Controversy over 'Condition Not a Disability' discharges
November 28, 2013
by Tom Philpott
Navy Department medical personnel are misusing an administrative separation authority called "Condition Not A Disability" on many sailors and Marines whose medical conditions should be screened through the disability evaluation system, an advocate for wounded warriors is charging.
"The use of administrative discharges for conditions that require DES [disability evaluation system] processing simply has to stop," retired Army Lt. Col. Michael A. Parker told the Department of Defense’s Recovering Warrior Task Force last month at its latest public hearing.
Navy physicians too often fail to submit medical issues for disability evaluation, as regulations require, Parker said. Instead they allow members to be discharged for Condition Not A Disability, a faster and less costly administrative discharge than would occur with referral to a medical board.
The consequence for sailors and Marines is discharge without a disability rating and compensation, or without a lifetime disability retirement that they might deserve, Parker contends.
In an interview, Vice Adm. Matthew Nathan, Navy surgeon general and current co-chair of the task force, conceded there has been "inconsistency among some [health care] providers in what they consider to be separating issues versus a disability issue." But he added, "In my experience there hasn’t been a pre-conceived design to use this to separate folks."
Defense Department Instruction 1332.38 lists conditions for which Condition Not a Disability should be used to separate members. They include urinary incontinence, sleepwalking, severe nightmares, dyslexia or other learning disorders, attention deficit hyperactivity disorder, stuttering, incapacitating fear of flying, or airsickness, motion or travel sickness.
Navy physicians have used it far more widely, Parker claims. Separation data from the services appear to support his argument. From fiscal 2010 through 2013, an average of almost 1300 sailors and 1540 Marines per year were separated for Condition Not a Disability. Over the same period, Air Force used this authority an average of 22 times a year.
Army data are kept in way that doesn’t allow comparison. It tracks total separations for conditions not disabling including personality disorder, which other service branches track separately. [A 2010 congressional investigation found Army had abused use of personality disorder, viewed as a pre-service condition, to separate soldiers with post-traumatic stress, which should result in a service-connected disability and sometimes retirement.]
But Parker said he knew of only one soldier, and no airmen, separated under Condition Not a Disability for a medical condition not listed in the CDN regulation, suggesting its misuse is largely a Navy Department problem.
Former Navy Hospital Corpsman Todd Bruder says he fell victim to it. A year ago, while assigned to Camp Pendleton, Calif., for field medical training, Bruder broke his right foot during command physical training, a simple misstep in a flag football game. Bruder said he felt "pops" in his foot.
The next morning it was swollen and bruised, and x-rays showed fractures in the joint of his big toe and in the sesamoid bone behind it.
The orthopedic clinic at Pendleton advised Bruder to stay off the foot and it would heal. It didn’t. Though he stopped using a protective boot after several weeks, walking remained painful. By April he was referred to a Navy podiatrist who also advised that the breaks would take time to heal.
By mid-summer, Bruder needed steroid injections to relieve the pain. Yet a podiatrist wrote in Bruder’s medical file that his fractures had healed. A bone scan showed the sesamoid, in fact, had not mended.
In August, doctors rejected Bruder’s request for a medical evaluation board, deemed him unfit for continued service by Condition Not a Disability and he was discharged, ending his six-year Navy career at age 29.
Back home in Austin, Texas, a primary care physician referred Bruder to an orthopedic surgeon who confirmed one break had not healed, asked why the Navy had not operated and now recommended surgery to remove the sesamoid bone. Bruder, married with a child, has put off surgery, at first to be able to find a job and now, having one, to be able to keep it.
Meanwhile, Bruder said, he limps, walking only on the outside of his right foot to lessen the pain, and takes pain medication daily
Parker points to other cases too and says he worries that if the Navy Department doesn’t take corrective action to halt this practice, abuse of Condition Not a Disability could expand, particularly with the Marine Corps drawing down by more than 20,000 troops over the next several years.
Navy physicians do face a "conundrum," said Surgeon General Nathan, when patients have conditions that prevent return to full duty and yet doctors can’t find an effective treatment or even confirm a condition.
"I think there have been inconsistencies," Nathan said. "Sometimes we have young providers, especially early on in a conflict, who are new to the system and don’t understand all the nuances. We work very hard to look for areas where we may see discrepancies, and to educate providers and have commands understand."
Still, Nathan added, when members face discharge for Condition Not a Disability, they should be able to "go to their chain of command and to their service, and say, ‘Can somebody look at this and tell me if I could have a second review?’ "
Nathan suggested that after more than a decade of war, the medical system and its personnel have a lot of experience and knowledge on disabling conditions and on out-processing individuals found unfit.
"Does that mean there’s not an errant individual out there who, by innocence, doesn’t understand the differences between separation and the IDES [individual disability evaluation system]? It’s possible," Nathan said. But the "chance of these things falling through the cracks is much less."
He adamantly disagrees with suggestions "that anybody does it intentionally as a way to separate somebody and save the taxpayers money."
Any improper use of Condition Not a Disability he has reviewed, Nathan said, shows only that "individuals didn’t understand the system,"
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