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Military Disability Article by Chuck Pardue

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Some disabled military service members may receive up to four different government disability payments at the same time

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        Disabled Military Service members may be entitled to disability payments from four different United States government disability compensation programs at the same time: the first three programs include military disability retirement pay; the VA, and Social Security. Military Retirees may also qualify for four separate government disability systems by qualifying for Concurrent Retirement and Disability Pay (CRDP) or alternatively Combat-Related Special Compensation (CRSC). These five separate disability programs help severely disabled military optimize benefits and compensation.

Joint Active Duty Military and VA Disability Processing

        Under prior law and regulations the military and the VA separately determined disability percentages supposedly utilizing the same disability rating standards from the VA Schedule for Rating disabilities (VASRD) (38 CFR Part IV). The old system created many anomalies. For example, a military member’s lumber spine condition could be rated at 10 per cent by the Army, Navy, or Air Force, while the VA rated the same lumbar spine condition at 40 percent. For that and other reasons, including reducing processing times for injured military languishing in Medical Hold (now Wounded Warrior Units) at Walter Reed and other military hospitals, the new Integrated Disability Evaluation System (IDES) came into being.


        The joint military and VA processing is integrated under IDES. Active duty service members disability processing begins with dual processing by the VA and by a Medical Evaluation Board (MEB), which is described for the Army in Army Regulation (AR) 40-3, AR 40-501, and AR 635-40. The Navy-Marine Corps and Air Force have similar regulations. The MEB packet includes a narrative summary, written by a physician describing the medical conditions, statement from the individual’s commander concerning impact of medical condition on duty performance, Line of Duty (LOD) ((document stating whether the medical conditions occurred in the line of duty and not due to own misconduct (i,e. drunk driving)), and personnel record.


        As part of the joint IDES process, the VA Disability Rating Activity Site (VA-DRAS) determines rating percentages for each service connected condition using the VA Schedule for Rating Disabilities (38 CFR Part IV). VA evaluates each medical condition and rates for VA purposes. On the military side the MEB uses the VA-DRAS disability percentage determinations and recommends which VA rated conditions are “physically [or mentally] unfitting” using as a guide (for the Army) AR 40-501, Chapter 3, and AR 635-40, Chapter 3. The VA provides disability compensation for all service connected conditions that are rated at 10 % or more. Service members may appeal the VA or MEB recommendations at this stage of the process.


        The MEB and the VA-DRAS recommendations go to informal military Physical Evaluation Boards (PEBs) who determine which, if any, of the VA-DRAS percentages, the military will award. The military only pays for disability ratings that prevent the service member from performing his or her military duties. The PEB also determines if the service member is “fit for duty” to stay on active duty despite the service member’s medical conditions rated by the VA-DRAS. For those individuals determined to be medically “unfit” for further active duty, the PEB applies a disability rating provided by the (VA-DRAS) for PEB military disability separation or retirement purposes. If dissatisfied with the recommendations of the informal PEB, military members have the right to request a hearing and personally appear at a Formal Physical Evaluation Board (10 USC 1214).


        To determine the active duty disability percentage military the PEBs apply with few exceptions the VA-DRAS disabilities for only those active duty “unfitting conditions” (listed under AR 40-501, Chapter 3) that make a soldier medically unfit to perform military duties. The exceptions include those additional conditions that the service member persuades the PEB are “unfitting.” Other conditions ratable by the VA but do not make a military member unable to perform his or her duties and will not justify a military disability rating.


        The PEB determines: fitness for duty, military disability percentages, qualification for Military Disability severance pay, or (temporary or permanent) Military Disability Retirement. The PEBs also determine if the active duty disability is tax free (combat injuries or under training conditions simulating combat). The locations of the PEBs are: for the Army: San Antonio Texas, Fort Lewis Washington, and Walter Reid; the Navy-Marine Corps: Balboa Hospital in San Diego, and Bethesda, Maryland; the Air Force: Lackland AFB, San Antonio, Texas.


        If the PEB awards disabilities at 20 per cent or less individuals receive disability separation pay. With disability severance pay service members do not receive military retirement ID card benefits for themselves or their families. As many veterans later learn to their shock, the VA will recoup any military disability severance pay out of the veteran’s future VA disability payments.


        If a service member is awarded 30 per cent or more, they are, unless the injuries are serious and permanent, placed on the Temporary Disability Retirement List (TDRL) and paid at least 50 % as long as they are on the TDRL. For those with permanent conditions of 30 per cent or more; or for those who are later removed from the TDRL with at least a 30 per cent disability rating, they are permanently retired on the military Permanent Disability Retirement List (PDRL). After separation or retirement the now Veteran receives the higher dollar amount from either the military or VA.


