Need Help!! LOD and MED

Discussion in 'Fibromyalgia' started by Tubby44, Jun 10, 2013.

  1. Tubby44

    Tubby44 PEB Forum Veteran

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    I posted this on the MEB forum as well, but have not had any responses yet. As I was looking around, I found this one, and thought maybe I should post it here, because it's regarding Fibro.

    Here is the short version: or possibly long..
    I was in the Active duty Army for 4 years and got out in 2008 and went straight into the Reserves and have been there since. I have been suffering from unexplained widespread chronic pain since about 2006 while in AD (it started with back pain). But like many soldiers, I didn't goto the TMC or sick call a lot for it because when I did, all the docs would do was give me ibuprofen 800mg and tell me to ice and rest. So I don't have a ton of military medical documentation regarding it. Ok, so I get out, join the reserves and I got a Mil-Tech government civilian job. Which basically means in order to keep my full time civilian job, I have to maintain dual status and be a member of the reserves as well. I eventually got the civilian diagnosis of fibromyalgia, chronic fatigue syndrome and depression. But since I couldn't get out of the reserves, I was kind of stuck, even though I wanted to because it became harder and harder to participate at drill and be a soldier. Fast forward to last year March, I finally found a regular civilian govern. job, so I immediately made my PHA (Periodic Health Assesment) appointment and told the doctor everything. That led to me getting my perm profile for "Generalized muscle pain" 729.1 - MYALGIA AND MYOSITIS UNSPEC. in Sep of last year. The profile recommended me to the MEB. So my MEB packet was due by NOV 2012 to our higher HQ. Fast forward now, and my packet is STILL at my UNIT!

    So this is what I need help on. Originally my unit said they would do informal LOD back from active duty because I am trying to get it service connected. I have no doubt in my mind that the Army either caused and/or aggrevated my conditions. I had no pain whatsoever before the Army. ok, so yeah an informal LOD was done and submitted to my higher command this past couple weeks (I think, because they don't tell me anything). Just today I got an e-mail from someone in my unit that they are changing it to a formal LOD. The e-mail said this"

    "For lumbago and chronic back pain condition has been returned to your unit for request of a formal investigation. Based off the documentation you have provided the condition you FM or fibromyalgia can't be proven as a service connected injury. It is as illness that is diagnosed based off of genetic composition or determined as being pre-genetically disposed to this condition based off family lineage and physiological composition.

    The purpose for a formal investigation is to appoint as officer to conduct further investigating of all the documentation to submit findings to the commander to make a final determination as to whether or not the illness is in fact service connected. You have an opportunity to submit additional medical treatment records, if you have any , in order to argue favorably in your case. Please let me know if you have anything else to submit other than what has already been received."


    I had submitted like over 300 pages of medical documentation both military and civilian for my MEB packet. So I dont know what else to do. I am exhausted by this process, my unit has had this for 8 months. I've done some reading on this forum before and I know people had gotten service connected for fibromyalgia. does anyone have any advice on what I should do next? Or what I can do? Any documentation that you recommend? Also, with regards to the e-mail I got from them saying that FM is 'pre-genetically disposed" and all that, I have done research, and I don't think anyone knows for sure what causes it. Can't I still say that the military aggrevated my condition, and how would I go about that?

    Any help or advice you can offer would be so appreciated, you have no idea. Sorry this is super long.
    Thanks in advance for your time!!
    -Melissa
     
  2. Dcmd124

    Dcmd124 PEB Forum Veteran

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    What state is your unit out of? I am assuming that your ultimate goal is to get the MEB Process started. You always will have some options at your disposal. First and foremost, not a big deal if your unit wants to get a Formal LOD done? I would tell them that you would like to accept their proposal. What type of profile do you currently have?
     
  3. Tubby44

    Tubby44 PEB Forum Veteran

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    My unit is in CA as am I. You are correct, my ultimate goal would to get a service connected rating, which starts with the MEB. Just, my unit has had the paperwork forever. My suspense date for my MEb packet to be turned in was in Nov 2012. Well that's a good thing that your saying its not a big deal if my unit wants to do a formal LOD because there not proposing it, there telling me that's what there doing. So why isn't it a big deal? If they find I have no ground for service connection then I won't be able to continue on with my MEB, because I need an approved LOD. My profile is a permanent profile for "generalized muscle pain". That's what's in the description on the top portion. It's 729.1 myalgia and myosotis unspec. But in the "notes" section my rheumatologist listed my diagnosis- fibromyalgia, chronic fatigue syndrome and depression along with all of my limitations. The profiles pretty much a "deadmans" profiles.

