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

35

Questions?

joyce.hamel@us.army.mil

(202) 782-3374

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