Looking for Cases of Duty Related Conditions Declared non Duty Related

maparker

Staff Member
PEB Forum Veteran
Registered Member
#1
Folks,

I am looking for cases in the reserves and National Guard where your duty related condition was deemed to be non duty related. This is to support media interest on this issue. If you have such a case, post the details on this thread and I will direct interested media to this thread. These cases are especially compelling if the VA rated the condition the military declared non duty related.

Thanks,


Mike
 
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ColHolten

Registered Member
#2
Folks,

I am looking for cases in the reserves and National Guard where your duty related condition was deemed to be non duty related. This is to support media interest on this issue. If you have such a case, post the details on this thread and I will direct interested media to this thread. These cases are especially compelling if the VA rated the condition declared non duty related.

Thanks,


Mike
Mike, I'm a Colonel in the Air Force Reserve. In my case two separate line of duty (LOD) investigations were conducted by two separate Colonels from the Air Force Reserve Command -- and though both found my injury/illness was incurred in the line of duty (incurred while I was assigned overseas on a continuous period active duty of more than 3 years), each was overturned without any credible supporting rationale by the second in command of the Air Force Reserve, despite formal objections from reviewing staff attorneys, and contrary to applicable laws/regs.

The first was an informal line of duty determination which took 6 about 6 months, and the second was a "reinvestigation." After the first appointing official found that my injury/illness had been incurred in the line of duty (ILOD), a recommendation based on several subordinate recommendations from reviewing officials (i.e. the investigating officer, medical officer, staff judge advocate, etc), my case was curiously referred to an Air Force Reserve LOD Review Board headed by the Deputy Chief of the Air Force Reserve, Major General Richard Haddad. According to the paperwork I received many months later, the Air Force Reserve LOD Review Board was comprised of Major General Haddad, a medical officer, a JAG officer, and an NCO who served as the board secretary. The LOD Review Board medical officer recommended to Major General Haddad that my LOD determination be changed from "ILOD" to "existed prior to service (EPTS) and therefore not in the line of duty (NLOD)." The medical officer offered nothing in the way of required medical evidence to support her conclusion of "EPTS" -- the only rationale she provided for her recommendation was a general reference to the Air Force Instruction for LOD Determinations (AFI 36-2910); she offered nothing to support her recommendation other than a generic, non-specific reference to the entire AFI. Curiously the LOD Review Board Reviewing Staff Judge Advocate formally non-concurred with the medical officer's recommendation (to change the appointing official's finding of "ILOD" to a new finding of "EPTS-NLOD"). In addition to his formal non-concurrence with the reviewing medical officer's recommendation, the review Staff Judge Advocate noted "ILOD" (meaning "In the Line of Duty"). Major General Haddad, without further explanation, overruled the finding of the appointing official and changed the finding from "ILOD" to "EPTS-NLOD" -- again offering no medical evidence to support his finding of EPTS (in other words, neither Major General Haddad nor the reviewing medical officer cited even one piece of evidence that my injury/illness had exited prior to service).

Months later, in a response to Congressman Gus Bilirakis, the Air Force Office of Legislative Affairs wrote that "Existed Prior to Service does not necessarily mean that an illness or injury existed prior to military service." Huh? I'm a licensed attorney and found this statement incredible. But what I read next was a stunning admission that the Air Force Reserve was blatantly disregarding Air Force and DoD Instructions and Federal Law pertaining to Line of Duty determinations. The Air Force Reserve's exact response to Congressman Bilirakis was long and convoluted, so I'll spare you the pain of deciphering it, but it basically wrote that if a service member ever has a break in military service, any illness or injury which is incurred prior to that break in service becomes a pre-existing condition (for which the Service bears no responsibility) during subsequent periods of military service. In other words, once there is a break in military service, the Air Force Reserve alleges it no longer has any responsibility for that injury or illness. Of course, this assertion is clearly contrary to every single applicable federal law and DoD & Air Force Instruction. If this explanation offered by the Air Force Reserve were legally sufficient, no member of the Armed Forces could ever have claimed, for example, Vietnam-era agent orange exposure after they had any break in active duty service. Simply ludicrous.

