DA 3947 not looking good

Chief

PEB Forum Veteran
#1
Hi folks,
I'm new to this site so forgive me if I mis post to the wrong forum. I've been browsing and reading a lot on this site over the last few days.

I am an active duty Army soldier with 23 plus years of service.

Anyway,
I am currently undergoing the MEB process. I reviewed my packet once and it went to the PEB. The PEB returned it for a couple admin reasons and the fact that the MEB doc did not address all my concerns annotated in my original "disagreement" memo.

I'm now at the point where the PEBLO wants me to sign concur or non concur with the doc's findings. I'm going to non concur for a few reasons:

1. I have 11 things listed on my DA 3947, 9 of them say medically acceptable. 2 of them do not say fit or unfit.

2. The conditions are:
a. Chronic lower back pain with intermittent left leg sensory symptoms.
b. PTSD S&I Mild. SM is competent for MEB/PEB pay purposes
c. Obstructive Sleep Apnea Medically acceptable
d. Hepatitis C chronic, medically acceptable
e. Headache, post concussive, medically acceptable
f. Sinusitis, medically acceptable
g. Hearing loss with excellent speech discrimination medically acceptable.
h. Right elbow, wrist, shoulder bursitis, medically acceptable
i. Left knee pain, medically acceptable
j. Intermittent urine incontinence, medically acceptable
k. Major depressive disorder, medically acceptable.

As I said, I am going to non concur and explain why I non concur. A few reasons are:
1. My shoulder, elbow, wrist, and knees were never measured for range of motion (ROM).
2. I use a machine daily for my apnea, but I am still very tired all day long. I also have a very hard time falling asleep at night and frequently wake up several times during the night.
3. I went to neurology and was diagnosed with migraines 8 times per month. MRI was done, but have not had the results explained to me. I have an appt on 30 April for this.
4. PTSD and MDD. There is no way I can continue serving with these conditions. Without going into great detail about my symptoms, I simply can't stand being around military when they are discussing deployments, killing, war, etc.. Plus I have a very hard time concentrating and remembering things so my job has suffered greatly.

OK.. I hope that's enough history for now. In my rebuttal, I plan on outlining and including AR 40-501 data as well as VASRD data and hard copy records that were not included in the original packet.

I do have quite a few questions, but instead of hitting you all at once, I'll limit this post to just a few:

1. AR 40-501 does not set criteria for "unfitness" in regard to Mood disorders or PTSD. The VASRD of course has ratings, but nothing I've found says "if you have these symptoms, you can't continue serving." Is there a place to find this? Is it pretty much up to the psych to determine or do they follow guidelines from a reg I am unfamiliar with?

2. If I disagree with my psych (military 04) finding me medically acceptable, would it be prudent for me to get a civilian psych to put something in writing to counter the military doc's findings? I'm under the assumption that the PEB will almost always default to the military doc's findings over a civilian's.

3. At this point, I am planning on adding some more "problems" that I did not initially think of. Since my packet already made it to the PEB once, is it too late to add things? I'm going to add TBI, sleep walking, flat foot, neck problems, and vertigo/dizziness and trouble walking straight at times. I've been told by my sis in law (doctor) that it could be Menier's disease? I'll research that one in a bit. I have an appt with EENT on 1 May to go over the vertigo problems and sinisitus.

4. As far as ALTHA notes go..how important is it to have the correct AR 40-501 and VASRD lingo in the ALTHA notes? I don't have control over what the docs write, but I guess I could make recommendations to them. ?

Thanks for you help.
Respectfully,
 

carnelli53

PEB Forum Veteran
Registered Member
#2
In lieu of your questions, which someone with more pertinent knowledge will answer, I would like to say that it may be a good idea to request an Independent Medical Advisor (IMA). This person will evaluate you and most likely offer a different determination than the doctors you've already met with.

It is also a statutory right IAW the 2008 NDAA. So press the issue because they by law are bound to comply and supply the opportunity to consult with an IMA. You are actually in what I think is considered the 'ideal' part of the process for making a request.
 

xeno

Staff Member
PEB Forum Veteran
#3
I'm not sure that all your issues will add up to 60%. Cause your retirement is already 57.5%. I think the board is pretty aware of laundry list of conditions during retirement eligibility time frame and will low ball it. Just my opinion though...

BTW I have Menier's disease, however it takes a LONG time for a diagnoses (over a year of testing & drugs). Only 1% of the populist has that and you didn't list the main symptom.

Good Luck.
 

Chief

PEB Forum Veteran
#4
If they don't rate above 60%, I'm ready for them. I have an attorney who is chomping at the bit and ready to pounce at a formal hearing. He is also reviewing my response prior to me sending it up. My plan is to continue challenging the MEB doc until he agrees with me.

However, reading some of the VASRD ratings, I'm not sure how they will be able to low ball certain objective findings. ROM is ROM. Once they find that I can barely move my left knee and right shoulder, elbow, and wrist, they'll have to rate me on the objective findings from the ortho doc. Of course, this is the military and they can pretty much do what they want. I'm doing my best to get things annotated correctly.
 

Jason Perry

Benevolent Leader
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#5
1. AR 40-501 does not set criteria for "unfitness" in regard to Mood disorders or PTSD. The VASRD of course has ratings, but nothing I've found says "if you have these symptoms, you can't continue serving." Is there a place to find this? Is it pretty much up to the psych to determine or do they follow guidelines from a reg I am unfamiliar with?
This applies to PTSD:
3–33. Anxiety, somatoform, or dissociative disorders
The causes for referral to an MEB are as follows:
a. Persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or
b. Persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or
c. Persistence or recurrence of symptoms resulting in interference with effective military performance.

