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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.

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Presentation on theme: "COL Joyce Hamel, Judge Advocate, USAR Staff Judge Advocate (DIMA) Uniform Services University of Health Sciences * * * Chief, Office of Soldiers’ Counsel."— Presentation transcript:

1 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

2 - 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 AR References

3 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

4 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

5 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.

6 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

7 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”

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 9 Expansion Schedule

10 10 DES Pilot Process

11 11 DEPARTMENTPILOT NCR FY07DES 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%) Overall1,5761,15319,922 Completed  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 - 59  Includes 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

12 UNCLASSIFIED/FOUO DES Pilot Enrollment as of April 19, 2009

13 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

14 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 ) with the Service Member highlighting all of his/her conditions UNCLASSIFIED/FOUO

15 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 rating UNCLASSIFIED/FOUO

16 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

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 disagreement –Written rebuttals with non-concurrences are not mandatory –Soldiers Counsel can assist Soldiers with rebuttals UNCLASSIFIED/FOUO

18 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

19 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

20 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

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 MEB UNCLASSIFIED/FOUO

22 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

23 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

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): 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

25 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 FPEBs UNCLASSIFIED/FOUO

26 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

27 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 MOS UNCLASSIFIED/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/retirement Right to appointed Counsel Paper review: no in-person hearing before DVA Rating Board UNCLASSIFIED/FOUO

29 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

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 Rating –DES Pilot: Fitness only UNCLASSIFIED/FOUO

34 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

35 35 Questions? (202)

36 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

37 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

38 Member’s Medical Evaluation Package Completed (complete narrative summary of all potentially unfitting conditions) + Other required documentation No PEBPEB 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 PEB NARSUM& LOD 38

39 UNCLASSIFIED/FOUO Review of the MEB process under the DES Pilot

40 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. PEBPEB What is the applied disability rating? RatingPanel PEB Various Appeal levels maintained per Military Department Regulations 40

41 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 Post-Separation Actions by VA Yes No No Further Action BCMRs VAAppeals Note: Pre-discharge ratings used, concurrent process. decreases post separation processing time for award processing by VA. DD214


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