So your point about the VA finding such illnesses/injuries "Service Connected" after the Service found it NLOD is very important. Why? Because the VA and the Services must follow the same legal standard for "service connected" and "in the line of duty" -- and when the VA reviews the same facts/evidence and rejects the NLOD determination of the Service, there is and should be immediate reason for concern. It's a red flag. And that is exactly what happened in my case. The VA reviewed and rejected Major General Haddad's decision to change the LOD finding in my case from "ILOD" to "NLOD-EPTS."

The Reinvestigation: Within days of receiving the results of the first LOD investigation during December 2013, I submitted a request for a reinvestigation. Pursuant to AFI 36-2910, the reinvestigation could only consider "new evidence." My request was granted in January of 2014. What was the new evidence in my case? A corrected DD-214 issued to me subsequent to the start of the first LOD investigation by the same Air Force Reserve Command which Major General Haddad was/is Deputy Commander. It had my correct dates of continuous active service from 2001 through 2004. So I expected that the reinvestigation would be very fast, given that the only new evidence which could be considered was a single page document issued by the same command doing the investigation. My expectation proved grossly inaccurate. I didn't receive the results of the reinvestigation (despite dozens of phone calls/emails to Air Force Reserve Command POCs over a period of many months) until August of 2014. And what I learned later was that the investigating officer was told to conduct the entire investigation all over again.

The investigating officer and appointing official once again found that my injury/illness was "ILOD" (in the line of duty). He noted in his findings that my condition had been incurred while assigned overseas on a continuous period of active duty for more than 3 years and that he found zero evidence to suggest that my illness/injury had exited prior to service. And once again, offering nothing in the way of an explanation or rationale for his decision, Major General Haddad simply overruled the finding of the second investigating officer/appointing official and found my condition "EPTS-NLOD."

And here is the reality -- the system is rigged against Service Members. I've learned that the Armed Services (and evidently the Air Force Reserve is among the most egregious violators) routinely and deliberately disregard applicable law, regs and instructions and make wrongful LOD findings that conditions were NLOD (not in the line of duty), in order to avoid the financial costs of treatment and benefits for these conditions. Like HMOs, they systematically deny claims which are rightfully ILOD (in the line of duty) because they know that most Service Members cannot afford an attorney to fight them, and that even if the member somehow gets an attorney to fight for them and wins, the attorney fees will never be reimbursable. In other words, even if a service member hires an attorney and wins his/her case at the Board of Correction of Military Records (which is not comprised of judges or lawyers but Air Force civilian employee lay persons randomly selected like jury members) or later in the Court of Federal Claims, the money they paid the attorney may well exceed any money they would had been paid but for the erroneous LOD finding (say back pay or INCAP pay). So in the end the Service Member may well end up spending more to fight it than he/she can recover.

So the Services bet, like HMOs, that most service members will tire fighting them and just go away. And the ones that don't, won't get any punitive damages or big money judgments against the Service. Moreover, nobody who violated regs or laws ever gets disciplined (discipline is not in the power of BCMRs or the Court of Federal Claims). So the current state of the laws and regs leaves ZERO accountability for Service rule/law breakers, and the excessively broad grant of sovereign immunity Congress has accorded the Armed Services has insulated the Services from any substantive judicial scrutiny (apart from lost monies). Bottom line: the current system has incentivized and encouraged the Services to pray on these Service Members. Sadly, it all comes down to money during times of shrinking budgets. Like HMOs, the Services that most wounded warriors simply give up trying to fight the endless bureaucracy; and the few who don't, can only recover the back pay which was wrongfully denied them but none of their attorney fees and costs. It's a game with the rules and odds totally stacked in favor of the Services -- one they really can't lose. Why wouldn't they play it?
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
#3
There are so many errors in what you described @ColHolten that I cannot even try to address here. What happened in your case is facially wrong.
 

ColHolten

Registered Member
#4
There are so many errors in what you described @ColHolten that I cannot even try to address here. What happened in your case is facially wrong.
I totally agree. I'm a Colonel with more than two decades of enlisted and commissioned active and reserve service, and a licensed attorney. It took me hundreds, maybe thousands, of hours of mind numbing research to try to understand what was happening to me. I cannot imagine what the average young enlisted members must be thinking when they find themselves on the other end of this goliath. Let alone family members left to help pick up the pieces. From the moment they enter this predatory system they're sheep in the wolves' den.

