Intro
Anyone who hasn’t had the pleasure of going through the Integrated Disability Evaluation System (IDES) probably wouldn’t believe that it’s possible for a Service member to receive a 100% VA disability rating while the DoD rates that same person 0% disabled. Even on a theoretical basis, this duality is hard to comprehend. In fact, we frequently get phone calls from Service members and personnel from their Commands asking whether these types of Physical Evaluation Board (PEB) findings are correct. Many calls like this begin with a comment to the effect: This must be a typo, right?
How Does Someone Receive a 100% VA Disability Rating?
The obvious answer: The Service member is severely disabled. Of course, we all know these types of answers help no one. VA disability ratings at every level are difficult to understand. The real answer involves, what some people consider, complicated math. VA math is actually very simple. By “simple” we mean it involves nothing more than addition, subtraction, and multiplication. Funny enough, these are the same mathematical principles used by world renowned economists and equities traders. The difference is you don’t have to scale your math to serve an entire industry.
Simply put, VA math starts with taking a 100% healthy body, then multiplying that healthy body by the member’s highest VA disability rating. In the example below: 100 * 70% = 70; 100 – 70 = 30. The, next calculation starts with 30, because that’s the remaining health of the Service member. Repeat those steps for every VA disability rating. Think of it this way: Health * Discrete Disability Rating = Additive Disability Rating. For example: A Service member assigned 70%, 50%, and 30% disability ratings would calculate his or her overall disability rating thusly:
Of note, the VA and the DoD round disability rating to the nearest 10%.
This process is exceedingly simple when all the conditions are separate and distinct from one another. That said, this calculation can get more complex when Service members have conditions that call for applying what the VA calls the Bilateral Factor. We will not go down that rabbit hole here, as it is outside the scope of this post. Suffice it to say, the Bilateral Factor will add small percentages to the assigned disability percentage calculation because two or more conditions affect both sides of the body; hence, the use of “bilateral” in the description.
The above example shows the difference between, what we at Joel Pettit Law like to call, “additive ratings” and “discrete ratings.” A discrete rating is a VA disability rating with no VA math applied thereto. An additive rating is what the example 30%, discrete rating, becomes after it has undergone VA math (15% * 30% = 4.5%). This means the following: If a Service member has only one VA rated disability, their discrete rating with be the same as their additive rating. Why? Because there’s no VA math to be done. This is why VA math terrifies many people. It’s not necessarily hard, it’s just daunting because it can lead to ludicrous results, by design.
If your brain is about to overheat, don’t worry, the hard stuff is over.
So Why Does All this Matter in Terms of the DoD/PEB?
The common misconception about VA disability ratings is that they somehow correlate to DoD disability ratings and fitness determinations. Why is this? Because Service members are undergoing the VA disability ratings process at the same time as the Physical Evaluation Board (PEB) process, it is natural for humans to think one has to do with the other in some substantive way. Wrong. The National Defense Authorization Act for Fiscal Year 2008, Congress created the current system because is sought to “eliminate unacceptable discrepancies and improve consistency among disability ratings” between the VA and the military departments. The efficiencies gained by this seemingly unholy union will not be discussed here.
Notwithstanding, the two systems are linked by Congressional design. The VA rates Service members’ conditions and the PEB decides whether members can reasonably perform the duties of their office, grade, rank, or rating. DoDI 1332.18 outlines this structure in painstaking detail. That said, that same instruction explains the DoD doesn’t recieve a Service member’s VA ratings until after the PEB has found them unfit. Effectively, therefore, the PEB’s primary job is to determine whether the Service member can do his or her job. Of course, the PEB rules on Combat Relatedness issues (CRSC) and Line of Duty (LOD) matters, among others; in practice, the PEB views all other matters as secondary to deciding whether members are fit for duty.
The PEB considers, as stated above, whether Service members can reasonably perform the duties of his or her office, grade, rank, or rating. DoDM 1332.18 gives the PEB has exceedingly broad powers and, accordingly, mandates that it consider all relevant evidence. Sadly, the PEB is required to consider VA disability ratings only during TDRL when the DoD has failed to conduct a proper TDRL reexamination. Accordingly, during cases involving Service members placed on the TDRL, the PEB is still largely (but not wholly) exempt from considering VA disability ratings, despite Service members having finalized VA ratings issued after they initially left Service. This excludes the rare Legacy Disability Evaluation System (LDES) cases.
