Hope all is well out there.
I hope for some feedback on how to request, or best state a request for Earlier Effective date on VA?
-------------------------------------
2002 honorable discharged with no DES MEB PEB or Discharge Physical
2005 SSDI based on Unemployability
2017 VA effective date unemployability when a Veteran took me to the VA for the first time
------------------------------------
I learn about the DES MEB PEB process on here, and it seems that VA is part of that.
I never went through the DES MEB PEB and was never notified of the VA.
So maybe I can state a claim based on equity for example?
The government states, you are going to see, literally, I was given no constructive knowledge of my own disability, as connected to military, until recently as well, because thank god, a veteran found me and took me to the VA for the first time years ago. I have returned the favor and tried to help others get there as well now.
----------------------------
Here is an example of them discussing what would have happened, but miss the VA as part of the process, which goes to constructive knowledge and equity. I think anyone would like to be treated equally and given constructive knowledge
"However, even if such referral was warranted, and a MEB for some reason found that your health conditions materially interfered with your ability to reasonably perform the duties
of your office, grade, rank, or rating to warrant referral to the PEB for a fitness determination,
the Board is confident that the PEB would have found you fit for continued service."
---------------------------------------
(“neven treatment goes against standard of equality and fair-play that is a
necessary underpinning of the federal government’s …process and amounts to an
abuse of the agency’s discretion.”), aff’d, 389 F.3d 1219 (Fed. Cir. 2004).
When assessing irreparable injury, “[t]he relevant inquiry . . . is whether plaintiff has an
adequate remedy in the absence of an injunction.” Magellan Corp., 27 Fed. Cl. at 447; see also
Younger v. Harris, 401 U.S. 37, 43–44 (1971) (noting “the basic doctrine of equity jurisprudence
[is] that courts of equity should not act . . . when the moving party has an adequate remedy at law
and will not suffer irreparable injury if denied equitable relief”).
----------------------------------
1 Certainly, your experience onboard the USS SIDES was an injustice and your resulting mental health condition(s) are a tragedy.
Finally, Mr. Hassay contends that the Board did not give sufficient weight to the opinion of Dr. Foote, a former Navy psychiatrist, in concluding that the Navy was not required to refer him to an MEB because of his “questionable” fitness. Pl.’s Mot. at 25. In a 2021 letter he prepared after this Court’s decision in Hassay I, Dr. Foote opined that based on Mr. Hassay’s records, including the reports of Drs. Killian and Smith, it was “unconscionable” that he was not referred for a “full psychiatric evaluation of his fitness for duty in 1998 when he was denied transfer to the Army, in 1999 and 2000 when he sought treatment from the Navy for his mental illness, or immediately prior to his 2002 discharge.” AR 2366.
Mr. Hassay further argues that the determination of the San Diego Military Processing Station that he was medically disqualified from enlisting in the Army in 1998 should have rendered his fitness to continue to perform his duties with the Navy Reserves at least “questionable,” which would have mandated an MEB referral. Pl.’s Mot. at 21–23. The Board reasonably rejected this contention as well.
Moreover, as described in Hassay I, it is unclear whether the Army’s decision to disqualify Mr. Hassay was based on his perceived mental fitness as opposed to physical ailments. See Hassay I, 150 Fed. Cl. at 482 (observing that the “failure code” assigned to Mr. Hassay read “SPINE, OTHER MUSCULOSKELETAL/Psych left open”); AR Vol. VI at 223, ECF No. 12-6. And in any event, Mr. Hassay was unable to show that the Navy even had notice of the Army’s determination. AR 2282 & n.4.
Mr. Hassay’s contention that the Board erred in failing to find that his separation from the service should have triggered an MEB referral is similarly without merit. See Pl.’s Mot. at 26–27. SECNAVINST 1850.4E states that a member being processed for separation for reasons other than a physical disability is not to be referred for a disability evaluation except in limited circumstances not applicable here. SECNAVINST 1850.4E encl. 3, § 3202.4
The government argues that the Navy nonetheless “affirmatively considered the question of Mr. Hassay’s fitness for duty when it assigned him [an] ‘RE-1’ re-entry code, meaning that he was ‘fully eligible for reenlistment’ and did not require any medical waivers.” Def.’s Mot. at 8 (citing AR 387). This contention is unpersuasive. The mere assignment of a re-entry code is not equivalent to a statutory board’s consideration of a service member’s fitness for duty or eligibility for disability retirement. See Strahler v. United States, 158 Fed. Cl. 584, 591–92 (2022) (finding that a corrections board was the first statutory board to address the plaintiff’s disability retirement claim, even though the plaintiff was assigned a re-entry code allowing reenlistment).
