Looks like the shaft

PEB forum

Today I was read the results of my informal PEB. Needless to say, I'm not too happy about the results. First, a little background information.

10Sep2001 -Entered the military as a Nuclear School candidate and an E3, knowing, and being told by my recruiter and MEPS, that a condition that my brother has, Malignant Hyperthermia (MH), was not a disqualifying condition, and that I was completely good to go.

-a week or two later, while at dental, was informed that I needed my wisdom teeth yanked, so I let them know that my brothers condition requires me to have special consideration regarding what kind of anesthesia is used.

-within days, was called to medical and failed the special program screening for the Nuclear program, so I would have to reclassify as a different rate.

-reduced in rate to E1 with 0 days in rate upon completing boot camp, and reclassified as in the Advanced computer and electronics field. I became an ET and was sent through A school, C school, and then to a ship.

-had a problem with my back while on deployment in the gulf, which still gives me problems. The independent duty corpsman said it was sciatica and lumbago.

-passed an overseas screening to live in Japan while my ship homeport shifted, and lived in Japan for a year.

-while in Japan I developed IBS symptoms, but was never seen for it out of embarrassment.

2007 -transfered to shore duty stateside

-the back flared up and I was LLD for 2 months, PRT waived. Did physical therapy for 3 months.

2008 -because of the desire to have children, decided to get tested for MH. The test is only completed in Bethesda, MD, and involves a leg muscle biopsy. I test as Malignant Hyperthermia Susceptible. 30 days convalescent leave and full recovery.

-after the surgery i was seen for the IBS symptoms. Chronic Diarrhea. 3 months later I was diagnosed with IBS. Given 8 immodium per day to help symptoms, along with an anti-depressant for gastro pain. I stopped taking the anti-depressant because it was causing headaches.

Dec 2008 -Medical board was started for MH because of my concern for worldwide assignment due to the lack of ability to handle a MH episode on ships and foreign assignments.

25Feb2009 -Package sent to PEB including MH, IBS, Back pain, and chronic cough

Feb 2009 -FEV1 from military civilian doctor is 59%. Given inhaler for Asthma.

Mar 2009 -FEV1 from same doctor is 55%. Given Flovent, 2x2 per day.

25Mar2009 -Received Informal PEB results. Fit for Full duty.

When speaking to a naval reserve JAG officer that was set up next to the Balboa PEBLO office, she commented that the main reason that it was FIT, was that my Non-medical assessment basically stated that I can do my job and I'm not affected by my conditions. The JAG officer was a reservist called back to active duty specifically to help medical disability cases, and had formerly been the representative for PEB cases for 3 years. I've done a lot of research into the DES, and she basically stated what I already knew about the NMA.

I have a few comments. I am on shore duty. My command is one that doesn't document missed hours, and if you aren't feeling good, you can go home. My job consists of searching google all day, and taking out a small bag of trash. There is no possible way that any disability accept decapitation could prevent me from doing my job. That is a problem with getting a NMA that properly explains the problem. To get one that would say otherwise would be lying on the officers part.

My job in the navy is as an ET. As an ET, I'm expected to do 3 years sea duty, 3 years shore duty. I don't agree that a condition that causes you to be non-worldwide assignable is NOT a disability. Being non-worldwide assignable causes me to not be able to do my job. If I can't do sea duty, I am not promotable, not retainable, and not doing my job. That is the basis of a disability.

I have 2 questions that you guys might be able to field.
1- Does the Existed Prior to Service 8 year rule round up like the years in service does when calculating disability?
2- When administratively separated, can you still receive VA disability compensation for the other disabilities that aren't the ones that caused you to be separated? and if not, why?
 
1- Does the Existed Prior to Service 8 year rule round up like the years in service does when calculating disability?

DJ,

1) No, the 8 years are a bright line standard. 7 yrs, 364 days won't get you there. But I have a question back to clarify something...why are you asking? The 8 year rule only applies after you have been found unfit. The obvious reference is to your MH, but I have not seen a widespread problem with genetic diseases not being properly looked at as either incurred in service or service aggravated. This issue does not apply in your case, because you have been found fit (of course, you may be asking about what happens if you are found unfit...in that case, I would remind you that the date that counts is your last day of service...so keep in mind case processing timelines if you are speculating about what happens if you appeal AND they find EPTS (but again, I would not be overly worried about this; vigilant, sure, just not too worried).

2- When administratively separated, can you still receive VA disability compensation for the other disabilities that aren't the ones that caused you to be separated? and if not, why?
2) Yes, you can. You are eligible for all service connected disabilities.
 
2) Yes, you can. You are eligible for all service connected disabilities.

I think I missed the scope of my own question. I understand that after being administratively separated you are entitled to VA disability compensation. That being said, if you receive a severance payment due to being admin separated, will your VA disability compensation be reduced or withheld until the amount of severance pay you received is collected? Similar to how they recoup the disability separation pay from your VA disability compensation when you are unfit and under 20%.
 
Just to make sure I understand your question, are you referring to admin sep for disability reasons or non-disability reasons?

Just a quick side note, remember, as of last year, there is no recoupment for injuries incurred in combat zone that result in award of separation pay:

"(d) (1) The amount of disability severance pay received under this section shall be deducted from any compensation for the same disability to which the former member of the armed forces or his dependents become entitled under any law administered by the Department of Veterans Affairs.
(2) No deduction may be made under paragraph (1) in the case of disability severance pay received by a member for a disability incurred in line of duty in a combat zone or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense.
(3) No deduction may be made under paragraph (1) from any death compensation to which a member's dependents become entitled after the member's death.


10 USCS § 1212"
 
1. As per the reserve JAGs advice, you need to counter the NMA in your Petition for Reconsideration in order to be found Unfit and keep your case moving forward in the PEB system.

2. First step, obtain nonmedical evidence letters from peers and supervisors describing your need to come in late, leave early or take numerous breaks in the workplace secondary to your various health conditions.

3. Try to make each letter a little different from the others and try to use them to cover the range of your symptoms.

4. Use this info as part of your recon petition.

5. I am sure that Jason and some of your peers on this board will chime in as well.

v/r

Jack Gately

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I assume the jag u speak of is LTCDR HI***. She helped me a lot. Told me to refuse fit for duty. She got me 40% dod and 50% va.
 
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