timeline continues, accounting for the period of time necessary for the VA to receive proof of veteran status (DD Form 214) and initiate delivery of compensation and benefits. In each case, the expected duration is much shorter than the current DES process.After all appeals, if the Military Secretary concerned determines the member is not fit for continued service, they direct their personnel apparatus to discharge the service member. During this transition to veteran status, the VA and DoD case workers continue to interact with an support the service member. And, because they have been engaged from the beginning of the process, the VA is prepared to provide the new veteran disability compensation one month after discharge, which is the earliest point allowed by law.
11 Currently Enrolled in Pilot DES Pilot EnrollmentDEPARTMENTPILOTNCR FY07DES FY2007COMMENTArmy811(51%)450(39%)10,400(52%)Navy555(35%)519(45%)4,931(25%)Air Force210(14%)184(16%)4,591(23%)Overall1,5761,15319,922Completed- 301Includes 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 letterRemoved from the Pilot- 59Includes members removed for miscellaneous reasons (e.g. departed the NCR, administratively discharged)Currently Enrolled in Pilot1,216In this slide we compare service member enrollment in the Pilot with enrollment in the National Capital Region and in the entire DES in 2007 before the Pilot started. It shows that enrollment is reasonably representative of the NCR but also that NCR cases are a small portion (about 5%) of all the cases that transit the DES in a year.Completed (206) indicates those individuals who have finished the DES process and (if applicable) have received their VA benefits letter:89 were returned to duty117 separated or were retiredRemoved from Pilot (45):Transferred outside the National Capital Region – 15Involuntary non-disability separation – 11Voluntary non-disability separation/retirement – 5Medical (pregnancy, additional recovery required) – 10MEB Terminated at direction of referring physician – 1Terminated by PEB – 1Best Interest of the Service member – 1SM passed away – 1As of March 15, 2009
12 DES Pilot Enrollment as of April 19, 2009 Thru 19 APR 09.Eighty Service members (43 at expansion sites) entered the DES Pilot from fourteen Military Treatment Facilities (MTFs) during the reporting week. A total of 1,929 Service members, 762 at expansion sites, have been enrolled since November 26, Of those, 344 Service members (3 at expansion sites) completed the DES Pilot via returning to duty, separation, or retirement and 70 Service members (1 at an expansion site) were removed from the DES Pilot for other reasons (additional medical treatment needed, case terminated pending administrative discharge processing, etc.). One thousand five-hundred fifteen Service members remain enrolled in the DES Pilot.Active Component Service members who completed the DES Pilot averaged 271 days from Pilot entry to VA benefits decision, excluding pre-separation leave. Including pre-separation leave, Active Component Service members completed the DES Pilot in an average 286 days. This is 47 percent faster than the current DES and VA Claim process, and 3 percent faster than the 295 day projection for the Pilot. Reserve Component / National Guard Service members who completed the DES Pilot averaged 249 days from Pilot entry to issuance of the VA Benefits Letter, which is 18 percent faster than the projected 305 day timeline.UNCLASSIFIED/FOUO
13 DES Pilot Process: MEBThe 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 regulationsSoldiers are encouraged to consult with Solders Counsel upon entry and at any point during the DES Pilot processUNCLASSIFIED/FOUO
14 DES Pilot Process: MEBA PEBLO coordinates the DoD action on the case and the MSC (Military Services Coordinator) coordinates the VA action on the caseBoth the PEBLO and MSC complete the Joint DES Pilot Claim Form (VA Form ) with the Service Member highlighting all of his/her conditionsProvide a Form sampleUNCLASSIFIED/FOUO
15 DES Pilot Process: MEBIn coordination with the MSC and PEBLO, the Service Member attends all required general and specialty medical examinations conducted by the VAThe examinations will be performed to dual specifications:DoD specifications to determine fitnessVA specifications to determine appropriate disability ratingUNCLASSIFIED/FOUO
16 DES Pilot Process: MEBMTF 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 dutyIf SM fails to meet retention standards: case forwarded to the PEB for fitness determinationUNCLASSIFIED/FOUO
17 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 disagreementWritten rebuttals with non-concurrences are not mandatorySoldiers Counsel can assist Soldiers with rebuttalsUNCLASSIFIED/FOUO
18 DES Pilot Process: MEBSMs must include all medical conditions on claims formProblematic for SMs who want to be found fitNew medical conditions claimed by SM after completion of MEB processOnly considered in Pilot if PEB re-refers case to DVA for examinationIf not, pursue compensation after separationUNCLASSIFIED/FOUO
19 DES Pilot Process: IPEB The Military Departments use their PEBs for purposes of this PilotThe PEB answers 4 questions for each medically unacceptable condition:Fit or Unfit?Military Compensability?Combat related or incurred in a combat zone?Stability?UNCLASSIFIED/FOUO
20 DES Pilot Process: IPEB Possible PEB Actions:Return for additional evidenceInformal Decisions (“IPEB”)Revised Informal Reconsiderations after Written Rebuttals to IPEBFormal Hearing Decision (“FPEB”) (if SM non-concurs)UNCLASSIFIED/FOUO
21 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 MEBUNCLASSIFIED/FOUO
22 DES Pilot Process: IPEB Ultimately, the Service PEB must adopt the DVA rating for military disposition for each unfitting condition unless:EPTSMisconductNon-ComplianceThe PEB will note on their informal decision if military compensation will be adjusted or denied.UNCLASSIFIED/FOUO
23 DES Pilot Process: IPEB 3 options upon receipt of their Informal PEB Decision (10 day election period)Concur;Do not concur and request a formal PEB hearing; orDelay their election until receipt of the VA rating results (this prevents gaming the system and unnecessary PEB appeals)UNCLASSIFIED/FOUO
24 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):Concur with both IPEB & DVA Rating;Do not concur with IPEB and request an FPEB hearing; orConcur with IPEB and request DVA rating reconsiderationUNCLASSIFIED/FOUO
25 DES Pilot Process: FPEB The PEB will hold a de novo formal hearing answering the 4 core questions:Fit or Unfit?Military Compensability?Combat related or incurred in a combat zone?Stability?SMs are afforded right to appointed Counsel at FPEBsUNCLASSIFIED/FOUO
26 DES Pilot Process: FPEB After formal proceedings, the FPEB releases their final determinations together with the VA Rating Board’s determinationThe PDA serves in an administrative role in the PilotNo PDA review of PEB decisionsUNCLASSIFIED/FOUO
27 DES Pilot Process: FPEB Open question: Review under NDAA 08 by DoD Physical Disability Board of Review (PDBR) for Warriors separated with0-20% ratingsUnder 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
28 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/retirementRight to appointed CounselPaper review: no in-person hearing before DVA Rating BoardUNCLASSIFIED/FOUO
29 DES Pilot Process: VA Rating DVA Rating Board will only reevaluate ratings if:New medical evidence is received; orVA mistake/error to warrant reconsiderationSubsequent appeals only after separation and attainment of veteran statusUNCLASSIFIED/FOUO
30 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.
