IPEB appeal help

I was diagnosed with a condition in Aug 2013. My I-RILO started in May 2014. Because of my diagnosis I was going to require a PEB (the MEB started in June and was completed in Sep). The IPEB convened in Sep 14. I received my results yesterday. My overall VA rating is 70% with my unfitting condition and DoD rating be 20%. My issue is only with the the unfitting condition rating.

If you read the section below, I have one of the conditions listed that required my PCM to start an I/RILO with in 90 days of my diagnosis. Not only did he not start it anywhere near 90 days, he retired, and it took several months for me to get reassigned to a new a PCM (it was over 270 days post diagnosis). Had my PCM at the time of diagnosis submitted me for an I/RILO as he was required I would be getting medically retired.
Basically I would have received 90% from the VA and 40% DoD had he done his job (he cost me 20% from both and retirement). I'm contacting everyone imaginable, but no solid advice yet. Any suggestions/opinions on whether or not I have grounds for an appeal would be appreciated!

The main reason I'm afraid to appeal (if these are grounds to do so) is the risk of my 70% of being lowered as I have been told is a possibility.

Per AFI 48-123 - 5.3.2. The following conditions require I/RILO or FFD initiation within 90 days of diagnosis: All members with organ failure requiring transplant or extensive medical treatment, brain injury with significant permanent physical or cognitive impairment, psychosis, bipolar or other mental health condition that will likely significantly impact member's ability to perform AFSC duties long-term, amputation of a limb, burns greater than 20% of body surface area (other than first degree) or resulting in loss of function or inability to wear personal protective equipment, blindness (bilateral, not just single eye), any terminal illness, seizure disorder, Acquired Immune Deficiency Syndrome (not just HIV positive), neoplastic diseases (a diagnosis of cancer or neoplastic disease may require additional time to establish a clear prognosis, will require lengthy treatment, or will be unable to perform his/her job for a protracted period of time), insulin dependent diabetes, and any other potentially career-ending condition. See AFI 41-210 for additional guidance.

 

[scoutCC]

I just don't know of anyway to fix a MEB being started late. Even if you could show how the lack of proper care caused you and others serious harm, the guy who went to Iraq and shot up people and said he should have been discharged for PTSD didn't get a retroactive MEB, he got life in jail. I don't see anyway to address that, and in this case it seems to have actually made you healthier, oddly enough.

Why would they lower the 70%? PEB appeal couldn't lower the rating except by making you fit. If you request a VARR it will only move the 20% condition up or down. The VARR doesn't look at the fit conditions for a new rating.

Why would an earlier RILO cause a higher rating? Because the condition has gotten better? That just means your condition was unstable, so you would have gotten TDRL and ended up with a lower rating later. It doesn't like an appeal is right, you make it sound like the correct condition got unfit. The VARR would be the route to go, but I don't think an argument that 6 months ago your rating should have been 40% would hold much water, need to show what the correct rating is today.

 

[Warrior644]

I was diagnosed with a condition in Aug 2013. My I-RILO started in May 2014. Because of my diagnosis I was going to require a PEB (the MEB started in June and was completed in Sep). The IPEB convened in Sep 14. I received my results yesterday. My overall VA rating is 70% with my unfitting condition and DoD rating be 20%. My issue is only with the the unfitting condition rating.

If you read the section below, I have one of the conditions listed that required my PCM to start an I/RILO with in 90 days of my diagnosis. Not only did he not start it anywhere near 90 days, he retired, and it took several months for me to get reassigned to a new a PCM (it was over 270 days post diagnosis). Had my PCM at the time of diagnosis submitted me for an I/RILO as he was required I would be getting medically retired.
Basically I would have received 90% from the VA and 40% DoD had he done his job (he cost me 20% from both and retirement). I'm contacting everyone imaginable, but no solid advice yet. Any suggestions/opinions on whether or not I have grounds for an appeal would be appreciated!

The main reason I'm afraid to appeal (if these are grounds to do so) is the risk of my 70% of being lowered as I have been told is a possibility.

Per AFI 48-123 - 5.3.2. The following conditions require I/RILO or FFD initiation within 90 days of diagnosis: All members with organ failure requiring transplant or extensive medical treatment, brain injury with significant permanent physical or cognitive impairment, psychosis, bipolar or other mental health condition that will likely significantly impact member's ability to perform AFSC duties long-term, amputation of a limb, burns greater than 20% of body surface area (other than first degree) or resulting in loss of function or inability to wear personal protective equipment, blindness (bilateral, not just single eye), any terminal illness, seizure disorder, Acquired Immune Deficiency Syndrome (not just HIV positive), neoplastic diseases (a diagnosis of cancer or neoplastic disease may require additional time to establish a clear prognosis, will require lengthy treatment, or will be unable to perform his/her job for a protracted period of time), insulin dependent diabetes, and any other potentially career-ending condition. See AFI 41-210 for additional guidance.

