Formal PEB

LeeannF808

Registered Member
#1
Hi-

I am a Marine, Sergeant, Infantry Rifleman
Going through this IDES process and trying to find answers, as I am now realizing my PEBLO has not been nearly helpful. I trusted her along the way and now after getting my informal PEB decision back and unfortunately being educated later rather than sooner I realize my PEBLO and her counterparts are not competent. I didn't fully understand how protective I should have been as the general tone of my meetings has made me believe in the objectivity of this process. I have read lots of feedback on this forum about PEBLOs and their "it's fine" attitude which makes me even more concerned about the "guidance" I have received.

I have a few questions now as I have requested a formal board (at the advice of the PEBLO after I expressed my concerns regarding the proposed decision) and am attempting to catch up. The IDES attorney now has explained some things different, (yes I realize his help would have been better EARLIER) but is it better late than never? I have not received my formal date yet for hearing but there are some things I need some advice to address.

*A knee condition as a result of 2 unsuccessful surgeries (one of them being very questionable, but I realize nothing I can do as active duty) is what referred me to the start of the MEB/PEB process. I had a rock removed from my knee which was known and had been there since childhood stable, but became dislodged as we were simulating a war exercise and under "enemy fire" while running away fell down a hill hitting a tree limb.
*During the C & P and the evaluations of other conditions, I found out about a new condition TMJ that I was unaware I had. Unaware in the sense that previous to the 2 knee surgeries, I was ordered to get my wisdom teeth out and suffered an air embolism which resulted in an emergency hospitalization/surgery, SEPSIS, and a 3 day stint in the ICU (most likely due to malpractice, but again, Thank you Feres Doctorine). Afterward, yes I had jaw pain, and lots of other symptoms (nerve pain, back pain, major sleep issues, fatigue, etc.) that I attributed to being a Marine and just dealing with the usual sucky conditions I've faced on multiple deployments, etc. Who gets great sleep in the Marine Corps, right? After being evaluated by a specialist, he was able to explain all my symptoms and I am in the process of getting a referral approved for continuing treatment.
*My knee was related at 10% as the DoD unfit condition and deemed NOT combat related, but after attending an IDES and looking further into it, the policies seem to indicate it should be combat related.
*All of my other conditions (to include the TMJ 30%, Back strain 20%) and other ones related, all resulted in a 60% rating. Of all the conditions rated, there were 3 more specifically that the question asking if the "insert condition" interferes with the veterans ability to perform job duties was checked YES and the description and explanation was very similar to my knee. Something to the effect of my inability to run, carry loads, crawl, etc.
Stay with me...

My main questions are now that I've trusted a system I obviously should NOT have trusted (beware those reading this not as far along as me) what can I do?

Will the formal PEB be an avenue to ask my other conditions that interfere with my ability to perform job functions be a place for them to consider these newly acknowledged conditions and rate them as FIT or UNFIT as well?
Can I do anything about my NARSUM (which by the way I did ask both my doctor and my Peblo if it should be more specific and was told "It's fine" by my PEBLO and also advised by the military doctor it was ok) because I do want it to be considered whether it meets criteria for a Combat Related Injury under the simulating war- war games, practice alerts, tactical exercises, leadership reaction courses, etc.

GENERAL ADVICE?
Seeking out all resources like I admittedly should have done from the beginning, but can't take back my trust or turn back time now. I'm 25 and have a wife and 2 year old son, I do not want any more than I am entitled to- I wanted to be a life long Marine. Now, due to the Marine Corps, that will not happen. I also led a very active lifestyle before this (hiking, running marathons, etc.) which is all but ceased, although finally they have referred me to a pain management course which is slowly helping to adjust to my new normal.

Any help would be greatly appreciated.
 

Vamica89

Registered Member
#2
Actually i went to the FPEB u will meet the attorney, she will ask why you want to appeal the process and what are % u are looking for. Also she or he will ask what bring u to medboard as i read u knee bring u to the medboard, thats only 10% i will fight to go more caux u have two surgeries, now the TMJ and others injuries is for the VA purpose. Now u have a formal or informal PEB remeber those are diferent. One is to appeal rhe PEB decision and the other one is to go to see them with ur attorney in DC. As i see u will appeal the PEB decision. Make sure u have a condition that will back u up when u go there, because u only getting 10%. U will have to see what condition make u unfitt and the rating.
Now u said u have 10% knee, 30%TMJ and 20% others thats no make u 60%. That only like 40% total. U u are ending up in DC make sure u have a good reasin to explain u knee confition and other condition u think is making unfit
 

LeeannF808

Registered Member
#3
Hi and thank you for your input. There are actually more conditions on the VA side which put me at 60 total. For sake of time and my question I didn’t list them all Bc the rest are obviously as a result of the primary ones and not conditions I feel like would solely on their own prevent me from doing my job. My main question was whether the formal PEB would be a place to consider the conditions I found I had as a result of the C & P exams. I had no idea my face was so long term traumatized by the 3 short term miserable days I spent in the ICU- again I attributed the symptoms to other things since I had no idea how severely my jaw was maimed. Thanks.
 