The Court is also not persuaded by the government’s argument that Mr. Hassay’s claim for disability retirement accrued when he was discharged because at that point he had “sufficient actual or constructive notice of his disability, and hence, of his entitlement to disability retirement pay.” Chambers, 417 F.3d at 1226 (citing Real v. United States, 906 F.2d 1557, 1562 (Fed. Cir. 1990)); see Def.’s Mot. at 7–10. As the court of appeals has explained, this exception to the first competent board rule applies where a service member “knew [at the time of discharge] that he was entitled to disability retirement due to a permanent disability that was not a result of his intentional misconduct and was service-connected.” Chambers, 417 F.3d at 1226.
Indeed, although the Advisor did not mention it, in every subsequent year for which the administrative record contains evidence (i.e., between 2004 and 2013), Mr. Hassay recorded no reportable income at all. See AR 100. The Advisor characterized the evidence of unfitness in the record as “speculative” in nature. AR 10. In his view, even had Mr. Hassay been referred to a Physical Evaluation Board “the likely result would have been [a finding that he was] either Fit or Physically Qualified.” AR 11.
“The Board also found no equitable basis for relief in your case. In determining what constitutes equity, the Board is obligated to consider not only what you should receive, but also what other similarly situated service members are entitled to receive. The Board determined that no other similarly situated service member would have been medically retired at the time even with the facts as they are now known, nor would anyone be retroactively medically retired based upon similar facts. Accordingly, the Board determined that there is no basis for relief based on equity. The Board truly regrets the experience you endured during your service onboard the USS SIDES”
“If anything, your continued service would have been beneficial to your health, as you would have been eligible to receive medical care for the mental health condition for which you were briefly hospitalized several months after your discharge from the USNR if you had chosen to reenlist. At “
“the Board also believes that it is irrelevant with regard to the ultimate question in this case, because even if it is true, in hindsight, that your continued service presented a risk to your health, you never would have been found unfit for duty under the circumstances. This conclusion is supported by the fact that you clearly were able to reasonably perform your duties for the remaining period of your USNR obligation. It was also supported by the findings of the AO, which represent the collective opinion of the same organization, which would make a determination of your fitness for duty if your case was presented to the PEB with the same facts today. “
"Fitness for Continued Service.
Having found insufficient evidence that your mental health during your USNR would have or
should have raised questions regarding your continued service such as to warrant referral to the
DES, it follows that there was also insufficient evidence to conclude that your mental health
conditions rendered you unable to perform the duties of your office, grade, rank, or rating.
However, even if such referral was warranted, and a MEB for some reason found that your
mental health conditions materially interfered with your ability to reasonably perform the duties
of your office, grade, rank, or rating to warrant referral to the PEB for a fitness determination,
the Board is confident that the PEB would have found you fit for continued service."
I hope for some feedback on how to request, or best state a request for Earlier Effective date on VA?
-------------------------------------
2002 honorable discharged with no DES MEB PEB or Discharge Physical
2005 SSDI based on Unemployability
2017 VA effective date unemployability when a Veteran took me to the VA for the first time
------------------------------------
I learn about the DES MEB PEB process on here, and it seems that VA is part of that.
I never went through the DES MEB PEB and was never notified of the VA.
So maybe I can state a claim based on equity for example?
The government states, you are going to see, literally, I was given no constructive knowledge of my own disability, as connected to military, until recently as well, because thank god, a veteran found me and took me to the VA for the first time years ago. I have returned the favor and tried to help others get there as well now.
----------------------------
Here is an example of them discussing what would have happened, but miss the VA as part of the process, which goes to constructive knowledge and equity. I think anyone would like to be treated equally and given constructive knowledge
"However, even if such referral was warranted, and a MEB for some reason found that your health conditions materially interfered with your ability to reasonably perform the duties
of your office, grade, rank, or rating to warrant referral to the PEB for a fitness determination,
the Board is confident that the PEB would have found you fit for continued service."
---------------------------------------
(“neven treatment goes against standard of equality and fair-play that is a
necessary underpinning of the federal government’s …process and amounts to an
abuse of the agency’s discretion.”), aff’d, 389 F.3d 1219 (Fed. Cir. 2004).
When assessing irreparable injury, “[t]he relevant inquiry . . . is whether plaintiff has an
adequate remedy in the absence of an injunction.” Magellan Corp., 27 Fed. Cl. at 447; see also
Younger v. Harris, 401 U.S. 37, 43–44 (1971) (noting “the basic doctrine of equity jurisprudence
[is] that courts of equity should not act . . . when the moving party has an adequate remedy at law
and will not suffer irreparable injury if denied equitable relief”).
----------------------------------
1 Certainly, your experience onboard the USS SIDES was an injustice and your resulting mental health condition(s) are a tragedy.
Finally, Mr. Hassay contends that the Board did not give sufficient weight to the opinion of Dr. Foote, a former Navy psychiatrist, in concluding that the Navy was not required to refer him to an MEB because of his “questionable” fitness. Pl.’s Mot. at 25. In a 2021 letter he prepared after this Court’s decision in Hassay I, Dr. Foote opined that based on Mr. Hassay’s records, including the reports of Drs. Killian and Smith, it was “unconscionable” that he was not referred for a “full psychiatric evaluation of his fitness for duty in 1998 when he was denied transfer to the Army, in 1999 and 2000 when he sought treatment from the Navy for his mental illness, or immediately prior to his 2002 discharge.” AR 2366.
