Advice on FPEB?

[Wally3430]

Just received notice that the "summary" that OAC sent to the board for my appeal of a "not combat related" finding for PTSD and a finding that my asthma did not occur in the combat zone came back both denied. Pressing forward with the in-person FPEB on 14JUN16. My thoughts are that if they denied my appeal in the summary (having all the information available to the board), what could possibly be gained by me being present for the FPEB? I've fired all my ammo already, I'll have no more information to provide. However, I may be able to bring in a O-3 as a witness, but he'll just confirm the information I've provided. Thoughts? What should I be expecting at the FPEB? If I get the same results, what is the current timeline for SECAF review/determination? I've read anywhere between 2 and 14 months.

 

[denmom117]

Can't really answer on what to expect on the formal board, except to be prepared to answer a lot of questions and defend why it should be combat related (I believe that's what you're trying to get, from your post).

As for the SAFPC (SECAF) appeal, mine took just over 13 months from the date it was submitted.

 

[Wally3430]

So check this out. I go all the way to TX for the formal to challenge only the "non-combat related" finding. Attorney and I had put together a great argument. My attorney has kept in contact with the board pres the last few days/weeks concerning my case. My attorney got a strong sense that the board wasn't concerned with re-visiting if my unfit conditions were actually fit, or what my ratings were. The argument was fully expected to be why my injury was combat related. FIVE minutes before they call us in for the board, they call my attorney and an argument ensues. They start asking questions about my unfit asthma. My attorney argues that, per recent conversations with the board pres, there was no board issue with the unfit findings or asthma. While the board has had my summary for at least a couple weeks, apparently the doctor on the board first read my case THIS MORNING and raised issues with the asthma unfit finding. I never heard someone yell at a O-6 over the phone in person, but there's a first for everything. Anyway, my attorney had no time to prep me for that line of questioning prior to the board. My option was to press with the board, risk not getting a combat related finding AND having my asthma (30%) found fit leaving me with a 50% overall TDRL finding and not a 70% TDRL finding. So, I chose to withdraw my appeal right there and proceed with the original IPEB findings of 70% TDRL and no combat related finding with the hopes of challenging the "not combat related" finding again at the 6 month TDRL re-eval. Also to note, my AF Form 356/PEB findings says at the bottom of it under "Clinics for TDRL Evaluations" that only psychiatry is evaluated (PTSD). It makes no mention of pulmonary evaluation. My question to the attorney was does document ensure that asthma will not be re-evaluated at the TDRL evaluation in 6 months? I ask because I need if I need to appeal a "non combat related" finding for PTSD again, I need to know if I need to be FULLY ready for any curve balls relating to asthma on the FPEB. Any experts want to share their thoughts on this? Advice needed.

 

[Camp P Marine]

So check this out. I go all the way to TX for the formal to challenge only the "non-combat related" finding. Attorney and I had put together a great argument. My attorney has kept in contact with the board pres the last few days/weeks concerning my case. My attorney got a strong sense that the board wasn't concerned with re-visiting if my unfit conditions were actually fit, or what my ratings were. The argument was fully expected to be why my injury was combat related. FIVE minutes before they call us in for the board, they call my attorney and an argument ensues. They start asking questions about my unfit asthma. My attorney argues that, per recent conversations with the board pres, there was no board issue with the unfit findings or asthma. While the board has had my summary for at least a couple weeks, apparently the doctor on the board first read my case THIS MORNING and raised issues with the asthma unfit finding. I never heard someone yell at a O-6 over the phone in person, but there's a first for everything. Anyway, my attorney had no time to prep me for that line of questioning prior to the board. My option was to press with the board, risk not getting a combat related finding AND having my asthma (30%) found fit leaving me with a 50% overall TDRL finding and not a 70% TDRL finding. So, I chose to withdraw my appeal right there and proceed with the original IPEB findings of 70% TDRL and no combat related finding with the hopes of challenging the "not combat related" finding again at the 6 month TDRL re-eval. Also to note, my AF Form 356/PEB findings says at the bottom of it under "Clinics for TDRL Evaluations" that only psychiatry is evaluated (PTSD). It makes no mention of pulmonary evaluation. My question to the attorney was does document ensure that asthma will not be re-evaluated at the TDRL evaluation in 6 months? I ask because I need if I need to appeal a "non combat related" finding for PTSD again, I need to know if I need to be FULLY ready for any curve balls relating to asthma on the FPEB. Any experts want to share their thoughts on this? Advice needed.

