15-YR NAVY CAREER IN LIMBO DUE TO CONVENING AUTHORITY **BROKEN PROCESS**

BLUF:

I had a spinal fusion (L5-S1) in March 2017 and have been recommended for PEB by surgeon and PCM on three separate occasions (June 2017, September 2017, October 2017) each time the convening authority has rejected it by taking no action and refusing to sign. I have been unable to re-enlist, extend, transfer or be fully evaluated for continued fitness because of this.

Multiple PEBLO's/LIMDU coordinators, orthopedic surgeons, PCM's (all active USN) at Fort Belvoir Community Hospital are unsure of what else I can do to resolve my situation. Everyone seems to be pointing the finger at another office, clinic, provider for responsibility; however, I am the only one who has to deal with the fallout.

This website is a phenomenal resource that has helped me to learn many things about the complexities of the MEB, PEB and IDES process. I have spent hundreds of hours researching instructions, forums, case law (thanks to resources of this site) and federal code. However, I am to the point where I need help. Any and all input is greatly appreciated.

I know that many of you have much greater knowledge on this issue and lessons learned through hard fought experience. I cannot and would not have made it this far without lots of help. I will do my best to concisely summarize without emotion, just facts. I have a thick skin, so please don't hesitate to call me out on my mistakes.

BASIC INFO:

Active duty Navy Chief Petty Officer (E-7)
Currently stationed in Washington, D.C.
2003 - PRESENT (EAOS February 2018) *granted a "rare exception" by PERS to extend 6 months August 2018
Career intentions: complete at least 20 years of service and honorably retire

TIMELINE:

MAY 2012: Injured back; MRI identified bulging disc (L5-S1); commenced conservative treatment; started behavioral health treatment for depression

MAY 2012 - OCTOBER 2016: Conservative treatment continued and exhausted (physical therapy, acupuncture, yoga, chiropractor, pain management); Multiple debilitating back spasms requiring ER; multiple MRI's showing progression of injury to complete disc collapse and extrusion surrounding S-1 nerves; nerve pain, numbness, weakness progressively worsening

OCTOBER 2016: Referred to ortho and scheduled MS-TLIF surgery at Fort Belvoir

MARCH 2017: L5-S1 surgery successful

APRIL 2017: Diagnosed with PTSD by primary BH doctor(s) and an independent doctor at the same BH clinic (included testing/interviews/questionnaire's)

MAY 2017: 1st period of LIMDU commenced

COMMENT: This definitely should have happened much sooner and likely caused some of the problems. I was never on LIMDU previously and was waived from portions of PFA almost every cycle due to issues associated with back injury.

JUNE 2017: Nerve issues associated with surgery started to return and worsen. Pain, burning, numbness, tingling down both legs and in both feet when sitting or standing. Back spasms returning. Recommended for PEB evaluation by Orthopedic Surgeon who performed surgery and 2nd orthopedic surgeon. Convening authority rejected by not taking any action. Used abbreviated MEDBOARD form hard copy and hand carried to LIMDU coordinator.

SEPTEMBER 2017: Again recommended for PEB by orthopedic surgeon and additionally behavioral health (BH) for PTSD/Major Depression. Submitted hard copy form and was rejected by convening authority.

NOVEMBER 2017: 1st period of LIMDU lapsed while BH was attempting to help resolve situation (active USN Dr.). Convening authority agreed to allow 2nd LIMDU.

NOVEMBER 2017: Commenced LIMDU encompassing orthopedic and BH

HELP!!???

Thankfully, I was granted a short term waiver; however, I am very concerned that I am going to have the exact same issue with the convening authority in MAY 2018 when my LIMDU expires. I have seen Neurology to rule out any obvious nerve damage (nerve study/MRI). I have continued in physical therapy and have made strides, however, on most days I cannot bend over at all due to the back pain. In a perfect controlled environment when I am feeling 100% immediately following massage at physical therapy I can somewhat bend over with reduced ROM. I am concerned that the notes from PT will not encompass my limited range of motion/pain that I deal with daily. A goniometer has never been used for ROM. Also, I don't want to push them too hard and have them annotate a negative note in my record.

I recently requested my full medical record to include detailed BH notes, testing and diagnosis. What else should I be doing to ensure my medical record accurately reflects the impact that these issues are having on my personal life and work life? This is even more difficult since I can't even get to an official MEB or PEB it is just stuck with the convening authority and no-one knows what to do. Please help.

 

[bleacherspy]

Your course of treatment sounds like Navy standard. That's how they would do it for anyone... conservative (read cost management) treatment until proven ineffective and then pay for surgery. Surgery or procedures "fix" all in the Navy or so they think; so, you were given a chance to heal and then evaluate and put on LIMDU when it was apparent your procedure failed. The CA may want to see you complete a second LIMDU period in order to see if your conditions resolve with continued PT and counseling. Per MILSPERSMAN 1306-1200 the CA has the option of using two six month LIMDU periods before NAVPERSCOM is involved in the process. I believe that if you complete 2 LIMDU periods and still can't return to duty, the MEB is automatically required and the CA would have no choice to hold it back. I can't remember what instruction says that.

