The recent change in policy to the “Deploy or Get Out” approach means that service members who have been non-deployable or will be non-deployable for 12 months or more will be processed for administrative separation or a medical evaluation board.
If you have a medical or mental-health condition that your commander or physician may consider as medically unfitting, you will likely be referred for a Medical Evaluation Board (MEB) and potentially a Physical Evaluation Board (PEB). Regardless of your branch, there are generally as many as four opportunities to obtain the benefits you are entitled to. Tully Rinckey PLLC attorneys are here to ensure representation at every level throughout the Integrated Disability Evaluations System (IDES) process. It is very important to understand your rights throughout the process. You may waive your rights to a valuable pension if you don’t fully understand the process. The process begins with a referral to an MEB.
Service members with medical conditions should educate themselves about their rights under the IDES. If you are injured while in the line of duty or while on active duty, you may be entitled to a Medical Disability Retirement (MDR) regardless of whether you are a member of a regular or a Reserve force.
Referral to an MEB: There are a few different ways a service member is referred for an MEB. A service member with a medically unfitting condition should be referred for an MEB by a commander who has knowledge of the unfitting condition. Also, the service member’s physician should refer the service member for an MEB upon diagnosing the unfitting condition.
This referral is often missed for Reservists who receive treatment through their civilian physicians. When Reserve forces are involved, the commander may not be well trained or aware of the process by which an unfit service member should be referred. In the event your commander and physician fail to refer you for an MEB, you may have the option to submit documents to your branch that will be considered to determine whether you should be assigned a permanent profile. Generally, service members will be entered into the IDES process if they are assigned a P3 permanent profile. The MEB is conducted after the referral.
The MEB: Prior to the MEB, there will be an attempt to gather all available and relevant medical records. This step is an informal record review. There are two possible outcomes:
1) the MEB determines the service member is fit, or
2) the MEB determines the service member is unfit.
If the service member is determined to be fit, he or she may return to duty or appeal the decision to a PEB. If the service member is determined to be unfit, he or she will be moved along to the PEB portion of the IDES. It may be possible to assist the physician conducting the MEB in gathering the relevant missing evidence.
The IPEB: The Informal Physical Evaluation Board is similar to an MEB in that the records will be reviewed to determine whether a service member is fit. The main difference is that the IPEB determines the amount of compensation an unfit service member receives if he or she accepts the findings and is medically retired. A rating or percentage will be assigned based on the unfitting conditions and the level of disability assigned to each. A formula will then be used that will consider the service member’s pay grade and time-in-service (TIS). The service member will be paid the assigned percentage of the possible benefit amount.
For example, a service member with a rating of 50 percent will receive 50 percent of the possible benefit for a service member with that paygrade and TIS. The findings must be reviewed by the service member following the determination. The service member will generally have 10 days to determine whether to elect to accept the determination or appeal to the Formal Physical Evaluation Board (FPEB).
The FPEB: The FPEB is another opportunity for the service member to appeal the determination of fit or unfit, but the service member will also have an opportunity to challenge the percentage assigned as a rating. The FPEB is an opportunity for an in-person hearing at various locations around the country. Generally, these hearings may be held in Texas and the DC area.
It is also often possible, although not encouraged, to conduct a hearing through teleconference. Generally, our firm only does this through teleconference when travel is difficult for the service member, and this usually involves Reserve members or members of the United States Commissioned Corps. The FPEB is a great opportunity to get in front of a group of trained professionals and describe your symptoms and limitations, and I encourage service members to take advantage of this step. I have represented service members with favorable swings at the FPEB stage, including one service member who was determined to be fit at the IPEB stage, but permanently retired with a 50 percent rating after we attended his FPEB hearing in Texas. In the event you are refused the requested relief at the FPEB, some branches allow one last petition to the president of the Board.
Petition to the President of the Board: This last chance is a written appeal that is submitted within an allotted time and may result in overturning the findings of the FPEB. While this step is often ignored, I have seen findings of the FPEB overturned at this stage, so I often recommend that service members take advantage of this opportunity.
The Under-30 Percent Trap: Some branches tend to push service members out with a rating of 10 or 20 percent when the service member should be eligible for 30 percent or greater. The service member may be excited to hear that he or she will receive a large lump-sum payment, called severance pay, which often exceeds $100,000. Who wouldn’t sign up for this, right? What many service members do not fully understand is that they will almost definitely receive VA service-connected compensation as a result of their service-connected injury. If a service member accepts severance pay, the VA compensation payments, which would otherwise be tax-free income, will be offset until the full severance pay is recouped. Service members should not settle for a rating of 10 or 20 percent if there is a chance of obtaining a higher rating. The minimum goal should be 30 percent or greater.
TDRL: Some service members may receive a decision placing them on the Temporary Disabled Retired List (TDRL). These service members will begin receiving retired pay but should expect to be periodically re-evaluated to assess whether their condition has improved. Often the branch will attempt to reduce a service member with a rating of 30 percent or higher down to 10 percent and push them out with severance pay. In most cases, this decision should be appealed.
