1. ANNUAL PEBLO TRAINING CONFERENCE Army Physical Disability
Legal Services in the
Army Physical Disability
Evaluation System
MEB Outreach Counsel
& Soldiers’ Counsel
Mr. Steven Engle Mr. Lakandula Duke Dorotheo
Supervising Attorney Senior Soldiers’ Counsel
Office of Soldiers’ Counsel Office of the Center Judge Advocate
Fort Lewis, WA Walter Reed Army Medical Center

2. Agenda MEB/PEB Process Overview Provision of Legal Services
MEB Counsel
Soldiers’ Counsel
Mission & Vision
Key Stages for Soldier to Consult with Counsel
National Defense Authorization Act Changes
Soldiers’ Rights Throughout the Process
Critical Legal Requirements in the Process
Governing Law, Regulations & Policy
Contact Information

3. APDES Overview Soldier Reaches “Optimal” Medical Care ability
to perform duties unclear
MEB Initiated by Physician,
Commander or MMRB
Retain/Re-class MOS
MOS Medical
Retention Board
Non-retainable
RETURN
TO DUTY
3-member board (Physicians)
Determines whether any conditions fail retention stds
Soldier can appeal MEB
Soldier entitled to Legal Counsel
Meets medical
retention std
Medical Evaluation Board
(medically based evaluation)
Fails retention
standards
3-member board
Personal Appearance
Legal Representation
SM can appeal finding
Physical Evaluation Board
(performance based evaluation)
3-member board
Paper review
Fit / Unfit PMOS
Rate IAW VASRD
SM can appeal finding
Formal Board and/
or Written Appeal
Nonconcur
Informal Board
Concur
Agency HQ
Paper review
U.S. Army
Physical Disability
Agency (Walter Reed)
Unfit
Fit
Appeal
APDAB / ABCMR / PDRB
Discharge

4. MEB Overview
The MEB is an informal process before a board comprised of at least three physicians, who compile, assess, and evaluate a Soldier’s medical history and current condition.
The MEB Process begins when a Soldier's optimum medical care has been reached or when a Soldier’s physician determines that, even with further treatment, a Soldier is unable to return to duty
P3 (Permanent 3) or higher PULHES Score on their Physical Profile

5. Purpose of an MEB
The MEB’s purpose is to determine if a Soldier’s medical condition(s) meets or does not meet Army Medical Retention Standards IAW AR , Chapter 3
Findings listed on a DA Form 3947
The MEB refers a Soldier to the Physical Evaluation Board (PEB) if at least one medical condition does not meet retention standards

6. MEB Dispositions
Generally, if a Soldier meets retention standards within the limits of the Soldier’s profile, the Soldier is returned to duty or referred to an MMRB
Unless Soldier previously evaluated by MMRB, in which case the matter must be forwarded to a PEB
If the Soldier does not meet retention standards for even one condition, the Soldier must be referred to the PEB for further processing

7. MEB Election Period
Independent Physician Review: NDAA 08 provides Soldiers, upon request, a physician who is independent of the MEB to review their MEB records and counsel them on the MEB findings and recommendations
Soldiers may disagree with the MEB’s findings and submit a rebuttal statement, which the Deputy Commander for Clinical Services (DCCS) must consider
Seven day review/rebuttal period, extendable upon request
Deadline begins upon the later of the completion of independent medical review or receipt of MEB findings
MTF has 7 days to consider and respond

8. Implications of MEB
“Medically acceptable” conditions will generally not be found unfitting by the PEB
i.e., conditions that meet retention standards
“Medically unacceptable” conditions may be rated by the PEB only they are unfitting
i.e., condition(s) do not meet retention standards
A MEB cannot refer to an MMRB a Soldier who has a medically unacceptable condition
consider MMRB before MEB is completed

9. MEB vs. PEB MEB makes a medically-based determination
PEB makes a performance-based analysis to determine if a medically unacceptable condition is fitting or unfitting
MEB findings are not appealable to the PEB, as the PEB does not have the authority to change MEB findings
Soldiers should ensure MEB is correct before it goes forward to PEB
PEB may send case back to MEB for further evaluation