    Thanks so much for responding!
     
  4. Dcmd124

    Dcmd124 PEB Forum Veteran

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    Mr. Jason Perry chime in if you get a chance on this one. But here goes: my reasoning behind that it is no big deal in respect to the Formal LOD is as long as you weren't doing something illegal than no big deal. I must confess that it has been a while since I have read up on LOD's. Take a minute and look them up on your own

    Now the big one: what type of Profile did you receive? If it was a P3 and was approved that should have been enough to generate the MEB. Have you checked in AKO in the Medical section and looked up your profiles?

    Since you are in CA, have you called up the 63rd RSC and asked them for some assistance on this matter. Try calling this number
    RTS-Med
    Camp Parks, CA 94568
    tel: (925)479-3410

    As always, take care and good luck.
     
  5. Jason Perry

    Jason Perry Benevolent Leader Site Founder Staff Member PEB Forum Veteran

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    Someone, please "bump" this thread in the next day or so...I am occupied with several matters in court at the moment, but I see some important issues here.
     
  6. maparker

    maparker Staff Member PEB Forum Veteran

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    I will let Jason address some bigger issues later but as a point of calibration, it does not matter if the Army caused the condition or not. What matters is if the condition began or was aggravated while entitled to basic pay. This is an important distinction.

    Mike
     
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  7. Tubby44

    Tubby44 PEB Forum Veteran

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    Dcmd124,
    Thanks for responging, no I definetly was not doing anything illegal. I was doing just that yesterday, reading up on LODs. I am going to continue today as well. AR 600-8-4 is a pretty interesting read:

    e. Injury or disease prior to service.

    (1) The term "EPTS" is added to a medical diagnosis. It shows that there is substantial evidence that the disease or injury, or underlying condition existed before military service or it happened between periods of active service. Included in this category are chronic diseases with an incubation period that clearly precludes a determination that it started during short tours of authorized training or duty.

    (2) The doctor, during examination and treatment of the soldier, usually determines an EPTS condition. The doctor annotates the soldier's medical records as to whether the condition existed prior to service. If an LD determination is required, information from the medical records will be used to support a determination that an EPTS condition was or was not aggravated by military service. If an EPTS condition was aggravated by military service, the determination will be "in LD." If an EPTS condition is not aggravated by military service, the determination will be "not in LD — not due to own misconduct."

    (3) Specific findings of natural progress of the pre-existing injury or disease based upon well-established medical principles alone are enough to overcome the presumption of Service aggravation.

    f. Injury or disease while not on AD or in a status defined in paragraph 2-2e.

    (1) A soldier is presumed to have been in sound physical and mental condition upon entering AD or status in paragraph 2-2 e . To overcome this, it must be shown by substantial evidence that the injury or disease, or condition causing it, was sustained or contracted while neither on AD nor in authorized training. The following will be sufficient evidence of

    EPTS:

    (a) Lesions or symptoms of chronic disease so near the date of entry on AD or authorized training that they could not have started after entry, or

    (b) Disease within less than the minimum incubation period after entry on AD or authorized training.

    (2) It is further presumed that, even if the provisions of
    f (1) above are overcome by such evidence, any other condition, resulting from the pre-existing injury or disease, was caused by service aggravation. Specific findings of natural progress of the pre-existing injury or disease based upon well-established medical principles, as distinguished from medical opinion alone are enough to overcome the presumption of Service aggravation.

    (3) Any physical condition having its inception in line of duty during one period of Service or authorized training in any of the Armed Forces that recurs or is aggravated during later Service or authorized training, regardless of the time between, should be in line of duty. The aggravated condition must not be caused by misconduct or willful negligence.

