AF PEB & occupation loss question

M

militarynurse

PEB Forum Regular Member
I just got my PEB results after my 1st TDRL evaluation - permanent retirement and 40% disability. This is 20% less than what I have now from the AF. The VA and SS rated me 100% disabled and I am no longer able to work, specifically I can't work as a nurse any more. My disability is recognized by the AF, VA and SS as combat related.
It's not a matter of money, I won't receive any additional money with an increase in percentage, it's a matter of principle for me.
I recall reading an AFI on occupation loss ability but can't find it anywhere. Does anyone know if it is obsolete or have any other suggestions for me??
Thank you.
 
militarynurse,

Welcome! Here is the relevant regulation from the VASRD:

"§ 4.16 Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

(Authority: 38 U.S.C. 501)
(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue."
 
Thank you Jason, these should help me a lot. I guess now I wait for a board date.

My anxiety is extremely high, how nerve racking is meeting the board?
 
I am not sure how helpful my impressions are because I am used to appearing before the PEB's and it does not make me nervous. That said, I find the AF Formal Board to be among the least "nerve racking" for a few reasons. In the AF they bring you in for several days before your board and you get somewhat of a sense of the environment over that time. I think the AF board members are (almost) all friendly, they are professional in the conduct of the board but it is somewhat relaxed, etc. No one is going to yell or anything like that. However, that does not mean that they will decide your case correctly. They can be sympathetic but still feel compelled to deliver a low or adverse rating.

I tend to think that you have an uphill battle at the PEB from what you described. This type of issue is very much in the nature of a legal issue and I would think that you can win on this if you fight this out in later appeals.

Hope all goes well for you!
 
I'm getting even more confused.
Should I request an independent review? I think that's what it's called. In reading the board results, mental health states definite for PTSD/Depression/social impairment/survivor guilt and unable to hold a job. Orthopedics states definite for continual/daily pain/unable to drive or walk more than 100 feet due to inability to apply enough pressure from foot injury. Both evaluations state there is basically no change from the diagnosis from my TDRL but the board results state my condition is now stable. Perhaps my definition of stable is different! From what I've read both evaluations indicate unemployability and a higher rating than 30/10%, especially as both VA and SS ratings are 100% for the PTSD alone. The military did not pay for my education and I still have student loans.
I'm not even sure how I'm going to go to the Formal Board - travel, being with people I don't know, etc produces anxiety and panic attacks. And then I feel guilty because there are so many military members who are suffering far greater physical/emotional injuries, I don't want to take board time away from them if I'm over reacting to the board results. On the other hand, if I can fight the fight that benefits others, then I need to do so.
So - am I beating a dead horse and should just accept the board findings or fight on??
 
If your case is already at the PEB level, then the time to request an independent review has passed (that is at the MEB/TDRL re-eval level; however, if they did not offer you that at that level, you may have a basis for asking for it).

You can request to have your attorney present your case with you in absentia. This is normally granted.

The thing that strikes me most about what you have stated is that getting an increase in rating will not result in an increase in benefits. If this is the case, then I would tend to think that you might consider accepting the findings. There is a possibility that they could lower your rating. The only caveat to this is that there may be a future change in the law that could ultimately increase your compensation (there is a pending proposal to extend concurrent receipt of military and VA benefits to those with less than 20 years of service....you did not state your years of service, so it is unclear how this might impact you).

I have represented members before the PEB in absentia. This has not, in my experience, worked against the member, and remember as well that you can normally testify via telephone (this request is almost always granted).

If you are unemployable and this has been found by other US Government agencies, I think you have a viable issue. However, if your assumption that you won't get any additional compensation as a result of a higher rating is true, then I am not sure if it is "worth it" in the sense that you won't get any additional benefit.

I hope this helps and that your ultimate outcome is what you want. Best of luck.
 
I have my formal board date and will be going to Lackland and have a couple of questions.
1. Due to my AFSC I have concerns one or more of the board members may know me, either personally or professionally. What happens in that event?

2. Leaving my house/travel increase my anxiety and generally result in an overall decline in functionality. My plan is to have a completed statement in hand and need to know if it should be in narrative, bullet or position paper format.

3. Is it possible for my spouse to "take my place" and speak for me, with my statement, to the board in the event of decompensation? It may be irrational, but I have to trust in AF representation but have decided to wait to hire outside counsel only if we end up proceeding forward from the formal board.

4. The VA rated me 100% for PTSD with additional $$ for being homebound. The AF evaluation states "PTSD, had no symptoms prior to last deployment to Iraq, current symptoms direct result of exposure to trauma during deployment...has notable and functionally restricting PTSD symptoms that render her unfit and non-deployable, has been unable to secure gainful employment in the civilian sector due to symptoms of avoidance, re-expreiencing and hyperarousal. Major Depressive Disorder, recurrent, particularily neurovegetative symptoms of poor energy and motivation, render unfit for military duty.....unable to secure gainful employment , her inability to leave the house, etc is resultant from PTSD, hiowever, her neurovegetative depressive symptoms worsen her isolation, making employment nearly impossible at this time."