Mr. Hassay further argues that the determination of the San Diego Military Processing Station that he was medically disqualified from enlisting in the Army in 1998 should have rendered his fitness to continue to perform his duties with the Navy Reserves at least “questionable,” which would have mandated an MEB referral. Pl.’s Mot. at 21–23. The Board reasonably rejected this contention as well.
Moreover, as described in Hassay I, it is unclear whether the Army’s decision to disqualify Mr. Hassay was based on his perceived mental fitness as opposed to physical ailments. See Hassay I, 150 Fed. Cl. at 482 (observing that the “failure code” assigned to Mr. Hassay read “SPINE, OTHER MUSCULOSKELETAL/Psych left open”); AR Vol. VI at 223, ECF No. 12-6. And in any event, Mr. Hassay was unable to show that the Navy even had notice of the Army’s determination. AR 2282 & n.4.
Mr. Hassay’s contention that the Board erred in failing to find that his separation from the service should have triggered an MEB referral is similarly without merit. See Pl.’s Mot. at 26–27. SECNAVINST 1850.4E states that a member being processed for separation for reasons other than a physical disability is not to be referred for a disability evaluation except in limited circumstances not applicable here. SECNAVINST 1850.4E encl. 3, § 3202.4
The government argues that the Navy nonetheless “affirmatively considered the question of Mr. Hassay’s fitness for duty when it assigned him [an] ‘RE-1’ re-entry code, meaning that he was ‘fully eligible for reenlistment’ and did not require any medical waivers.” Def.’s Mot. at 8 (citing AR 387). This contention is unpersuasive. The mere assignment of a re-entry code is not equivalent to a statutory board’s consideration of a service member’s fitness for duty or eligibility for disability retirement. See Strahler v. United States, 158 Fed. Cl. 584, 591–92 (2022) (finding that a corrections board was the first statutory board to address the plaintiff’s disability retirement claim, even though the plaintiff was assigned a re-entry code allowing reenlistment).
The Court is also not persuaded by the government’s argument that Mr. Hassay’s claim for disability retirement accrued when he was discharged because at that point he had “sufficient actual or constructive notice of his disability, and hence, of his entitlement to disability retirement pay.” Chambers, 417 F.3d at 1226 (citing Real v. United States, 906 F.2d 1557, 1562 (Fed. Cir. 1990)); see Def.’s Mot. at 7–10. As the court of appeals has explained, this exception to the first competent board rule applies where a service member “knew [at the time of discharge] that he was entitled to disability retirement due to a permanent disability that was not a result of his intentional misconduct and was service-connected.” Chambers, 417 F.3d at 1226.
Indeed, although the Advisor did not mention it, in every subsequent year for which the administrative record contains evidence (i.e., between 2004 and 2013), Mr. Hassay recorded no reportable income at all. See AR 100. The Advisor characterized the evidence of unfitness in the record as “speculative” in nature. AR 10. In his view, even had Mr. Hassay been referred to a Physical Evaluation Board “the likely result would have been [a finding that he was] either Fit or Physically Qualified.” AR 11.
“The Board also found no equitable basis for relief in your case. In determining what constitutes equity, the Board is obligated to consider not only what you should receive, but also what other similarly situated service members are entitled to receive. The Board determined that no other similarly situated service member would have been medically retired at the time even with the facts as they are now known, nor would anyone be retroactively medically retired based upon similar facts. Accordingly, the Board determined that there is no basis for relief based on equity. The Board truly regrets the experience you endured during your service onboard the USS SIDES”
“If anything, your continued service would have been beneficial to your health, as you would have been eligible to receive medical care for the mental health condition for which you were briefly hospitalized several months after your discharge from the USNR if you had chosen to reenlist. At “
“the Board also believes that it is irrelevant with regard to the ultimate question in this case, because even if it is true, in hindsight, that your continued service presented a risk to your health, you never would have been found unfit for duty under the circumstances. This conclusion is supported by the fact that you clearly were able to reasonably perform your duties for the remaining period of your USNR obligation. It was also supported by the findings of the AO, which represent the collective opinion of the same organization, which would make a determination of your fitness for duty if your case was presented to the PEB with the same facts today. “
"Fitness for Continued Service.
Having found insufficient evidence that your mental health during your USNR would have or
should have raised questions regarding your continued service such as to warrant referral to the
DES, it follows that there was also insufficient evidence to conclude that your mental health
conditions rendered you unable to perform the duties of your office, grade, rank, or rating.
However, even if such referral was warranted, and a MEB for some reason found that your
mental health conditions materially interfered with your ability to reasonably perform the duties
of your office, grade, rank, or rating to warrant referral to the PEB for a fitness determination,
the Board is confident that the PEB would have found you fit for continued service."
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