ANNUAL PEBLO TRAINING CONFERENCE Legal Services in the Army Physical Disability Evaluation System MEB Outreach Counsel & Soldiers’ Counsel Mr. Steven Engle Supervising Attorney Office of Soldiers’ Counsel Fort Lewis, WA Mr. Lakandula Duke Dorotheo Senior Soldiers’ Counsel Office of the Center Judge Advocate Walter Reed Army Medical Center 1
Agenda 1. MEB/PEB Process Overview 2. Provision of Legal Services a. MEB Counsel b. Soldiers’ Counsel c. Mission & Vision 3. 4. 5. 6. 7. 8. Key Stages for Soldier to Consult with Counsel National Defense Authorization Act Changes Soldiers’ Rights Throughout the Process Critical Legal Requirements in the Process Governing Law, Regulations & Policy Contact Information 2
APDES Overview Soldier Reaches “Optimal” Medical Care ability to perform duties unclear Retain/Re-class MOS RETURN TO DUTY Meets medical retention std Non-retainable MOS Medical Retention Board 3 -member board (Physicians) Determines whether any conditions fail retention stds Soldier can appeal MEB Soldier entitled to Legal Counsel Medical Evaluation Board (medically based evaluation) Fails retention standards 3 -member board Personal Appearance Legal Representation SM can appeal finding Formal Board and/ or Written Appeal MEB Initiated by Physician, Commander or MMRB Physical Evaluation Board (performance based evaluation) Nonconcur 3 -member board Paper review Fit / Unfit PMOS Rate IAW VASRD SM can appeal finding Informal Board Concur Fit U. S. Army Physical Disability Agency (Walter Reed) Agency HQ Paper review Unfit Appeal APDAB / ABCMR / PDRB Discharge 3
MEB Overview • The MEB is an informal process before a board comprised of at least three physicians, who compile, assess, and evaluate a Soldier’s medical history and current condition. • The MEB Process begins when a Soldier's optimum medical care has been reached or when a Soldier’s physician determines that, even with further treatment, a Soldier is unable to return to duty • P 3 (Permanent 3) or higher PULHES Score on their Physical Profile 4
Purpose of an MEB • The MEB’s purpose is to determine if a Soldier’s medical condition(s) meets or does not meet Army Medical Retention Standards IAW AR 40 -501, Chapter 3 – Findings listed on a DA Form 3947 • The MEB refers a Soldier to the Physical Evaluation Board (PEB) if at least one medical condition does not meet retention standards 5
MEB Dispositions • Generally, if a Soldier meets retention standards within the limits of the Soldier’s profile, the Soldier is returned to duty or referred to an MMRB – Unless Soldier previously evaluated by MMRB, in which case the matter must be forwarded to a PEB • If the Soldier does not meet retention standards for even one condition, the Soldier must be referred to the PEB for further processing 6
MEB Election Period • Independent Physician Review: NDAA 08 provides Soldiers, upon request, a physician who is independent of the MEB to review their MEB records and counsel them on the MEB findings and recommendations • Soldiers may disagree with the MEB’s findings and submit a rebuttal statement, which the Deputy Commander for Clinical Services (DCCS) must consider – Seven day review/rebuttal period, extendable upon request – Deadline begins upon the later of the completion of independent medical review or receipt of MEB findings – MTF has 7 days to consider and respond 7
Implications of MEB • “Medically acceptable” conditions will generally not be found unfitting by the PEB – i. e. , conditions that meet retention standards • “Medically unacceptable” conditions may be rated by the PEB only they are unfitting – i. e. , condition(s) do not meet retention standards • A MEB cannot refer to an MMRB a Soldier who has a medically unacceptable condition – consider MMRB before MEB is completed 8
MEB vs. PEB • MEB makes a medically-based determination • PEB makes a performance-based analysis to determine if a medically unacceptable condition is fitting or unfitting • MEB findings are not appealable to the PEB, as the PEB does not have the authority to change MEB findings – Soldiers should ensure MEB is correct before it goes forward to PEB – PEB may send case back to MEB for further evaluation 9
MOS/Medical Reclassification Board • Neither the MEB nor the PEB is a MMRB! • Only Soldiers with a permanent P 3 or higher on their physical profile and who meet medical retention standards can be referred to the MMRB • PEBs cannot reclassify a Soldier’s MOS or consider a SMOS • Soldiers who are not retainable in their PMOS and are ineligible to reclassify through the MMRB are referred back into the APDES • Soldier has right to consult legal counsel prior to MMRB but no legal representation at MMRB 10