Vamica89

Registered Member
#4
Understand but VA and DOD is totally diferent u only getting 10% because of ur knee condition, 10 % is what the VA give you so the DOD will stick with 10% as well, now if i was u i will appeal the TMJ because is causing you more problems, the more evidence ylu have the best will be your appeal, always remeber evidences is the key
 

LeeannF808

Registered Member
#5
Yes, thank you. The specialist is willing to write a more detailed statement regarding how exactly it impacts along with it being well documented within my medical record. However, I am still currently seeking treatment for it as this is new- I don’t know how that factors in.
 

Kizersoze

Registered Member
#6
I believe Vamica89 is pretty accurate from what I could translate. I would read, re-read and then read again all associated instructions (Marine, CFR, VA, Navy, case law) as often as possible. Print them off and put them in a binder so you can make notes. Hard copy is just easier to digest IMHO.

I find something new almost every time I look at the source documents. My personal experience is Navy (heading towards MEB as 15 yr Chief), but I will look at the Marine instructions too. Keep in mind that each condition BY ITSELF has to make you UNFIT for continued service in order to be considered for retirement/severance percentage.

There are some conditions that can be considered if they are directly associated with the unfitting condition. For my situation I had a spinal fusion. Typically, they will only consider range of motion measurements for that disability determination. However, since I have nerve issues (documented by surgeon, neurologist & physical therapist) they will consider those as unfitting conditions.

Example: Back range of motion is >30* = 40% rating
Bi-lateral (both legs) neuralgia moderate= 20% Right & 20% Left = combined rating 36% = bi-lateral factor adds 10% = 46% (rounds up to 50%)
Combine back total with leg total = 70%

You would have to have a compelling medical case that associates your TMJ with all of the other back issues in order to be considered as part of your DoD retirement/severance %. If all of the TMJ back are associated they might be grouped together; I think that is going to be your best chance, but you need as much medical evidence you can get.
 

Kizersoze

Registered Member
#8
Multiple Conditions

If a service member has multiple conditions, each one must be unfitting in and of itself in order to be rated. To determine this, each condition is looked at as though it were the only condition he had. All by itself, does it still make him unfit for duty? If yes, then it is ratable. If no, then it is not.

There is an exception to this rule: If the service member has multiple conditions, and none of them are unfitting by themselves, but all together they make him unfit for duty, then they all are collectively considered unfitting, and thus can all be rated
 

LeeannF808

Registered Member
#9
Thank you, will do. Spoke to the JAG today, not the one before the formal PEB, just a resource they provided I guess for the process that I didn't realize I could reach out to after making the decision to go IDES rather than LDES. The outcome seems very bad based on the information he quoted, something about a Memo passed in September of 2016 not allowing the addition of any conditions? He says he will send it as I have now realized I need everything in writing. I will do exactly what you suggest and read read read, tab, tab, tab... I've been nonstop searching and looking at everything i can get my hands on. Thanks for all of you with the input and different perspectives, it helps to just keep the brain working.
 

Kizersoze

Registered Member
#10
Code 9905: Temporomandibular disorder, (known as “TMD” and also incorrectly referred to as “TMJ”) is rated based on limited motion of the joint and the ability to eat regular or mechanically altered food.

“Mechanically altered foods” include liquid, blended, chopped, pureed, ground, mashed, soft, and semisolid foods. A physician must record that your condition requires you to eat only mechanically altered foods in order for it to be rated. If a medical record does not state this, then it’ll be assumed that you are able to eat normally.

For limited motion, the jaw can move in two directions: open and closed, and side-to-side. Only one direction of motion can be rated. If the jaw is limited in both directions, then only the one that will give the higher rating is used. Only unassisted motion is used to rate limited motion, so even if the jaw could open further with help, it is only rated on how far it can move naturally without assistance.

If the jaw can’t move side-to-side more than 4 millimeters (mm), then it is rated 10%.
If the jaw can’t open more than 10 mm (about 0.4 of an inch), then it is rated 50% when only able to eat mechanically altered food, and 40% when able to eat normally.
If it can open between 11 and 20 mm (about 0.4 to 0.8 of an inch), it is rated 40% when only able to eat mechanically altered food, and 30% when able to eat normally.
If it can open between 21 and 29 mm (about 0.8 to 1.1 inches), it is rated 40% when restricted to full liquid and pureed foods only, 30% when limited to soft and semi-solid foods only, and 20% when able to eat normally.
If it can open between 30 and 34 mm (about 1.2 to 1.3 inches), it is rated 30% when restricted to full liquid and pureed foods only, 20% when limited to soft and semi-solid foods only, and 10% when able to eat normally.​
Note: The Painful Motion principle applies in cases of TMJ or any other condition that causes pain when moving the jaw. So, whether or not the jaw can move, the minimum rating if pain is present is 10%.
 

