How do they determine disability percentage?

Discussion in 'Informal Physical Evaluation Board' started by airforcegal, Oct 23, 2009.

  1. airforcegal

    airforcegal PEB Forum Regular Member

    Joined:
    Oct 21, 2009
    Messages:
    7
    Trophy Points:
    0
    Hello all,

    My question is, how do they determine the disability percentage? I am going through a TDRL, Final IPEB decision made, I nonconcur so am going to the FPEB soon.

    Here is what I am being rated on...from the VASRD

    7705 Thrombocytopenia, primary, idiopathic or immune (ITP):


    - Platelet count of less than 20,000, with active bleeding, requiring
    treatment with medication and transfusions 100%

    - Platelet count between 20,000 and 70,000, not requiring treatment,
    without bleeding 70%

    - Stable platelet count between 70,000 and 100,000, without bleeding 30%

    - Stable platelet count of 100,000 or more, without bleeding 0%

    How do the services (esp AF) determine which percentage I fall in for each test? The VA gave me a final 70% disability rating, which I agree with, since I am not in the 100% category (I know folks with ITP who don't respond to any medication and have symptoms of bleeding from the nose and need transfusions, so I am not that bad).

    For example, I went in to check my platelet count. It was 7K. I was hospitalized for two days and given steroids and IVIG. I required medical treatment, but did not have active bleeding nor transfusions and my plalelets were from <20K to >100K while on the meds for 6-8 weeks. I am not stable during the steroid taper since my body cannot reset without the steroids.

    So, do I have to experience EVERY criteria in that category to meet it? I know the AF does not have to decide like the VA, but they have to use the same standards from the VASRD.

    Is the only way to know is get my hands on the members' working notes from the AF IPEB in Randolph? Can I get that through the JAG?

    So I am confused. Any help?

    airforcegal
     
  2. airforcegal

    airforcegal PEB Forum Regular Member

    Joined:
    Oct 21, 2009
    Messages:
    7
    Trophy Points:
    0
    Hello Jason...are you out there? I found out from my Af paralegal at AF JAG that they only insight into the IPEB decisions during the TDRL are the AF Form 365. Not very helpful in trying to determine how they decided my compensible percentage. THey don't give the working notes, like I read here the Navy does for their IPEB to FPEB.

    Do you have any other suggestions on how to proceed? My main hematologist and others in at Bethesda agree that I am permanently unstable for the remainder of my life and that my condition warrents a higher disability rating. Seems like the medical evidence supports it...but it has been the case during the entire 4 1/2 years. My hematologists (Navy Col?) said she has dealt with many PEBs across the services and they just have a doc doing his duty at the Boards, not necessarily your specialist is there providing input. She thinks it is obvious a hematologist has never participated in my IPEB reviews.

    And, I have done my duty and provided my up to date hematology medical records in full, for each IPEB, and I have no idea whether they were included as evidence or reviewed. My "remarks" section just regurgitates 1 or 2 lines from my NARSUM. The disability office at Randolph said each IPEB the addt'l records were received and included in the review. But, who know what went on during the actual PEB review.

    Thanks so much for your help! This site has provided a lot of answers for me.

    airforcegal
     
  3. VAJumper

    VAJumper PEB Forum Veteran

    Joined:
    Dec 4, 2008
    Messages:
    405
    Trophy Points:
    33
    What was your TDRL rating? I got my result back in October as well and am also AF and appealing. My reporting date for FPEB is 5 Jan 10. You can expect one later than that. Don't know if it will help, but I just sent a Freedom of Information Act request, requesting the notes from my IPEB. I don't recall seeing here that anyone else has tried that, but I know they have a limited time to respond to such a request.
     