PEB Process • The PEB must answer four main questions – – 1: Fit or unfit for each condition 2: Compensability (service connection) 3: Level of compensation 4: Whether the Soldier’s condition is combat-related or was it incurred in the combat-zone? • Burden of proof is by preponderance of evidence • Exception for compensability: for which there must be “clear and unmistakable evidence” that condition is not service connected 11
Fit or Unit • Is the Soldier fit or unfit for duty? – The PEB must make a determination in each case whether the Soldier is reasonably capable of accomplishing basic Soldiering skills and those tasks specific to the Soldier’s PMOS, skill level, branch, or specialty duties. – Very fact specific – Deployability factor is uncertain 12
Compensability • If on orders of over 30 days, was the onset of the condition (injury or illness) during a period when the Soldier was entitled to basic pay or was it permanently aggravated during service? • If on orders less than 30 days, was condition proximately caused by military duty? • Was the condition incurred in the Line of Duty? • Did the condition exist prior to service? • Was it caused by the Soldier’s misconduct? • Was it caused by non-compliance with prescribed treatment? • Soldiers with non-compensable conditions are separated without benefits (0%). 13
Ratings • Under the NDAA FY 08, the Army must use the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) to determine the level of compensation and may not deviate from the VASRD unless deviation is more beneficial to the Soldier • Significant change, especially relating to orthopedic conditions (De. Luca Rule) 14
Ratings between 0 -20% • Soldiers with less than 20 years Active Duty and rated from 0 -20% will be Separated with Severance Pay • = 2 x Monthly Basic Pay x years of service – Enhanced by NDAA 08 – Minimum service for severance pay computation = 3 years – Combat-zone or combat-related injured Soldiers: severance pay based on minimum of 6 years service AND with no VA offset – Maximum service for severance pay computation =19 years 15
Ratings > 30% or 20 Year AD Retirement Eligible • Permanent Disability Retirement (PDR) – Rated at least 30% or 20 years Active Duty – Unfitting condition(s) must be stable • Temporary Disability Retired List (TDRL) – Rated at least 30% or 20 years Active Duty – Unfitting medical condition is unstable – Soldiers can stay on TDRL a maximum of 5 years with re-evaluations every 18 months – The TDRL DOES NOT GUARANTEE that a Soldier will be permanently retired later • Stability criteria: Reasonable expectation severity will change within 5 year period? 16
Combat Related Criteria • Tax Free Severance pay or disability retirement if injuries are direct result of: – – Armed conflict; Instrumentality of war; Direct result of hazardous service; or Under conditions simulating war • Tax Free Severance pay if condition(s) were incurred in tax-free combat zone (NDAA 08) – CZ provision only applies to severance, not retirement – No VA offset/recoupment for CZ conditions • Taxes withheld in all cases may be refunded upon receipt of VA rating – see PDA Info Sheet 17
Post-PEB Appeals • Army Physical Disability Agency (PDA) • Army Physical Disability Appeals Board (APDAB) – Discrepancy between PEB and PDA • Army Disability Rating Review Board (ADRRB) – Review for Soldiers offered disability retirement • Do. D Physical Disability Review Board (PDRB) – Soldiers who received DES (not VA) ratings < 20% – Between 11 SEPT 01 & 31 DEC 09 18
COAD/COAR • Soldiers found unfit can request to continue on Active Duty (COAD) or in the Reserves (COAR) if: – COAD: Active duty with at least 15 or more years; – COAR: Reservists with at least 15 or more “good” years toward reserve retirement; – Combat injured Soldiers; or – Soldiers in a critical/shortage MOS. • Note: HRC will consider all applications even if they do not meet above criteria. 19
Joint Do. D/DVA DES Pilot • Single comprehensive medical exam to include general & specialty exams performed to dual Do. D and DVA specifications. • MEB evaluates comprehensive exams to determine if condition(s) meets or does not meet Army retention standards • Army PEB determines fit/unfit & military compensability – PEB does not consider DVA compensability • DVA rates all service-connected conditions • Army adopts DVA rating for all unfitting conditions 20