The Congress must act immediately to remake and rebalance this predatory system. The days of the Armed Services hiding behind blanket sovereign immunity to avoid judicial oversight need to come to an immediate end. It's high time for civilian federal trial courts to have broad jurisdiction to review what in any other federal department/agency would be considered blatant acts of criminal conspiracy, fraud and rule/law breaking. Like with the VA now, outside federal law enforcement agencies (e.g. FBI) should be given primary jurisdiction to investigate such criminal behavior. Military and civilian personnel must be subject to federal criminal prosecution. And when military and civilian personnel deliberately violate or act contrary to federal laws and regs, Congress should find such actions to be per se acts outside the scope of their official positions and thus subject them to lawsuits in their personal capacities. And of course Congress must provide for military members to sue the Armed Forces in federal trial courts, and if they prevail, to recover 100% of their attorneys fees and costs.
 

C.traxler

Registered Member
#5
Greetings. My name is Charles. I have almost 7 years of good service in the Indiana Air National Guard.I am a recent victim of the broken system that is being refered here. I deployed to Iraq and was injured while doing combatives training. I was treated while in theatre and completed tour of duty. I was issued L.O.D. upon return after medical care. It is well documented and was denied an M.E.B for line of duty injury but instead forced to accept a Non-duty d.e.s. instead. Extensive paper trail clearly stats "in the line of duty" but unit states a generic "return to work" from orthopedic surgeon note cancelled out the "line of duty" claim.My case was one that they tried to make me sign a Non-duty d.e.s. and i refused.The outcome was me being discharged with what im assuming is an admin. discharge and medical bills for this injury that i cannot afford. My district congressman Marlin Stutzman is aware of this and his legislative director has been asked to look at this as well. Also state Senator Joe Donnelly's office is looking into this as well. Mr. Donnelly is a member of the S.A.S.C. and i am hoping they can provide some sort of relief. There are many people in this situation and they have nobody to turn to. My unit seemed to be not aware of the proper procedures for this situation and instead of fixing it they swept me under the rug. I posted a thread on a linkedin group forum i belong to and i have had people ask me questions about this specific issue. While i figured out that there was no representation for myself in the military i have had to seek assistance from the civilian community. This issue is hurting military members who have families to support. I had lost my civilian job from this injury and had to seek a new career. I am also very concerned about my discharge. Not only did they deny me a med board, i have concerns about any inquiry from an employer to the military. I am a civilian pilot tied to a professional network. I believe any reputable company looking to hire a professional pilot is going to look into this. I feel like i have made a good run at getting this issue resolved but in the end it led to the end of my military career and has put a huge burden on my family. Im really wondering how an employee of the federal government gets injured at work and they have no liability for it whatsoever. This "just deal with it" outcome is not acceptable to me. I was also denied promotion due to my situation
 
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danieldresen

PEB Forum Veteran
Registered Member
#6
Greetings, per Ma Parker's request my name is Daniel J. Dresen, a recently separated National Guardsman from California. My case started as early as 2008 when I was deployed to Kuwait. I began having severe intestinal pain and bleeding. After several months, I was referred to Camp Arifjan for a surgery. The Naval surgeon suggested I be retained on active duty prior to my REFRAD from Ft. McCoy, WI. This never happened as I was with a small 6 person element. I submitted my documents for the LOD upon returning home but with the change of command, change in BDE structure, and change in unit structure, my stuff got lost in the process and nothing happened. The State Surgeon's office saw that I was not surgically cleared to leave theater from Kuwait and created a waiver for me to deploy again to Iraq, where my symptoms got worse. I began bleeding out of my belly button. The 224th SB refused to process the LOD as I was an individual augmentee to the mission. I again tried bringing up my issues to my unit but nothing was done, again due to changes in leadership. I was officially diagnosed with Crohns disease on March 2013 and subsequently ordered to Annual Training. In the middle of my AT period, I had to conduct a brass police call at the CHP range in Sacramento where we were there from 0700-1900. I began coughing up blood and left my duty without permission. The next day I had an eMRI which confirmed several fistulas tracts and significant ulcerations. These documents were turned in to the state surgeon's office and my commander with a request for an MEB due to when the symptoms initially began. As a result of leaving my post, I received an Article 15 which resulted in a reprimand. This was while I was on a gluccocorticosteroid and was dealing with depression and thoughts of suicide. The BDE wanted me reduced all the way to E1 but as I took responsibility and had a medical reason for leaving, my Company Commander refused which is probably why I was never referred to the MEB. After my article 15, a new commander was assigned and I was recommended for separation due to no LOD being completed. I had one completed for my tonsillectomy and OSA, as well as patella femoral pain syndrome. My condition from Crohn's was rated at 30% by the VA during the time the National Guard was beginning their process to separate me. I elected for a NDR-PEB which can back as unfit, however, my rebuttal with the assistance of Ma Parker caused Ft. Lewis to kick back the case to my state. Due to inaction of my LOD by my BDE and legal, I was separated on 1 September 2014 due to being medically unretainable, no benefits. My LOD is still pending with State JAG. From there, it will go to NGB for adjudication. I have since filed for ABCMR review and a case against the Army in district court, pending a legal fee waiver. There was significant back and forth with my State Surgeon's Office on my medical records. One says I had the condition in 2006 during my time at MEPS, but my entrance documents refuted this. That same document said I was 42 and born in 1968.
 

