As the result of career-ending illnesses or injuries, each year the Army separates thousands of soldiers through its physical disability system. This note provides legal assistance attorneys with a framework to better answer general questions about the Army's disability system.
Soldiers often turn to legal assistance attorneys to obtain guidance about this system and what they can do to improve the ultimate outcome of their cases. Legal assistance attorneys face questions like: "Why did the Physical Evaluation Board (PEB) do this?"; "What happens with my case now?"; or "Why am I receiving severance pay instead of medical retirement?"
An Overview of the Army's Disability System
The United States Army Physical Disability Agency (USAPDA) manages the Army's disability system. The USAPDA oversees the Army's three PEB's at Walter Reed Army Medical Center, Washington, D.C.; Fort Sam Houston, Texas; and Fort Lewis, Washington. The PEB's are the administrative boards that determine whether a soldier's disability prevents his or her continued performance in the Army. If the PEB determines that a soldier is no longer fit for duty and finds that the soldier is eligible for disability benefits, the PEB rates the extent of the soldier's disability. Depending on the severity of the illness or injury, the soldier receives either medical retirement or severance pay. Besides active duty soldiers, the PEB makes decisions for members of the National Guard and Army Reserves. Each PEB has at least one judge advocate assigned to it on a full-time basis. This judge advocate, known as the soldiers' counsel, advises soldiers about the disability process and represents them before the formal PEB.
I've been seriously hurt, what happens next?
The priority for a soldier suffering an illness or injury is to ensure that his illness or injury receives proper medical attention. If the soldier's condition improves to the point that he can function in their military occupational skill (MOS), he is returned to his unit, perhaps with a profile. However, if the soldier's commander or treating physician believes that the soldier is unable to perform his MOS, the soldier is referred to a Medical Evaluation Board (MEB).
The MEB decides whether a soldier's illness or injury prevents him from meeting medical retention standards. The MEB does this by comparing the extent of the soldier's disability with retention standards identified in chapter 3 of Army Regulation 40-501. If the MEB decides that the soldier meats retention standards, the soldier returns to duty. If the soldier fails to meet retention standards, the MEB refers the soldier's case to a PEB.
The MEB decides whether the soldier meets retention standards after performing a thorough examination, physical or psychological (and sometimes both). The MEB documents the soldier's medical problems, defines the limitations imposed by the disability, and explains how the disability affects the soldier's ability to perform duties required of his MOS.
What is the PEB?
The PEB is the administrative body that decides whether a soldier is fit for continued service. If the PEB determines that a soldier is no longer fit for duty-and the soldier is eligible for disability benefits-the PEB then decides what benefits, if any, the soldier receives.
A PEB is composed of at least two field grade officers and one doctor. The PEB process consists of two separate boards. The first board, called the informal PEB, makes its decisions based strictly on the soldier's medical and personnel records. A soldier does not appear before the informal PEB. If the results of the informal PEB do not satisfy the soldier, the soldier can demand a formal PEB with or without personal appearance. The formal PEB is the soldier's opportunity to present evidence, testimony, and documents in support of the case.
When is a soldier unfit for duty?
A soldier is unfit for duty when one or more physical and mental disabilities prevent him from performing the reasonable duties of his grade, rank, and MOS. Unfortunately, no bright-line rule exists to determine exactly when a soldier becomes unfit. The PEB makes the decision on fitness by balancing the extent of a soldier's disability-as shown through objective medical and performance evidence-against the MOS requirements. Typical medical evidence used by the PEB includes the narrative summary (NARSUM) written by the MEB, the soldier's profile, history and treatment of the injury or illness, referrals to doctors and sickcall, and type and frequency of medication. Performance evidence includes statements from the soldier's command, personnel records, promotions, awards, and adverse personnel actions.
The decision of fitness is subjective. Soldiers performing duties may be found fit for duty, even though suffering from a serious illness or injury. Exactly what makes a soldier unfit varies not only among MOS's but also among soldiers within a particular MOS. For example, two soldiers, one an infantryman and the other a supply clerk, have identical knee injuries. The finding that the infantryman is unfit does not mean that the supply clerk, or even another infantryman with the same injury, also would be considered unfit.
How can the PEB find me fit for duty considering my restrictive profile?
Some soldiers may have restrictive profiles that prevent them from going to the field or taking a PT test. Because of the profiles, their commands may prevent the soldiers from going to schools, impose more restrictive duty limitations, and assign them duty outside of their MOS. These soldiers often wonder how the PEB can find them fit for duty. Although a restrictive profile and command-imposed duty restrictions are important factors, the PEB does not focus solely on those factors when deciding fitness for duty. The PEB looks at the soldier's injuries to decide whether, and to what extent, the disability affects the soldier's ability to perform the requirements of the MOS. If the PEB decides that the injuries are not severe enough to prevent performance of the MOS, the soldier is found fit for duty. To be found unfit, the soldier must demonstrate that the disability, and not other factors-such as an overly limiting profile or dissatisfaction with the Army-are what actually prevents performance of the MOS.