    I am not really entirely sure what the above means, thats kind of why I posted it ;). But it look's to me that "they" have the burdon of proof? If that is the case, it seems i am may be getting taking advantage here in my case. I also found a Memorandum that cited the following from the 14 October 2008 DOD dtm:

    E3.P4.5.2.2.1. Presumption of Sound Condition for members ordered on active duty for more than thirty days. This presumption applies in all cases in which a member, on active duty for more than 30 days is found to have a disability and the disability was not noted at the time of the member’s entrance on active duty. This presumption is overcome if clear and unmistakable evidence demonstrates that the disability existed before the Service member’s entrance on active duty and was not aggravated by military service. Absent such clear and unmistakable evidence, the PEB will conclude that the disability was incurred or aggravated during military service.

    I was completly healthy upon entering Active duty, not one thing was listed on my medical screening. What do I do? to prove that the military either caused or aggrevated this?
    If my Formal LOD is denied, I heard i can still go through with my MEB but just wont be duty related.

    Sorry for this yet again super long text, I am just trying to learn, and throwing it out there. I do have a P3 profile, which my PULES is 33311. In that profile I was recommended to the MEB.

    The 63rd was suppose to be helping me with all of this. I have a SSG that has been "assigned" to collect all of my MEB paperwork when all of this first started. He seemes on top of it, hounding my unit it the beggining before the suspense date of last Nov. But after that passed, I barely hear from him. I called and left like 3 messages last week for him and still have not heard back. He's up in Moffit Feild/Mountain view, CA. Should I still try the contact you gave me?

    Thanks again!
     
  8. Tubby44

    Tubby44 PEB Forum Veteran

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    Mike,

    Thanks for taking the time to read and respond to my thread.
    If you see my most previous reply to Dcmd 124, I started looking into the whole "aggrevated" in service concept. There are so many regulations, memos etc. on these kind of things, I think I am confusing myself. How do I prove my condition began or was aggravated while entitled to basic pay? I feel like the 807th MSC who has control of my LOD right now are clueless. What can I do? If this Formal LOD gets denied, that's it for my service -connected MEB right? I've contacted Soldier Counsel at Fort Carson and spoke to a Paralegal specialist (I think), and he didn't seemed to concerned about the LOD. He just told me to keep going to my doctor and get everything documented. Should I try and find a civilian attorney?

    Thank you so much for any insight you may have.
     
  9. Tubby44

    Tubby44 PEB Forum Veteran

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    Mr. Perry,

    Thanks in advance for anything you can offer to this issue I am currently in. I am so exhausted from all of it.

    Do you think I sould seek civilian counsel?
     
  10. pittpan2005

    pittpan2005 PEB Forum Veteran

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  11. Dcmd124

    Dcmd124 PEB Forum Veteran

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    Tubby44: I would defer to Mr. Perry until next week when he is available. Mr. Mike Parker is also a great resource. At this point I think you are doing the best thing that you can be at this time. Reading, reading, and more reading.

    Did you have any luck with calling the number I gave you for the 63rd RSC?

    Take care.
     
  12. maparker

    maparker Staff Member PEB Forum Veteran

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    You need to add AR 600-8-4 (attached) to your reading list. The LOD standard is:

    2–6. Standards applicable to LD determinations Decisions on LD determinations will be made in accordance with the standards set forth in this regulation.
    a. Injury, disease, or death proximately caused by the soldier’s intentional misconduct or willful negligence is "not in LD—due to own misconduct." Simple or ordinary negligence or carelessness, standing alone, does not constitute misconduct.
    b. An injury, disease, or death is presumed to be in LD unless refuted by substantial evidence contained in the investigation.

    Make sure you LOD is compliant with AR 600-8-4.​

    Have you filed with the VA yet? If not I recommend you do as VA service connection of the condition will help refute a "LOD no" decision.​

    Mike​
     

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  13. Tubby44

    Tubby44 PEB Forum Veteran

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    Maparker,

    Thanks for adding to my reading list. I have found great information that supports my case, at least in my opinion, but the problem I am having is how to "use" this information to my advantage. As of right now, 807th MSDC is likely appointing a "third-party" member as my investigator for my Formal LOD. Is there anything I can do right now to help my case, it's clear that the 807th doesn't believe Fibromyalgia can be service connected "ever" based on what they wrote in the email I added in my inital thread. But the information they have is incorrect. Saying it is "pre genetically disposed" is someone's opinion, it's not "substantial evidence". I guess my question is how do I fight back at the stage I am currently at? Do I just wait until the decision on the formal LOD comes back, and if it is a "not in LOD or LOD no", file an appeal? I am having a hard time just sitting back and waiting for what I feel is the inevitable based on the e-mail I got from them on their position on Fibromyalgia.

