10 U.S.C. § 1216a — Determinations of disability: require-

Page 1272 TITLE 10—ARMED FORCES § 1216a Executive Documents EX. ORD. NO. 10122. REGULATIONS GOVERNING DISABILITY PAY, HOSPITALIZATION AND REEXAMINATION Ex. Ord. No. 10122, Apr. 14, 1950, 15 F.R. 2173, as amended by Ex. Ord. 10400, Sept. 27, 1952, 17 F.R. 8648; 1953 Reorg. Plan No. 1, §§ 5, 8, eff. Apr. 11, 1953, 18 F.R. 2053, 67 Stat. 631; Ex. Ord. No. 11733, July 30, 1973, 38 F.R. 20431 provided: By virtue of and pursuant to the authority vested in me by section 414(b) of the Career Compensation Act of 1949, approved October 12, 1949 (Public Law 351, 81st Congress [former section 284(b) of Title 37, now covered by subsecs. (b) and (c) of this section], and as President of the United States and Commander in Chief of the armed forces of the United States, I hereby prescribe the following regulations governing payment of dis- ability retirement pay, hospitalization, and re-exam- ination of members and former members of the uni- formed services: SECTION 1. The terms ‘‘uniformed services’’ and ‘‘Sec- retary’’ as used in these regulations shall have the meaning prescribed therefor by subsections (a) and (f), respectively, of section 102 of the Career Compensation Act of 1949 [section 101(3) and (5) of Title 37, Pay and Allowances of the Uniformed Services]. SEC. 2. (a) Effective as of October 1, 1949, all duties, powers, and functions incident to the payment of dis- ability retirement pay of members or former members of the uniformed services retired for physical disability or receiving disability retirement pay shall, except as provided in subsection (b) of this section, be vested in the Secretary concerned. (b) Effective July 1, 1950, all duties, powers, and func- tions exercised by the Veterans’ Administration pursu- ant to Executive Order No. 8099 of April 28, 1939, as amended by Executive Order No. 8461 of June 28, 1940, relative to the administration of the retirement-pay provisions of section 1 of the act of August 30, 1935, as amended by section 5 of the act of April 3, 1939, 53 Stat. 557 [former section 369a of this title], and amendments thereof, shall, as to cases within their respective juris- dictions, be vested in the Secretary of the Army and the Secretary of the Air Force, and thereafter the Vet- erans’ Administration shall not be charged in any case with any further responsibility in the administration of the said retirement-pay provisions. The said Executive Order No. 8099 as amended by the said Executive Order No. 8461 is hereby amended accordingly. SEC. 3. All duties, powers, and functions incident to the hospitalization, except as provided in section 5 of this order, and re-examination of members of the uni- formed services placed on the temporary disability re- tired list under the provisions of the Career Compensa- tion Act of 1949 shall be vested in the Secretary con- cerned. SEC. 4. Effective May 1, 1950, all duties, powers, and functions incident to the hospitalization of members or former members of the uniformed services permanently retired for physical disability or receiving disability re- tirement pay shall, except as provided in section 5 of this order, be vested in the Secretary concerned: Pro- vided, that all the duties, powers, and functions inci- dent to hospitalization which such members or former members are entitled to and elect to receive in facili- ties of the Veterans’ Administration, other than hos- pitals under the jurisdiction of the uniformed services, shall be vested in the Administrator of Veterans’ Af- fairs. SEC. 5. All duties, powers, and functions incident to the hospitalization of members or former members of the uniformed services placed on the temporary dis- ability retired list or permanently retired for physical disability or receiving disability retirement pay who require hospitalization for chronic diseases shall be vested in the Administrator of Veterans’ Affairs: Pro- vided, that all the duties, powers, and functions inci- dent to hospitalization for such members or former members who elect to receive hospitalization in uni- formed services facilities shall, subject to the avail- ability of space and facilities and the capabilities of the medical and dental staff, be vested in the Secretary concerned: And provided further, that for the purpose of this order, the term ‘‘chronic disease’’ shall be con- strued to include arthritis, malignancy, psychiatric or neuropsychiatric disorder, neurological disabilities, po- liomyelitis with disability residuals and degenerative diseases of the