What happens if I am found fit for duty?
Soldiers found fit for duty by the PEB return to their units to continue to perform their duties. Soldiers still have the protection of their profiles and any duty limitation imposed by those profiles. Soldiers have the option of appealing the findings of the PEB while they continue to serve with their units. If their physical or mental conditions worsen, they can go through the disability process again. While serving on active duty, there are no limits on the number of times a soldier can go through the disability process.
I was found unfit by the MEB so how can the PEB find me fit for duty?
The MEB and PEB are separate boards. These two boards consider different information and make distinct decisions. The MEB does not decide whether a soldier is fit for continued duty. An MEB decides whether a soldier has an injury or disease and documents the extent of that injury. The MEB then decides if the injury or disease is severe enough to cause the soldier to fall below medial retention standards as identified in chapter 3 of Army Regulation 40-501. The MEB refers those soldiers who fall below retention standards to the PEB. Failing to meet retention standards does not mean that a soldier is unfit for duty.
A PEB makes the decision of whether a soldier can adequately perform the requirements of his grade, rank, and MOS. It alone decides fitness for duty by balancing the extent of a soldier's illness or injury against his ability to perform the requirements of his MOS.
How does the PEB decide the percentage of disability?
If the PEB finds that a soldier is unfit, and the soldier is eligible for disability benefits, the PEB rates the severity of the soldier's injuries using the Veteran's Administration Schedule for Rating Disabilities (VASRD), as modified by appendix B of Army Regulation 635-40. The VASRD lists hundreds of physical and mental disabilities and rates these disabilities using objective medical criteria. Depending on the severity of the illness or injury, the PEB rates a soldier from zero to one hundred percent disabled.
How does the PEB decide who receives severance pay and who receives medical retirement?
The severity of the injury determines whether a soldier receives medical retirement and severance pay. Soldiers rated with a zero, ten or twenty percent disability will be separated from the service with severance pay. Compute severance pay in the following manner:
Monthly Base Pay x 2 x Years of service (to 12 years)
Soldiers with twenty or more years of active federal service, or possessing a disability rated at thirty percent or more, receive medical retirement. Medical retirement is either permanent or temporary depending on whether the soldier's condition is likely to change.
I suffer from a disability listed in the VASRD. Does that mean I will be found unfit and rated by the PEB?
Just because a soldier has a disability listed in the VASRD, this does not mean that the PEB will find him unfit and medically discharge him from the Army. Before a soldier is eligible to be medically separated from the he Army, the soldier must show that he is unable to perform the duties of his MOS and that this inability to perform is a direct result of a documented disability.
What happens if I have more than one disability?
If the PEB finds me unfit as the result of one of my disabilities, does that mean all of my disabilities are unfitting and will be rated by the PEB? Before the PEB rates a soldier suffering from multiple disabilities, the soldier must show that each condition prevents her from performing the requirements of her MOS. For example, a soldier suffering from a bad knee and bad back must be able to show that each condition, independent of the other, prevents her from performing the MOS requirements.
Will I receive treatment for my disability after my expiration of term of service?
Soldiers going through the disability process (or those who think they may have a disability) facing an imminent separation due to an expiration term of service (ETS), should contact the PEB Liaison Officer (PEBLO) at their treating hospital. The Peblo will coordinate with the soldier's treating physician and if the physician agrees that the soldier's condition warrants and MEB paperwork is completed extending the soldier's ETS. This allows the soldier additional time to receive treatment and go through the disability process if necessary.
I want to stay in the Army, but reclassify to a new MOS. Is the PEB the right place for me?
The PEB cannot reclassify a soldier to a new MOS. The PEB is limited to finding a soldier fit or unfit within their MOS. If unfit, the soldier is separated from the service. If fit, the soldier returns to her old unit in the same MOS. Soldiers wanting to reclassify should seek out and appear before an MOS Medical Retention Board (MMRB). The soldier's command conducts the MMRB at the unit level. Further guidance on the MMRB process is found in Army Regulation 600-60.
I am going before a formal PEB. What should I do?
Soldiers begin preparing for their formal PEB contacting their counsel, usually over the telephone, prior to the hearing. A judge advocate assigned to the PEB, known as the "soldier's counsel," represents most soldiers before the PEB. However, soldiers have the option of being represented by service organization such as the Disabled American Veterans or they can obtain private counsel at their own expense. Soldiers using the soldier's counsel, or a representative from a service organization, normally meet their counsel or representative for the first time one business day prior to the formal hearing. This is an opportunity to go over the soldier's case and discuss any last minute questions.