danieldresen

PEB Forum Veteran
Registered Member
#8
Even OPM has managed to screw me over by processing my disability retirement packet on the tech side as a regular disability which takes 18 months to process, where as a public law disability through loss of service takes only 3 months... which is why ING disability insurance only pays severance for 3 months... So I got royally screwed. County refuses to grant me General Assistance. I have a phone interview for unemployment. Sedentary work is still work... I am not qualified for what is out there but hey... if one position does pop up... I can try working in it. Haven't had any crohn's pain since my liquid diet and pain pills for surgery. Might be able to convince my GI to prescribe a low dose narcotic as needed for pain or... even better... LDN therapy, so I can eventually ditch biologics. The infusions are what make me disabled unless I get a very flexible work schedule with generous sick leave.
 

tarverusmc

Registered Member
#9
Air National Guard found me unfit due to Parkinson's 2014
awaiting separation retirement.
LOD denied by NGB.
EPTS
VA service connected Parkinson's when I was on active duty 2006.
hope my limited information helps
 

FloridaInjuredInCombat

PEB Forum Veteran
Registered Member
#11
Mike,

I'm still a Guardsman, finally in the PEB process. I sustained a severe spinal injury while deployed for combat. Back of a 5 ton truck in full (75lbs) of battle rattle when it hit a washed out section of dirt road at 40 or 50 mph. I was thrown in the air and landed with enough force to break at least one slat on the bench seat (oak I think) and come crashing to the floor of the truck. The unit medics helped me from the truck, gave me Motrin and within a day I was able to stand and therefore go back to duty.

By the time I completed another 6 - 7 months of patrol in Iraq as an Infantryman/Sniper, my back was in excruciating pain, and numbness down both my legs. I went to Battalion Aid Station (BAS), more Motrin, no x-ray, nada... On mid tour leave I went to a civilian doctor who ordered an MRI, my L4-L5 was blown and causing central canal stenosis, and the discs both above and below it were damaged to varying degrees as well. I took the MRI back to BAS and after another month of Motrin they finally took me off patrol and ordered me to the cheesiest of Rehab clinics (in Baghdad) where I performed stretching exercises and had 10 minutes or so a day on a TEMS unit. Not much relief for a blown disc and major damage.

At De-mob, they looked at the now well documented LOD injury (which no LOD had actually been initiated on) and wrote three simple words in my medical jacket "Defer to VA". I returned to my Guard unit and continued to drill for another 5 months or so, until the pain and numbness was to the point that I once again sought medical help. The civilian orthopedic surgeon ordered a second MRI, and advised surgery.

I went back to my Guard unit and they looked at my military medical records, clearly showing it to be an LOD injury, my First Sergeant even ordered me to be seen by the Battalion Surgeon, no x-ray, no exam, nada, who wrote six words this time "re-evaluate fitness for duty post-surgery". Still no LOD, no offer of help by the Army/Guard, no mention of INCAP pay, NOTHING.