Joint Do. D/DVA DES Pilot Based on: • Medical evidence/ Occupational Medicine review War Injuries/ Conditions • Do. D Instruction Guidance • Military Department Regulations Oth er Member is treated or being treated for a medically limiting injury or condition Has member reached a point where it is unlikely they will meet medical retention standards? Yes Does the member meet medical retention standard? No Legend Continue Medical Treatment Similar to old process New process Injury and Treatment “Permanent” Limitation? No Refer for Disability Evaluation/ Transition Exam Yes Return to duty MEB Qualified for Military Job? Initiate Exam 21
Joint Do. D/DVA DES Pilot All medical records and current diagnostic results forwarded for use by VA qualified provider 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. Member’s Medical Evaluation Package Completed (complete narrative summary of all potentially unfitting conditions) Service Medical Experts perform final review, deliver final medical retention decision Does member meet medical retention standards? + Other required documentation P E No B Yes Results of VA Exam Return to duty VA Template PEB MEB NARSUM& LOD 22
Joint Do. D/DVA DES Pilot Member can have any item or % reconsidered by VA DRO – one time only while on active duty P E Is the member fit for duty? B No (Unfit) VA Rating Panel: Receives case file from PEB & rates all qualified conditions üVeteran relationship with VA system already established. 30% or higher Yes (Fit) Return to duty üVeteran retains the right to appeal in VA. What is the applied disability rating? 0 -20% Dispositions: No Placed on the Temporary Disability Retired List (TDRL) Disability is stable Member may elect Formal PEB after unfitness determination Member’s years of active duty or equivalent service Necessitates Formal PEB Proceedings üProcessing for compensation can immediately begin. PEB applies VA rating to unfitting conditions. ≥ 20 years < 20 years Yes Placed on Permanent Disability Retirement DD 214 Separated with lump sum disability severance Various Appeal levels maintained per Military Department Regulations PEB Rating Panel 23
Provision of Legal Services • Legal counsel available in 2 stages – MEB Outreach Counsel for MEB Process – Soldiers’ Counsel for PEB Process • MEB Outreach Counsel & paralegal assigned to each Warrior Transition Battalions and Brigades – Civilian hiring actions now underway and counsel should be in-place by December 2008 • MEB Counseling at the WTU Company will be coordinated between nearest MEB Outreach Counsel and servicing Office of Soldiers’ Counsel 24
MEB Outreach Counsel Co-located at 18 Brigade & Battalion Sized WTUs • • • Walter Reed AMC Ft. Polk Tripler AMC Ft. Gordon Ft. Benning Ft. Stewart Ft. Riley Ft. Campbell Ft. Knox • • Ft. Drum Ft. Bragg Ft. Sam Houston Ft. Hood (2) Ft. Bliss Ft. Lewis Heidelberg Ft. Richardson 25
MEB Outreach Counsel & Soldiers’ Counsel • Judge Advocates and Army Civilian Attorneys dedicated to providing legal advice and representation to Soldiers undergoing evaluation through the Army’s Physical Disability Evaluation System (APDES) • Licensed and experienced, with specialized training in the APDES adjudication process • Mission: To provide timely and beneficial legal advice to Soldiers undergoing the Medical Evaluation Board process and to provide zealous, ethical, and effective legal representation and advocacy for Soldiers undergoing the Physical Evaluation Board process 26
MEB Outreach Counsel & Soldiers Counsel • MEB Outreach Counsel focus on legal counseling to the Warrior in Transition during the MEB process – Assist Soldiers in understanding the MEB/PEB process and forming their goals early in the process – Provide other Legal Assistance to WTU Soldiers and their families • MEB Outreach Counsel work closely and in concert with the Office of Soldiers’ Counsel • Case transferred to Soldiers’ Counsel upon election of formal PEB hearing. 27
MEB Outreach Counsel & Soldiers Counsel • Information Soldier provides to MEB Outreach Counsel and Soldiers’ Counsel is confidential under the attorney-client privilege. • MEB Outreach Counsel and Soldiers’ Counsel advise, counsel and represent Soldiers and -- DO NOT advise or represent commanders or members of the MEB/PEB 28