On the day of the hearing, soldiers report to the president of the PEB wearing a Class A or Class B uniform. The PEB informs the soldiers of their rights; including the right to make sworn or unsworn statements, rights under the Privacy Act, and the right not to make any statements relating to the origin or aggravation of the injury. Board members may question only those soldiers under oath.
During the formal PEB, in response to questions from the board members and his representative, the soldier should expect to do most of the talking. Soldiers should anticipate questions relating to how the injury occurred, treatments received, medication, and limitations that the disability imposes. At the formal hearing, the PEB has the soldier's medical records, portions of his personnel file, and statements from the soldier's command concerning duty performance. The PEB uses all of this information in its decision-making process.
Following questioning by the board members and the soldiers representative, the soldier has one last opportunity to address the board members and has the option of making a brief statement. Only the board members are present during deliberations. Once the board members reach a decision, the soldier returns to the hearing room where she is informed of the decision. The average formal PEB lasts approximately an hour and a half.
Can I appeal the decisions made in my case?
At each phase of the disability process, the soldier can appeal the decisions made in his case. Soldiers disagreeing with the informal PEB normally appeal to the formal PEB. The formal PEB is a de novo review of the soldier's case. Based on the evidence presented at the formal hearing, a PEB can change the findings of the informal PEB in any way that it deems appropriate. This means that a soldier found unfit for duty by the informal PEB can be found by the formal PEB fit for duty, have the disability percentage increased, decreased, or even be separated without benefits.
Soldiers dissatisfied with the decisions of the formal PEB can appeal, in writing, to the USAPDA. The USAPDA can modify the finding of a PEB by lowering as well as increasing a rating. If modified, the soldier can appeal to the Army Physical Disability Appeal Board (APDAB). Once the USAPDA or the APDAB make a final decision, if the soldier is not satisfied, the next appeal is to the Army Board for Correction of Military Records.
The PEB says my condition existed prior to service. How can this be? I never suffered from this condition before I came into the Army.
Physical or mental disabilities that make a soldier unfit may have existed prior to entering the service (EPTS). Causes of EPTS disabilities include hereditary or congenital defects or injuries with an inception before entering service. The soldier is separated from the Army without disability benefits if the PEB deems a soldier's injuries to EPTS and his condition has not been permanently worsened by service with the Army.
It is possible for a soldier to posses a physical or mental disability and never experience a problem until he faces the stresses of Army life. The physical and emotional stress of Army training can cause a latent condition to appear or an old injury to worsen to the point that the soldier is no longer able to function in his MOS.
To rebut a finding of EPTS, a soldier must either present persuasive medical evidence that the condition did not exist prior to entering the service, or provide medical evidence documenting that service with the Army permanently worsened a pre-existing condition.
Are there any special rules for Reservist?
In addition to showing that the soldier's illness or injury is in the line of duty, a Reserve Component (RC) soldier on orders for thirty-days or less must also show that his disability was the proximate result of military training. This requires the soldier to point to a specific aspect of military training or duty that directly caused the injury. For example, a RC soldier on two weeks training hurts his back when he slips and falls at an off-post movie theater. While his injury may be in the line of duty, it is not the proximate result of training unless he shows that he was performing Army duties at the time of the accident.
There are additional disability regulations specific to RC soldiers. Those RC soldiers with twenty "good years" toward reserve retirement who are awarded severance pay by the PEB must choose between retirement at age sixty or severance pay when the PEB makes its decision.
Injuries or illnesses that take a long period to develop (for example heart disease causing a heart attack while training) are usually considered EPTS disabilities. An RC soldier can overcome this if the soldier shows that the disability occurred as the result of an unusually stressful condition.
Although I put my papers in for retirement, may I change it to a PEB to get a medical retirement?
Soldiers separating from the Army for reasons other than a disability, whose careers have not been interrupted by a physical or mental disability, are usually not eligible for medical separation. In this situation, the PEB finds these soldiers to be "Fit by Presumption." The "Fitness by Presumption" rule is a legal diction that prevents soldiers who have continued to perform their duties until separation from receiving disability benefits.
The soldier overcomes the "Presumption of Fitness" in one of two ways. First, soldiers show that because of the disability, they have not been unable to perform the duties of their office, grade, or MOS for a long period of time. Second, soldiers can overcome the presumption if their injuries occur immediately prior to or while processing for separation. The PEB construes this rule very narrowly. To avoid being caught by the "Presumption of Fitness Rule" soldiers should initiate their PEB hearing before submitting their retirement papers.
At best, the Army's physical disability process is a confusing, obscure aspect of military law. However, thousands of soldiers go through this process each year. Therefore, legal assistance attorneys must have a basic understanding of this system so that they may better assist their clients through this physically and emotionally trying experience. Captain James R Julian, Soldier's Counsel at the Fort Sam Houston Physical Evaluation Board from April 1993 to May 1994.