You could have challenged a board member for cause.

 

[Wally3430]

You could have challenged a board member for cause.

I was unaware of that. But even if I knew I could, I wouldn't have been prepared for it at the time.

 

[Jason Perry]

You could have challenged a board member for cause.

That almost never works. I have seen a challenge happen less than five times in over ten years. (I have never seen cause to raise it in one of my cases). Why? Because the board is who rules on the issue. (One time, where it did work- I was not involved with the case, I was friendly with the board President and we were chatting and he told me about a case earlier in the week where there was a challenge for cause....the board actually said, "sure, no problem," ducked into the back office, got a replacement board member and carried on- no apparent change in finding and no benefit to the member by doing this).
Generally, absent some very compelling circumstances, this is not a good idea to pursue. (Even on appeal, there are few to no benefits to doing this as the law presumes government officials are faithfully and accurately carrying out their duties).

I was unaware of that. But even if I knew I could, I wouldn't have been prepared for it at the time.

Would not have been a good idea, even if you went through with the hearing.

 

[Jason Perry]

As to whether asthma may be found fitting in the future, the answer is "yes." However, it is unlikely, especially given the notation on the PEB's findings (from what you stated).

Here are some references:

AFI 36-3212:
"Section 7B—Review by IPEB and FPEB
7.12. IPEB Review of the TDRL Examination. HQ AFPC/DPPD refers reports of examination with prior medical records and allied papers to the IPEB for evaluation as outlined in Chapter 3.
7.13. Additional Medical Workup. If the report of examination is inadequate, HQ AFPC/DPPD returns it to the examining facility for more data, or takes other action as necessary to get a complete and adequate report. HQ AFPC/DPPD may direct the member to report to another facility for additional medical workup, or to 59 Med Wg (WHMC), Lackland AFB TX, for complete examination followed by a PEB. HQ AFPC/DPPD issues another set of travel orders when applicable.
7.14. Changes in Prior Determinations. Do not change prior findings such as LOD, proximate result, EPTS factor, and so on, unless there is new and compelling evidence not available to the original board that establishes that the initial determination was in error. Determinations of armed conflict and instrumentality of war are binding so long as the defect remains unfitting.
7.14.1. Conditions found not unfitting when placed on the TDRL are not compensable if they become unfitting while on the TDRL. However, if reevaluation reveals the condition was unfitting when the member was placed on the TDRL, the evaluating board lists the condition as compensable when making permanent disposition of the case, and documents the reasons for making the change in item 15, AF Form 356. Since the board cannot retroactively change the member's records as of the date placed on the TDRL, HQ AFPC/DPPD will tell the member that he or she may apply for records correction through the AFBCMR process.
7.15. Action by AFPC and Member After IPEB. HQ AFPC/DPPD sends to the member the AF Form 356, a copy of the TDRL report of exam, and a memorandum outlining actions required. When the IPEB recommends removal from the TDRL, the member may agree with the board's recommendation, disagree and request a formal PEB, or waive the formal PEB and submit a written rebuttal. When the board recommends retention on the TDRL, HQ AFPC/DPPD advises the member of the action but does not give the member the option to agree or disagree (see paragraph 7.25).
7.15.1. Time Limits. The member is provided 30 calendar days to reply when the IPEB recommends final disposition in the case. Upon request, HQ AFPC/DPPD may grant additional time if needed. If there is no response within the time limit, HQ AFPC/DPPD will presume the member concurs and the case will be finalized."

So, under the above, since fitness findings are not mentioned in Para. 7.14, all conditions are up for review. That said, it seems the clear trend that often, only the condition noted as "unstable" and or identified for specialty examination is addressed.

There is some "equivocal" language in the more recent DoDI 1332.18:
"APPENDIX 4 TO ENCLOSURE 3 - TDRL MANAGEMENT

2. TDRL RE-EVALUATION...

a. Initiating the TDRL Re-evaluation Process

(1) Fully describe each disability that the Secretary of the Military Department concerned determined was unfitting and may be permanent but was unstable at the time the Service member was placed on the TDRL, the current status of such disabilities, the progress of the disability and a suggested time frame (not to exceed 18 months) for the next examination." (Emphasis added).