10. MOS/Medical Reclassification Board
Neither the MEB nor the PEB is a MMRB!
Only Soldiers with a permanent P3 or higher on their physical profile and who meet medical retention standards can be referred to the MMRB
PEBs cannot reclassify a Soldier’s MOS or consider a SMOS
Soldiers who are not retainable in their PMOS and are ineligible to reclassify through the MMRB are referred back into the APDES
Soldier has right to consult legal counsel prior to MMRB but no legal representation at MMRB

11. PEB Process The PEB must answer four main questions
1: Fit or unfit for each condition
2: Compensability (service connection)
3: Level of compensation
4: Whether the Soldier’s condition is combat-related or was it incurred in the combat-zone?
Burden of proof is by preponderance of evidence
Exception for compensability: for which there must be “clear and unmistakable evidence” that condition is not service connected

12. Is the Soldier fit or unfit for duty?
Fit or Unit
Is the Soldier fit or unfit for duty?
The PEB must make a determination in each case whether the Soldier is reasonably capable of accomplishing basic Soldiering skills and those tasks specific to the Soldier’s PMOS, skill level, branch, or specialty duties.
Very fact specific
Deployability factor is uncertain

13. Compensability
If on orders of over 30 days, was the onset of the condition (injury or illness) during a period when the Soldier was entitled to basic pay or was it permanently aggravated during service?
If on orders less than 30 days, was condition proximately caused by military duty?
Was the condition incurred in the Line of Duty?
Did the condition exist prior to service?
Was it caused by the Soldier’s misconduct?
Was it caused by non-compliance with prescribed treatment?
Soldiers with non-compensable conditions are separated without benefits (0%).

14. Ratings
Under the NDAA FY 08, the Army must use the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) to determine the level of compensation and may not deviate from the VASRD unless deviation is more beneficial to the Soldier
Significant change, especially relating to orthopedic conditions (DeLuca Rule)

15. = 2 x Monthly Basic Pay x years of service
Ratings between 0-20%
Soldiers with less than 20 years Active Duty and rated from 0-20% will be Separated with Severance Pay
= 2 x Monthly Basic Pay x years of service
Enhanced by NDAA 08
Minimum service for severance pay computation = 3 years
Combat-zone or combat-related injured Soldiers: severance pay based on minimum of 6 years service
AND with no VA offset
Maximum service for severance pay computation =19 years

16. Ratings > 30% or 20 Year AD Retirement Eligible
Permanent Disability Retirement (PDR)
Rated at least 30% or 20 years Active Duty
Unfitting condition(s) must be stable
Temporary Disability Retired List (TDRL)
Unfitting medical condition is unstable
Soldiers can stay on TDRL a maximum of 5 years with re-evaluations every 18 months
The TDRL DOES NOT GUARANTEE that a Soldier will be permanently retired later
Stability criteria: Reasonable expectation severity will change within 5 year period?

17. Combat Related Criteria
Tax Free Severance pay or disability retirement if injuries are direct result of:
Armed conflict;
Instrumentality of war;
Direct result of hazardous service; or
Under conditions simulating war
Tax Free Severance pay if condition(s) were incurred in tax-free combat zone (NDAA 08)
CZ provision only applies to severance, not retirement
No VA offset/recoupment for CZ conditions
Taxes withheld in all cases may be refunded upon receipt of VA rating – see PDA Info Sheet

18. Post-PEB Appeals Army Physical Disability Agency (PDA)
Army Physical Disability Appeals Board (APDAB)
Discrepancy between PEB and PDA
Army Disability Rating Review Board (ADRRB)
Review for Soldiers offered disability retirement
DoD Physical Disability Review Board (PDRB)
Soldiers who received DES (not VA) ratings < 20%
Between 11 SEPT 01 & 31 DEC 09

19. COAD/COAR
Soldiers found unfit can request to continue on Active Duty (COAD) or in the Reserves (COAR) if:
COAD: Active duty with at least 15 or more years;
COAR: Reservists with at least 15 or more “good” years toward reserve retirement;
Combat injured Soldiers; or
Soldiers in a critical/shortage MOS.
Note: HRC will consider all applications even if they do not meet above criteria.