nervous system, severe injuries to the nervous system including quadriplegics, hemiplegics, and paraplegics, tuberculosis, blindness and deafness requiring definitive rehabilitation, major amputees, and such other diseases as may be so defined jointly by the Secretary of Defense, the Administrator of Vet- erans’ Affairs, and the Federal Security Administrator and so described in appropriate regulations of the re- spective departments and agencies concerned. Execu- tive Order No. 9703 of March 12, 1946, prescribing regula- tions relating to the medical care of certain personnel of the Coast Guard, National Oceanic and Atmospheric Administration (formerly Coast and Geodetic Survey), Public Health Service, and the former Lighthouse Serv- ice, is hereby amended to the extent necessary to con- form to the provisions of this section. SEC. 6. Except as provided in section 5 hereof with re- spect to hospitalization for chronic diseases, nothing in this order shall be construed to affect the duties, pow- ers, and functions of the Public Health Service with re- spect to hospitalization and medical examination of members and former members of the Coast Guard and the National Oceanic and Atmospheric Administration (formerly Coast and Geodetic Survey) under the Public Health Service Act, approved July 1, 1944 (58 Stat. 682), as amended [section 201 et seq. of Title 42, The Public Health and Welfare], and the regulations prescribed by the said Executive Order No. 9703 of March 12, 1946. SEC. 7. Nothing in this order shall be construed to af- fect the duties, powers, and functions vested in the Ad- ministrator of Veterans’ Affairs pursuant to the provi- sions of the act of May 24, 1928, entitled ‘‘An Act mak- ing eligible for retirement, under certain conditions, officers and former officers of the Army, Navy, and Ma- rine Corps of the United States, other than officers of the Regular Army, Navy, or Marine Corps, who in- curred physical disability in line of duty while in the service of the United States during the World War’’ (45 Stat. 735, as amended) [section 581 of former Title 38], or by or pursuant to the act of September 26, 1941, enti- tled ‘‘An Act to provide retirement pay and hospital benefits to certain Reserve officers, Army of the United States, disabled while on active duty’’ (55 Stat. 733) [former section 456a of this title]. § 1216a. Determinations of disability: require- ments and limitations on determinations (a) UTILIZATION OF VA SCHEDULE FOR RATING DISABILITIES IN DETERMINATIONS OF DIS- ABILITY.—(1) In making a determination of dis- ability of a member of the armed forces for pur- poses of this chapter, the Secretary concerned— (A) shall, to the extent feasible, utilize the schedule for rating disabilities in use by the Department of Veterans Affairs, including any applicable interpretation of the schedule by the United States Court of Appeals for Vet- erans Claims; and (B) except as provided in paragraph (2), may not deviate from the schedule or any such in- terpretation of the schedule. (2) In making a determination described in paragraph (1), the Secretary concerned may uti- lize in lieu of the schedule described in that paragraph such criteria as the Secretary of De- fense and the Secretary of Veterans Affairs may jointly prescribe for purposes of this subsection if the utilization of such criteria will result in a determination of a greater percentage of dis- Page 1273 TITLE 10—ARMED FORCES § 1218 ability than would be otherwise determined through the utilization of the schedule. (b) CONSIDERATION OF ALL MEDICAL CONDI- TIONS.—In making a determination of the rating of disability of a member of the armed forces for purposes of this chapter, the Secretary con- cerned shall take into account all medical con- ditions, whether individually or collectively, that render the member unfit to perform the du- ties of the member’s office, grade, rank, or rat- ing. (Added Pub. L. 110–181, div. A, title XVI, § 1642(a), Jan. 28, 2008, 122 Stat. 465.) § 1217. Academy cadets and midshipmen: applica- bility of chapter (a) This chapter applies to cadets at the United States Military Academy, the United States Air Force Academy, and the United States Coast Guard Academy and midshipmen of the United States Naval Academy, but only with respect to physical disabilities incurred after October 28, 2004. (b) Monthly cadet pay and monthly mid- shipman pay under section 203(c) of title 37 shall be considered to be basic pay for purposes of this chapter and the computation of retired pay and severance and separation pay to which entitle- ment is established under this chapter. (Aug. 10, 1956, ch. 1041, 70A Stat. 100; Pub. L. 85–861, § 33(a)(7), Sept. 2, 1958, 72 Stat. 1564; Pub. L. 108–375, div. A, title V, § 555(b)(1), Oct. 28, 2004, 118 Stat. 1914; Pub. L. 109–364, div. A, title X, § 1071(a)(6), Oct. 17, 2006, 120 Stat. 2398.) HISTORICAL AND REVISION NOTES 1956 ACT Revised section Source (U.S. Code) Source (Statutes at Large) 1217 ......... [No source]. [No source]. The revised section is inserted to reflect the limited definition of the word ‘‘member’’ in section 102(b) of the Career Compensation Act of 1949 (37 U.S.C. 231(b)). 