New Tussle Surfaces over Reach of Disability Board

In 2006, the Army gave Iraq war veteran Sgt. Luis Jardon a 10-percent disability rating for chronic left wrist pain and cubital tunnel syndrome of his left elbow. He was found physically unfit and separated with disability severance pay of $25,495.

Before his discharge, Jardon had presented other complaints to his Medical Evaluation Board (MEB) including a hearing loss, difficulty sleeping and diagnoses of anxiety and adjustment disorders. Some were not forwarded to his Physical Evaluation Board (PEB) and some were dismissed by the PEB as irrelevant to a decision regarding fitness to remain in service.

Since his discharge, Jardon has been rated 20 percent, 40 percent and most recently 60 percent disabled by the Department of Veterans Affairs. The VA found not only carpal tunnel and cubital tunnel syndrome in both lower arms but hearing loss, tinnitus and post-traumatic stress disorder.

An Army rating of 30 percent or more would have qualified Jardon for disability retirement. He would have received a lifetime military annuity, rather than severance pay, and TRICARE benefits for himself and his family as well as other retiree perks such as discounted shopping on base.

So was the 10 percent Army rating appropriate or was it unfair?

Answering that question for Jardon, and for up to 77,000 other veterans given disability ratings of 0 to 20 percent by their service since Sept. 11, 2001, is the job of the Physical Disability Board of Review (PDBR).

Congress in January 2008 directed that the Department of Defense establish the special board to ensure that members separated as medically unfit since 9/11 got the ratings they deserved. For those who did not, the PDBR can recommend that their ratings be raised and retirement awarded.

Retired Army Lt. Col. Michael Parker, an advocate for disabled veterans, sees weaknesses in how the PDBR is carrying out its responsibilities. Defense officials, including PDBR president retired Col. Michael F. LoGrande believe the criticism is unfounded, that Parker is assuming the PDBR has responsibilities not intended by Congress.

Parker gained credibility as an advocate on PDBR matters in February when he warned congressional staff and the press that the board intended to review service-awarded disability ratings using the same service-altered versions of the Veterans Administration Schedule for Ratings Disabilities (VASRD) that had been used to set the original ratings since 9/11.

By late April, under pressure from Congress, DoD announced "significant changes" to PDBR policy, saying it would re-evaluate ratings using only the VASRD, ignoring whatever modifications that service Physical Evaluation Boards (PEBs) had used to hold down some types of ratings.

Parker's more recent criticism of the PDBR involves what medical conditions it will review. The board initially announced it would review only conditions found unfitting by PEBs. In a change made effective June 2 to the regulation governing the PDBR, DoD Instruction 6040.44, Defense officials said the board will review not only conditions on which ratings were based but other "conditions identified" by the PEB.

LoGrande told Military Update that this would include any condition listed in the narrative summary of the Medical Evaluation Board to the PEB.

"Any condition not listed by the MEB or PEB will still have an avenue of redress," LoGrande explained, "but that avenue is not the PDBR." Instead, he said, veterans can seek relief through their service Board for the Correction of Military Records or Board for the Correction of Naval Records, depending on branch of service.

Parker contends this approach by the PDBR is still too restrictive. The PDBR law is written generally enough that the board could consider any medical complaint raised by a service member before the MEB, not just those listed in the MEB's narrative summary. Parker contends MEBs too often ignored medical complaints that deserved at rating. In Jardon's case, that included records showing hearing loss and anxiety and adjustment disorders.

Parker called it a "trash in/trash out" problem that has resulted in low ball ratings for too many service members over the years. In Jardon's case, he said, the Army had diagnosed anxiety and adjustment disorder but the MEB didn't list it among conditions referred to the PEB, which sets ratings.

"The problem was driven by the MEB not doing its job correctly and the PEB's erroneous determination that the MEB was complete and thorough and ready for PEB evaluation, when it clearly was not," Parker said.

He dismissed the suggestion that grievances over how medical evaluation boards performed their job be referred to Boards for Correction of Military Records, which he said assume that the service acted properly and force the veteran to prove otherwise, often with negative results.

"The PDBR is supposed to look at PEB determinations," Parker said. Service regulations make clear that the first thing PEBs are to determine "is if the MEB was complete and thorough," he said. Therefore, the PDBR should be able to look at every medical condition raised by the service member.

Is Jardon's situation a clear case of the MEB failing to focus properly on all medical conditions? It might be. But VA too failed to diagnose PTSD when it awarded him an initial disability rating of 20 percent, suggesting his condition might have become more apparent only with the passage of time.

LoGrande contends the PBDR's "aperture" is now set as wide as Congress ever intended.

"It gives the person, frankly, not only the benefit of the doubt but it opens it up so far that it goes one step beyond the PEB," LoGrande said.

The PDBR, he said, will be at full strength soon. By the end of 2009, it will execute a communication plan to reach more eligible veterans and encourage those concerned about service disability ratings to seek a review.

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