20. Joint DoD/DVA DES Pilot
Single comprehensive medical exam to include general & specialty exams performed to dual DoD and DVA specifications.
MEB evaluates comprehensive exams to determine if condition(s) meets or does not meet Army retention standards
Army PEB determines fit/unfit & military compensability
PEB does not consider DVA compensability
DVA rates all service-connected conditions
Army adopts DVA rating for all unfitting conditions

21. Joint DoD/DVA DES Pilot
Based on:
•Medical evidence/ Occupational Medicine review
•DoD Instruction Guidance
•Military Department Regulations
War Injuries/ Conditions
Member is treated or being treated for a medically limiting injury or condition
Has member reached a point where it is unlikely they will meet medical retention standards?
Refer for Disability Evaluation/ Transition Exam
Yes
Does the member meet medical retention standard? No
Other No
Yes
Continue Medical Treatment
Purple are new VA/DoD integrated processes new to pilot
Legend
Return to duty
Similar to old process
New process
MEB
Injury and Treatment
“Permanent” Limitation?
Qualified for Military Job?
Initiate Exam

22. Joint DoD/DVA DES Pilot
All medical records and current diagnostic results forwarded for use by VA qualified provider
Member’s Medical Evaluation Package Completed (complete narrative summary of all potentially unfitting conditions) +
Other required documentation
Service Medical Experts perform final review, deliver final medical retention decision
Does member meet medical retention standards?
Member receives VA General Medical Exam & comprehensive evaluation of both potentially unfitting conditions & other conditions claimed by member as having been incurred in or aggravated by military service. P E B No
Yes
Results of VA Exam
Return to duty
VA Template
NARSUM& LOD
MEB
PEB
Exam

23. Joint DoD/DVA DES Pilot
Member can have any item or % reconsidered by VA DRO – one time only while on active duty
Veteran relationship with VA system already established.
Processing for compensation can immediately begin.
Veteran retains the right to appeal in VA.
PEB applies VA rating to unfitting conditions.
VA Rating Panel:
Receives case file from PEB & rates all qualified conditions
Is the member fit for duty? P E B
No (Unfit)
What is the applied disability rating?
30% or higher
Dispositions:
0-20% No
Placed on the Temporary Disability Retired List (TDRL)
Yes (Fit)
Disability is stable
Member may elect Formal PEB after unfitness determination
Member’s years of active duty or equivalent service
Placed on Permanent Disability Retirement
≥ 20 years
Yes
DD214
Separated with lump sum disability severance
< 20 years
Return to duty
Necessitates Formal PEB Proceedings
Various Appeal levels maintained per Military Department Regulations
PEB
Rating
Panel

24. Provision of Legal Services
Legal counsel available in 2 stages
MEB Outreach Counsel for MEB Process
Soldiers’ Counsel for PEB Process
MEB Outreach Counsel & paralegal assigned to each Warrior Transition Battalions and Brigades
Civilian hiring actions now underway and counsel should be in-place by December 2008
MEB Counseling at the WTU Company will be coordinated between nearest MEB Outreach Counsel and servicing Office of Soldiers’ Counsel

25. Co-located at 18 Brigade & Battalion Sized WTUs
MEB Outreach Counsel
Co-located at 18 Brigade & Battalion Sized WTUs
Walter Reed AMC
Ft. Drum
Ft. Polk
Ft. Bragg
Tripler AMC
Ft. Sam Houston
Ft. Gordon
Ft. Hood (2)
Ft. Benning
Ft. Bliss
Ft. Stewart
Ft. Lewis
Ft. Riley
Heidelberg
Ft. Campbell
Ft. Richardson
Ft. Knox

26. MEB Outreach Counsel & Soldiers’ Counsel
Judge Advocates and Army Civilian Attorneys dedicated to providing legal advice and representation to Soldiers undergoing evaluation through the Army’s Physical Disability Evaluation System (APDES) 
Licensed and experienced, with specialized training in the APDES adjudication process
Mission: To provide timely and beneficial legal advice to Soldiers undergoing the Medical Evaluation Board process and to provide zealous, ethical, and effective legal representation and advocacy for Soldiers undergoing the Physical Evaluation Board process

27. MEB Outreach Counsel & Soldiers Counsel
MEB Outreach Counsel focus on legal counseling to the Warrior in Transition during the MEB process
Assist Soldiers in understanding the MEB/PEB process and forming their goals early in the process
Provide other Legal Assistance to WTU Soldiers and their families
MEB Outreach Counsel work closely and in concert with the Office of Soldiers’ Counsel
Case transferred to Soldiers’ Counsel upon election of formal PEB hearing.

