Latest Development in PEB News: The PEB’s Days of Bundling Disabilities are Over!

Peb Bundling Disabilites
By: Joel Pettit • September 5, 2023


You don’t have to be a JAG to know the military disability process is painfully arduous and confusing. When Service members are severely injured, they are referred into the Integrated Disability Evaluation System (IDES). There, medical conditions preventing members from completing their duties are evaluated. The process ends with the Physical Evaluation Board (PEB) deciding whether members are fit to continue service. If unfit, Service members are either separated from service or retired, depending on their disability percentage – 30% or greater qualifies members for military retirement.

On July 28th, in the case of Sissel v. Wormuth, the DC Circuit Court of Appeals helped to clarify one of the most confounding statements in the DoD Instruction (DoDI 1332.18, November 10, 2022) governing the military disability process: In determining a Service member’s disability rating, the Secretary of the Military Department concerned will consider all medical conditions, whether singularly, collectively, or through combined effect, that render the Service member unfit to perform the duties of their office, grade, rank, or rating. Confusion ensues because Service members can be found unfit when combined symptoms from multiple conditions prevent members from completing their duties, even if none of the conditions would do so individually. The “. . . collectively, or through combined effect . . .” language is at the crux of Sissel v. Wormuth.

The PEB has a Long History of Bundling

Formerly, when the Military Departments adjudicated PEB cases, they placed each potential disability into one of four designations: Category I (Unfitting conditions); Category II (Conditions that contribute to the unfitting condition); Category III (Conditions that do not constitute a physical disability); and Category IV (Conditions that are not separately unfitting and do not contribute to the unfitting condition). Many cases resulted in ‘bundled conditions’ because one condition caused or exacerbated another: spinal stenosis with radiculopathy, PTSD with migraines, cervicalgia with right upper limb numbness. In these cases, the Military Departments would decide which condition was primarily causing the Service member to be unfit – that condition would be designated Category I -, then designated the other as a Category II condition.

Unfortunately, Service members received the rating for the Category I condition only. Therefore, if the PEB found a Service member unfit for spinal stenosis (Category I) at 20%, with associated lower right limb radiculopathy (Category II) at 10%, the member’s total military disability rating would be 20% for the spinal stenosis; hence, the Service member would be separated from Service.

Things Slowly Changed, but Too Slowly

The Military Departments slowly discontinued using the Category II designation in 2017, and by 2019 Category II designations were non-existent. Although there was no formal announcement of this change, it was clearly communicated when the Navy updated the Secretary of the Navy Instruction (SECNAVINST 1850.4F) governing the PEB process, leaving out the category designation system altogether. Moreover, the Secretary of the Navy Manual (SECNAV M-1850.1) is also silent on disability categories. In the end, government and private PEB attorney were relieved to see Category II discontinued because most of us conjectured the PEB was unlawfully using the Category II designation to cherry-pick disabilities with the higher ratings, thus denying disability retirements to Service members.

Although there were no substantive changes in the PEB’s daily operations or legal determinations, it made subtle additions to the language it uses to deliver Service members’ PEB findings. For instance, after adjudicating the case at the initial PEB review phase – the Informal PEB or IPEB phase – it added, “The Board considered the combined effect of all conditions when making its fitness determination and applied this to the final adjudication.” Similarly, in its rationale after the appellate phase – the Formal PEB or FPEB phase – the PEB added similar boilerplate language, “The Board considered the combined effect of all conditions and individually considered each condition to determine if the medical condition . . .  individually or collectively, prevents the Service member from reasonably performing the duties of their office, grade, rank, MOS, or rating . . . .”

New Case Law Sets PEB Straight, Finally

In Sissel, despite the court’s analysis, discussion and application of Army regulations, it relied on federal law to render its verdict; thus, making its analysis and conclusions applicable across the Military Departments.  Ultimately, the Army contended because Sissel’s leg did not “significantly” contribute to his unfitting back condition, it was right not to include it. On this point, the court noted the most natural reading of 10 U.S. Code, section 1216a(b), is as follows: when multiple conditions “collectively … render the member unfit,” the Secretary “shall take into account all” of those medical conditions. Effectively, the Military Departments cannot heighten the standard regarding whether a condition contributes to a Service member’s inability to complete their duties (like the Army did when it added “significantly” to the statutory language).

The Sissel case is a victory for every Service member who had their conditions unlawfully bundled, as it lights the way for appellate relief. Moreover, the court’s ruling should serve as a warning to every PEB – boilerplate language, no matter how well-crafted, cannot divorce facts from truth.

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