This suggests that they may only look at the unstable condition. (I think this is wrong as a matter of law, but, if it benefits you, so much the better).

(The same section quoted above states, "c. PEB Re-adjudication. The Military Department will request that VA provide their most current rating and medical evidence upon which the most current rating was based for the condition for which the veteran was placed on the TDRL." This is a bit unclear, as this indicates all conditions should be reviewed. I have seen them only review the "unstable" condition. Bottom line, I think if they decline to review a condition that was not "unstable" you could challenge it. I don't think the reverse is true- I don't see any explicit protection in the law for challenging their consideration of a condition).

Now, onto some other points about @Wally3430 's post regarding his FPEB hearing. I don't know enough about the facts and circumstances of the case to weigh in definitively. I am not sure how much a pure rating change between 70% and 50% would impact overall compensation (would need to know all details about VA ratings, military retired base pay, time in service at a minimum to dig in and give thoughts on this). It may be that the difference in ratings would not matter for overall compensation and there was no real risk overall. That said, it is better to have more conditions found unfitting. I am not sure whether the "threat" of not finding asthma unfitting was real or a likely outcome. But, I also point out a few other thoughts. I understood that you (@Wally3430 ) have 18 years of service? If so, it would be important to know in weighing things if you just reached 18 years or if you are at 18 and many months. Why? Because, with a strong SAFPC appeal, plus VARR, plus outprocessing time, maybe you could have reached 20 years of service (I have recently had cases that I have "dragged out" for more than 18 months; so, depending on the facts, maybe a tactical decision to see if you can reach 20, considering the risks of not breaking 20, would have made sense).

None of this is to sharpshoot your decisions or to say that you should have done differently than you did. Like I said, I don't know enough about your case to weigh in. (And, it is a fair point that if the PEB President indicated there was a "problem" with the asthma "unfit" finding, well, this was apparently a "real issue" in your case). Just throwing some things out there (again, without benefit of knowing all about your case).

Bottom line, you are where you are in the process now, so you need to look ahead. Not sure about the facts and circumstances of the combat-related issue, either, but, seems to me your next stop is likely applying for CRSC.

 

[Wally3430]

As to whether asthma may be found fitting in the future, the answer is "yes." However, it is unlikely, especially given the notation on the PEB's findings (from what you stated).

Here are some references:

AFI 36-3212:
"Section 7B—Review by IPEB and FPEB
7.12. IPEB Review of the TDRL Examination. HQ AFPC/DPPD refers reports of examination with prior medical records and allied papers to the IPEB for evaluation as outlined in Chapter 3.
7.13. Additional Medical Workup. If the report of examination is inadequate, HQ AFPC/DPPD returns it to the examining facility for more data, or takes other action as necessary to get a complete and adequate report. HQ AFPC/DPPD may direct the member to report to another facility for additional medical workup, or to 59 Med Wg (WHMC), Lackland AFB TX, for complete examination followed by a PEB. HQ AFPC/DPPD issues another set of travel orders when applicable.
7.14. Changes in Prior Determinations. Do not change prior findings such as LOD, proximate result, EPTS factor, and so on, unless there is new and compelling evidence not available to the original board that establishes that the initial determination was in error. Determinations of armed conflict and instrumentality of war are binding so long as the defect remains unfitting.
7.14.1. Conditions found not unfitting when placed on the TDRL are not compensable if they become unfitting while on the TDRL. However, if reevaluation reveals the condition was unfitting when the member was placed on the TDRL, the evaluating board lists the condition as compensable when making permanent disposition of the case, and documents the reasons for making the change in item 15, AF Form 356. Since the board cannot retroactively change the member's records as of the date placed on the TDRL, HQ AFPC/DPPD will tell the member that he or she may apply for records correction through the AFBCMR process.
7.15. Action by AFPC and Member After IPEB. HQ AFPC/DPPD sends to the member the AF Form 356, a copy of the TDRL report of exam, and a memorandum outlining actions required. When the IPEB recommends removal from the TDRL, the member may agree with the board's recommendation, disagree and request a formal PEB, or waive the formal PEB and submit a written rebuttal. When the board recommends retention on the TDRL, HQ AFPC/DPPD advises the member of the action but does not give the member the option to agree or disagree (see paragraph 7.25).
7.15.1. Time Limits. The member is provided 30 calendar days to reply when the IPEB recommends final disposition in the case. Upon request, HQ AFPC/DPPD may grant additional time if needed. If there is no response within the time limit, HQ AFPC/DPPD will presume the member concurs and the case will be finalized."