28. MEB Outreach Counsel & Soldiers Counsel
Information Soldier provides to MEB Outreach Counsel and Soldiers’ Counsel is confidential under the attorney-client privilege.
MEB Outreach Counsel and Soldiers’ Counsel advise, counsel and represent Soldiers and DO NOT advise or represent commanders or members of the MEB/PEB

29. Key Stages for Soldier to Consult Counsel
Receipt of P3 Profile & Initiation of MEB
MEB Outreach Counsel will provide general advice on process & rights
Counsel will render advice and assist Soldier in establishing goals
Counsel work with PEBLOs, Case Managers, the Triad, Ombudsmen, and health care professionals to advance Soldier’s interests
Assistance is non-adversarial
MEB Completed/Issued (DA Form 3947)
Soldier has 7 calendar days to review and prepare rebuttal
NEW (14 Oct 08 DTM, para. E3.P )
Counsel will advise on whether Soldier should request an independent medical review of MEB and assist with request
NEW (14 Oct 08 DTM, para. E3.P )
Soldier & MEB Counsel will carefully review DA 3947, NARSUM, Profile, Cdr’s Memo, etc.
Counsel will provide case-specific advice and explain options
Counsel will assist with drafting MEB rebuttal when requested

30. Key Stages for Soldier to Consult Counsel
Informal PEB Decision (DA Form 199)
Soldier has 10-days to review and make election for Formal hearing
When requested, MEB Counsel & Soldiers’ Counsel, working together, will review results with Soldier, explain legal basis of decision, & advise about rights
Counsel and Soldier will discuss potential benefits and/or risks of proceeding to a Formal PEB hearing
Counsel will advise Soldier of regarding whether to elect or waive Formal hearing and assist with election or waiver as Soldier decides
Formal PEB Hearing
Soldier will have a minimum of 10 days advance notice of Formal hearing
NEW (14 Oct 08 DTM, para. E8.4.2)
Soldier & Soldiers’ Counsel review entire file and discuss options
Counsel will provide candid advice and help identify & obtain supporting evidence
Counsel will zealously advocate the case before the PEB

31. Key Stages for Soldier to Consult Counsel
Appeals
Counsel will evaluate and advise on possible theories and likelihood of success
Counsel will assist with gathering evidence and writing the Appeal

32. PEBLO Role Critical
PEBLOs need to encourage Soldiers to consult with Counsel at the following states:
Referral into the MEB system;
Receipt of MEB Findings (DA-3947);
Receipt of Informal and Formal PEB Decisions (DA-Form 199).
Early consultation with Counsel may reduce unnecessary appeals and help reduce the time a Soldier spends in the APDES

33. Legal Services – How We Work
MEB Counsel located on the installation in MTF, WTU/SFAC or at OSJA
MEB Outreach Counsel advise Soldiers during MEB phase when requested
MEB Counsel will assist with MEB decision review and rebuttal when requested
OSC attorney assigned upon election for Formal PEB hearing
OSC paralegal contacts the Soldier to verify they are aware of the hearing date, assist with logistical arrangements, and gather information from the Soldier in order for the assigned counsel to better understand the client’s perspective and goals
OSC attorney will contact the Soldier & MEB Counsel ASAP
Soldier’s unit to cuts orders to allow Soldier to arrive NLT 1-day prior to hearing
Soldier has the right to personally meet with Counsel at least one day in advance of the hearing (Soldier’s unit has the duty to cut necessary travel orders of sufficient length to ensure the right to consult with their attorney)
Should not try to fly home same day of hearing
Attorney present with Soldier and represents Soldier during hearing
Attorney will assist with appeal when requested

34. NDAA 08 & 09 — What’s New EPTS Rule
New Presumption of Sound Condition for members ordered to active duty for more than 30 days
Applies if member on active duty orders more than 30 days and condition not noted at time of entry to active duty
Presumption overcome only if “clear & unmistakable evidence” demonstrates the disability existed prior to entry on active duty and was not aggravated by military service
NEW (14 Oct 08 DTM, para. E3.P )
Applies to hereditary & genetic conditions
Includes prior-service conditions
8-year rule still in effect
Right to Independent Medical Review of MEB
Upon request, an impartial physician or “other appropriate health care professional” (not involved in the Service Member’s MEB process) will be assigned to review MEB findings with the Soldier
NEW (14 Oct 08 DTM, para. E3.P )
7-day period to review and prepare rebuttal begins upon completion of independent medical review