Keep the push on to document everything the right way in your records. You are correct about pushing, so do it as cordially and passive-aggressively as you can, but you have to keep fighting for yourself and your future. Ask for ROM measurements with a goniometer and see what they say. It sounds like you are doing everything right and the system is doing what it does. I am a little worried about the timing of the expiration of your second LIMDU and your EAOS/extension.

Your other option is to get your chain of command involved now so they can go direct at their level and maybe ask what the CA is thinking or doing so you have some SA.

 

[chaplaincharlie]

I think I have missed something. Your career intention is to make 20. So why are you pushing for an MEB by the convening authority?

 

[Kizersoze]

I guess I could have phrased that better @chaplaincharlie . I would like the formal determination made whether I am fit for continued service or not so I can move on to my next duty station.

I am supposed to return to sea duty in February of 2018; however, I have been told by my PCM they will not clear me for sea duty. I can’t even begin to negotiate or accept orders until someone determines that I am fit for full duty. All of my medical providers (ones that initiated LIMDU) have determined that a screening for continued fitness should be determined at a PEB.

I believe that means I can either be placed on permanent limited duty with restrictions (no steel toe boots, no standing in formation, no PT test, no sea duty) and retained, separated with severance or medically retired.

 

[Kizersoze]

I am trying to keep an updated log/diary of my daily nerve pain (numbness, burning, tingling) and back pain/spasm’s that occur. I have it detailed to include; time, activity, areas effected (toes/heel/hip/left or right) and pain scale (1-10).

Should I pay out of pocket to get a 2nd opinion with ROM measurements from a private physical therapist at this point? Would it be better to save any additional opinions until later in the formal process?

 

[Camp P Marine]

I wouldn't worry about it just yet. After your C&P Exams (MEB phase), the PEBLO should eventually give your completed DBQs. If you look at https://www.ecfr.gov/cgi-bin/text-idx?rgn=div5;node=38:1.0.1.1.5 "The Spine" is the table of ratings. If your back's ROM and ratings don't jive then yes go for a second opinion. Especially if you think you'll be rated below 30%. Also medical info that's older than the DBQs would hold less weight. Holding off also gives you "new & material evidence" in case of a reconsideration request, which is needed.


Also nerves of the lower extremities are rated under different nerve codes (femoral 8526 , sciatic 8520, etc.), as these are common for back issue cases. Make sure to claim all nerves affected as the C&P Dr. will likely breeze through your exam & could omit issues (VA won't rate unclaimed issues).

 

[bleacherspy]

I guess I could have phrased that better @chaplaincharlie . I would like the formal determination made whether I am fit for continued service or not so I can move on to my next duty station.

I am supposed to return to sea duty in February of 2018; however, I have been told by my PCM they will not clear me for sea duty. I can’t even begin to negotiate or accept orders until someone determines that I am fit for full duty. All of my medical providers (ones that initiated LIMDU) have determined that a screening for continued fitness should be determined at a PEB.

I believe that means I can either be placed on permanent limited duty with restrictions (no steel toe boots, no standing in formation, no PT test, no sea duty) and retained, separated with severance or medically retired.

When I read this yesterday I knew what you were trying to do; basically, get off LIMDU asap so you can re-enlist and move. HOWEVER... It sounds like you have your answer in a way or an eventuality you need to start thinking about. If the docs that will clear you and sign off your sea duty screening are saying that you are not going to pass then that should tell you that your goal for a 20 year career is in jeopardy already. That goes along with my comment about the timing of your LIMDU and EAOS, more to follow on that in a bit. You are in a precarious spot in my opinion. If you you can't get past a sea duty screening then I am afraid your chances for re-enlistment are not good. Luckily, there is a push right now to keep as many folks around as possible so if you are in a critical rate then you might be okay. Here's what I am worried is happening... they see that you are close to EAOS and that your current LIMDU will get you to or past it. If you get to that point and can't return to duty or pass the sea duty screening, then they may just let you go and you get nothing for your 15 years. Not right at all! If it looks like you are not progressing, then you (and your chain of command) need to advocate for the MEB big time so you have a shot at some kind of retirement provided that you can get rated at or more than 30%. If you think that may come into play then it may be in your best interest to get ROM stuff outside the military system so that it can be included in your record. I like the idea that Camp P Marine related about doing it after the C&P so you can use it as new evidence in case of a reconsideration. Good idea about the personal pain log. I would even go as far as having that log notarized weekly so that it shows you didn't just make it up last minute. It protects you down the road and gives you some leverage. If you can't return to a full duty status, then your hope becomes that the MEB/PEB will let you continue in a PLD status to get to retirement. A lot of that determination is going to be based on the input your CO has if and when you require and non-medical assessment (NMA). Those have to be written well and say the right things to get the outcome you need. I will tell you that I was a former CO, and until I went through the process myself, I didn't understand it as well as I thought so make sure you are smart on it so you can help and catch mistakes people are making. I was shocked to see how misinformed the actual people running the stuff were about their own programs. I ended up knowing the instructions better than most of them. One bit of positive. I have heard that a lot of folks are getting FIT decisions at the board right now due to the retention push so that may be a good thing to help your goal of 20 and PLD. I'm not super familiar with ROM stuff, but I believe at some point the regs make the decision for the board so their hands may be tied and their decsions forced by where you are with that. There are certainly some smarter folks around these boards that can chime in an help there.