Key Stages for Soldier to Consult Counsel • Receipt of P 3 Profile & Initiation of MEB – MEB Outreach Counsel will provide general advice on process & rights – Counsel will render advice and assist Soldier in establishing goals – Counsel work with PEBLOs, Case Managers, the Triad, Ombudsmen, and health care professionals to advance Soldier’s interests – Assistance is non-adversarial • MEB Completed/Issued (DA Form 3947) – Soldier has 7 calendar days to review and prepare rebuttal • NEW (14 Oct 08 DTM, para. E 3. P 1. 2. 6. 1. 3) – Counsel will advise on whether Soldier should request an independent medical review of MEB and assist with request • NEW (14 Oct 08 DTM, para. E 3. P 1. 2. 6. 1. 1) – Soldier & MEB Counsel will carefully review DA 3947, NARSUM, Profile, Cdr’s Memo, etc. – Counsel will provide case-specific advice and explain options – Counsel will assist with drafting MEB rebuttal when requested 29
Key Stages for Soldier to Consult Counsel • Informal PEB Decision (DA Form 199) – Soldier has 10 -days to review and make election for Formal hearing – When requested, MEB Counsel & Soldiers’ Counsel, working together, will review results with Soldier, explain legal basis of decision, & advise about rights – Counsel and Soldier will discuss potential benefits and/or risks of proceeding to a Formal PEB hearing – Counsel will advise Soldier of regarding whether to elect or waive Formal hearing and assist with election or waiver as Soldier decides • Formal PEB Hearing – Soldier will have a minimum of 10 days advance notice of Formal hearing • NEW (14 Oct 08 DTM, para. E 8. 4. 2) – Soldier & Soldiers’ Counsel review entire file and discuss options – Counsel will provide candid advice and help identify & obtain supporting evidence – Counsel will zealously advocate the case before the PEB 30
Key Stages for Soldier to Consult Counsel • Appeals – Counsel will evaluate and advise on possible theories and likelihood of success – Counsel will assist with gathering evidence and writing the Appeal 31
PEBLO Role Critical • PEBLOs need to encourage Soldiers to consult with Counsel at the following states: – Referral into the MEB system; – Receipt of MEB Findings (DA-3947); – Receipt of Informal and Formal PEB Decisions (DA-Form 199). • Early consultation with Counsel may reduce unnecessary appeals and help reduce the time a Soldier spends in the APDES 32
Legal Services – How We Work • MEB Counsel located on the installation in MTF, WTU/SFAC or at OSJA • MEB Outreach Counsel advise Soldiers during MEB phase when requested • MEB Counsel will assist with MEB decision review and rebuttal when requested • OSC attorney assigned upon election for Formal PEB hearing • OSC paralegal contacts the Soldier to verify they are aware of the hearing date, assist with logistical arrangements, and gather information from the Soldier in order for the assigned counsel to better understand the client’s perspective and goals • OSC attorney will contact the Soldier & MEB Counsel ASAP • Soldier’s unit to cuts orders to allow Soldier to arrive NLT 1 -day prior to hearing – Soldier has the right to personally meet with Counsel at least one day in advance of the hearing (Soldier’s unit has the duty to cut necessary travel orders of sufficient length to ensure the right to consult with their attorney) – Should not try to fly home same day of hearing • Attorney present with Soldier and represents Soldier during hearing • Attorney will assist with appeal when requested 33
NDAA 08 & 09 — What’s New • EPTS Rule – New Presumption of Sound Condition for members ordered to active duty for more than 30 days – Applies if member on active duty orders more than 30 days and condition noted at time of entry to active duty – Presumption overcome only if “clear & unmistakable evidence” demonstrates the disability existed prior to entry on active duty and was not aggravated by military service • NEW (14 Oct 08 DTM, para. E 3. P 4. 5. 2. 2. 1) – Applies to hereditary & genetic conditions – Includes prior-service conditions – 8 -year rule still in effect • Right to Independent Medical Review of MEB – Upon request, an impartial physician or “other appropriate health care professional” (not involved in the Service Member’s MEB process) will be assigned to review MEB findings with the Soldier • NEW (14 Oct 08 DTM, para. E 3. P 1. 2. 6. 1. 2) – 7 -day period to review and prepare rebuttal begins upon completion of independent medical review 34
