ADSEP with Diagnosed Medical Condition

Terrant

PEB Forum Regular Member
Hi,

I am currently being ADSEPPED from the Navy (leaving in a week) on the basis of not being worldwide assignable. Otherwise known as, "Convenience of the Government". However, it is not that simple and is in fact quite convoluted.

I have been in the Navy for a year, and last summer I began experiencing some fairly serious symptoms. Through a span of about 8 months of testing and at least 12 visits to both my local provider and my cardiologist I was diagnosed with Supraventricular Tachycadia (SVT) with an aberrant conduction. To put it simply: I have an electrical problem with my heart. It speeds up far too fast, I feel as if don't get enough oxygen, and black out. It is documented to have manifested during Military service.

When I finally got my follow-up appointment for my diagnosis in February, my cardiologist filled out and submitted the paperwork for 6 months of LIMDU, after which if no progress was made a PEB would probably be dictated. He additionally gave me my treatment options, which included medication for life or cardiac ablation.

The following month (this month), I was informed that in December a message containing instruction for my Administrative Separation was sent out. Nearly three months later, I was JUST hearing about this for the first time.

I was told that ADSEP overrides LIMDU in Mantatory ADSEP cases. I spoke with my attorney (elected legal counsel), and we noticed several things: Both the notice of counseling (for not being worldwide assignable) and my notice of separation were given to me on the same day. Additionally, according to MILPERSMAN in my case I am not considered a "Mandatory ADSEP" as I have no disciplinary or misconduct issues. I completed both "A" and "C" school, and my only problem has been my heart condition that began after I enlisted.

The supervisor in the legal office called NAVPERS, and they indicated to her that I was mandatory because they dictated my separation to be so. And that since this was sent out in December, my LIMDU essentially never happened.

The bottom-line: I am being Administratively Separated with a diagnosed heart conditon that is documented to have occurred during military service. I get no medical care, no disability rating, or the full benefits of the G.I. Bill.

So the question is, what do I do? Is there legal recourse? This to me is inequitable and I feel that I am being unjustly dealt with. I don't think it's ever unreasonable to want peace of mind.

I would appreciate any advice that I can get. Thanks!
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
Terrant,

Sorry to hear about this development. I find it very interesting and perhaps an unintended consequence of this law:


10 USCS § 1214a

"§ 1214a. Members determined fit for duty in Physical Evaluation Board evaluation: prohibition on involuntary administrative separation due to unsuitability based on medical conditions considered in evaluation

(a) Disposition. Except as provided in subsection (c), the Secretary of the military department concerned may not authorize the involuntary administrative separation of a member described in subsection (b) based on a determination that the member is unsuitable for deployment or worldwide assignment based on the same medical condition of the member considered by a Physical Evaluation Board during the evaluation of the member.

(b) Covered members. A member covered by subsection (a) is any member of the armed forces who has been determined by a Physical Evaluation Board pursuant to a physical evaluation by the board to be fit for duty.

(c) Reevaluation.
(1) The Secretary of the military department concerned may direct the Physical Evaluation Board to reevaluate any member described in subsection (b) if the Secretary has reason to believe that a medical condition of the member considered by the Physical Evaluation Board during the evaluation of the member described in that subsection renders the member unsuitable for continued military service based on the medical condition.
(2) A member determined pursuant to reevaluation under paragraph (1) to be unfit to perform the duties of the member's office, grade, rank, or rating may be retired or separated for physical disability under this chapter.
(3) The Secretary of Defense shall be the final approval authority for any case determined by the Secretary of a military department to warrant administrative separation based on a determination that the member is unsuitable for continued service due to the same medical condition of the member considered by a Physical Evaluation Board that found the member fit for duty."

Congress got upset about the Navy's use of separating for unsuitability conditions that were previously found fitting. In response this law was passed (effective date of Jan 7, 2011). I had worried at the time that the Navy would seek to avoid this law by....wait for it...NOT SUBMITTING MEMBERS FOR AN MEB/PEB! It sounds like this may be what is happening in your case.

