Early issues

[Jason]

Some common issues I see at the MEB level are Soldiers changing their mind about desiring to stay on active duty (item 15, DA 3947), lack of documentation of conditions, and lack of disagreement with the MEB's findings and recommendations (item 24, DA 3947). (I have attached a copy of the DA 3947 for reference).

The issue with the Soldier changing their mind is not fatal to a case, but can undercut a Soldier's contention at the PEB that they are fit. Typically, this can occur when a Soldier is injured and honestly believes that they cannot continue on active duty. However, after talking with an attorney and discovering that they may have a case for being found fit, they change their mind. This result may be the best result for a Soldier with many years of service, but a less than 30% rating at the Informal PEB. The Board may view this change in desire as simply motivated by the benefits, and not a true reflection of the Soldier's belief in their fitness. Of course, the Soldier's belief is not evidence, but it can undermine the Board's belief in the truthfulness of the Soldier's testimony. My thought is that one should figure out early what the likelihood of remaining on active duty is and then decide which block to check. Alternately, as default, indicating that the Soldier "does desire to continue on active duty" is a lower risk choice, because that desire does not negate whatever later evidence is presented to the PEB.

Lack of documentation of conditions on the DA 3947 is a huge issue if you want to try to get rated for that condition. Why? Because if the first time a medical issue is raised is at the PEB, it can indicate a lack of unfitness due to the condition. If you think about it, there is a certain amount of sense in this position. If a condition did not interfere with the Soldier's duties and he did not seek medical help for it, then it is more likely that even if the Soldier has the condition, it is not unfitting. I see this scenario occur mainly because the Soldier does not know s/he has the condition, the conditions symptoms are the same as another condition they may have, or the Soldier simply was too embarrassed to seek medical help. Sometimes, especially for Soldiers assigned to elite units, the Soldier does not seek medical treatment because they do not want to be labeled as malingerers ("sick call Rangers"), or because they feel that they will let down their fellow Soldiers by not reporting to duty. This view can make sense if the Soldier is trying to be found fit, however, it can be disastrous once it is clear the Soldier is going to be found unfit. The difference of 10% rating can mean the difference between military retirement and severance pay. My thoughts are that once a Soldier is sure they will be referred to a PEB with at least one unfitting condition it is IMPERATIVE to make sure they document their other conditions. Seek treatment. Talk to the profiling officer. Gather statements from the chain of command that they are unable to perform their duties. Make sure the PEBLO is informed of the condition. Inform the doctors on the Board (this may be done directly or through the PEBLO). This is the best way to get the condition documented by the MEB and to get the PEB to rate the disability.

The final mistake I see is Soldiers trying to get conditions rated that they did not mention in a disagreement in item 24, DA 3947. There may be many reasons (including those mentioned above) that the Soldier did not mention the condition prior to the informal PEB. The Soldier may be thinking that they want to be found fit. Whatever the reason, it is hard to argue later that the condition is unfitting if the Soldier did not mention it earlier.

The common thread in all of this is that the Soldier is trying to change their record late in the game. The best thing is for a Soldier to decide early what result they are going to try to argue for (fitness or unfitness) and then to act accordingly. This can be hard if the Soldier is unfamiliar with the rules regarding separation for physical disability. The answer? Get legal advice early.

[dally7777]

Jason

Very good points about being consistent in what your expectations are!

Dally

[brianwl]

Jason,

I agree with Dally, very good points.

I often question the validity of a person's claim when their desire is to get out. The MEB/PEB is there to give someone a "get out of jail free card".

I think the soldier's default position should always be that they want to stay in and let the MEB/PEB make the decision for them.

If the soldier wants to get out they need to show sufficient medical evidence to warrant a medical discharge or retirement.

I also do not suggest any soldier accept the first offer on a medical discharge unless it is at least 30% thereby giving them a Chapter 61 retirement.

[BradM75]

Brian, I agree with almost everything you said except for your last sentence. Even at 30%, the service member has the right to appeal to a formal PEB, which they should do in all cases except %100 rating. This is just my opinion, but the system is there for a reason.

edit: I should've said that it could be argued that you should appeal anything less than 100% up to what you and your lawyer feel is the right disability rating based on the disability schedule. Obviously you shouldn't appeal a 50% rating if you don't justifiably rate more than that.

[Mandy653]

Hello Jason,
First thank you, thank you for all the information you and the many others have posted on this forum. I feel I need to go to law school to figure out this system and every bit of information is helpful.

I will be asking more specific questions regarding our situation in other threads but this one caught my eye because it is a daily debate my boyfriend and I have regarding his journey into DES. It is in regards to going for a fit vs. unfit finding. He is currently in LIMDU and will not be going to the MEB/PEB until the fall but we want to make sure we don't get "screwed" for a lack of a better term when the time does come.