NDAA 08 & 09 — What’s New • Rating Disabilities – DOD can’t rate lower than VASRD (but can rate higher) • Functional (De. Luca) rule for measuring & rating ROM • 50% TDRL rating for mental disorders due to traumatic stress – Based on VASRD Sec. 4. 129 – Protection for Military Technicians with Combat-Related conditions from loss of civilian job • Separation Pay – Minimum of 3 yrs service (6 years if injured in CZ) – Maximum of 19 yrs – No offset for CZ incurred conditions from VA compensation • Establish Physical Disability Review Board (PDRB) – Available if rating under 30% & Soldier discharged between 9/11/01 and 12/31/09 – Administered by USAF – Waives ABCMR appeal 35
Soldier’s Rights • Upon initiation of MEB – Right to consult with legal counsel (e. g. , MEB Outreach Counsel, private attorney, other representative such as DAV) • During MEB – Right to consult with legal counsel – Right to non-concur with MEB findings and to submit a written rebuttal – Right to independent medical review upon request • Soldier Rights during PEB – – – – Right to consult with legal counsel before requesting Formal Hearing Right to personal appearance before PEB (may be by VTC – discuss with counsel) Right to representation (appointed counsel, private counsel, DAV, pro se) Right to testify (under oath, unsworn, or not at all) Right to review and present evidence (Testimony, Documents & Witnesses) Right to request female or minority membership on Formal Board Right to recording of hearing Right to appeal with assistance of counsel (in writing) 36
Legal Counsel & PEBLO Relationships • Strong coordinated relationship essential to our common goal of helping the Soldier – Counsel will work through and coordinate with the PEBLO whenever possible to ensure PEBLO has situational awareness – Counsel will always maintain an open door to discuss cases & issues (subject to attorney-client privilege) • PEBLO have key role in the process, to include informing Soldier of right to consult with legal counsel – MEB Outreach Counsel needs opportunity to speak to newly assigned Soldiers as part of PEBLO introductory briefing on the MEB process – Soldiers need the Legal Counsel information flyer/tri-fold in Welcome packets • Counsel role is different in that our duty under our Rules for Professional Conduct is to ethically and zealously advance the interests of Soldier – – BUT – • Our objective is mutual: to assist wounded, ill and injured Soldiers 37
Critical Legal Requirements in the Process – MEB Stage • Soldier must be advised of right to consult with legal counsel from initiation of MEB • Government counsel must have full access to computerized databases and electronic medical records that relate to Soldier’s disabilities • Soldier must be advised of right to request an independent medical review by an “impartial physician” or “other appropriate health care professional” who was not involved in the MEB • MEB must meet minimum criteria outlined in VA General Medical Exam and applicable Compensation and Pension Automated Medical Information Exchange (AMIE) worksheets • Soldier must be afforded NLT 7 calendar days to following the independent medical review to consult counsel and prepare a rebuttal • MTF has 7 days to consider Soldier’s rebuttal and return fully documented decision to Soldier • MEB should not be forwarded to PEB until rebuttal is finalized and MEB results indicate Soldier may be unfit for duty. Fully documented rebuttal, if any, must be included with MEB info sent to PEB. 38
Critical Legal Requirements in the Process - PEB Stage • Soldier has 10 days to review IPEB and make election • Soldier has right to personal appearance at Formal PEB • Soldier must be provided with NLT 10 days advance notice of Formal board • Soldier shall be afforded sufficient time to arrive (more than one day) in advance of scheduled hearing to confer with government legal counsel • Soldier may request to delay scheduled hearing. PEB President will respond to requests in writing and, when request is denied, will include grounds for denial. • Soldier has 10 days to appeal decision of Formal PEB 39