I wound up having to pay out of pocket for the surgeries, three in total, where my L4-L5 disc was completely taken out, and my vertebrae were left un-fused due to a subsequent spinal infection that left me with an open wound for months. It took eight months of sheer hell and extensive rehab before I finally could walk without crutches. Out of work, stacks of medical bills, my finances were crushed. My First Sergeant came to visit me ONE time during this whole ordeal. It was as if the Army/Guard had erased me from their books, not once offering the help and support that by Regulations (and morally) I was owed.

I returned to duty (after the eight months) still far too early, but FIDO, and slowly built myself back up. This was in early 2007, a year later I was in Pakistan for a training deployment (Inspired Gambit - 2008) and recruited to join the 3/20th SFG as a SOT-A member. After more than a year of training in language and Intel, I deployed with the SFG to Afghanistan as a SOT-A member (2010-2011). Followed by a year serving as an Infantry Platoon Sergeant.

By last summer the pain and numbness I had fought off so long had returned to the point FIDO was no longer an option. I would literally work my construction job, and down 12 oz. of whiskey at night (one gulp, I hate the stuff) just so I could TRY and sleep through the pain for a couple hours, before getting back up to work another 12 hour shift in pure misery.

Last fall about this time, I once again let me Guard unit know I needed medical help, and the LOD connection. Their initial response, immediately begin to process me for discharge, NO LOD, no medical help, NOTHING. By December after hearing "you don't have an LOD" for the 100th time as an excuse for why they weren't helping me, I FORCED them to initiate an LOD, and having newly discovered the term INCAP and how it applied to me (both in 2006 and now), I requested INCAP at the same time.

From day one its been a running gun battle for every little bit. I fought for nearly two months before they let me be seen by a military physician, and then only to fill out the Fitness for Duty reports. Next I had to fight all the way up to the (Cavalry) Squadron Commander to FORCE the Office of the State Surgeon to allow my claim to be submitted by the unit. It took five months an Article 138 request, an IG complaint, and finally intervention by my State Senator before I was able to receive any INCAP pay. All the while living off next to nothing, and fighting not to lose our home.

The shenanigans don't stop there, the LOD (nine years overdue) came back Approved in the Line of Duty in March, but stated Thoracic not Lumbar as the injury. From day one I fought to have this corrected by OTSS, and they ignored all requests and inquiries. Finally the Air Force Referral Office refused me further care/referrals based on the jacked up LOD, and after getting nowhere with the morons at OTSS, the AF called NGB directly and as of mid-August a NEW (hopefully correct) LOD in being processed. GOD BLESS THE AIR FORCE.

In the meantime I still haven't been allowed my referral needed for continued care and just to add 'icing to the cake' last week NGB denied my continued INCAP coverage based on not having a "correct LOD" even though I've been fighting for it to be corrected since March, and OTSS did nothing till the AF & NGB ordered them to in August. June was the last time I received any pay, it's now five days from October.

I am the poster boy for Army National Guard abuses of injured Soldiers. I will keep fighting for what's due. I want to stand before Congress and tell them and all 42 people that watch C-SPAN2 of mine and many other Soldier's ordeal.
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
#12
Air National Guard found me unfit due to Parkinson's 2014
awaiting separation retirement.
LOD denied by NGB.
EPTS
VA service connected Parkinson's when I was on active duty 2006.
hope my limited information helps
You should create your own thread and layout the details. Something sounds seriously wrong about your case. But, need much more details to weigh in. Again, you should create your own thread discussing your case.
 

FloridaInjuredInCombat

PEB Forum Veteran
Registered Member
#13
Mike, I'm a Colonel in the Air Force Reserve. In my case two separate line of duty (LOD) investigations were conducted by two separate Colonels from the Air Force Reserve Command -- and though both found my injury/illness was incurred in the line of duty (incurred while I was assigned overseas on a continuous period active duty of more than 3 years), each was overturned without any credible supporting rationale by the second in command of the Air Force Reserve, despite formal objections from reviewing staff attorneys, and contrary to applicable laws/regs.