1958 ACT Aviation cadets were omitted from chapter 61 because Title IV of the Career Compensation Act of 1949 (for- merly 37 U.S.C. 271 et seq.), which was the source law for this chapter, covered only members entitled to basic pay and it was believed that aviation cadets were not so entitled. However, the Comptroller General has ruled that aviation cadets are entitled to basic pay (30 Comp. Gen. 431). Accordingly, aviation cadets were cov- ered by Title IV and should not be excepted from chap- ter 61. Editorial Notes AMENDMENTS 2006—Subsec. (a). Pub. L. 109–364 substituted ‘‘October 28, 2004’’ for ‘‘the date of the enactment of the Ronald W. Reagan National Defense Authorization Act for Fis- cal Year 2005’’. 2004—Pub. L. 108–375 amended section catchline and text generally. Prior to amendment, text read as fol- lows: ‘‘This chapter does not apply to cadets at the United States Military Academy, the United States Air Force Academy, or the Coast Guard Academy, or to midshipmen of the Navy.’’ 1958—Pub. L. 85–861 struck out provisions which made chapter inapplicable to aviation cadets. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85–861 effective Aug. 10, 1956, see section 33(g) of Pub. L. 85–861, set out as a note under section 101 of this title. § 1218. Discharge or release from active duty: claims for compensation, pension, or hos- pitalization (a) A member of an armed force may not be discharged or released from active duty because of physical disability until he— (1) has made a claim for compensation, pen- sion, or hospitalization, to be filed with the Department of Veterans Affairs, or has refused to make such a claim; or (2) has signed a statement that his right to make such a claim has been explained to him, or has refused to sign such a statement. (b) A right that a member may assert after failing or refusing to sign a claim, as provided in subsection (a), is not affected by that failure or refusal. (c) This section does not prevent the imme- diate transfer of a member to a facility of the Department of Veterans Affairs for necessary hospital care. (d)(1) The Secretary of a military department shall ensure that each member of a reserve com- ponent under the jurisdiction of the Secretary who is determined, after a mobilization and de- ployment to an area in which imminent danger pay is authorized under section 310 or 351 of title 37, to require evaluation for a physical or men- tal disability which could result in separation or retirement for disability under this chapter or placement on the temporary disability retired list or inactive status list under this chapter is retained on active duty during the disability evaluation process until such time as such mem- ber is— (A) cleared by appropriate authorities for continuation on active duty; or (B) separated, retired, or placed on the tem- porary disability retired list or inactive status list. (2)(A) A member described in paragraph (1) may request termination of active duty under such paragraph at any time during the demobili- zation or disability evaluation process of such member. (B) Upon a request under subparagraph (A), a member described in paragraph (1) shall only be released from active duty after the member re- ceives counseling about the consequences of ter- mination of active duty. (C) Each release from active duty under sub- paragraph (B) shall be thoroughly documented. (3) The requirements in paragraph (1) shall ex- pire on October 28, 2014. (Added Pub. L. 85–56, title XXII, § 2201(31)(A), June 17, 1957, 71 Stat. 160; amended Pub. L. 87–651, title I, § 107(c), Sept. 7, 1962, 76 Stat. 508; Pub. L. 101–189, div. A, title XVI, § 1621(a)(1), (4), Nov. 29, 1989, 103 Stat. 1602, 1603; Pub. L. 111–84, div. A, title V, § 511, Oct. 28, 2009, 123 Stat. 2280; Pub. L. 113–291, div. A, title X, § 1071(e)(1), Dec. 19, 2014, 128 Stat. 3509; Pub. L. 114–328, div. A, title VI, § 618(c), Dec. 23, 2016, 130 Stat. 2160.)