First Question

T

timlab1955

PEB Forum Regular Member
Registered Member
Okay, I'm a newbi here and I sure hope I'm doing the right thing. Here's the facts:
Discharged as an E5 with 14 years, 7 months and 7 days in the Army
Discharged Date: 12/21/1989 -
Rated on orders stated 20% for left wrist fusion
When to VA day after discharge and they rated me at 30% (20% for wrist and 10% for something else.
After reading on line and reading the form, it stated on the form and Regulations that stated that they (the Army) should of have listed ALL disabilities. Which they didn't, just one thing. I have mailed a packet (175 pages) to the board asking to be taken off discharge w/sereverance pay to retirement.
Current rating now is 100% from VA.

What are my chances of the board to grant this?
 
You said the right thing...."chances". For instance, I just got out in August, well September, due to back injuries and so on. The PEBLO I had kept telling me that I could not "add" any injuries or illnesses to my packet being sent to the PEB. I had a hard time with that, and she would keep saying, and even asked another PEBLO to answer that question. I still, kept asking her, and other PEBLOs kept agreeing with her.
Well, when it was all said and done and I started getting further into this site, I learned she was wrong. In the meantime, I received my medical records and learned that half of my "issues" I wouldn't have been able to "tack on" because my doctors didn't document half of my symptoms and ailments....pretty messed up!
So, I talked to a service rep who told me it will be very hard for me to go back for medical retirement. Basically like he put it, "an uphill battle" which might end up with just wasted time. But there is that chance of being medically retired, so it's worth it to TRY. I wished I knew as much as I do now about the processes, etc. This sight is really phenomenal for all members of the military.
Jason or the moderators will have some better insight to this, but I wish you luck and wanted to add a little, LOL!

Respectfully,
Nick Lawless
 
timlab1955,

Welcome to the forum! 20 years ago to the day you were discharged!

I'm by no means the expert on this here, but there is a few things that come to mind in making such a BCMR application successful:

1) Establishing that you were suffering from the condition(s) in question prior to discharge (a then-current disability).
2) Establishing the condition(s) in question would of made you unfit to perform the duties of you rank and MOS.
3) Establishing the condition(s) in question occurred in service or were aggravated by service (the latter is presumed).
4) Showing that you discovered this error/injustice within 3 years or that your case should be solved in the 'interests of justice'.

I think the point you are making (that they did not evaluate you for all your conditions prior to MEB/PEB adjudication) is good - but the kicker is going to be showing that whatever conditions existed that weren't evaluated made you unfit for duty and were compensable.

Jason will come along shortly and give you a more concise answer, but some food for thought in the meantime. Good luck with your BCMR application and I hope things go well for you.
 
References:

1. Title 10, Subtitle A, Part II, chapter 61, 1216a (b) states “Consideration of All Medical Conditions”
“In making a determination of the rating of disability of a member of the armed forces for purposes of this chapter, the Secretary concerned shall take into account all medical conditions, whether individually or collectively, that render the member unfit to perform the duties of the member’s office, grade, rank, or rating.”

3. IAW AR 40-400, para 7-10(c) states “List all diagnoses in descending order of significance. For cases being recommended for referral to the PEB, note applicable paragraph in AR 4-501.”

4. IAW DA Form 3947, block #13 states “After consideration of clinical records, laboratory findings, and physical examination, the board finds that the patient has the following medical conditions/defects, list all diagnosis. Use Joint Armed Forces terminology and diagnostic code(s).”

So as you can see here are a few references to go by. In addition to this, I did have a lawyer look over this as well (but not that familiar with MEB.) In addition to this, if it's turned down then we have a couple of things to go by as well. I also asked the board to have the meeting in person. I do realize that it is a uphill battle, but I do have one ace in my pocket and that is the Lord who has countless times put down the Government and I've come out the winner.
 
Yes, if you are turned down at the BCMR you can bring the issue to Federal Court.
 
Which Federal Court? Have you had to deal with the Board and if so what was the outcome?
 
Personally no, I have not dealt with the board. But I've heard both favorable and unfavorable outcomes all contingent on the specific issues and idiosyncrasies of a given case.

If you fail at the BCMR you may appeal to the Court of Federal Claims.
 
