A horrible AFBCMR decision regarding PTSD

Jason Perry

Jason Perry

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This decision is erroneous. It fails to apply the clearly stated legal standard to apply the 38 CFR 4.129 criteria for rating PTSD at least 50 percent disabling. (This is the issue in the Sabo litigation).

Note that in some legal contexts the argument that the rating does not equal more money would carry some weight. I think this is not the situation in this instance. There are secondary and downstream consequences of a higher rating. I think this is especially true when taking into account the VA's system for rating combined disabilities.

The AFBCMR gets an "F" on this one.
 

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  • BC-2009-03702-4.129 case.doc
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Here is a half correct decision. It shows correction of the rating to 50% under 38 CFR 4.129. The first question is how does one reconcile this decision with the previous decision? I think you can't.

The main error here is that the AFBCMR went ahead and permanently retired the member after 6 months- WITHOUT A FORMAL HEARING OFFERED. This is plain legal error.

Excuse me, I need to go throw up. Bad decision and a National shame.
 

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  • BC-2009-03703- 4.129 decision2.doc
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My favorite part of this opinion is how the Board members defer to the BCMR medical consultant's interpretation of the law - "we adopt [his] rationale." What a crock.

This BCMR decisions database is a great resource and one that I haven't seen until you posted the link.
 
Anybody have a copy of the referenced 17 July 2009 Memo?

Mike
 
Is this a legal error an illegal act? How can a medical consultant be allowed to interpret the law and the case hold water? Another issue that I do not have any clue about, is the people making decisions regarding a PTSD claim. Are they PTSD victims themselves, did they read a book on it, or are they just acting on an educated guess (if there is such a thing as an educated guess)? What has to happen to bring justice to these people?

Frank,
 
This is my first post, so go easy on me. I was med. discharged from the Army at 10% for PTSD in 2004, VA 10% PTSD, opted into Sabo law suit. I met the critiria, 10% and severence pay. The other was 50% TDRL, 10% and severence. So I get a package from Ft Campbell with all my retirement orders and dd215, the whole 9 yards. My wife and I load up the kids and go get ID cards, go to the PX and Comasary and enrol in TriCare, eveything. Two weeks later we get a package from DC with orders revoking my retirement orders and a leter saying that they changed my records to say I was on TDRL for six months and was re-evaluated on the six month aniversery and was removed from TDRL at 10% and severence pay. WTF! Now Im the other Sabo catagory, 50% TDRL, 10% and severence pay. Makes no sence. So what do I do now. I was thinking that I was to be on TDRL for six months and be re-evaluated. Instead they used my original PEB records for the re-evaluation (that never hapened
), and that were not the VA rating standard of 50%. I need help with PTSD. The VA sucks where Im at and my family needs help too, its been traumatizing for every one. TriCare. Help! How do I get re-evauated, or can the Lawyers and courts handle it since its a lawsuit deal.
 
As Jason stated earlier in this thread,

"The main error here is that the AFBCMR went ahead and permanently retired the member after 6 months- WITHOUT A FORMAL HEARING OFFERED. This is plain legal error."

In your case, you were separated with severance without a formal hearing offered. I'm unsure how your opting in to the class-action affects things, but my first instinct is that you are still entitled to a full and fair hearing prior to separation.
 
franky said:
Is this a legal error an illegal act? How can a medical consultant be allowed to interpret the law and the case hold water? Another issue that I do not have any clue about, is the people making decisions regarding a PTSD claim. Are they PTSD victims themselves, did they read a book on it, or are they just acting on an educated guess (if there is such a thing as an educated guess)? What has to happen to bring justice to these people?

Frank,
Click to expand...

Frank,

I see several possible options.

1) Sue the government. The Court of Federal Claims is the court with jurisdiction over claims for military disability retirement.
2) Get Congress to reform the system through legislation. There are many areas where laws could impact injustices like the ones in the BCMR decision.
3) Use public pressure, media exposure, and/or Congressional oversight (think a committee meeting with DoD/Military officials being called to testify and having to answer hard questions) to get the DoD/Executive branch to process cases correctly.

Unfortunately, the first option is the only one that a person can take without relying on another agency/organization taking action.
 
Jason,

I have to take this time to thank you personally. I know as a disabled Veteran that we can feel as though we have not been given a fair deal, however, you are absolutely correct in that we need to take this to another level. There are posts in here that make me angry and there are posts that put a smile on my face. You have made it possible for Veterans, Service members, and others to know that we are not in this alone. As I prepare to go through the PDBR, I know that whatever the outcome, I will still have options going forward. For this I would like to say thank you.

Frank,
 
Let's hope he wasn't eligible for CRDP. A 50% rating would be needed for that.
 
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