At the Board in San Antonio

[LBaker78]

Hi,

Kristin arrived at Lackland yesterday and spent today meeting with her attorney and a DAV rep. Today was for records review and fact gathering.

The attorney has asked her to contact her surgeon and have him fax a letter stating the stability of her condition. She spoke with him today and he said that following her surgery (which was in November) it could take up to a year for her condition to stabilize.

The attorney is looking at the possbility of her going on the TDRL, which I guess would be a good thing? It would allow more time to gather evidence of her conditons and determine if the cervical problems are related to ATV accident and wrist fracture.

She meets with the attorney on Monday again and the board will be on Wednesday. One day at a time.

[Jason]

TDRL is not a bad outcome. If you are rated at 30-40%, it is actually a boon, because you get paid at 50%. But I do think there is value to having the permanent rating in hand. It is certainly better than severance pay in my opinion.

Remember, stability has a different meaning for medical purposes and for rating purposes. For rating purposes, it means the likelihood, by a preponderance of the evidence, that the condition will either worsen or get better to make a difference for rating purposes over the TDRL period (max of 5 years). The doctor may not have any idea what the rating criteria is, so a statement about "stability," may not be nearly as helpful as one that states the specific rating criteria as likely to change.

I hope it goes smoothly and best of luck on a good outcome!

[maparker]

It does not matter if the cervical and migraine problems are related to the ATV accident. What matters is if they incurred while she was entitled to basic pay. The AF must prove with clear and unmistakable evidence that they did not. If they cannot not, then they must included them and rate them if unfitting.

Your problem remains that the MEB failed to conduct her MEB to the standards required by DoDI 1332.38. They are required to document all of her current medical conditions and they did not. This ipoint must be made. Trash in is trash out. The incompetent MEB is giving the PEB an easy out to under rate her. She or her attorney need to state that the formal board must be postponed until a complete MEB is conducted per the standards of DoDI 1332.38. Get this point on the record and on the audio tape of the proceedings. The PEB will likely deny this request. But having this request on the record and them saying no will likely help you win they day at a later appeal or in court.

Mike

[Jason]

Mike raises a good point that bears repeating:

If you are on orders for 30 days or more, ALL injuries, diseases, or conditions are compensable unless you are AWOL when it is incurred or the injury is due to intentional misconduct or willful negligence (think drunk driving), or it is shown that your disease pre-existed your military service. It does not matter if you are on leave, out of uniform, or off base. When I think of this, I think of it in relationship to time.

At the VA they talk about service-connection as being the basis for compensation. This has both a time element (if it is incurred in service, similar to the above) but also a causal connection (e.g., Servicemember falls in the Air Force and hurt his knees. 20 years later, after leaving the AF, his back hurts as a result of his knees not working correctly = service connection). Since many older veterans establish SC after their military service is over, the causal connection is much more important. It is not important in military cases, unless you are fighting out causation due to misconduct issues (a whole other area that is complicated).

[jim1960]

So as long as it it mentioned in your medical records somewhere that you stated something was sore then it is service connected? I am in the middle of my MEB and listed every problem that I am having and the ones I have ignored all these years.

[Jason]

It is more complicated than that. If it is a chronic condition identified in service, then generally, yes. However, in some cases, to connect something years later, it will take continuity of symptoms after service.

This is different than a secondary service connection for a condition that is caused by a directly service connected condition.

Also, note that there is a one year presumptive period of service connection for chronic diseases that manifest themselves to at least a 10 percent rating under 38 CFR 3.307. For this reason, it is a good idea to submit a VA claim as soon as possible, but definitely within a year of leaving the Service.