31 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.
32 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
33 Due Process Concerns Right to an In-Person Hearing Legacy System: Fitness and RatingDES Pilot: Fitness onlyUNCLASSIFIED/FOUO
34 Due Process ConcernsEssential to have a right to an in-person hearing with DVA rating determinationsImpacts military disposition (severance vs. retirement)Majority of legacy cases did not contest unfit determinations, rather only contested ratingsUNCLASSIFIED/FOUO
36 Co-located at 18 Brigade & Battalion Sized WTUs Bonus SlidesCo-located at 18 Brigade & Battalion Sized WTUs(Alignment w/ OSC)Walter Reed AMC (WRAMC)Ft. Drum (WRAMC)Ft. Polk (Ft. Sam)Ft. Bragg (WRAMC)Tripler AMC (Ft. Lewis)Ft. Sam Houston (Ft. Sam)Ft. Gordon (Ft. Sam)Ft. Hood (Ft. Sam)Ft. Benning (Ft. Sam)Ft. Bliss (Ft. Lewis)Ft. Stewart (Ft. Sam)Ft. Lewis (Ft. Lewis)Ft. Riley (Ft. Lewis)Heidelberg (WRAMC)Ft. Campbell (Ft. Sam)Ft. Richardson (Ft. Lewis)Ft. Knox (Ft. Lewis)
37 Legend MEB Other Similar to old process New process Based on: •Medical evidence/ Occupational Medicine review•DoD Instruction Guidance•Military Department RegulationsWar Injuries/ ConditionsMember is treated or being treated for a medically limiting injury or conditionHas member reached a point where it is unlikely they will meet medical retention standards?Refer for Disability Evaluation/ Transition ExamYesDoes the member meet medical retention standard?NoOtherNoYesContinue Medical TreatmentLegendReturn to dutySimilar to old processNew processMEBInjury and Treatment“Permanent” Limitation?Qualified for Military Job?Initiate Exam
38 All medical records and current diagnostic results forwarded for use by VA qualified provider Member’s Medical Evaluation Package Completed (complete narrative summary of all potentially unfitting conditions)+Other required documentationService Medical Experts perform final review, deliver final medical retention decisionDoes member meet medical retention standards?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.PEBNoYesResults of VA ExamReturn to dutyVA TemplateNARSUM& LODMEBPEBExam
39 Review of the MEB process under the DES Pilot UNCLASSIFIED/FOUO
40 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.PEB applies VA rating to unfitting conditions.VA Rating Panel:Receives case file from PEB & rates all qualified conditionsIs the member fit for duty?PEBNo (Unfit)What is the applied disability rating?30% or higherDispositions:0-20%NoPlaced on the Temporary Disability Retired List (TDRL)Yes (Fit)Disability is stableMember may elect Formal PEB after unfitness determinationMember’s years of active duty or equivalent servicePlaced on Permanent Disability Retirement≥ 20 yearsYesDD214Separated with lump sum disability severance< 20 yearsReturn to dutyNecessitates Formal PEB ProceedingsVarious Appeal levels maintained per Military Department RegulationsPEBRatingPanel
41 Post-Separation Actions by VA VA Receives DD 214/ Verification of SeparationDD214Promulgate the Rating Decision and Issue Payment to the VeteranYesAppeal Process:Notice of Disagreement Received Within 1 Year of Rating Decision?Statement of the Case issuedVA Form 9Substantive Appeal Received?NoNoNo Further ActionYesNo Further ActionCertify to the Board of Veterans Appeals (BVA)NoNote: Pre-discharge ratings used, concurrent process.decreases post separation processing timefor award processing by VA.No Further ActionYesAppeal GrantedPromulgate the Decision and Issue Payment to the VeteranRefer to BCMR for adjustment of the DoD disposition under 10 USC, Chapter 61.VAAppealsBCMRs