Thank you to all who take time to answer questions on this forum. Unfortunately, I just found this site last week otherwise I may have done a few things differently before. I just received my proposed ratings this week and they were DOD 20/VA 40. The DOD rating was for bilateral ankle tendonitis and was what I was expecting. My issue is two-fold: I also have significant pes planus deformity but this condition was not found to be unfitting by the DOD nor was it rated as compensable by the VA. I want to appeal the VA rating, or lack thereof and also try to have that added as an unfitting condition so my question is two-fold: 1) what are my chances in achieving those goals (the pes planus is well documented in my ortho notes and the C&P exam) 2) What is the liklihood that I could successfully appeal the DOD rating to the BCMR after separation. I really don't want to extend this process another 6 months or so to appeal to the formal board if i can avoid it. I am expecting a possible job offer for a great job and am worried about missing out on this opportunity as my job field is very specialized. Thanks in advance for any information!
BCMR Question
- Thread starter zinn2017
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- bcmr ipeb pes planus
1) It would be impossible for us to predict the success, and since the DoD did not find it unfitting, you must request a formal board to attempt to get it added as an unfitting condition, if successful they will send it back to the VA for rating. If not successful you will have to file a NOD with the VA and appeal the decision not to service connect it.
2) The BCMR is the less desirable route to go, as it is a very lengthy process (couple of years).
I do not see why your MEB/PEB counsel would not be able to argue before the board that the pes planus deformity and bilateral ankle tendonitis both do not contribute to your unfitness decision.
When you joined the military they screened you for flat foot (pes planus deformity), as long as it was not noted on the entrance physical you would be considered to be presumed sound (read below in italics).
If you have been in for greater than eight years, it would be considered service connected (even if noted on your entrance physical)
You can also overcome the existed prior to service (EPTS) ruling even if the condition was noted on your entrance physical if you are able to get a medical opinion that the condition was as least likely, as not to have been aggravated by service.
"[E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment." 38 U.S.C. § 1111; see also 38 C.F.R. § 3.304(b). Therefore, when no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound in every respect. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227.
2) The BCMR is the less desirable route to go, as it is a very lengthy process (couple of years).
I do not see why your MEB/PEB counsel would not be able to argue before the board that the pes planus deformity and bilateral ankle tendonitis both do not contribute to your unfitness decision.
When you joined the military they screened you for flat foot (pes planus deformity), as long as it was not noted on the entrance physical you would be considered to be presumed sound (read below in italics).
If you have been in for greater than eight years, it would be considered service connected (even if noted on your entrance physical)
You can also overcome the existed prior to service (EPTS) ruling even if the condition was noted on your entrance physical if you are able to get a medical opinion that the condition was as least likely, as not to have been aggravated by service.
"[E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment." 38 U.S.C. § 1111; see also 38 C.F.R. § 3.304(b). Therefore, when no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound in every respect. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227.
Thank you for your response! I have only been in for 3 years. I checked and my feet were documented to be normal on my entry exam. Other than the BCMR taking longer, are there any other disadvantages to going that route? As I stated, if I appeal to the FPEB I will likely miss out an a great job opportunity so I am just trying to figure out if I can possibly reach the same result if I readdress this after separating.
The BCMR may be less likely to grant your request because you chose to forgo the formal PEB (FPEB). I am not saying that is correct or that you cannot succeed, but the board may use that against you. Further, you will likely not have a physical appearance at the BCMR, where as at the FPEB you are entitled to it.
I understand your predicament with a job lined up, but if you truly want to fight for medical retirement, your best course of action is the FPEB. Then, if that does not work, you exhaust other administrative remedies.