So, under the above, since fitness findings are not mentioned in Para. 7.14, all conditions are up for review. That said, it seems the clear trend that often, only the condition noted as "unstable" and or identified for specialty examination is addressed.

There is some "equivocal" language in the more recent DoDI 1332.18:
"APPENDIX 4 TO ENCLOSURE 3 - TDRL MANAGEMENT

2. TDRL RE-EVALUATION...

a. Initiating the TDRL Re-evaluation Process

(1) Fully describe each disability that the Secretary of the Military Department concerned determined was unfitting and may be permanent but was unstable at the time the Service member was placed on the TDRL, the current status of such disabilities, the progress of the disability and a suggested time frame (not to exceed 18 months) for the next examination." (Emphasis added).

This suggests that they may only look at the unstable condition. (I think this is wrong as a matter of law, but, if it benefits you, so much the better).

(The same section quoted above states, "c. PEB Re-adjudication. The Military Department will request that VA provide their most current rating and medical evidence upon which the most current rating was based for the condition for which the veteran was placed on the TDRL." This is a bit unclear, as this indicates all conditions should be reviewed. I have seen them only review the "unstable" condition. Bottom line, I think if they decline to review a condition that was not "unstable" you could challenge it. I don't think the reverse is true- I don't see any explicit protection in the law for challenging their consideration of a condition).

Now, onto some other points about @Wally3430 's post regarding his FPEB hearing. I don't know enough about the facts and circumstances of the case to weigh in definitively. I am not sure how much a pure rating change between 70% and 50% would impact overall compensation (would need to know all details about VA ratings, military retired base pay, time in service at a minimum to dig in and give thoughts on this). It may be that the difference in ratings would not matter for overall compensation and there was no real risk overall. That said, it is better to have more conditions found unfitting. I am not sure whether the "threat" of not finding asthma unfitting was real or a likely outcome. But, I also point out a few other thoughts. I understood that you (@Wally3430 ) have 18 years of service? If so, it would be important to know in weighing things if you just reached 18 years or if you are at 18 and many months. Why? Because, with a strong SAFPC appeal, plus VARR, plus outprocessing time, maybe you could have reached 20 years of service (I have recently had cases that I have "dragged out" for more than 18 months; so, depending on the facts, maybe a tactical decision to see if you can reach 20, considering the risks of not breaking 20, would have made sense).

None of this is to sharpshoot your decisions or to say that you should have done differently than you did. Like I said, I don't know enough about your case to weigh in. (And, it is a fair point that if the PEB President indicated there was a "problem" with the asthma "unfit" finding, well, this was apparently a "real issue" in your case). Just throwing some things out there (again, without benefit of knowing all about your case).

Bottom line, you are where you are in the process now, so you need to look ahead. Not sure about the facts and circumstances of the combat-related issue, either, but, seems to me your next stop is likely applying for CRSC.

Jason, thanks much! I'm about 1 months shy of 18 now. Sounds like I can chill a bit on the asthma, but I think I'll keep a log book on it while on TDRL just in case.

 

[Camp P Marine]

That almost never works. I have seen a challenge happen less than five times in over ten years. (I have never seen cause to raise it in one of my cases). Why? Because the board is who rules on the issue. (One time, where it did work- I was not involved with the case, I was friendly with the board President and we were chatting and he told me about a case earlier in the week where there was a challenge for cause....the board actually said, "sure, no problem," ducked into the back office, got a replacement board member and carried on- no apparent change in finding and no benefit to the member by doing this).
Generally, absent some very compelling circumstances, this is not a good idea to pursue. (Even on appeal, there are few to no benefits to doing this as the law presumes government officials are faithfully and accurately carrying out their duties).

Would not have been a good idea, even if you went through with the hearing.

I'll second @Jason Perry, the JAG was against this as for the points you mentioned.