Task Force on Returning Global War on Terror Heroes
Develop a Joint Process for Disability Determinations
Agencies Responsible for Action: Defense and Veterans Affairs
Lead Agency: Defense
Recommendation: VA and DoD develop a joint process for disability determinations
Background: The Disability Evaluation System (DES) is the mechanism for implementing retirement or separation due to physical disability. There are four elements of DES: physical evaluation, medical evaluation, counseling, and final disposition. The DES physical evaluation has two major components: the Medical Evaluation Board (MEB) and the Physical Evaluation Board (PEB).
VA’s Schedule for Rating Disabilities (VASRD) is codified in statute and serves as a guide for the evaluation of disabilities resulting from diseases or injuries incident to military service. There are evaluation criteria for each condition listed, with disability levels ranging between zero and 100 percent, generally at 10 percent increments, as appropriate to the severity of the condition. The disability rating level is linked to a monetary amount determined by Congress.
In a December 1988 report, the then General Accounting Office said there had been no comprehensive review of the VA rating schedule since 1945, that the rating schedule contained outdated terminology and ambiguous classifications, and had not incorporated recent medical advances. The report recommended that VA thoroughly review the schedule and establish a process for an ongoing evaluation and update. VA agreed to do so and has been conducting a comprehensive revision of the schedule ever since. VA published an advance notice of proposed rulemaking for each of the 15 rating schedule body systems and contracted with an outside consultant, who gathered panels of medical experts for each system, to recommend changes in the rating schedule. Eleven of the 15 body systems contained in the schedule have been revised to date.
While both DoD and VA use the VASRD, not all the general policy provisions set forth in the VASRD apply to the military. Consequently, disability ratings may vary between the two. DoD rates conditions determined to be physically unfitting, compensating for a military career cut short. VA rates all service-connected impairments, combinations of impairments, or service-aggravated conditions, thus compensating for loss of earnings capacity resulting from injuries that could impact civilian employability. Another difference is the term of the rating. DoD’s ratings are permanent upon final disposition. VA’s ratings may change over time, depending upon the progress of the condition(s).
Further, DoD disability compensation is affected by years of service and basic pay; VA compensation is a flat amount based upon the percentage disability rating with possible variance related to number of dependents. Appendix C contains charts depicting the DoD and VA disability processes. (NOTE from Oldtimer: I’ve already published these charts in earlier posts)
Gap Analysis: For DoD, the terms “permanent and stable” are used extensively in Title 10 but are not clearly defined. These words are the basis for important decisions to retire, separate, and temporarily retire servicemembers. The terms require uniform definition to facilitate consistency and fairness. Many medical and disability authorities have questioned the use of a disability retirement threshold. Historically, the disability retirement threshold stems from “A Report and Recommendation for the Secretary of Defense by the Advisory Commission on Service Pay” (December 1948). The historical record discussion associated with Recommendation 27 (Disability Retirement: Officers, Warrant Officers, and Enlisted Personnel), states:
“Therefore, the standards of disability as used by the Veterans Administration [later became Department of Veterans Affairs], which are civilian standards, are recommended for classification of disability cases into those which may be considered real disability warranting continuing monetary benefits and minor disability not warranting such benefits”.
Congress ultimately incorporated the recommendation in the Career Compensation Act of 1949. Logically, the disability retirement threshold creates an adversarial situation within the DES, when the DES is primarily charged with deciding fit/unfit status.
Servicemembers obviously endeavor to reach the threshold because it results in lifelong benefits such as health care, commissary/exchange privileges, etc., as well as annuity payments. This contributes to tension in the process, adds to servicemember discontent in a system that places the burden of proof on the servicemember who, in many cases, does not have the experience or knowledge, despite assistance, to build a proper case. Additionally, a major challenge is navigating the confusing, inconsistent, and patchwork laws associated with DES. This has resulted in the service branches being inconsistent at times with each other in determining fitness/unfitness and the level of disability.
For VA, examinations performed by DoD for purposes of determining fitness for continued service are generally not adequate for application of the VASRD in determining, for VA disability compensation purposes, the average impairment in earning capacity resulting from all disabilities or diseases incurred in, or aggravated by, service. Unless participating in the Benefits Delivery at Discharge (BDD) program, VA must wait until a servicemember is discharged and files a claim before obtaining service medical records, including any MEB/PEB proceedings, prior to determining if additional examinations are needed. This contributes to the lengthy claims process faced by veterans.
How the Recommendation Addresses the Gap: The development of a joint process whereby VA and DoD cooperate in the assignment of a disability evaluation that would be used in determining fitness for retention, level of disability for military retirement, and VA disability compensation would result in less discontent among servicemembers who believe they are assigned lower disability evaluations by DoD than by VA. This would also help VA provide better service to newly separated veterans by completing their claims in a timelier manner. There are, potentially, a number of provisions that could be undertaken to effect this recommendation, including providing Benefits Delivery at Discharge type service to those servicemembers undergoing the MEB/PEB process.
The impact of implementing this recommendation will be significant. In the near term, having DoD and VA work together to improve the VA disability claims process and the DoD MEB/PEB disability process should provide improvement across the services in consistency of decisions. In the longer term, having full cooperation in the disability claims process should provide improved service to servicemembers and veterans at a lower cost to the Government through increased efficiencies.
Implementation Action and Target Date:
Develop an in-depth plan for VA/DoD collaboration in the MEB/PEB process: Using the present interagency process provided by the Benefits and Joint Executive Committees (BEC and JEC), DoD and VA will develop options presented to leadership in both VA and DoD for review.
Target Date: Begun April 3, 2007;
VA to participate in Advisory Council meeting on May 3, 2007.
Note: All highlights and bold type are Oldtimer’s – I hope it is not distracting from the report. This is one recommendation in the Report to the President. There are a total of 15 recommendations concering veterans. You can find them all here