"Instrumentality of War INFO NEEDED"

lenhoffman2876

PEB Forum Regular Member
Registered Member
OK. So I had my original FPEB back in 2003 I was found unfit under 5002-5009 and placed on TDRL (40%...exasperations)in 2005 had re-eval and was released under the excuse that only 5240 was to be used and now permanent 20%...went to VA they were saying the same....I non-concurred and sought out help and appealed VA informing them that just because 5240 was created it was for "RESIDUAL...a.k.a non-active" rating and that my records proved that i was active stage so original 5002-5009 would be proper. After several years of knocking on doors and proving point...VA Rated me at permanent 40% with 10% shoulder (different injury) total 50%...they also changed 38CFR to state that active Ankylosing Spondylitis was to be rated as 5002.

Do to my case and others that where grouped together and presented before the powers that be the DOD is reevaluating ratings made during this time period.

Although my case was one of those presented i have held off trying to get my retirement status reinstated due to the amount of anger and stress i get from being made to feel like I'm a second class citizen by the PEB (no helping it...I have seen papers that were internal...suggesting raters to low ball soldiers......fact...although i wasn't allowed to retain the proof due to the persons career being in jeapordy.....yes i know here say...but i know what i read and will leave it at that.)

So now past my ranting (sorry!) As I said i am about to go through this whole process and wanted to address the "Instrumentality of war issue" my injury that preceded the onset of my A.S. was from running a 50cal range....I was in charge of the ammo detail and while downloading from a hemit ammo carrier, the ammo guy was rushing (to see new girlfriend) and unloading by throwing down crates...(did not lower rack)...one of these crates were headed for one of my soldiers backs and I stepped in an pushed it over and to the back of me (clear area) immediately I was in pain....next morning sick call and was told I probably just pulled something...motrin and profile.....went on like this for abut 6 months then went to hospital....after another 4 months (and 5 doctors later) diagnosed with A.S.

Question since the onset was at that range (2000) and ammo crate was cause (and lack of safty on ammo guys part) do you think I have a valid qualification for this clause. It's 50 cal. crates ...live ammo.


Thanks in advance and sorry for rant.

-Linwood
 
I'm sure Jason or maparker will weigh in here.

But here's my thought....

YOU were in performance of doing combat training, yes? Field exercise and doing combat training duties in a simulated war-fighting mode?

So wouldn't your injury be considered "combat related"?

I could be wrong here, which is why I hope Jason or maparker pipe up, but you were not hit by the falling crate - you pushed the crate away so it wouldn't fall on someone else.

The way I understand it, if a military vehicle (not a civilian vehicle) runs over and injures your foot, then your foot became injured due to an instrumetality of war - the Military vehicle did that to you. A military vehicle being considered an instrument of war runs over your foot and injures it. IT did something to you.

But you pushed a crate away (whew!), so this might be considered a "combat-related" finding, provided you were engaged in combat-related training at the time of injury.

nwlivewire
 
Linwood,

I am glad to see you are going to take this to the PDBR. For the record the VA did not change 38 CFR. The VA clarified that 5002 was and is still used to rate the active disease process of Ankylosing Spondylitis. Saying that 38 CFR changed, post discharge, is not only wrong but will hurt you as the rating is based on what 38 CFR was at the time of discharge. Don't put any false escape paths in for the PDBR to use. In your application to the PDBR, quote exactly what the VA put out on the issue from their February 2009 Conference Call newsletter:

Evaluating claims for ankylosing spondylitis​

Ankylosing Spondylitis (AS) was assigned a specific Diagnostic Code (DC) of 5240 with the VA Schedule for Rating Disabilities change for conditions of the spine in September 2003. C&P Service has received multiple inquiries from veterans’ advocates, indicating that AS is being improperly evaluated in light of this change. DC 5240 falls under the General Rating Formula for Diseases and Injuries of the Spine. Raters must be cognizant that AS, in addition to causing limitation of motion of the spine or other symptoms, may be an active disease process. If the AS is manifested as an active disease process, consideration must be given to evaluating it under the provisions of DC 5009, as an arthritic process. DC 5009, according to the schedule, is to be evaluated under the criteria for rheumatoid arthritis, DC 5002. AS, when an active process, may affect other joints or body systems. Such other residuals should be identified and properly adjudicated.

