MEBs? PEBs? NDR? Knowing outcomes should inform your decisions

By Spring 2017 M-VETS Student-Advisor Rebecca Eubank

When a servicemember is injured on active duty or diagnosed with a condition that leaves him unable to perform his assigned duties, his case is referred to the Integrated Disability Evaluation System (IDES). While this process can be long and at times confusing, knowing the possible outcomes at each step of the process should inform the servicemember’s decisions. [1].

First things first, is the condition duty related?

When a condition is identified that inhibits a servicemember’s ability to perform his duties, one of the first questions that must be addressed is whether the injury or medical condition was sustained in the line of duty. Typically, conditions diagnosed while the servicemember is on active duty are considered duty related. [6]

When is a condition not incurred in the line of duty?

The easiest answer is that any medical conditions that were identified at the time the servicemember enlisted will not be considered in the line of duty. Also, if a condition was incurred during an unexcused absence or even if the condition was due to misconduct or negligence, then the condition may not be found to be in the line of duty. In some cases, a line of duty investigation may be established to make this determination. [5]

What if a condition that predates military service gets worse while on active duty?

In these cases, the condition was identified before the servicemember enlisted, but it was determined that the condition would not inhibit his ability to perform his duties. However, if active military service permanently aggravated this condition to the point that the servicemember is no longer fit for duty, the condition may be considered in the line of duty. This is not the same as the natural progression of the illness. [5]

What happens after a condition is diagnosed?

When a servicemember has suffered an injury while on active duty or otherwise diagnosed with a serious medical condition, the servicemember’s case will be referred to a Medical Evaluation Board (MEB). Generally, there will be two physicians on the Board. A third physician is required in cases where the servicemember has a mental health condition. The MEB assesses whether the injuries significantly interfere with the servicemember’s ability to perform the physical duties required of all servicemembers.  The MEB’s goal is to determine if the servicemember’s conditions are medically acceptable for continued service. Each branch of the military maintains its own standards of medical acceptability. While documentation of the servicemember’s treatment is supplied by the medical team treating, the servicemember may submit a personal statement about his condition and how it affects his performance. [2]

Outcomes:

The MEB will either determine that the servicemember’s condition is medically acceptable, and the servicemember will be returned to active duty, or determine the condition is medically unacceptable and the case will be referred to a Physical Evaluation Board (PEB).

If the MEB determines a condition/s is medically unacceptable, and the condition is not in the line of duty, then the case may be referred to a Non-Duty Related Physical Evaluation Board.

What is a Non-Duty Related Physical Evaluation Board?

A non-duty related Physical Evaluation Board (NDR-PEB) may be established where a MEB determines that a servicemember has a condition, not in the line of duty, that inhibits the service member’s ability to perform his duties. The only determination that a NDR-PEB makes is a final determination of whether a non-duty related condition is unfitting for continued military service. Unlike its counterpart for duty related conditions, the NDR-PEB does not assign a rating for disability compensation. [7]

Outcomes: The only determination that the NDR-PEB may make is whether the servicemember’s condition renders him unfit for service. The servicemember has several choices at this stage. Regardless of his choice, it is beneficial to seek guidance from the Office of Soldier’s Counsel or another source. The servicemembers options are:

(Option 1) Agree with the PEB’s decision and waive a formal hearing. If the servicemember agrees at this stage, it will be very difficult to argue at a later date that the condition found to be unfitting is actually service connected and that the servicemember should be compensated accordingly.

(Option 2) Disagree with the PEB’s decision but waive a formal hearing. In this case, the servicemember may submit a written appeal.

(Option 3) Disagree with the PEB’s decision and demand a formal hearing with or without a personal appearance. If the servicemember requests a formal PEB, he should consider obtaining legal counsel either from an on base Legal Services officer or from an outside source. The purpose of a formal hearing is to provide the servicemember and his counsel with an opportunity to present new evidence, either medical or non-medical, that was not previously available. The formal hearing also provides the servicemember an opportunity to address the Board directly and make a case for a different disposition of his case.