I am currently fighting a case in the US Court of Claims (Stein v. United States) where Mr. Stein was separated for unsuitability after a PEB had adjudicated him fit for the same conditions. You can read more about that case here: PEB Forum Home - Lawmakers look to restrict discharges for medical conditions . After I began researching this case, I realized that the Navy was routinely incorrectly using the unsuitable excuse (based on MILPERSMAN 1910-120) to separate members with a "physical condition." If you read the regulation, it states:

2. Policy
a. Physical or behavioral conditions which impair a member’s performance, but do not amount to a physical
disability, are covered under this article. They do not amount to a disability, but can affect potential for continued Naval
Service (see above references). Conditions included, but not limited to the list of conditions as outlined in references (a)
through (c), which covers:

CONDITIONS
(1) Enuresis (bedwetting).
(2) Sleepwalking and/or Somnambulism.
(3) Dyslexia and other learning disorders.
(4) Attention Deficit Hyperactivity Disorder.
(5) Stammering or Stuttering.
(6) Incapacitating fear of flying confirmed by psychiatric evaluation.
(7) Airsickness, Motion Sickness, and/or Travel Sickness.
(8) Phobic fear of Air, Sea, and Submarine Modes of Transportation.
(9) Uncomplicated Alcoholism or Other Substance Use Disorder.
(10) Mental retardation.
(11) Adjustment Disorders.
(12) Impulse Control Disorders.
(13) Sexual Gender and Identity Disorders paraphilias.
(14) Factitious Disorder.
(15) Obesity.
(16) Over height.
(17) Psuedofolliculitis barbae of the face and/or neck.
(18) Medical Contraindication to the Administration of Required Immunizations.
(19) Significant allergic reaction to stinging insect venom.
(20) Unsanitary habits.
(21) Certain anemias – in the absence of unfitting sequelae – including G6PD deficiency, other
inherited Anemia Trait, and Von Willebrand’s Disease.
(22) Allergy to Uniform Clothing or Wool.
(23) Long Sleeper Syndrome.
(24) Hyperlipidemia."

Where the Navy has gone off the rails is classifying almost any condition as "Physical or behavioral conditions which impair a member’s performance, but do not amount to a physical disability." The problem is that there are numerous sources, including US Court of Appeals for Veterans Claims cases, that state that a disability is any injury or disease where there is "any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs whose etiology, pathology, and prognosis may be known or unknown." They are using a tortured definition of what constitutes a "disability."

My sense is that if you are separated, you should consider suing in Federal Court. I think what they are trying to do is flat out illegal. Later, you can pursue disability benefits, but in order to do so, if you are not in the military at that point, you would need to go to BCNR first. I think it would be easier to sue for wrongful discharge and then once back on duty, pursue medical benefits.
 

tdgilbert1

PEB Forum Regular Member
That is just terrible but I feel your pain. I was Admin Sep Aug 2007 for unsuitability as well, I have Major Depressive Disorder and Anxiety Disorder but my psych doc dictated my MEB on basically Post Partum Depression and never mentioned the Major Depression or Anxiety so I was given boot under Milpersman 1910-120 Physical or Mental Condition (not a disability). I have friends that are trying to push me to fight it with the BCNR but I think I may be out of time since it has been almost four years. I get 60% from the VA 50% is for depression/anxiety, I'm not sure if I should even waste my time with even trying to get justice!
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
If you are interested in pursuing this, please send me a PM. I have a case in the US Court of Federal Claims where I am challenging the use of separation via unsuitability under MILPERSMAN 1910-120. I think the Navy has blatantly violated the law. See the article regarding Kevin Stein.