35. NDAA 08 & 09 — What’s New Rating Disabilities Separation Pay
DOD can’t rate lower than VASRD (but can rate higher)
Functional (DeLuca) rule for measuring & rating ROM
50% TDRL rating for mental disorders due to traumatic stress
Based on VASRD Sec
Protection for Military Technicians with Combat-Related conditions from loss of civilian job
Separation Pay
Minimum of 3 yrs service (6 years if injured in CZ)
Maximum of 19 yrs
No offset for CZ incurred conditions from VA compensation
Establish Physical Disability Review Board (PDRB)
Available if rating under 30% & Soldier discharged between 9/11/01 and 12/31/09
Administered by USAF
Waives ABCMR appeal

36. Soldier’s Rights Upon initiation of MEB During MEB
Right to consult with legal counsel (e.g., MEB Outreach Counsel, private attorney, other representative such as DAV)
During MEB
Right to consult with legal counsel
Right to non-concur with MEB findings and to submit a written rebuttal
Right to independent medical review upon request
Soldier Rights during PEB
Right to consult with legal counsel before requesting Formal Hearing
Right to personal appearance before PEB (may be by VTC – discuss with counsel)
Right to representation (appointed counsel, private counsel, DAV, pro se)
Right to testify (under oath, unsworn, or not at all)
Right to review and present evidence (Testimony, Documents & Witnesses)
Right to request female or minority membership on Formal Board
Right to recording of hearing
Right to appeal with assistance of counsel (in writing)

37. Legal Counsel & PEBLO Relationships
Strong coordinated relationship essential to our common goal of helping the Soldier
Counsel will work through and coordinate with the PEBLO whenever possible to ensure PEBLO has situational awareness
Counsel will always maintain an open door to discuss cases & issues
(subject to attorney-client privilege)
PEBLO have key role in the process, to include informing Soldier of right to consult with legal counsel
MEB Outreach Counsel needs opportunity to speak to newly assigned Soldiers as part of PEBLO introductory briefing on the MEB process
Soldiers need the Legal Counsel information flyer/tri-fold in Welcome packets
Counsel role is different in that our duty under our Rules for Professional Conduct is to ethically and zealously advance the interests of Soldier –
BUT –
Our objective is mutual: to assist wounded, ill and injured Soldiers

38. Critical Legal Requirements in the Process – MEB Stage
Soldier must be advised of right to consult with legal counsel from initiation of MEB
Government counsel must have full access to computerized databases and electronic medical records that relate to Soldier’s disabilities
Soldier must be advised of right to request an independent medical review by an “impartial physician” or “other appropriate health care professional” who was not involved in the MEB
MEB must meet minimum criteria outlined in VA General Medical Exam and applicable Compensation and Pension Automated Medical Information Exchange (AMIE) worksheets
Soldier must be afforded NLT 7 calendar days to following the independent medical review to consult counsel and prepare a rebuttal
MTF has 7 days to consider Soldier’s rebuttal and return fully documented decision to Soldier
MEB should not be forwarded to PEB until rebuttal is finalized and MEB results indicate Soldier may be unfit for duty. Fully documented rebuttal, if any, must be included with MEB info sent to PEB.

39. Critical Legal Requirements in the Process - PEB Stage
Soldier has 10 days to review IPEB and make election
Soldier has right to personal appearance at Formal PEB
Soldier must be provided with NLT 10 days advance notice of Formal board
Soldier shall be afforded sufficient time to arrive (more than one day) in advance of scheduled hearing to confer with government legal counsel
Soldier may request to delay scheduled hearing. PEB President will respond to requests in writing and, when request is denied, will include grounds for denial.
Soldier has 10 days to appeal decision of Formal PEB