    Thanks.
    -Melissa
     
  14. Tubby44

    Tubby44 PEB Forum Veteran

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    Dcmd124,

    Thanks for tagging Mr. Perry in this thread, I am looking forward to seeing what he has to say. Thank you for your advice, it really means alot that there are people who care, and who have dealt with similiar issues.

    I called the number you gave me, and left a message. No returned call as of yet, I will probably try again today.

    Thanks again!
    -Melissa
     
  15. maparker

    maparker Staff Member PEB Forum Veteran

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    Fibro is a compensable condition by both the VA and under the DES. What ultimately should be the question is if it began or was aggravated while entitled to basic pay. You should search fibro cases on the websites below to try and identify case decisions that support service connection of your fibro.

    Mike

    http://boards.law.af.mil/index.htm

    http://www.index.va.gov/search/va/bva.html
     
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  16. Dcmd124

    Dcmd124 PEB Forum Veteran

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    No problem, any advice that I can offer, I hope is helpful towards your ultimate goal. Have you been seen by a Civilian Provider? If so, I would obtain copies of his / her notes in regards to your conditions. The more providers that will further substantiate your claim, the better off you will be in the long run.

    Good luuck to you.
     
  17. Jason Perry

    Jason Perry Benevolent Leader Site Founder Staff Member PEB Forum Veteran

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    Should not be "at your unit." The MTF (or, for some reserve Soldiers, forwarded to Pinellas Park, FL.


    There are strict timelines on LODs (which are routinely ignored...my point is that your case should have moved faster; probably only "big picture" difference this should make is any entitlement to back pay (though, in your case, your civilian pay may make this a non-issue).


    Seems to completely mis-state the presumptions of sound condition, service incurrence, and service aggravation.

    Also, procedurally, they should be conducting the investigation first, then notifying you of any adverse decision. Procedurally, what they have stated is completely wrong.


    I would first point out that the MEB and the LOD are separate (yet related) processes. If you submitted records for your "MEB" (which I am not sure has been initiated as you said it is "still at your unit"), that may not be available to or considered by the LOD Investigating Officer. Have you been contacted by the IO?
     
  18. Jason Perry

    Jason Perry Benevolent Leader Site Founder Staff Member PEB Forum Veteran

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    I think a lot of this depends on what the IO says...however, I would present your arguments to the IO. I don't have enough information to comment on whether there are legitimate concerns with an In the Line of Duty finding in your case (that is, there may be other reasons your fibromyalgia may not be in the line of duty....however, genetic predisposition is not the right basis for them to find you not in the line of duty for this condition).

    There is a lot going on in your case. Procedurally, with the LOD investigation, yes, your first real point of appeal would be an adverse finding. However, I would prepare to make your case now.
     
  19. 2013GO

    2013GO PEB Forum Veteran

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    How the HECK do you do a LOD on fibro?? Presumptive or not.....
    I have 40% VA presumptive and am appealing to get it recognized as unfitting for the PEB. I have numerous LODs for this process (one was retro for a 1984 injury at jump school...that was crazy!) but not one for fibro.
     
  20. Jason Perry

    Jason Perry Benevolent Leader Site Founder Staff Member PEB Forum Veteran

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    Not sure I get the gist of this question- you would do it just like any other condition. Was the condition noted on service medical records on entry on active service? If not, then it takes clear and unmistakable evidence to overcome presumption of service incurrence. LOD- Yes. If it pre-existed, then there is further presumption of service aggravation. Unless they can some how show what natural progression would be, then any increase over what you entered service with would be compensable, too. If it is a drilling reservist who is injured/disabled on drill, you would have a harder issue- you would not have many protections/presumptions, so you would be looking for some kind of nexus between duty and condition.
     
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