The first was an informal line of duty determination which took 6 about 6 months, and the second was a "reinvestigation." After the first appointing official found that my injury/illness had been incurred in the line of duty (ILOD), a recommendation based on several subordinate recommendations from reviewing officials (i.e. the investigating officer, medical officer, staff judge advocate, etc), my case was curiously referred to an Air Force Reserve LOD Review Board headed by the Deputy Chief of the Air Force Reserve, Major General Richard Haddad. According to the paperwork I received many months later, the Air Force Reserve LOD Review Board was comprised of Major General Haddad, a medical officer, a JAG officer, and an NCO who served as the board secretary. The LOD Review Board medical officer recommended to Major General Haddad that my LOD determination be changed from "ILOD" to "existed prior to service (EPTS) and therefore not in the line of duty (NLOD)." The medical officer offered nothing in the way of required medical evidence to support her conclusion of "EPTS" -- the only rationale she provided for her recommendation was a general reference to the Air Force Instruction for LOD Determinations (AFI 36-2910); she offered nothing to support her recommendation other than a generic, non-specific reference to the entire AFI. Curiously the LOD Review Board Reviewing Staff Judge Advocate formally non-concurred with the medical officer's recommendation (to change the appointing official's finding of "ILOD" to a new finding of "EPTS-NLOD"). In addition to his formal non-concurrence with the reviewing medical officer's recommendation, the review Staff Judge Advocate noted "ILOD" (meaning "In the Line of Duty"). Major General Haddad, without further explanation, overruled the finding of the appointing official and changed the finding from "ILOD" to "EPTS-NLOD" -- again offering no medical evidence to support his finding of EPTS (in other words, neither Major General Haddad nor the reviewing medical officer cited even one piece of evidence that my injury/illness had exited prior to service).

Months later, in a response to Congressman Gus Bilirakis, the Air Force Office of Legislative Affairs wrote that "Existed Prior to Service does not necessarily mean that an illness or injury existed prior to military service." Huh? I'm a licensed attorney and found this statement incredible. But what I read next was a stunning admission that the Air Force Reserve was blatantly disregarding Air Force and DoD Instructions and Federal Law pertaining to Line of Duty determinations. The Air Force Reserve's exact response to Congressman Bilirakis was long and convoluted, so I'll spare you the pain of deciphering it, but it basically wrote that if a service member ever has a break in military service, any illness or injury which is incurred prior to that break in service becomes a pre-existing condition (for which the Service bears no responsibility) during subsequent periods of military service. In other words, once there is a break in military service, the Air Force Reserve alleges it no longer has any responsibility for that injury or illness. Of course, this assertion is clearly contrary to every single applicable federal law and DoD & Air Force Instruction. If this explanation offered by the Air Force Reserve were legally sufficient, no member of the Armed Forces could ever have claimed, for example, Vietnam-era agent orange exposure after they had any break in active duty service. Simply ludicrous.

So your point about the VA finding such illnesses/injuries "Service Connected" after the Service found it NLOD is very important. Why? Because the VA and the Services must follow the same legal standard for "service connected" and "in the line of duty" -- and when the VA reviews the same facts/evidence and rejects the NLOD determination of the Service, there is and should be immediate reason for concern. It's a red flag. And that is exactly what happened in my case. The VA reviewed and rejected Major General Haddad's decision to change the LOD finding in my case from "ILOD" to "NLOD-EPTS."

The Reinvestigation: Within days of receiving the results of the first LOD investigation during December 2013, I submitted a request for a reinvestigation. Pursuant to AFI 36-2910, the reinvestigation could only consider "new evidence." My request was granted in January of 2014. What was the new evidence in my case? A corrected DD-214 issued to me subsequent to the start of the first LOD investigation by the same Air Force Reserve Command which Major General Haddad was/is Deputy Commander. It had my correct dates of continuous active service from 2001 through 2004. So I expected that the reinvestigation would be very fast, given that the only new evidence which could be considered was a single page document issued by the same command doing the investigation. My expectation proved grossly inaccurate. I didn't receive the results of the reinvestigation (despite dozens of phone calls/emails to Air Force Reserve Command POCs over a period of many months) until August of 2014. And what I learned later was that the investigating officer was told to conduct the entire investigation all over again.

The investigating officer and appointing official once again found that my injury/illness was "ILOD" (in the line of duty). He noted in his findings that my condition had been incurred while assigned overseas on a continuous period of active duty for more than 3 years and that he found zero evidence to suggest that my illness/injury had exited prior to service. And once again, offering nothing in the way of an explanation or rationale for his decision, Major General Haddad simply overruled the finding of the second investigating officer/appointing official and found my condition "EPTS-NLOD."

