Cole Law Group Blog
Attorney Paul Tennison Active Duty
The Physical Disability Review Board was created by federal law with the passage of the Dignified Treatment of Wounded Warriors Act in 2008. The DTWWA made several significant changes to the care of wounded veterans. First, the law required the military branches to use the same disability determination rating scale as that used by the VA. Second, the law expanded the care available to injured service members after their military service. This included changes in treatment in military and civilian facilities for a variety of conditions, including Traumatic Brain Injury (TBI) and Post-Traumatic Stress Disorder (PTSD). Third, the new law required comprehensive plans to address TBI and PTSD. Fourth, the law directed the Secretary of the Department of Defense (DoD) to establish physical disability review boards to review disability determinations meeting certain criteria and timeline requirements. The law also addressed the quality of housing provided to patients by requiring improved standards.1
After the law passed, the DoD issued instruction 6040.44 which “establish[ed] policies, assign[ed] responsibilities, and provide[d] procedures for PDBR operation and management as required by section 1554a of Title 10, United States Code.”2 The PDBR’s mandate is to: “reassess the accuracy and fairness of the combined disability ratings assigned former service members” who meet certain criteria.3 Those criteria are summarized here:
- Service member was separated with an original combined disability rating of 20% or less.
- Service member separated between September 11, 2001, and December 31, 2009, due to unfitness for continued military service.
- Service member was not originally found eligible for retirement. This includes Reserve component service members.4
The PDBR will review the disability determination to determine if the veteran should have been awarded a higher combined disability rating. The PDBR will look at evidence such as medical records from the veteran’s military record, medical records from civilian life before joining the military, a statement of the veteran, letters from the veteran’s military colleagues or family members discussing the veteran’s injury or illness, and a recent health screening of the veteran.
DoD Instruction 6040.44 contains several definitions which are useful for veterans considering applying to the PDBR.5 The section defines: “combined disability ratings; consistency reviews; construed cases; DES; PEB; physical disability; QAP; and VASRD.”
The benefits for a successful PDBR application can be substantial for qualified veterans. This includes:
- Monthly disability retirement pay, retroactive to the date of the veteran’s discharge. The retroactive payment should be in a calculated lump sum. Then monthly pay will go forward. Please note that by law, veterans may not receive both VA disability pay and military medical retirement pay. There is a $1 for $1 trade amount by which the retirement pay is not actually collected by the veteran, but the VA disability pay is. This is still a good deal for the veteran in that VA disability pay is tax free while military retirement pay is taxable.
- The veteran and her/his family will be eligible for DoD Tricare healthcare coverage, retroactive included. This also gives healthcare coverage to eligible dependents.
- The veteran may choose to purchase the survivor benefits plan. This would require the veteran to pay retroactive amount to make coverage current.
- The veteran would also have all the rights and privileges of a retired veteran, including space available travel, exchanges, commissaries, and whatever is recognized by states and private companies.
Hypothetical case A: John Doe separated from the Army in 2010 with a 20% disability rating. John was not originally eligible for military retirement. Can John apply to the PDBR? No. John may not apply because his discharge date of 2010 is after the limited timeframe of the PDBR. Note, John may be able to secure relief through other avenues such as an application to the VA for disability or a different Army review board.
Hypothetical case B: Jane Smith separated from the Navy in 2008 with a 40% disability rating. Jane was given a military medical retirement, yet she thinks it was not a high enough rating. Can Jane apply to the PDBR? No, Jane cannot apply because she was already given a military retirement. In order to dispute the rating given, Jane would have to apply to a different Navy review board. Jane also might want to apply to the VA for disability if she has not already done so. Also, even if Jane already receives VA disability, she may want to apply for other conditions if her disabilities have become worse.
Hypothetical case C: Steve Sergeant separated from the Marine Corps in 2005 with a 10% disability rating. Steve was not given a medical retirement. Can Steve apply to the PDBR? Yes, if Steve has not previously applied. The DoD interpretation of the DTWWA determined that each eligible veteran may apply to the PDBR only once. After that application, the Veteran may be able to apply to other service review boards or appeal the case to certain courts. The PDBR is required to provide a final determination letter at the end of the PDBR process that explains what recourse a dissatisfied veteran may have.
According to the PDBR fact sheet, there are an estimated 77,000 veterans that fit the PDBR eligibility criteria.6
If you think you may be an eligible veteran, I encourage you to contact me at 615-490-6020 or submit a question through our website to determine how you can get the benefits that you deserve.
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1 https://www.congress.gov/bill/110th-congress/senate-bill/1606
2 https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/604044p.pdf
3 Id.
4 Id.
5 Id.
6 https://health.mil/Military-Health-Topics/Conditions-and-Treatments/Physical-Disability/Disability-Evaluation/Physical-Disability-Board-of-Review