Therefore, when evaluating AS, the RVSR must determine, based on the evidence in file, if the AS is an active process, and if so, properly evaluate it under DC 5009 (5002). If the AS is quiescent, it would be evaluated under 5240 based on the chronic residuals affecting the spine as well as any other joints or body systems under the appropriate diagnostic code.​

This will clearly illuminate that the PEB’s position that the introduction of DC 5240 eliminated the use of DC 5002 for rating Ankylosing Spondylitis was clearly in error.

As for the combat related issue, I think the challenge will be showing the nexus between the injury and the onset/aggravation of the disease. To be successful, I believe you will need to provide a statement from a rheumatologist or a credible medical study showing that an injury can cause the onset or aggravation of Ankylosing Spondylitis.

For those of you who may not know, Linwood was the very first person I assisted with a DES case back in 2005. It was an eye opener as it clearly demonstrated the PEB's motivation/corruption to lowball ratings and that they refused to address issues raised in appeal. We wrote a 15 page appeal demonstrating that the PEB’s rationale that DC 5240 eliminated the use of DC 5002 was clearly in error, amongst other issues. The PEB, using a half page boiler plate response, refused to address any issues raised in his appeal and stated there was nothing new and the decision stood.

I took Linwood’s appeal and the PEB’s “non response response” to a staffer on the House Armed Service Committee. The staffer then shepherded legislation in the 2007 NDAA that requires PEBs and other appeal authorities to address the issues raised in appeals. 10 USC 1222a states:

Response to Applications and Appeals.— The Secretary of each military department shall ensure, in the case of any member of the armed forces appearing before a physical evaluation board under that Secretary’s supervision, that documents announcing a decision of the board in the case convey the findings and conclusions of the board in an orderly and itemized fashion with specific attention to each issue presented by the member in regard to that member’s case. The requirement under the preceding sentence applies to a case both during initial consideration and upon subsequent consideration due to appeal by the member or other circumstance.​

Many PEBs still do not address the issues raised in appeal, especially if the appeal does not mention the 10 USC 1222a requirement. I recommend that all appeals quote 10 USC 1222a and then specifically list the issues to be addressed in their response. They will either answer them or set themselves up for failure in subsequent appeals and/or court actions.

Linwood, I will be happy to review your PDBR application prior to submittal. I can think of a few things that need to be included to increase your chances of success. The PDBR is a one shot process with no appeal rights so it imperative to get it right the first time. You are also closing in on your six year statute of limitations for taking this issue to court (If I remember right, you were discharged in December 2005). I recommend you discuss with Jason how to preserve your right to sue in court should the PDBR not grant you disability retirement. I believe you need to file a place holder suit before the six year limit is reached.

Mike
 
Wow....thanks for the info Mike I didn't know they had set a statute of limitations of 6yrs.....guess I'll need to get really busy. I'll try and give you a call tonight. And yes Jason any help you can provide would be great.
 
DD Form 294 right?

Also I spoke with my boss and he stated he'd be happy to supply a letter stating that since I started working for the county that I have missed work due to back pain on average four to seven periods of time each year (incapacitating episodes).

Also i will talk with my Rheumy about professional opinion on onset issues...he's got pretty good clout in his field I have been told.
 
Yeah the guy who whould have gotten hit wanted to beat the everloving crap out of the kid on the ammo truck...lol...but yeah as soon as i pushed it felt like my snap in my lower back (kind of what i imagine a rubber band would feel like when it breaks) I was initialy told it was a groin sprain....many morning locked in fetal position....had to crawl to the bathroom in the morning and have ex wife walk on my back so i could move to go into PT....not fun.

Thanks for the input
 
DD Form 294 right?

Also I spoke with my boss and he stated he'd be happy to supply a letter stating that since I started working for the county that I have missed work due to back pain on average four to seven periods of time each year (incapacitating episodes).

Also i will talk with my Rheumy about professional opinion on onset issues...he's got pretty good clout in his field I have been told.

Linwood,

The status of the condition now will be of no consequence to the PDBR. What will be of importance is the degree of disability at the time of your 2005 TDRL review and and what it would have been in 2008 at the end of your five year TDRL period. Need to focus your application on your degree of disability at those times.

Look forward to hearing from you.
 
Again good info.

So historically what have been their findings when compared to VA rating?

As you know the VA rating is dated 20 November 2007 so there shouldn't be any issue if the PDBR is following their lead. We'll see. Mike did i fax that VA rating paperwork to you?...do you still happen to have it maybe? Not sure where mine ran to...I'm sure it's in one of those "smart" locations.

Also @mike when is the best time to call.

I know it's a long weekend but I'm making a quick turnaround trip to ohio so Kate can visit with the new nephew.

Thanks
 
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