A service member who is placed on the TDRL should continue receiving medical treatment and should continue to build the record. A service member may become frustrated because treatment is ineffective, which is common. If the service member discontinues treatment, the Board may conclude that treatment was not necessary and render a determination that is adverse to the finding the service member deserves. Evaluations will be conducted at three or five-year increments, depending on what date the service member was placed on the TDRL. As such, a service member on the TDRL should continue treatment if his medical condition continues.
PDRL: Some service members are placed on the Permanent Retired Disabled List (PDRL). Service members on the PDRL should not expect to be brought back in for re-evaluation by the branch of service, but should expect to have ongoing evaluations through the Department of Veterans Affairs (VA) for service-connected compensation.
MDR vs. VA Benefits: Each of these two types of benefits requires a slightly different standard. A MDR is assigned to a service member who has a medically unfitting condition. A medically unfitting condition is a condition that reduces or prohibits a service member’s ability to perform the duties of his or her rank, grade, or rating. The only conditions that will be assigned a rating by the military branch are conditions that are deemed to be unfitting as explained above.
The Department of Veterans Affairs will consider any disabling condition, provided there is 1) a current medical condition; 2) proof a condition that was aggravated or incurred while on active duty; and 3) a nexus between the two. Given these two standards, it is common to have the VA assign a rating that is much higher than the rating assigned by the military branch of service. The service-connected compensation rating is generally determined prior to separation and begins on the first day off of active duty. It is possible to request a reconsideration of the assigned percentages as part of the PEB process when a service member is of the opinion that his rating should be higher.
IDES vs. LDES: An active-duty service member is processed through the IDES process. As part of the IDES process, the service member will have a set percentage and VA payment amount established prior to separation. This will allow payments to begin immediately following discharge. Those serving in a Reserve force may already be receiving VA payments if they are not on active duty. If a Reservist or Guardsman is processed for an MDR, he or she may elect to be processed through the Legacy Disability Evaluation System, which will allow the service member to retain the current VA rating and expedite processing. A member of the Reserve forces with a current VA rating should not be forced into the IDES process.
VA Compensation or MDR Payment? MDR payments are taxable income and may be divided upon divorce, while VA service-connected compensation payments are tax-free income and may be protected from an ex-spouse in a divorce action. A service member should be given the opportunity to elect whether to receive the full MDR payment or to have it offset by the VA payment. If the MDR payment is greater than the VA payment, the veteran may elect to receive the full non-taxed VA payment and the reminder of the retirement in as a taxable pension.
Concurrent Receipt: Under a few rare circumstances, a veteran may be entitled to concurrent receipt. Veterans who are retired for unfitting conditions that are rated at 10 percent or more and who were injured in combat, simulated combat, or by an instrumentality of war, may be eligible for concurrent receipt. Given the many injuries that have resulted from the Modern Army Combatives Program or equivalent hand-to-hand training, there are likely many veterans who qualify for concurrent receipt who are unaware. A knowledgeable attorney can assist with obtaining this benefit.
Additionally, a veteran who is otherwise eligible for retirement benefits with 20 qualifying years of service, with the added requirement of being age 60 for Reservists, may also be eligible for concurrent receipt. Veterans of the Reserve forces with recent active-duty time may be eligible to collect concurrent receipt earlier than age 60. Again, a knowledgeable attorney can assist with establishing the proper date for this benefit.
Correcting an Error or Injustice: If you are a service member who has recently been separated or completed your obligation, but suffered from an unfitting condition prior to the end of your contractual obligation, your commander or physician should have initiated an MEB. If that didn’t happen, it’s not too late to get the benefits you deserve. I recently represented a client who was separated from the National Guard more than a decade ago after a one-year deployment to a combat zone. Our firm successfully represented the service member in his application to the Board for Correction of Military Records, which resulted in a referral for an MEB. We then appealed the decision of the IPEB and established a 50-percent rating at the FPEB. This service member is now retired at a rating of 50 percent.
Be proactive: Do you think you are able to fight through your medical condition and remain in the military? Is your commander or chain of command looking the other way on some performance-related issues to help you remain in the military? You aren’t doing yourself any favors, and your chain of command may be harming your chances of obtaining the pension you deserve.
Most unfitting conditions do not get better with time. Identify the medical condition and seek treatment. If your chain of command is looking the other way when your condition prohibits you from performing some of the duties of your rank, grade, or rating, there will be no records when your matter is up for appeal. Ensure that your chain of command is not trying to help you hide an unfitting condition.
Either of these two pitfalls may cost you your retirement. Be proactive and maintain copies of all of your medical records. Take the necessary steps to ensure you get the benefits you deserve.
Anthony J. Kuhn, Esq. is the Managing Partner of Tully Rinckey PLLC’s Buffalo office. A First Sergeant in the United States Army Reserve and a combat veteran, Mr. Kuhn focuses much of his time on the representation of military personnel, federal employees and federal agents, as well as private employers and not-for-profit corporations.