What is a duty related Physical Evaluation Board?

A duty related Physical Evaluation Board (PEB), simply referred to as a PEB, makes a final determination as to whether a servicemember is fit for duty. The MEB’s findings will be forwarded to the PEB who will issue informal findings. Like the MEB, an informal PEB is made up of several doctors. [2].

Outcomes: The PEB may make one of several decisions:

  1. Find that the servicemember is fit for duty and return him to duty.
  2. The PEB will assign ratings that the Department of Veterans Affairs has provided concerning the unfitting condition/s. If the unfitting condition/s are above 30%, the Servicemember will either be placed on the Temporarily Disabled Retired List (TDRL) if the unfitting condition/s are not stable or the Permanently Disabled Retirement List (PDRL) if the unfitting condition/s are considered permanent and stable. The PDRL will result in a medical retirement from the military with disability retirement pay. If placed on the TDRL, the condition/s will be monitored for up to 5 years to evaluate whether the servicemember is fit for service.
  3. If the unfitting condition/s are rated by the VA at below 30%, the servicemember will be separated from with severance pay. Further, if the condition/s was found not to have been incurred in the line of duty, the Board may recommend separation without any compensation. [3].

Appealing the PEB decision.

After the informal PEB makes a decision, the next steps are in the servicemember’s hands. Regardless of the PEB’s decision, the servicemember has several ways he may respond. It is important to fully understand the consequences of each of these responses.

The servicemember’s options are:

(Option 1) Agree with the informal PEB finding. This means that the servicemember fully agrees with the Boards determination of his fitness and with all unfit ratings. If the servicemember agrees at this stage it will be difficult later to make an argument that the servicemember wants a different outcome.  Except in extenuating circumstances, review Boards have declined to alter the disposition of a PEB’s decision when the servicemember agreed with the outcome.

(Option 2) Disagree and request a formal PEB with or without a hearing. If the servicemember requests a formal PEB, he should consider obtaining legal counsel either from an on base Legal Services officer or from an outside source. The purpose of a formal hearing is to provide the servicemember and his counsel with an opportunity to present new evidence, either medical or non-medical, that was not previously available. The formal hearing also provides the servicemember an opportunity to address the Board directly and make a case for a different disposition of his case.

(Option 3) If medically separated or retired after a formal PEB, the servicemember may appeal further service’s Board for Correction of records. [4].

More information about each of these boards can be found here:

Army: Army Board for Correction of Military Records (ABCMR): http://arba.army.pentagon.mil.

Navy and Marine Corps: Board for the Correction of Naval Records (BCNR): http://www.donhq.navy.mil/bcnr/bcnr.htm

Air Force: Air Force Board for Correction of Military Records (AFBCMR): http://www.afpc.af.mil/afveteraninformation/airforceboardforcorrectionofmilitaryrecords

Sources:

[1] The Integrated Disability Evaluation System, Military Disability Made Easy, http://www.militarydisabilitymadeeasy.com/integrateddisabilityevaluationsystem.html

[2] The Military Medical Evaluation Process, Military One Source, http://www.militaryonesource.mil/health-and-wellness/wounded-warrior?content_id=282472

[3] Wounded, Ill and Injured Compensation and Benefits Handbook, Defense Department, http://warriorcare.dodlive.mil/files/2011/11/Compensation-and-Benefits-Handbook-May-2014.pdf

[4] SECNAV INSTRUCTION 1850.4E, http://www.secnav.navy.mil/mra/CORB/Documents/SECNAV%20INST%201850_4e.pdf

[5] Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations)

[6] Military Medical Policies, Military Law Task Force, http://nlgmltf.org/military-law-library/publications/military-medical-policies/

[7] Army Regulation 635-40, Physical evaluation for Retention, Retirement, or Separation.

[See generally] Physical Disability Evaluation System PDES Q and A, https://www.hrc.army.mil/TAGD/Army%20Physical%20Disability%20Evaluation%20System%20PDES.

[See generally] Navigating the Disability Evaluation System, http://www.realwarriors.net/active/disability/disability.php#_end3