 

[chaplaincharlie]

Since you want to move on and your convening authority is against the PEB; maybe the he/she can talk to the PCM and get you cleared.

 

[chaplaincharlie]

BTW, thanks for the clarification.

 

[Kizersoze]

Since you want to move on and your convening authority is against the PEB; maybe the he/she can talk to the PCM and get you cleared.

My BH doctor talked to her and she has actually been very transparent when speaking with her. It seems that my surgeon was not documenting my visits properly. After a 15-30 minute discussion about my nerve issues and rom problems his only notes were "meeting/exceeding milestones for recovery. Prognosis: good". Luckily, I saved copies of the additional letters he gave me (that weren't uploaded to my record).

I understand why she would reject it with those minimal notes. This has given me more time to ensure that my visits and diagnoses are properly documented. While frustrating, I think it has been beneficial and I appreciate where the convening authority is coming from.

 

[Kizersoze]

Here's what I am worried is happening... they see that you are close to EAOS and that your current LIMDU will get you to or past it. If you get to that point and can't return to duty or pass the sea duty screening, then they may just let you go and you get nothing for your 15 years. Not right at all!

@bleacherspy that was my biggest concern and frustration for the past few months. I just couldn't wrap my head around the fact that this 'could' happen and I know I am not the only one to find the broken aspects of the system. The conclusion I came to was that every Sailor needs to complete a physical at separation. If the separation physical identifies medical issues that merit an MEB they have to refer you.

I like the idea that Camp P Marine related about doing it after the C&P so you can use it as new evidence in case of a reconsideration. Good idea about the personal pain log. I would even go as far as having that log notarized weekly so that it shows you didn't just make it up last minute. It protects you down the road and gives you some leverage.

Getting it notarized is a great tip. I live right across the street from a NFCU so I can get free notary easily. Also, I will make sure my to submit it to my PT regularly.

If you can't return to a full duty status, then your hope becomes that the MEB/PEB will let you continue in a PLD status to get to retirement. A lot of that determination is going to be based on the input your CO has if and when you require and non-medical assessment (NMA). Those have to be written well and say the right things to get the outcome you need. I will tell you that I was a former CO, and until I went through the process myself, I didn't understand it as well as I thought so make sure you are smart on it so you can help and catch mistakes people are making. I was shocked to see how misinformed the actual people running the stuff were about their own programs. I ended up knowing the instructions better than most of them.

Thank you for your sage advice. It seems like NMA is a major decision point and requires detailed explanations why/how it effects performance of your military duties. I haven't had any luck finding a good example NMA that really captures the impact of constantly being out of the office for various medical appointments as an office worker (CTT) on shore duty.

 

[bleacherspy]

@Kizersoze.. everyone gets a separation physical before they leave the Navy and like you suggest if there is a medical problem discovered that warrants a MEB, then the member is supposed to be referred. Supposed is the key word. You'd be hard pressed to find anyone that has done it that way from what I learned. Most of the time the member just wants to get out and move on so that's probably the #1 reason it doesn't happen. I really don't like the fact that your surgeon was writing the notes he wrote, but I am glad you have the alternative notes to support your claims. It appears that the surgeon may have been trying to help you out somewhat thinking that you would get better and need the endorsements he wrote to get back to duty. You won't find good examples on an NMA anywhere really. I've helped a few folks on here right theirs and can help you if you get to that point. The biggest thing is that you have to decide what outcome your would like, FIT or UNFIT, and shape the CO's comment section that way. The biggest factor will be whether your CO/chain of command allows you to provide the write up inputs, some do and some don't. I'd also say you may want to start preparing yourself to get some legal help.

 

[Kizersoze]

I have been reviewing the C&P exam information for rating mental health conditions; specifically, PTSD (VA FORM 21-0960P-3) and have a question:

SECTION II - CURRENT DIAGNOSES is based off of the DSM-IV showing outdated AXIS categories.

Are the exams/ratings still based off of the DSM-IV? Do the providers base their determinations on the DSM-V but have to fill out the old paperwork? Anyone have personal experience with a mental health C&P exam since the DSM-V was released?

 

[Camp P Marine]

DSM-V is the current criteria. Also one part of it matches the rating criteria directly from the table of ratings... .

It's basically this chart, but reverse order or "upside down"