It is not too late to fight this. The statute of limitations in Federal Court is six years.
 

gcorkron

PEB Forum Regular Member
I was ADSEP'd in 2003 for a condition, not a disability. I now know I have spinal arthris because of the injury I sustained in 2001 (while in the Navy). I was diagnosed by the naval dr as having a narrowing spinal column, which it has now been revealed I have 2 ruptured discs that are the cause of the narrowing! Is there anything I can do?
 

gcorkron

PEB Forum Regular Member
I was ADSEP'd in 2003 for a condition (spinal stenosis) not a disability, found fit for full duty, then adsep'd a week later. I found out now I have Ankylosing Spondylitis (diagnosed by the VA April 2011) I also looked through my old medical records and found a report that states I have 2 bulging discs causing a narrowing of my spinal column. I just recently found out those 2 bulging discs are ruptured. My spine has fused itself about 80% of the way up, and my hips have fused about 90%. Can I go after the military for a misdiagnosis that now has me (at 30 years old) unable to stand up straight, and unable to pick up my children? Can I go to the VA about back pay in my case because they missed all of this also, until my x-rays showed the damage is done and irreversible?
 

Jeep Freak

PEB Forum Regular Member
PEB Forum Veteran
There is this like thing called the ferrous docturine that prohibites active duty personnel from sueing the military even after you have left the military, if I'm wrong please correct me because I checked with attorneys. Now what I thought about after reading your post was where Jason mentioned sueing the government for wrongful discharge. Try and do a search for that first and then maybe contact Jason or maparker for advice. Good luck
 

maparker

Moderator
PEB Forum Veteran
Registered Member
Did the VA service connect your Ankylosing Spondylitis?

Recommend you file with the Navy for a Disability Review Board under 10 USC 1554. This Disability Review Board used to be limited to officers. Congress expanded eligibility to enlisted members as well, effective 7 January of this year. Write the Navy Council of Review Boards and request a Disability Review Board. Their address is:

Director
Navy Council Of Review Boards
Washington Navy Yard
720 Kennan Street, S.E., Suite 309
Washington, DC 20374-5023

Enclosure 7 of SECNAVINST 1850.4e covers the Navy's Disability Review Board process.

Let me know how it goes, especially if they won't grant you a Disability Review Board.

Mike
 

gcorkron

PEB Forum Regular Member
Mike,

I was just diagnosed April 12th this year for Ankylosing Spondylitis. I have my local congressman working on my appeal for me. I think I will be rated for it, but of course its the hurry up and wait now.

Thank you for your help every one so far!
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
There is this like thing called the ferrous docturine that prohibites active duty personnel from sueing the military even after you have left the military, if I'm wrong please correct me because I checked with attorneys. Now what I thought about after reading your post was where Jason mentioned sueing the government for wrongful discharge. Try and do a search for that first and then maybe contact Jason or maparker for advice. Good luck
Jeep Freak,

If you are confused about all of this, well it is justified. The topic is confusing. The Feres Doctrine bars military members from suing the military or the government except as the government has consented to be sued. This is just a particular application of the general rule that the US Government cannot me sued under the doctrine of sovereign immunity unless Congress has specifically allowed a suit.

The good news for members is that there has been waiver for wrongful discharge claims and for claims of disability retirement. The rules can be quite complicated as to when you can sue, though. When you can sue drives when the statute of limitations runs. A quick example is that claims for military disability retirement do not ripen until at least one board competent to determine disability benefits has ruled. If you have not had such a board prior to discharge, you need to go to BCMR/BCNR first before going to court.

I just wanted to emphasize this point. The Feres Doctrine bars suits by military members for things like medical malpractice. However, it does not apply to, and Veterans are free to make, suits against the United States for denial of benefits.
 

Spectre76

PEB Forum Regular Member
Bit late for me to chime in on this but Ill tell about my stuff. Was dealing with getting back in shape, reinjured myself and was facing adsep for PRT fail <failed the run by 15 seconds> As soon as I started the process to reopen my claim the NOSC where I was assigned started harassing me about paperwork. Well this went on until it was a forced issue and they had to deal with what they were handed. The HM2 in charge pushed my ortho's findings into my MRR. Im posting this as relevant as it stopped per NAVPERS any adsep process. I hate to sound harshe, but sometimes ya just gotta shrug off the BS and then ram the truth home when its in your hand. In short, HOLD FAST. HooYAH
 

gcorkron

PEB Forum Regular Member
Ok, here it goes, I just had a c&p done. My case started in 2003 when I was ADSEP'd from the Navy, been fighting the VA since. Here is the modified copy of my latest C&P.