To sum this up, it was during the time of "Reducing the Armed Forces", which in turn they rushed and didn't review my medical records to list all my disabilities on discharge papers. The only thing they listed was my last operation on my left wrist. I had my ears lower to be able to work while wearning a helmet, glass from an exploding item hit my glasses and glass into my eyes, left wrist of course, hital that I nevered had, and my breast bone taken out. So yea, they didn't mention a few things because they knew if they did, they would of had to retire me. But the only person who is really going to make this happen and to ensure to win is the Lord.

Thanks for the reply.

P.S. If you know of anyone (like you said "you heard good and bad") could you ask them to contact me. I would like to get their input as well.
 
timlab1955,

Welcome!
timlab1955 said:
Okay, I'm a newbi here and I sure hope I'm doing the right thing. Here's the facts:
Discharged as an E5 with 14 years, 7 months and 7 days in the Army
Discharged Date: 12/21/1989 -
Rated on orders stated 20% for left wrist fusion
When to VA day after discharge and they rated me at 30% (20% for wrist and 10% for something else.
After reading on line and reading the form, it stated on the form and Regulations that stated that they (the Army) should of have listed ALL disabilities. Which they didn't, just one thing. I have mailed a packet (175 pages) to the board asking to be taken off discharge w/sereverance pay to retirement.
Current rating now is 100% from VA.

What are my chances of the board to grant this?
Click to expand...

It would take much more information to make a judgment on this. You have to show that they made an error in your rating at the time of discharge. This is usually found in one of two ways: they got the facts wrong (which is harder to prevail on because the PEBs factual findings are given deference on review) or they got the law wrong (which can include applying the law to the facts).

timlab1955 said:
References:

1. Title 10, Subtitle A, Part II, chapter 61, 1216a (b) states “Consideration of All Medical Conditions”
“In making a determination of the rating of disability of a member of the armed forces for purposes of this chapter, the Secretary concerned shall take into account all medical conditions, whether individually or collectively, that render the member unfit to perform the duties of the member’s office, grade, rank, or rating.”
Click to expand...
This law was passed on January 28, 2008. Because your PEB predated this, it won't apply.

3. IAW AR 40-400, para 7-10(c) states “List all diagnoses in descending order of significance. For cases being recommended for referral to the PEB, note applicable paragraph in AR 4-501.”

4. IAW DA Form 3947, block #13 states “After consideration of clinical records, laboratory findings, and physical examination, the board finds that the patient has the following medical conditions/defects, list all diagnosis. Use Joint Armed Forces terminology and diagnostic code(s).”
Click to expand...
I didn't look at which version of the regulations you quote. But there have been many revisions over the years. I am hard pressed to say whether or not they apply in your case, based on the date of your discharge, but I believe that there is relevant legal authority supporting your point, that they have to consider all conditions. If I were preparing the appeal, though, I would focus more on the unfitting nature of the additional conditions and/or their being part of the symptomology of the conditions they did find unfitting. It is very difficult to speculate further without knowing the facts.

I also asked the board to have the meeting in person.
Click to expand...
The request for in person appearance is very rarely granted because if a case is not well supported on the written submission, it is exceedingly rare that testimony or argument will help. This makes preparation of the application very important. Remember, the focus must be on what happened at the time of separation and the state of your condition at that time. Another very important part of the process is the response to any advisory opinions considered by the BCMR. This is important because it can sway the BCMR to consider your case meritorious, and it can also lay the groundwork for a successful later appeal, if necessary.

timlab1955 said:
I had my ears lower to be able to work while wearning a helmet, glass from an exploding item hit my glasses and glass into my eyes, left wrist of course, hital that I nevered had, and my breast bone taken out. So yea, they didn't mention a few things because they knew if they did, they would of had to retire me.
Click to expand...
It sounds like you have several valid issues. I hope all goes well for you and you get a good outcome.
 
Jason are you a lawyer? I read your profile with the references you posted on your profile and I was impressed even tho 1 out of the 3 got a approval. MMMMMMM, Only the Lord will previle here. Thanks for the info.
 
Janson one other thing that I've left out. According to the Army they rated me at 20% because according to the doctor's report it states my wrist is in a nurtal position. Since then, and my wrist hasn't changed, I've gone to a private doctor and he stated that the rating given was wrong. It should of been rated at 30%.
 
timlab-The LORD does do amazing things, and works in mysterious ways. I wish you luck. That's AWESOME! Keep praying and He will answer my friend.

Nick
 
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