And here is the reality -- the system is rigged against Service Members. I've learned that the Armed Services (and evidently the Air Force Reserve is among the most egregious violators) routinely and deliberately disregard applicable law, regs and instructions and make wrongful LOD findings that conditions were NLOD (not in the line of duty), in order to avoid the financial costs of treatment and benefits for these conditions. Like HMOs, they systematically deny claims which are rightfully ILOD (in the line of duty) because they know that most Service Members cannot afford an attorney to fight them, and that even if the member somehow gets an attorney to fight for them and wins, the attorney fees will never be reimbursable. In other words, even if a service member hires an attorney and wins his/her case at the Board of Correction of Military Records (which is not comprised of judges or lawyers but Air Force civilian employee lay persons randomly selected like jury members) or later in the Court of Federal Claims, the money they paid the attorney may well exceed any money they would had been paid but for the erroneous LOD finding (say back pay or INCAP pay). So in the end the Service Member may well end up spending more to fight it than he/she can recover.

So the Services bet, like HMOs, that most service members will tire fighting them and just go away. And the ones that don't, won't get any punitive damages or big money judgments against the Service. Moreover, nobody who violated regs or laws ever gets disciplined (discipline is not in the power of BCMRs or the Court of Federal Claims). So the current state of the laws and regs leaves ZERO accountability for Service rule/law breakers, and the excessively broad grant of sovereign immunity Congress has accorded the Armed Services has insulated the Services from any substantive judicial scrutiny (apart from lost monies). Bottom line: the current system has incentivized and encouraged the Services to pray on these Service Members. Sadly, it all comes down to money during times of shrinking budgets. Like HMOs, the Services that most wounded warriors simply give up trying to fight the endless bureaucracy; and the few who don't, can only recover the back pay which was wrongfully denied them but none of their attorney fees and costs. It's a game with the rules and odds totally stacked in favor of the Services -- one they really can't lose. Why wouldn't they play it?
Sir,

Though this is referring to a quote from an ARMY regulation concerning your issue, my guess is that the intent would carry over to other services regulations as well.

In Army Regulation, AR 600-8-4, Line of Duty Policy, Procedures and Investigations, 4 September 2008
Section 4-8, Medical Treatment, subsection (3) states....

"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".

That in and of itself says that the issue of it being first injured ILOD and then having a break in service has no negative bearing on it being found ILOD during later service.


From what I can tell after a cursory search for an equitable Air Force Regulation
I came up with Air Force Instruction 36-2910, dated 4 October 2002
In it the following relate to a pre-existing condition...

3.4.1. Existed Prior to Service. The military medical officer must determine whether the illness, injury, or disease or the underlying condition causing it, existed prior to the period of service in which the member exhibited symptoms.

3.4.1.1. A clear distinction between the symptoms and the actual medical condition causing the symptoms is crucial in making an EPTS determination. An LOD determination is based upon the onset of the disease, illness or injury process, not the existence of symptoms. EPTS conditions include chronic disease, illnesses, injuries and illnesses or disease with an incubation period that would rule out a finding that they were incurred during periods of active duty (AD), active duty for training (ADT), or IDT.

3.4.1.2. Aggravation by Military Service. If the determination is the medical condition existed prior to service, then the military medical officer must determine whether the condition has been aggravated by military service (i.e., the member had a preexisting condition documented in their medical record and was allowed to perform duty). AFI36-2910 4 OCTOBER 2002 19

3.4.1.2.1. If the condition has been aggravated by military service, an AF Form 348 must be initiated.

3.4.1.2.2. If the condition has not been aggravated by military service, the medial officer documents this finding in the member‟s medical records with an entry of "EPTS, LOD Not Applicable." When the member has a condition that is EPTS and not aggravated by service, only the initial treatment is covered by the military.

3.4.1.2.3. Eight Year Rule. IAW 10 U.S.C. Section 1207a, a disabling condition will be found to be in the line of duty, even though the condition existed prior to service (EPTS), if the member has at least eight years of active service (8 years do not have to be consecutive), and the member was on active duty orders specifying a period of more than 30 days at the time the condition became unfitting, as subsequently determined by the Physical Evaluation Board.

If I read this correctly you have a couple of valid arguments, beyond that a General simply suffers from "Chronic Cranial Rectosis" in his arbitrary denials of your ILOD findings.