He only has less than 8 years in as a Naval officer and his conditions make him undeployable though in his current duty his conditions do not impact his performance. However, there is only one MOS that he can transfer to where it doesn't matter if he is deployable but it is competitive and he isn't really qualified. His CO continues to tell him to fight to stay in but we just don't see that he would make it to 20 years for a full military career and therefore because his condition would prevent him from getting medical insurance in the private sector we want to ensure we do all we can to have a solid MEBR for the PEB to hopefully get medically retired with benefits.

We are not greedy just worried about our future and so we are stuck on how to approach the matter of telling our doctors to write the MEBR narrative with a "we want to stay in" or "we want to get out" slant. Do you have any advice? He is devoted to his career but I am more practical and because his condition was caused by failed medical treatment, I am protective.

Again many thanks for your dedication to the soldiers going through this maze of a process.
Mandy

[Jason]

Mandy653,

Welcome! I am glad you found us and hopefully the information here will help your boyfriend through the process.

His CO continues to tell him to fight to stay in but we just don't see that he would make it to 20 years for a full military career and therefore because his condition would prevent him from getting medical insurance in the private sector we want to ensure we do all we can to have a solid MEBR for the PEB to hopefully get medically retired with benefits.

A couple of thoughts on what you wrote. It sounds like you are confident he will be found unfit if referred to PEB. If that is the case, it seems to me you would want to maximize the chances for a good rating. As I mentioned in the earlier posts, the bigger issue is if a Servicemember is inconsistent in what they say in ultimately seeking a fit finding. So, if he is confident that he is not fit, he should not have an issue with this.

It is hard to know without more facts the likelihood of his reaching 30%. But remember, the VA will provide medical coverage for his unfitting condition even if he does not get to 30%. The benefit of the 30% rating is that he will have coverage for all conditions (and so will his eligible dependents).

Please let us know any questions.

[SSBN_Trident]

For a sailor/soldier that doesn't know what they want to do anymore because they have been forced into something that they already didn't want to do in the first place, and have no idea of what’s to come in the future this decision does not come lightly.....

The whole "I often question the validity of a person's claim when their desire is to get out." is an unfair outlook towards a member that may actually just be sick of the DOD continuously being blatantly carless with its personnel.

If you say that you want to stay in I get the impression that they will down play everything and get a lower rating.

If you say that you just want to get out I get the impression that you are just looking for an excuses or a way out with benefits leading towards a lower rating.

From my experience since 2003 I have come to the realization that the government does not care for its members regardless of all the rules and regs that there are. There is always a loophole, or way around most all of it.

I know this is a negative harsh outlook but when you get treated like just a # without a care for almost 5 years what else can you have.

[Jason]

It is troubling that Servicemembers are often doubted. It is a Catch-22 that trying to document your injuries can be seen as inflating your injuries and not documenting them can be seen as proof they don't exist.

It is true that there are many rules that can be used against you. But the idea is to learn the rules that may impact your case and be prepared to address what the PEB may say. If you fight for your rights, you have a good chance of winning.

[Navcustom]

Jason,
I spoke with my Corpsman today and several other docs who say I will not be found fit because of my back. After reading this thread I know I need to get everything documented, although as you mentioned before it does feel like I'm playing sickbay commando. I know the truth though. Thank you for your encouragement to do the right thing. I have spondolythesis(sp?),DDD, 2 fractures and 3 HNP. I read somewhere that a total of 6weeks of having incapasitating episodes is 60%. It does say the definition of incapasitaing is ordered bedrest by a physican. Does that mean my Corpsman at the command(SIQ chits) or does it need to be an actual doctor at a hospital? For those swaying on the fence about fit vs. unfit, look deep inside yourself and you'll find the answer. It was a very hard pill to swallow, but I know after almost 13 years my career is coming to an abrut end. For me, once I accepted this it was easier for me to accept the facts.

[Jason]

Navcustom,

I would make the argument that the SIQ chit counts if that is all you have, but it is best to have a physician prescribe the bedrest (depending on circumstances, this may be tough, but even getting it in a treatment note that when you have an incapacitating you should be on bed rest is helpful). I have seen PEBs be real sticklers for this and some will demand it. If you can get it prescribed by a physician, I would do so. It may take going in to MTF when you have an episode, if possible.

Another part of the criteria is that it requires "treatment by a physician." To be sure you meet the criteria, again, it is best to be seen by a physician. These two criteria are often looked at more leniently by the VA under the "benefit of the doubt rule." The military has not caught on to this yet, so it is an issue to be aware of. Bottom line, you are best served by seeing a doctor when you have an episode.

Don't forget that ROM limitation may be the basis for a rating. It sounds like you should do well with the ratings for incapacitating episodes, but I would get your ROM checked to see how you do under that rating criteria.

Glad to help!