I got copies of my complete C-file from the VA. The c&p exam I had in 2004, the doctor stated that my back pain was more likely than not related to my service in the Navy.:mad: But I was denied service connection because there was not an official diagnosis, just stated back pain.

I also had a C&P exam on 16 Mar 2012, where the Dr. states that my Ankylosing Spondylitis is more likely than not related to my service. The following is a breakdown of the dr notes from the recent C&P:

Bilateral Hip Condition:

R hip flexion : 20
R hip extension: 5
L hip flexion : 20
L hip extension : 5

Painful motion begins at 5 on both
Abduction lost beyond 10 degrees yes (Both)
Adduction limited - can not cross legs yes (Both)

Rotation limited - Veteran cant toe-out more than 15 degrees yes (Both)

Patient in severe pain, repetitive use ROM not completed

Functional loss of hip and thigh - yes (Both)

Less movement than normal, Weakened movement, Excess fatigability, pain on movement, instability of station, disturbance of locomotion, interference with sitting, standing, and or weight-bearing these are all marked for both Hips.

localized tenderness or pain to palpitation for joints/soft tissue of either hip (yes - Both)

Muscle strength test -
Hip Flexion 4/5 on both
Hip abduction and hip extension 3/5 on both

Images were taken, degenerative arthritis is documented in both hips, and Ankylosing Spondylitis seen on x-ray results.

Cervical spine condition:

ROM:
forward flexion ends: 20
painful motion: 15

extension ends : 5
painful : 5

right and left lateral flexion ends : 5
painful motion : 5

right and left lateral rotation ends: 10
painful : 10

did not do repetitive ROM test, too much pain

Functional loss:

less movement than normal, weakened movement, excess fatigability, pain on movement, interference with sitting, standing, weight bearing

localized tenderness - yes



reflex exams:
biceps : 1+ (both)
triceps : 0 (both)
brachioradials : 1+ (both)

sensory all normal

x-rays show Ankylosing Spondylitis


Thoracolumbar spine condition:

forward flexion : 10 - ends with pain
extension - 10 - ends with pain

right lateral / left lateral flexion : 5 - ends with pain

right / left lateral rotation : 10 - with pain

did not complete repetitions

Functional loss: yes
less movement than normal, excess fatigability, instability of station, disturbance of locomotion, interference with sitting, standing, and/or weight bearing

Localized tenderness ; yes

guarding / muscle spasm of thoraculumbar spine (
yes, abnormal gait

Muscle strength : Hip flexion; knee extension;ankle plantar flexion; ankle dorsiflexion ; great toe extension - all 4/5 on both

reflexes : knee and ankle ; 0 - both sides

all sensory normal

Radiculopathy yes: l/r lower extremity ; moderate (both) paresthesias and or dysesthesias ; moderate (both)

nerve roots involved: L2/L3/L4 (both)(femoral nerve) ; L4/L5/S1/S2/S3 (sciatic nerve) (both)

severity of radiculopathy and side affected : Moderate - Both

Intervertebral disc syndrome and incapacitating episodes, yes to both

Images: Ankylosing Spondylitis and Scoliosis noted on thoracic and lumbar spine x-ray results

Pain and decreased ROM affect the veterans ability to work

Medical opinion of VA Examiner:

patient was diagnosed with Ankylosing Spondylitis in April 2011, However, symptoms began in 2001, during his enlistment. This is clearly supported when reviewing his medical records. The veteran was seen on multiple occasions for his ongoing back pain, but never officially diagnosed until recently.

The veteran's condition (back, bilateral hip) is at least as likely as not incurred in or caused by his military service.



Sorry this is so long, but I wanted to get an accurate opinion, and to do so, I have to give the full picture.

Do you have an opinion on what I may get as far as service connection goes? A best case scenario will be fine.






Greg Corkron
U.S. Navy Veteran, Disabled
706-718-3814 Cell
 
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