Welcome to the PEB Forum!

Wow, I am indeed sadden to hear about your particular medical situation albeit not surprised of the actions (e.g., lack there of) by the PCM!

Hmm, it seems that your medical condition somewhat "improved" 270 days post-diagnosis which resulted in a lower DoVA proposed rating in accordance with the VASRD; it that somewhat the case?

If so, unless there currently exist medical evidence and/or medical documentation supporting/validating the VASRD criteria for a DoVA 40% proposed rating on your single unfitting medical condition, it would seem that your opportunity for the increased VA rating as previously mentioned is not feasible at this point in my opinion.

Otherwise, I'm way off target in reference to your specific inquiry and other PEB Forum members shall provide sound insightful feedback hopefully soon. Take care and enjoy life!

Thus, I quite often comment that "possessing well-informed knowledge is truly a powerful equalizer."

Best Wishes!

 

[Dan.Ganz]

Thanks for the responses. I was more or less reaching out to see what anyone else may say (some senior leadership thought I had a chance at an appeal), so I was reaching out to anyone/everyone else too. After many many days of researching and talking to a few lawyers, I did not appeal or ask for a reconsideration of my rating. Two different lawyers gave me essentially the same answer.

Yes the AF was wrong, according AFI 48-123, and should have started my MEB and I likely would have been shown stable by doctors. They both said the AF cannot/will not change anything at this point based on their experiences. They both said that even though my doctors would say I'm stable the AF would have put me on TDRL for 6 months (which I think seems really shady) and then started a new MEB. Essentially, it would have caused me to back where I am in the same time frame.

Both Lawyers (one AD and one Civ), said it is a little bit of a shady process when it comes to people who have conditions like mine (Migrains fall in the same category) since they can easily justify TDRL, which usually pushes people out of retirement ratiings. Nothing I can do now but move on, and, honestly, I'm getting to be okay with that.

I'm awaiting my orders now and trying to figure out when my date will be. In fact, trying to figure out how exactly AFPC will calculate my separation date. PEBLO said they will give me ~ 30 days to out-process, 20 days PTDY w/ CC approval, and time to take all of my leave as terminal (~65 days). I mentioned this to my Shirt who said that folks usually get 30-60 days total. That includes time to out-process, PTDY, and take whatever they can as terminal (sell back the rest). Anyone know the reg or the real answer?

 

[Warrior644]

Thanks for the responses. I was more or less reaching out to see what anyone else may say (some senior leadership thought I had a chance at an appeal), so I was reaching out to anyone/everyone else too. After many many days of researching and talking to a few lawyers, I did not appeal or ask for a reconsideration of my rating. Two different lawyers gave me essentially the same answer.

Yes the AF was wrong, according AFI 48-123, and should have started my MEB and I likely would have been shown stable by doctors. They both said the AF cannot/will not change anything at this point based on their experiences. They both said that even though my doctors would say I'm stable the AF would have put me on TDRL for 6 months (which I think seems really shady) and then started a new MEB. Essentially, it would have caused me to back where I am in the same time frame.

Both Lawyers (one AD and one Civ), said it is a little bit of a shady process when it comes to people who have conditions like mine (Migrains fall in the same category) since they can easily justify TDRL, which usually pushes people out of retirement ratiings. Nothing I can do now but move on, and, honestly, I'm getting to be okay with that.

I'm awaiting my orders now and trying to figure out when my date will be. In fact, trying to figure out how exactly AFPC will calculate my separation date. PEBLO said they will give me ~ 30 days to out-process, 20 days PTDY w/ CC approval, and time to take all of my leave as terminal (~65 days). I mentioned this to my Shirt who said that folks usually get 30-60 days total. That includes time to out-process, PTDY, and take whatever they can as terminal (sell back the rest). Anyone know the reg or the real answer?

Indeed, you are welcome! As such, I appreciate the updated status albeit it's not within your desired expectations at this point in time!

Hopefully, other PEB Forum members shall provide you with sound insightful feedback in reference to your specific inquiry soon! Take care, please continue to get well, and enjoy life!

Thus, I quite often comment that "possessing well-informed knowledge is truly a powerful equalizer."

Best Wishes!