Critical Legal Requirements in the Process – PEBLO • PEBLO “should” manage no more than 20 cases simultaneously • Under 14 Oct 2008 DTM, PEBLO Responsibilities include: – Explain process of DES & VA Claims to Soldier and/or family member or representative – Explain statutory, Do. D requirements, and respective Military Department policies, to include process steps on dispute resolution – Explain methodologies for decisions and ramifications of findings – Explain and assist in processing requests formal boards and appeals and assist in referring Soldier to legal counsel, as appropriate – Explain calculation of payment for severance & retirement pay or refer to DFAS – Refer Soldier to MSC to explain VA benefits and VA-specific appeal process 40
Critical Legal Requirements in the Process - PEBLO • PEBLO Responsibilities (continued): – Refer Soldier to SSA for appropriate benefits – Counsel Soldier on potential transition insurance and survivor benefits and transition benefits or refer Soldier to appropriate support agencies – Construct DES case file and ensure MSC is aware of new case; provide MSC with hard copy or electronic copy of file – Obtain LOD when required by notifying Soldier’s chain of command – Ensure Soldier is scheduled for all medical exams required for DES case through “best source” – Monitor completion of scheduled exams and resolve scheduling issues to ensure completeness of DES case file – Maintain program effectiveness data required by Do. D issuances – Act as conduit for info and DES decisions to Soldier’s parent command to the VA – Provide Soldier or designated representative with MEB results, NARSUM, IPEB findings, & LOD upon election of Formal board and ensure medical records are available for review 41
Critical Legal Requirements in the Process – Legal Counsel • Army legal counsel will be available to Soldiers from initiation of MEB until final appeal and discharge • Army legal counsel will be trained and certified by the Office of The Judge Advocate General IAW Do. D and HQDA policies • Army legal counsel will be available to consult in person or by telephone • Waiver of right to counsel must be in writing • Soldier may elect private attorney or Veteran’s organization representation, but non-government representative shall be at no expense to government • If Soldier elects non-government representative, Army legal counsel will remain available for coordination, advice and consultation, but will not participate in a representative capacity • Soldier will consent for Army legal counsel to have access to all pertinent medical records and any additional documentation requested by counsel • Army legal counsel shall explain disability process to the Soldier and counsel’s general duties during process 42
Governing Law, Regs & Policies & Title 10 U. S. C. , Chapter 61 (Retirement or Separation for Physical Disability) (Secs. 1201– 1222) & Department of Defense Directive 1332. 18 (Separation or Retirement for Physical Disability, 11/4/96) & DOD Instruction 1332. 39 (Application of the Veterans Administration Schedule for Rating Disabilities, 11/14/96) - RESCINDED & DTM (Directive Type Memoranda) – 3 May 2007. Policy Guidance for the Disability Evaluation System and Establishment of Recurring Directive-Type Memoranda – 21 Nov 2007. Disability Evaluation System (DES) Pilot Program – 19 Dec 2007. Standards for Determining Unfitness Due to Medical Impairment (Deployability) – 13 Mar 2008. Implementing Disability-Related Provisions of the National Defense Authorization Act of 2008 (Pub L. 110 -181) – 14 Oct 2008, Policy on Implementing Disability-Related Provisions of the National Defense Authorization Act of 2008 (Pub L. 110 -181) 43
Governing Law, Regs & Policies & Army Regulation 40 -501 (Standards of Medical Fitness, 9/10/08) & Army Regulation 40 -400 (Patient Administration, 2/8/08) & Army Regulation 635 -40 (Physical Evaluation for Retention, Retirement, or Separation, 2/8/06) & Army Regulation 600 -60 (Physical Performance Evaluation System, 2/28/08) & Veterans Administration Schedule for Rating Disabilities (VASRD), 38 CFR Part 4 44
Offices of Soldiers’ Counsel • Walter Reed Army Medical Center (Big 3 OSC co-located w/PEB) (202) 782 -1550 – Landstuhl Regional Medical Center 1 DSN 314 -486 -6049 Comm: 011 -49 -6371 -866049 – Bavaria, Germany Warrior Transition Unit 1 DSN: 476 -3358 Comm: +49 (0)9662 -83 -3358 • Fort Lewis (Big 3 OSC co-located w/PEB) (253) 968 -4441/4442 – Tripler Army Medical Center 1 (719) 526 -5572 – Fort Carson 1 (719) 526 -5572 • Fort Sam Houston (Big 3 OSC co-located w/PEB) (210) 221 -9392 or (210) 295 -0432 – Fort Hood 1 (254) 287 -8887 Note 1: These Satellite OSCs only represent Soldiers in the WTUs on their respective installations. 45
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