        In many cases the disability percentages awarded are higher for VA than military. However the actual amount paid to the veteran may be higher from the military. Military Disability payments are based on rank and years of service. VA applies a flat schedule for payment of disability, regardless of rank. For example, in 2014, a SFC, E-7 with one child, and over 14 years of active duty would receive from the military for a 30 per cent disability retirement of approximately $1,200.00. VA paid in 2014 a single person regardless of rank with one child $432.90. That individual received tax free $432.90 from the VA and ($1,200.00 minus $432.90) $767.10 taxable from the military.


        With active duty retirement of at least 30% military disability rating, retired members receive medical and other ID card benefits for themselves and their dependents. Permanently medically retired military service members receive lifetime military medical benefits. Separation pay does not qualify service members or their dependents for lifetime military benefits. The Government determines which the disability payment is higher, the VA or military, and pays the individual the highest of the two entitlements.


        Veterans with service connected disabilities conditions and also entitled to retirement pay, may receive disability payments from both the military and VA under the Concurrent Retirement and Disability Pay (CRDP). Military retirees with combated related injuries or disease may be entitled to receive Combat-Related Special Compensation (CRSC) (nontaxable and not subject to divorce property division) instead of CRDP (taxable and subject to divorce property division).


"Don’t Worry, the VA Will Take Care of You."

        In many cases military active duty servicemen and women in the rush to be separated or retired from active duty are told: "Don’t worry, the VA will take care of you." Sometimes they are told that if they go to a Formal Board at a PEB they will lose their disability. Except for service members who exaggerate their disabilities, this rarely happens. Because they trust the bad advice, often times given by well-intentioned counselors who process their disability cases, thousands of veterans fail to fully avail themselves of their rights to military disability processing and waive their statutory right to "…a full and fair hearing," and consequently forfeit valuable medical benefits for themselves and their dependents that many veterans later realize they should have received.

Federal statute 10 U.S.C. 1214 provides:

"No member of the armed forces may be retired or separated for physical disability [includes mental] without a full and fair hearing if he [or she] demands it."

        Even if the VA ultimately pays more, an active duty person should still strongly consider full active duty disability processing and, if appropriate, request an in-person hearing at a Formal Physical Evaluation Board. In many cases the PEB is persuaded to increase disability and award retirement. The military provides TDY travel to the PEBs and free JAG counsel for the hearing. Civilian attorneys are also authorized at the service member’s expense. At a formal in- person PEB hearing a soldier, sailor, or airman, may present their case with assistance of an attorney, face to face, with the board members, who will decide their future. The informal PEB only reviews records and is unable to fully appreciate the physical or mental loss until the PEB hears testimony and sees the military member in person.


        The appeal of the Informal PEB should be done before discharge or retirement as it is extremely difficult, time consuming, and expensive, to receive a higher military disability rating after discharge or retirement. The additional month or so of additional processing time pending a PEB formal hearing, while still earning full pay and allowances, is often worth delaying the transition to civilian life. Good legal advice from an experienced attorney is critical beginning with the MEB and continuing throughout the PEB process.


        Potential benefits, in addition the possibility of receiving more month disability compensation, include all military retired ID card benefits. For some families the future lifetime medical care for themselves and their spouses is more valuable than the increased disability compensation. This is especially important for dependents obtaining free medical benefits from the military, Tricare, etc. The opportunity to receive those military retired benefits that may be obtained by personally appearing at a PEB is worth more than just later receiving VA compensation or disability severance pay.


        More than half of the servicemen and women who appeal their cases to the PEB receive a higher disability, gain military medical retirement, or other favorable result. Obtain legal advice before you waive your statutory right to a military disability hearing (PEB) granted to all service members who are being separated from service due to disability. A majority of the cases that that do not win more disability or other favorable findings, the result remains the same as the informal PEB. A small number of cases because of exaggeration, false statements, or obvious non disabilities, have their disability reduced. Experienced counsel can guide service members on the proper decisions to make throughout the military disability process.


What? … I Can Receive Social Security Disability While I Am Still On Active Duty?

        Severely disabled service members pending treatment and medical board processing while still on active duty may also be entitled to Social Security Disability payments for themselves and their dependents, even if they are currently draw active duty pay and allowances. Disability is backdated to the date they met SS guidelines for disability, usually the date of injury, or when a medical condition precludes work. Potentially eligible active service members should apply as soon as they realize the seriousness of their medical conditions to obtain the earliest possible onset date for Social Security purposes. Waiting until after military discharge or medical retirement to apply for Social Security benefits may cause the individual to lose months or years of Social Security disability payments.


        After medical retirement from active duty, some veterans may receive their VA disability, Social Security, and CRDP or CRDP disability payments at the same time. For disabled service members competent legal advice is crucial to maximize disability benefits they deserve.


Written by Chuck Pardue
Attorney At Law
LTC Retired JAG