Military and VA Disability Ratings
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Military and VA Disability Ratings Appeals
When a servicemember is injured in the line of duty not due to their own misconduct, or is diagnosed with a medical condition or disease not pre-existing at the time of entry into the military, then they may be entitled to disability pay through the military and/or the VA.
Military Disability Rating v. VA Disability Rating
Both the military and VA disability systems use the VA schedule for rating disabilities. The VA schedule is set out in 38 Code of Federal Regulations. The military medical disability system is intended to compensate a servicemember who is no longer “fit for full duty” and, therefore, the individual must either be medically separated or medically retired from the military. “Fitness for full duty” essentially means the servicemember’s medical condition or injury significantly prevents them from performing their duties and/or prevents them from being deployed. Therefore, the military disability system only rates those medical conditions or diseases that significantly interfere with a servicemember’s fitness for full duty. Additionally, once a servicemember’s medical condition or disease is considered “permanent” the disability rating from the military disability system is set for life and cannot be changed.
On the other hand, the VA disability system rates all service incurred medical conditions and injuries regardless if they make a servicemember fit for full duty or not. Additionally, under the VA disability system, if a servicemember’s medical condition or injury changes in the future, the disability rating can be reassessed. Therefore, unlike the military disability system, under the VA disability system if a servicemember’s medical condition worsens over time, the servicemember may receive a higher disability rating.
Military Disability Ratings
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Military medical retirements and separations are governed by DoD Directive 1332.18, Separation or Retirement for Physical Disability, military physical disability evaluations are governed by DoD Instruction 1332.38, and the application of VA disability ratings is governed by DoD Instruction 1332.39.
When a military member is diagnosed with a medical condition or disease that may prevent them from performing their duties, they are generally put on “light-duty” so that they can recuperate. If upon further evaluation, it appears that the medical condition or disease is not going to resolve, the servicemember may be referred to a Medical Evaluation Board (MEB). The MEB is comprised of military physicians who review the servicemember’ s medical files and decide whether the servicemember should be returned to full duty, or should be medically separated from the military.
If it is recommended the servicemember be medically separated, then the servicemember’s case will be referred to the Physical Evaluation Board (PEB). The PEB will review the servicemember’s medical records and make an initial recommendation on retention, separation or retirement, and if separated what the servicemember’s disability rating should be.
The servicemember will have an opportunity to review the PEB recommendation and can either accept the findings, or appeal the findings and request a hearing and be represented by legal counsel.
At a PEB hearing the servicemember will be able to provide evidence supporting their fitness for full duty, or their disability rating percentage. The potential relevant issues a servicemember must be prepared to address at the PEB hearing are as follows:
Fitness for Full Duty:
Can the servicemember reasonably perform the duties of their grade and military job? If not, the PEB may recommend medical re-training into a job the servicemember will be medically qualified to perform.
Disability Rating Percentage:
If found fit for full duty and the medical condition is stable and permanent, what is the applicable disability rating percentage that is consistent with the requirements of 38 CFR? Disability rating percentages can be 0% – 100%.
Separation without Benefits:
If the medical condition or disease existed before entry into the military and was not aggravated by military service, and the servicemember has less than 8 years in the service, then the military member maybe separated without any disability benefits. What evidence is required to show a medical condition or disease was not pre- existing or was aggravated by military service? If the servicemember has more than 8 years of active duty service, then they may be medically retired or medically separated with severance pay even if the condition pre-existed military service.
Separation with Severance Pay:
Separation with disability severance pay occurs if the PEB makes a not fit for full duty determination, the servicemember has less than 20 year of service, and has a disability rating of less than 30%. Disability severance pay equals 2 months basic pay for each year of service up to 12 years. The servicemember can also apply for monthly disability compensation from the VA. The VA would have to determine the disability is “service-connected.”
Permanent Disability Retirement:
Permanent disability retirement occurs if the servicemember is found unfit, the disability is determined permanent and stable and rated at a minimum of 30%, or the member has 20 years of military service.
Temporary Disability Retirement:
Temporary disability retirement occurs in those cases where the servicemember has been found unfit, but the medical condition or disease is not yet stable for a permanent disability rating. In these cases, the servicemember’s medical condition will be reevaluated every 18 months over the course of a five year period. If at any time during this five year period the PEB determines the servicemember’s condition has stabilized, then the PEB will determine the final disability rating.
Retirement Pay Computation:
For permanent retirement or placement on the TDRL, compensation is based on the higher of two computations: Disability rating times retired base pay base; or 2.5 x years of service x retired pay base. Servicemembers on the TDRL receive no less than 50% of their retired base pay.
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