This applies to Mood disorders:

3–32. Mood disorders
The causes for referral to an MEB are as follows:
a. Persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or
b. Persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or
c. Persistence or recurrence of symptoms resulting in interference with effective military performance.

2. If I disagree with my psych (military 04) finding me medically acceptable, would it be prudent for me to get a civilian psych to put something in writing to counter the military doc's findings? I'm under the assumption that the PEB will almost always default to the military doc's findings over a civilian's.
Reasonable people can disagree on this. I rarely find it helpful to use someone who is not an ongoing treatment provider to provide an opinion. They tend to be viewed as a "hired gun." (Note, at the VA, this same analysis does not apply, the regulations and case law make this a viable option for VA cases). I have had better luck developing the evidence in different ways.

3. At this point, I am planning on adding some more "problems" that I did not initially think of. Since my packet already made it to the PEB once, is it too late to add things? I'm going to add TBI, sleep walking, flat foot, neck problems, and vertigo/dizziness and trouble walking straight at times. I've been told by my sis in law (doctor) that it could be Menier's disease? I'll research that one in a bit. I have an appt with EENT on 1 May to go over the vertigo problems and sinisitus.
You can add additional conditions. However, if you have not addressed developing evidence of how the conditions impact your duty performance, you may have very limited luck getting an unfit finding.

4. As far as ALTHA notes go..how important is it to have the correct AR 40-501 and VASRD lingo in the ALTHA notes? I don't have control over what the docs write, but I guess I could make recommendations to them. ?
It helps. However, the records usually are written from a medical point of view and not an administrative/legal point of view.
 

Jason Perry

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PEB Forum Veteran
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#6
If they don't rate above 60%, I'm ready for them. I have an attorney who is chomping at the bit and ready to pounce at a formal hearing. He is also reviewing my response prior to me sending it up. My plan is to continue challenging the MEB doc until he agrees with me.
Have you talked over your questions with your attorney? Given that he should have your records, he should be in a better position to advise.

However, reading some of the VASRD ratings, I'm not sure how they will be able to low ball certain objective findings. ROM is ROM. Once they find that I can barely move my left knee and right shoulder, elbow, and wrist, they'll have to rate me on the objective findings from the ortho doc. Of course, this is the military and they can pretty much do what they want. I'm doing my best to get things annotated correctly.
You are right, with objective findings it is difficult to low ball you. But you only get to a rating if your condition is found unfitting. That is your likely challenge. If they do not find the additional conditions unfitting, they will not be rated at all. An additional challenge you have is with your likely high grade, is that generally speaking, the more senior you are, the more likely there exists positions that you can perform with disabilities.

As Xeno alluded to, you are looking at a minimum rating of 57.5%. That amount will be the maximum that you can get restored as result of CRDP. So, you may want to do some comparisons making different assumptions about your VA rating and seeing what result.
 

Chief

PEB Forum Veteran
#7
You are right, with objective findings it is difficult to low ball you. But you only get to a rating if your condition is found unfitting. That is your likely challenge. If they do not find the additional conditions unfitting, they will not be rated at all. An additional challenge you have is with your likely high grade, you have an additional challenge because generally speaking, the more senior you are, the more likely there exists positions that you can perform with disabilities.
That is definitely one of my main concerns, but a few of my conditions have kept me out of work quite frequently over the years. Lower back, left knee, migraines, hepatitis c, and now the recent psychiatric diagnosis of PTSD and MDD.

Any idea what the track record is for conditions causing someone to miss work frequently? Is that a reason for unfitness?

Thanks for you input folks.. this is extremely helpful. I got a 30 day extension from the PEB to submit my statements/records so I have to have it completed and turned in to my PEBLO on 4 May 09.
 

Jason Perry

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#8
That is definitely one of my main concerns, but a few of my conditions have kept me out of work quite frequently over the years. Lower back, left knee, migraines, hepatitis c, and now the recent psychiatric diagnosis of PTSD and MDD.
Forget about the past few years. Your current level of disability is what will be judged (but, of course, this may include an immediately preceding period of time, but probably not more than a year. If the disability and its impact has been stable over that time, then it is probably more relevant. An acute worsening over a more recent period of time would also be significant). Ideally, your commander will state that the condition significantly interferes with your duty performance. Take a look at the Commander's letters forum and you will have a better idea of what is helpful.

They will also look at your OER's and if they indicate good performance, then you may have to submit evidence showing your conditions have worsened or an explanation.

Any idea what the track record is for conditions causing someone to miss work frequently? Is that a reason for unfitness?
Yes, it can be. It needs to be a current situation, though.
 

Chief

PEB Forum Veteran
#9
Thank you Jason..

Ideally, your commander will state that the condition significantly interferes with your duty performance. Take a look at the Commander's letters forum and you will have a better idea of what is helpful.
At BAMC they use a form instead of a letter. Commander's performance statement or something like that. My commander did indicate that I could not perform my MOS duties, but checked that block that I could to other things... hmmm.

They will also look at your OER's and if they indicate good performance, then you may have to submit evidence showing your conditions have worsened or an explanation.
My last OER was June 2007. I have not been rated since being involved in the MEB process. So at least I have almost 2 years of "unrated" time. They'll have no idea what my job performance has been. Actually, I've not spent much time at work with all the appointments and such.
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
#10
That new form is actually in use Army-wide. This is a huge step backwards in my opinion, because what I used to see out of letters was usually more helpful.

That change in procedure aside, there is nothing that restricts a commander from submitting an additional letter or memorandum. You can't force them to do so, but I have often gone back and requested a more detailed explanation. Depending on the relationship you have with your commander, this may be possible. Or it may not be.

Best of luck!
 
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