  4. airforcegal

    airforcegal PEB Forum Regular Member

    Joined:
    Oct 21, 2009
    Messages:
    7
    Trophy Points:
    0
    VA Jumper, my initial rating was 70%. Changed to 30% then 30% during two IPEBs (but I could not officially reply since my status had not "changed" I was still getting 70% on TDRL the whole time...so no change until they take me off the TDRL). I just called Randolph to get my FPEB date...appeal request went in around 14 Nov...FPEB date is 27 Jan 2010. They also said that I could not have access to any notes they may or may not have about the last IPEBs and how they reached their decisions. Brian at #671-4296 maybe the FPEB office told me this. My condition has worsened since I was put on TDRL , more treatments, more hospitalizations, lower platelets...and the VA also gave me 70%. And, I know I gave them my med records each time I went in for IPEB....M my contact in IPEB office says that they have no record of whether or not they were included or reviewed. What crap! Advice FPEB office did not make me feel any better...B asked me what my last platelet count was...told him around 109K. Hmmmm he says...so that falls into the VASRD 0% category...what they gave you... Yes I am right now I said, but i was hospitalized on Oct 30 with a platelet count of 22K and I required meds to get them up...He said that the FPEB could put me in the 0% category because it says "Stable platelet count of 100K or more without bleeding...and what if you are stable on meds... then that is what category you should be in..." Uh, but the only category that mentions meds is the 100% category...so while I am on meds, shouldn't I be rated in the 100% category, even if my counts are higher...because they are not stable on their own?" Well, he said, "the Board has rated other conditions as stable while person is on medication then they give him a lower rating and that is considered standard. LIke depression...he said... Well, if you look in the VASRD under 9440 - general mental disorders...the VA DID include in the 10% rating...if symptoms controlled by continous medication. No such wording in the 7705 category! So does this paralegal know what he is talking about...can the AF "redefine" what stable is if the VASRD has already specified what percentage goes with "requiring treatment." Next step for me is to have current hematologist write another narsum to support my case...

    Argh! airforcegal
     
  5. pittpan2005

    pittpan2005 PEB Forum Veteran

    Joined:
    Dec 6, 2009
    Messages:
    1,643
    Trophy Points:
    98
    When you request a FPEB, they are required to turn all documents over to your JAG/Civilian counsel for review. Also, at least for the Navy/Marines, we can call the recieving department and request a copy of all documents sent to the board for review. The PEBLO is required to turn over a copy of all material to you. They have a difficult job, but if they are not keeping up as they should, file a grievence with the patient advocate at the hospital and go to your Congressman. It's your life/career and no one is going to care as much as you.
     
  6. Jason Perry

    Jason Perry Benevolent Leader Site Founder Staff Member PEB Forum Veteran

    Joined:
    May 15, 2007
    Messages:
    11,318
    Trophy Points:
    1,225
    airforcegal,

    Sorry for the lag in replying, I missed your earlier posts. Feel free to bump your posts (post another reply) after a day or two...If there are a lot of posts or if I am busy or travelling, sometimes I miss them.

    You are quite right that they do not give a lot of advice/insight other than what is on the AF 365. As far as the working note, see my reply below.

    It sounds like you are in for a tough fight on the legal issues. Unfortunately, I do not think you will likely have an easy time at the FPEB, nor will you necessarily be given the correct rating. The legal argument goes something like this (this is just a rough sketch, not legal advice because I can't provide that on this forum and I would not without reviewing your entire case): Under the VASRD sections on Benefit of the Doubt and Higher of Two Evaluations Rules, you are entitled to be rated based on the higher category. They will likely reject this argument at the FPEB, but if you make the argument, you preserve it for later appeals. There are systemic reasons why I think the FPEB makes errors on these points. But that does not help you any. I would say, fight this and keep fighting. If they get it wrong, you may have a good case at the BCMR or the Court of Federal Claims. Also, your VA rating is a great asset to you in this battle.

    In my experience, the Air Force has the worst record of getting complete records included at the PEB. Again, I think there are systemic reasons for this (mainly having to do with the fact that the Air Force separates the IPEB and FPEB into two separate offices...in the other branches, the PEB is in the same location. I suspect that this means less cases are returned at the IPEB level to the MTF for corrections because the IPEB does not see the errors that are brought to light at the FPEB.