40. Critical Legal Requirements in the Process – PEBLO
PEBLO “should” manage no more than 20 cases simultaneously
Under 14 Oct 2008 DTM, PEBLO Responsibilities include:
Explain process of DES & VA Claims to Soldier and/or family member or representative
Explain statutory, DoD requirements, and respective Military Department policies, to include process steps on dispute resolution
Explain methodologies for decisions and ramifications of findings
Explain and assist in processing requests for formal boards and appeals and assist in referring Soldier to legal counsel, as appropriate
Explain calculation of payment for severance & retirement pay or refer to DFAS
Refer Soldier to MSC to explain VA benefits and VA-specific appeal process

41. Critical Legal Requirements in the Process - PEBLO
PEBLO Responsibilities (continued):
Refer Soldier to SSA for appropriate benefits
Counsel Soldier on potential transition insurance and survivor benefits and transition benefits or refer Soldier to appropriate support agencies
Construct DES case file and ensure MSC is aware of new case; provide MSC with hard copy or electronic copy of file
Obtain LOD when required by notifying Soldier’s chain of command
Ensure Soldier is scheduled for all medical exams required for DES case through “best source”
Monitor completion of scheduled exams and resolve scheduling issues to ensure completeness of DES case file
Maintain program effectiveness data required by DoD issuances
Act as conduit for info and DES decisions to Soldier’s parent command and to the VA
Provide Soldier or designated representative with MEB results, NARSUM, IPEB findings, & LOD upon election of Formal board and ensure medical records are available for review

42. Critical Legal Requirements in the Process – Legal Counsel
Army legal counsel will be available to Soldiers from initiation of MEB until final appeal and discharge
Army legal counsel will be trained and certified by the Office of The Judge Advocate General IAW DoD and HQDA policies
Army legal counsel will be available to consult in person or by telephone
Waiver of right to counsel must be in writing
Soldier may elect private attorney or Veteran’s organization representation, but non-government representative shall be at no expense to government
If Soldier elects non-government representative, Army legal counsel will remain available for coordination, advice and consultation, but will not participate in a representative capacity
Soldier will consent for Army legal counsel to have access to all pertinent medical records and any additional documentation requested by counsel
Army legal counsel shall explain disability process to the Soldier and counsel’s general duties during process

43. Governing Law, Regs & Policies
Title 10 U.S.C., Chapter 61 (Retirement or Separation for Physical Disability) (Secs. 1201–1222)
Department of Defense Directive (Separation or Retirement for Physical Disability, 11/4/96)
DOD Instruction (Separation or Retirement for Physical Disability, 11/4/96)
DOD Instruction (Application of the Veterans Administration Schedule for Rating Disabilities, 11/14/96) - RESCINDED
DTM (Directive Type Memoranda)
3 May 2007.  Policy Guidance for the Disability Evaluation System and Establishment of Recurring Directive-Type Memoranda
21 Nov 2007.  Disability Evaluation System (DES) Pilot Program   
19 Dec 2007.  Standards for Determining Unfitness Due to Medical Impairment (Deployability)
13 Mar 2008.  Implementing Disability-Related Provisions of the National Defense Authorization Act of 2008 (Pub L )
14 Oct 2008, Policy on Implementing Disability-Related Provisions of the National Defense Authorization Act of 2008 (Pub L )

44. Governing Law, Regs & Policies
Army Regulation (Standards of Medical Fitness, 9/10/08)
Army Regulation (Patient Administration, 2/8/08)
Army Regulation (Physical Evaluation for Retention, Retirement, or Separation, 2/8/06)
Army Regulation (Physical Performance Evaluation System, 2/28/08)
Veterans Administration Schedule for Rating Disabilities (VASRD), 38 CFR Part 4

45. Offices of Soldiers’ Counsel
Walter Reed Army Medical Center (Big 3 OSC co-located w/PEB) (202)
Landstuhl Regional Medical Center 1
DSN Comm:
Bavaria, Germany Warrior Transition Unit 1
DSN: Comm: +49 (0)
Fort Lewis (Big 3 OSC co-located w/PEB) (253) /4442
Tripler Army Medical Center 1
(719)
Fort Carson 1
Fort Sam Houston (Big 3 OSC co-located w/PEB) (210) or (210)
Fort Hood 1
(254)
Note 1: These Satellite OSCs only represent Soldiers in the WTUs on their respective installations.