The PEB permanently retired me with PTSD, Combat Related C&D 9411 @ 30% and 10% for a foot injury.

Sooo....it seems to me the rating should be higher than 30%. I think I should be able to fight for an unemployability percentage if nothing else.

Initially I wanted to go to the board for a higher rating because I needed the emotional validation and felt it was the right thing for the Air Force to do. My ability to do a job I truly loved has been taken and the fun loving, happy person I was is gone. After fighting for two years to get the basics the military provides it's veterans, I realize I DESERVE more. While AD I typically worked 12 hour days, worked a civilian job and volunteered at another in addition to the mentoring I did. I would be finishing up another degree and working now if I could, that has been taken from me....and 30% for that is an insult. In the next couple of years concurrent receipt is going to go into effect, that will benefit my family and me and I cannot take that lightly. I also have an obligation to the troops who come after me to fight this.

Thanks for you help. I
 
MilNurse,

Here is the latest for the current AF Formal PEB:
1. The Formal PEB (and possibly the Informal PEB, not sure) is secretly conducting searches of the internet before you go into the hearing. This is to see if there is any info out there that might discredit you or your witnesses, like Facebook showing you partying, or your witness acting like a drunken idiot, etc. If they find anything, they will spring it on you without notice in the hearing. (No, this is not proper or lawful, but until the AF steps in to stop it, there is nothing to do except warn everyone of what they are doing) So, be sure there is nothing on the internet they can use against you.
2. When you get to the hearing, there is one health provider on the three member panel. If you know him/her, you can ask that he be recused and someone else take his place. They are supposed to be fair and impartial.
3. When you were informed of your board date, you would have received a packet of info with a number to call to talk to speak to an AF disability lawyer. Call and leave a message. They are very good and will call you back to discuss your specific concerns. They are very experienced and passionate about their commitment to injured airmen.

Best of luck.
afdoc
 
Afdoc,

I am concerned about your last post. Not because I have anything to hide, but for privacy issues. The ONLY thing the IPEB or PEB should look at is the medical evidence. Period. It makes no difference if the service member has ten commendations or is an 18 year old in boot camp (with a couple of HS type pranks on the web prior to joining). Do you know of any specific cases where they have done this?

Again...not to spread any fear or anything, but I know Jason was working on a usage statement... will this protect us from the PEB using anything we say in here from being used against us (i.e. seeking advice, asking about possible outcomes, percentages, etc)??
 
I have a number of issues with the post by afdoc.
1.It isn't uncommon for PTSD sufferers to have some self destructive behaviors, it's part of the disease process.

2. When exactly would the board members have the time, after receiving the PEB file, to conduct this search and destroy?

3.If the AF is starting to use those tactics, it would be common knowledge as "secrets" like this are extremely difficult to containe, and why hasn't afdoc contacted CNN for an investigative report? Reporters keep their sources secret and taking care of their troops/reporting wrong doing is is an obligation.

4. I know my anxiety levels, mistrust of the "powers that be", and inklings of paranoia are rampant....I certainly don't need misguided rumors to get me spun up. I don't have anything to hide, but would be furious to discover my postings on any site (especially this one) were being used by the military in an effort to discredit me in any way.
 
I would say that if this is happening, it is a very rare occurrence. I have never seen it come up in a case that I have been involved with, but I can't say for sure that it never has...I think one of the big factors that "protect" against this is what was alluded to in point 2, above. That is, the boards are generally too swamped with work to go on fishing expeditions. However, I did change the sites terms of service a few weeks back in response to a similar post/concern. It is now a violation of the Terms of Service for any government/military official to access this site and gain information about members. As explained in the TOS, using the site in such an unauthorized manner is potentially a violation of civil and criminal Federal Laws. (I would also point out that if information were discovered that was gathered in violation of the TOS, it would strengthen the argument that it is inadmissible. Also, I think that gathering such information would likely violate service regulations, both MEB/PEB and also Privacy program regulations; the latter has to do with the fact that the military is not supposed to be gathering information about the First Amendment protected activities of military members, unless authorized by law under some exceptions.). As always, this is not legal advice...I just decided to take some steps that may offer protection and a basis to argue the issue should this come up.

I also think that it is not relevant if there are photos, postings, or blogs showing "dumb," "immature," or "drunken" behavior by a person going through the MEB/PEB. Remember, generally, the issues are the members fitness and the rating criteria. If they are doing things or posting things that do not bear on those issues, they generally will not come up. (The only thing I might see as an unlikely, but possible, issue is a board member searching for stuff, finding it, and then not using it in the PEB process, but instead making their own value judgments...but, again, I think the time this would take to conduct this sort of research makes it unlikely this would occur).

I can't prove the negative that this is not an issue. However, like I said, I have not seen internet posted materials come up in a case. What I have seen on a few occasions are command's or MTF/MEB's either taking photos or gathering sworn statements. Even this, though, is exceedingly rare (I have seen it maybe 3 or 4 times over the past 5 years or so).

In the end, though, everyone has to make their own decisions about what to post and how to protect themselves.
 
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