Kizersoze

Registered Member
#14
If the service member does not agree with the (Informal) Physical Evaluation Board’s decision, he can appeal to the Formal Physical Evaluation Board for reconsideration.


Once an appeal, or “rebuttal”, is received, the Formal Physical Evaluation Board re-examines all the evidence and the Physical Evaluation Board’s original decision. After looking at the evidence, if the Formal Physical Evaluation Board agrees with the Physical Evaluation Board’s original decision, a formal hearing will be scheduled and the service member will have the chance to present evidence in person. If even after the hearing the Formal Physical Evaluation Board still agrees with the original Physical Evaluation Board’s decision, then it stands. The service member would then have to pursue higher avenues of appeal.

If, however, the Formal Physical Evaluation Board disagrees with the Physical Evaluation Board’s original decision at any time in the process, it can adjust the decision as it sees fit. Any changes made would override the original decision. If the service member is still unhappy with the changes that are made, he can then appeal to a higher authority.
 

Vamica89

Registered Member
#15
You right sorry if you cannot understand english is my second language.
Like me i was taking for medboard because my knee only 10%. but i was fighting because TBI and migraines due to airborne operation, at the first mEB and PEB didnt aprve my condition so i have to take my case to DC where they accepted my TBI and migraines because i was having enough evidences of it and this and was combat relate condition was unfit for the PEB, so if you are goin to fight something make sure you have enough evidence
 

LeeannF808

Registered Member
#16
The lawyer today said my only option is to petition the PEB President to terminate the case and start over again. IF they will terminate it... has anyone ever heard/experienced this, know any details?
 

LeeannF808

Registered Member
#18
He basically said if it's not on the MEB, it won't be looked at regardless. I did not know this at the beginning, and trusted the medical professionals who basically screwed me over.
 

Kizersoze

Registered Member
#20
Submitting DoD Appeals

The DoD Disability Process has 2 levels of appeals within the DoD.

Level 1.

After the first Rating Authority, the Physical Evaluation Board, makes its decision, you can appeal to have their decision reconsidered by the Formal Physical Evaluation Board (FPEB). After the PEB makes a decision, you have to sign a form that states whether or not you agree with the PEB’s decision. On this form, you can request for the FPEB to review your case.

If you chose not to appeal to the FPEB at that time and instead agreed with the PEB’s decision, but later realized that you were wrong, then you missed out on your chance to appeal to the FPEB, but you can still submit an appeal to the DoD’s Level 2 Rating Authorities.

If you did appeal to the FPEB, but still do not agree with their decision, you can submit a rebuttal. If the rebuttal does not get the results you want, then you can appeal to Level 2 or Level 1a for the Army.

Level 1a.

Only the Army and Navy/Marines have appeal options at this level.

For the Navy and Marines, once the FPEB's decision is final, but before the service member is officially discharged, he can submit a Petition for Relief (PFR) to the Director, Naval Council of Personnel Boards (DIRNCPB).
NOTE: This can only be done BEFORE discharge. If the service member is separated without submitting a PFR, he simply skips this step and appeals in Level 2.
A PFR can only be submitted if (1) there is new evidence that was not considered by the PEB, (2) there is proof that fraud, misconduct, or misrepresentation occurred during the PEB Process, or (3) there was a definite mistake of the law during the PEB Process.

If the PFR is not granted, then the service member is officially discharged, and he can appeal to the Level 2 Board.
Level 2.

Note: If you qualify to have your case reviewed by the Physical Disability Board of Review (PDBR), you may not need to appeal to any other Board. If you do not qualify, or if you do not agree with the PDBR’s decision, you can move on to Level 2.

This is the highest level of appeal within the DoD. Each branch of the military has their own Boards to appeal to at this level.

For the Air Force, you can apply to The Air Force Board for Correction of Military Records by mailing DD Form 149and VA Form 10-5345 to the address noted on DD Form 149.
For the Navy and Marines, you can apply to the Board for Correction of Naval Records. Note that the Navy has a 3-year limit for applying. If you were separated more than 3 years ago, they may not review your case. To apply, submit DD Form 149 to the address noted on the form.
For the Coast Guard, you can apply to the Board for Correction of Military Records of the Coast Guard by mailing DD Form 149 to the address noted on the form.

To apply, mail DD Form 149 and all supporting materials to the address noted on the form. In addition to all medical records and other supporting materials discussed in the How to Prepare section above, make sure you also include copies of all correspondence with any Boards or individuals regarding your disability case. They’ll only review your case if they see that you’ve tried everything else first before coming to them.​
 
data-matched-content-ui-type="image_stacked" data-matched-content-rows-num="3" data-matched-content-columns-num="1" data-ad-format="autorelaxed">