Therefore, despite what you may think about the logic or prudence used to construct the Integrated Disability Evaluation System (IDES), it is clear that VA disability ratings can have little correlation to DoD disability ratings. Why is this? The answer is deceptively simple: Every Service member, every case, and every physician is different. Having advised well over 1000 Service members at every stage of the IDES, it is abundantly clear that the way one person deals with an injury, illness, or wound is totally different than how someone else may deal with that same issue. Unlike the VA, every PEB adjudicator has huge amounts of professional performance data at his or her fingertips.
Additionally, the PEB works with Military Treatment Facility (MTF) PEB-Liasson Officers (PEBLOs) to gather non-medical evidence that can shed light on the functional loss the Service member suffers. Conversely, the VA only reviews the Service member’s medical records. Still, debating which agency has a better understanding of the Service member’s medical issues and resulting functional loss would be the acme of foolishness, as any conclusion would be purely speculative. Luckily, our focus here is to deliver actionable knowledge. The takeaway, therefore, is to appreciate the duality of the IDES and not to anchor yourself to the higher VA disability rating. Arguing the disparity between 100% and 0% is always a losing argument.
What’s Your Move?
Here’s the tricky part: There is no one-size-fits-all answer. This will sound like a typical lawyer’s answer, but it depends. We’ve seen many cases in which Service members were found unfit at 0% for any number of conditions. We will not address the glaringly obvious questions regarding zero functional loss while being found unfit; that will come in another post. Our objective here is, again, to deliver actionable knowledge. The good thing about a 0% finding is that any severance pay a Service member receives from the DoD, will not be recouped, according to the DFAS website. Recoupment of severance pay only occurs if the PEB finds a member unfit at 20% or 10%.
Although there are other circumstances under which severance pay would not be recouped, this post is focusing on the overwhelmingly common scenario in which the PEB find a Service member unfit, at 20% or 10%, without any further qualifying factors. That said, because recoupment is based on the DoD disability percentage assigned, a 0% finding means 0% recoupment. For example, a Service member who was separated from Service with an unfit finding at 10% and a monthly VA disability rating payment of $1000, would have $100 ($1000 * 10%) withheld from that monthly payment until the entire amount of the severance check was recouped.
This is the point in the process when many clients wonder whether they can simply reject the severance check and avoid paying it back. The answer is a resounding no. While at the Navy FPEB, we regularly asked this during DFAS training. Sadly, their answer was always the same: The payment is generated automatically when a Service member’s case is finalized to be separated with severance pay. This automation is reversed, so to speak, when recoupment commences. Essentially, a DoD severance check is a zero-percent loan to yourself. There are many productive ways to employ these funds; conversely, there are even more ways to fritter them away. A qualified financial advisor should be consulted on this topic.
Let’s Wrap Up
In sum, there are significant distinctions to be made. Firstly, during the Informal PEB (IPEB) stage, there is no way for the PEB members to consider a Service member’s VA disability rating, as there is no rating to consider. The VA does not release individual disability ratings to the PEB until after a Service member is found unfit. Secondly, although the Formal PEB (FPEB) has access to a Service member’s VA disability ratings, it is not required to consider any VA disability ratings. Moreover, any evidence addressing whether the Service member can reasonably complete the duties of their office, grade, rank, or rating must speak to functional loss, not medical diagnoses or disability ratings.
This doesn’t mean the FPEB is made of stone and does not review the VA disability ratings in each case. What it does mean is that VA disability ratings are, at best, tangentially persuasive – VA disability ratings may serve as jumping off points. Lastly, those Service members placed on the TDRL are in the best position to have their VA disability ratings considered in any meaningful way by the PEB, with this caveat: The PEB relies primarily on medical documentation from physician visits and the TDRL reexamination. The pure numbers attached to VA disability ratings are not persuasive. The underlying documents that led the VA to rate the disabilities as it did are what will be of most value.
Simply put, if the preponderance of the evidence presented to the PEB shows that a member can reasonably perform the duties of his or her office, grade, rank, or rate, the Service member should be found fit. Although a 0% DoD disability rating paired with a 100% VA disability rating may look strange, that’s all it is, a look. Remember, the entire IDES system rests on one test, and one test alone: Can the Service member in question reasonably complete the duties of his or her office, grade, rank, or rating? To complicate the matter further is to misunderstand the logic that dictates the military retirement process.
If you find yourself facing these types of confusing, nuanced issues involving the IDES, the PEB, BCMR, or VA disability ratings, please don’t hesitate to contact Joel Pettit Law to discuss your case.