First, even if they count the injury as pre-existing due to it being from a "prior period of military service" (3.4.1) that doesn't exclude them from having to follow the rule that "a pre-existing condition AGGRAVATED by a current period of service counts as ILOD, especially when the illness/injury was documented in your medical record as being pre-existing and the [Air Force] STILL allowed you to serve" (3.4.1.2).

Lastly, the "Eight Year Rule" may apply to you, keeping in mind the 8 years of active service (not necessarily Active Duty - keeping in mind that serving in the Air Force Reserves is considered Active Reserves - as opposed to Inactive Reserves where the SM does not attend drills or AT, and the service does not need to be consecutive years) shift an otherwise EPTS ruling to ILOD, providing the issue became "unfitting" while on Active Duty orders of 30 days of more. (3.4.1.2.3)

Hope this helps...
Staff Sergeant, US.Army, FL-ARNG
 
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maparker

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#14
Traverusmc,

Was the LOD approved at lower levels? Did NGB provide rationale as to why it was EPTS despite VA service connection?

Mike
 

maparker

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#15
The eighth year rule requires that the member not only have eight years of active duty and they must currently be on active duty.

Mike
 

danieldresen

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#16
Mike is right... Look into Title 10 USC, it bears mention of the 8 year rule for medical severance... Otherwise I would have been referred to the MEB regardless of LOD, much like a coworker of mine is now.
 

Jason Perry

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#17
Yes, Mike is quite correct and right on that "caveat" to the Eight Year Rule.

However, a point to consider for folks where this issue would be otherwise implicated is this- should they have been on orders, continued on orders, or not separated from active active such that the Eight Year Rule should apply.
 

danieldresen

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Registered Member
#18
That is also true. In my case, I should have been retained at the demob platform WAAAYYY back in 2009 but due to lack of a medical staff, being a 6 man element... too many issues to mention... the ball got dropped, I was REFRAD and ended up back on another deployment and DEFERRED TO VA upon that demob in 2011. Would I have hit 8 years... probably not, but at the very least, I would have sat around for 2 more and hit 36 months even instead of 32 and got 100% Post 911 with a 214 that had me separated from active service medically. There are too many issues in the way care is handled within the system that more people need to step up and do what is right to help those still in to get what they are entitled to. Its sad... Even Unemployment tried screwing me over. They said I quit... pretty sure an MG separation code was medical. No membership in the guard means no tech job... hopefully I get approved for that at least.
 

Jason Perry

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#19
Yes, Mike is quite correct and right on that "caveat" to the Eight Year Rule.

However, a point to consider for folks where this issue would be otherwise implicated is this- should they have been on orders, continued on orders, or not separated from active active such that the Eight Year Rule should apply.
That is also true. In my case, I should have been retained at the demob platform WAAAYYY back in 2009 but due to lack of a medical staff, being a 6 man element... too many issues to mention... the ball got dropped, I was REFRAD and ended up back on another deployment and DEFERRED TO VA upon that demob in 2011. Would I have hit 8 years... probably not, but at the very least, I would have sat around for 2 more and hit 36 months even instead of 32 and got 100% Post 911 with a 214 that had me separated from active service medically. There are too many issues in the way care is handled within the system that more people need to step up and do what is right to help those still in to get what they are entitled to. Its sad... Even Unemployment tried screwing me over. They said I quit... pretty sure an MG separation code was medical. No membership in the guard means no tech job... hopefully I get approved for that at least.
As you can see, there are actually two issues- whether the member has "eight years of service" and whether they are on active duty orders. So, in appealing cases, I often find that it is a two step arguments- showing that, 1) had the member not been separated improperly/wrongfully, they would have eight years of service, and 2) as a result, they were on active duty when they accrued the eight years, and therefore, the Eight Year Rule applies to them.
 

tarverusmc

Registered Member
#20
Mike,
LOD was approved at lower level. WING/CC.
approved with 8 year rule notation.

DENIED at NGB with justification of:
I was not on orders when diagnosed.

Danieldresen,
I was in the guard when major symptoms appeared.
my ad was with no deployments. Just training
but VA Service connected PD.

Jason,
I'll get my fax together and start
Individual thread like you suggest

Thanks and I hope my information helps others
 
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