    The AF takes the position that your case file is available for review at the PEB. They bring you in up to a week before the PEB and give you a chance to see the file up to three days before your hearing. This is different from the other branches that provide the record in advance to you and your attorney. Again, this is a service specific quirk, but I suspect (and this is based on observation and a conversation I have had with AF PEB personnel) that most of this is because the AF PEB only has two people working in their "back office" on administration, whereas the other services have many times this amount of personnel (in the Army this varies between sites, but the Navy has tons of people at their PEB). They simply do not have the resources to handle copying the file and sending it to the member/attorney in every case (so they don't do it as a policy).


    I have been quite disturbed by some things I have seen and heard out of that office in the past few months. My take is that they are quite conservative and tend to tell members more about what the PEB is likely to do (which is good to know, but hardly the end of the story) rather than focusing on the bases for challenging erroneous findings. I do not want to paint a broad stroke, because I know that there are good attorneys there. But, I have seen and heard some bizarre advice in a few cases. I don't want to go into details on this (and if anyone from that office wants to contact me about this, I am happy to provide details), but suffice it to say that I have seen some worrisome things recently. I also point out that recently the AF FPEB has undergone some big personnel changes with the former PEB President being deployed and a new change in several of the PEB members and medical personnel. This is not to say that they are bad, but I will say that the previous PEB membership got some issue right more often than the current cohort of members. To a degree this makes sense because different members will view issues differently. But I am concerned about some issues that I think they are getting wrong. To be clear, I think they are all professionals and believe in the correctness of their decisions. I just disagree on a few important matters.

    This is a real difference between the AF and the other branches. Under the Privacy Act (at a minimum legal basis) you should have a right to review and inspect your records. However, the Air Force's response is that they bring the member in well before the hearing to give them that opportunity. I disagree with the way the AF administers this, but I do think it is better that they bring you in before (the other branches, you come the day before and leave after the hearing, 1-2 days tops at the PEB....AF, you are there for up to a week). Given the opportunity to inspect the records before, I do not take a position on whether this policy to not provide records well in advance is correct. (I think that from a process point of view, it would be more efficient, too, because you could have a better understanding of the basis of their decision before and if they are missing documents or evidence that you have, you could provide early and obviate the need for a formal hearing). As far as the notes in the case, the Navy routinely provides this (and again, I think it makes sense from a process point of view, for the same reason stated earlier), the Army does not, nor does the AF. Sometimes in Army cases, they stick the notes in the case file and you can (more accurately, your attorney can) see these before the formal. The AF appears to take the position that these notes are not releasable (I am unclear whether the analysis is on Privacy Act grounds or Freedom of Information Act grounds) because they are internal, pre-decisional documents. I am not sure if this is an accurate statement of the law (i.e., would it hold up if challenged) but the resolution to any such challenge would come much after the FPEB and I tend to think that it is wiser to address the evidence and the case on the basis of the published decision because if something in the notes are at variance with the decision, any reviewing court or agency is likely to focus only on the "official" decision. This is a VERY cursory and simplistic explanation of my views on some of these issues. None of this has been addressed directly, so I am making some educated guesses.

    Hope this helped and that you get a good outcome at your Formal PEB.
     
  7. Jason Perry

    Jason Perry Benevolent Leader Site Founder Staff Member PEB Forum Veteran

    Joined:
    May 15, 2007
    Messages:
    11,318
    Trophy Points:
    1,225
    I wanted to post a follow-up after I spoke today with one of the attorney's from the AF PEB. It seems that this person had read my post and wanted to know what my concerns were. I shared my concerns with some e-mails I had seen originating from the JAG Office that I think mis-stated the law on a few important points and seemed to discourage appealing IPEB findings. The attorney agreed with all of my concerns and was going to bring up the issues with other officials. It was a good discussion and went far towards allaying my concerns.

    Like I said above, there are some very good attorney's serving as JAG's/assigned counsel (at all PEB's), and I support them being a robust option for members. (In case anyone is curious, by and large everyone who practices at the PEBs are collegial and friendly...I was a bit concerned about posting the above because I was somewhat inclined to raise my concerns with the legal office directly. However, on the other hand, as an outside attorney, no longer in the military, I was concerned that my input would not be welcome....at least in the AF, I now know that they welcome concerns and input.)
     

Share This Page