Being on orders when diagnosed is irrelevant. The issue is when the onset of symptoms occurred. The fact that the VA issued service connection would present a case where you could have challenged NGBs ruling. Speaking of which... gotta follow up with MSG Garcia yet on mine which is... STILL PENDING... since 2009 when my symptoms first occurred in Kuwait. I was not diagnosed though until 2012, but it was hinted at and requested to be tested for by a Naval doctor... who did my surgery. The notes were on my surgical reports but not my ALTHA record.
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Not sure if being on orders when diagnosed is irrelevant and you can just point to symptoms. The rule is you need to be activated or in training when the illness or injury first occurred, from the way I read it. Some illnesses make this rule pretty messy. Lots of people snore, and apnea events during sleep are common, it takes pretty specific criteria to say, yes, this is sleep apnea and it can be notoriously hard to pinpoint the start without the sleep study. I'm not a doc, but my understanding of Parkinson's is it is a very slowly progressive disease with a very messy start time, I could see it being hard to say with any likelyhood, and not pure speculation, that it started on day x, instead of day x-60 or day x+60 to a time that brings you out of eligibility. You need a nexus to say it started in a specific time frame while on active status, that the symptoms were the true Parkinson's start instead of the date of diagnosis. I could see that being hard to obtain.
They seem very picky how these arguments are presented. See:
http://boards.law.af.mil/ARMY/BCMR/CY2005/20050007658C070206.doc
for a, IMO, very strange example, and I've seen stranger but I think this illustrates the problem with how this is applied clearly enough.
They seem very picky how these arguments are presented. See:
http://boards.law.af.mil/ARMY/BCMR/CY2005/20050007658C070206.doc
for a, IMO, very strange example, and I've seen stranger but I think this illustrates the problem with how this is applied clearly enough.
Diagnosis of an illness is rarely cut and dry. You could be diagnosed a million times with different issues... case in point, I was diagnosed with one sinus infection after another when in reality... the butt of my rifle cracking my nose and it healing all screwed up was the issue. I didn't have the break, and subsequent deviation diagnosed until this year but... I had a sick call slip from when I broke my nose in 2010. More recently with the news... the guy in Texas with Ebola was released as having the flu, but came back into the ER when he became progressively worse before they tested, and confirmed Ebola. As long as the doctor can make a reasonable assumption that the disease occurred during the period of activation, and was subsequently made worse... the LOD could be overturned.
As long as the diagnosis date is subsituted by a supported argument that the disease process started at a specific time. Just noting the diagnosis date isn't a non-factor and more than evidence of a symptom being present in service is required. I don't think it is a stretch to say the diagnosis date is the primary evidence used to deny a disease or injury from being compensated.
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My reaction reading several posts in this thread is "NO, NO, NO, Wrong, No, and no again." It is frustrating because I think that folks are misunderstanding the rules, the presumptions, and the standards for line of duty and compensability determinations....but, I also take it as an opportunity to make some points. (Recall, I am not the President, the SECDEF, the Secretary of any of the Military Departments, nor am I a federal judge. So, I could be wrong; I wouldn't bet on that, but, anything is possible. As soon as I hold one of those positions, I will clarify with force; apologies in advance for the preceding tongue in cheek statement).
One problem is that many folks are "talking past each other," and addressing different points (some of which could potentially be valid depending on the circumstances, but, in the abstract, miss the actual rules, criteria, and laws on the points raised).
I am posting this, not to shut down discussion, but to explain what my views are, and to save folks, in reading one of the posts, not appreciating the complexities, and thinking that they "have no case."
This NGB justification is so wrong.
Just take a look at AFI 36-2910; it is actually stated clearly on the second page of this regulation:
"This interim change authorizes automated/electronic line of duty (LOD) determination processing (paragraph 3.2.). HQ AFPC/JA previously approved the Air Force Reserve Command‟s development and fielding of automated processing. This interim change implements 10 U.S.C. Section 1207a‟s 'eight year rule,' which states members of the Air Reserve Component (ARC) called or ordered to active duty for a period of more than 30 days, who have incurred a disabling condition and have at least eight years of active service, shall have the disability considered incurred while entitled to basic pay for the purpose of determining whether the condition was incurred in the line of duty (paragraph 3.4.1.2.3.)."
This is dead wrong- on two potential avenues of analysis.
First, for purposes of the "Eight Year Rule" being on orders is actually dispositive.
Second, the presumption of sound condition applies.
Take a look at DoDI 1332.18:
b. Presumption of Sound Condition for Members on Continuous Orders to Active Duty Specifying a Period of More Than 30 Days
(1) The Secretaries of the Military Departments will presume Service members, including RC members and recalled retirees, on continuous orders to active duty specifying a period of more than 30 days entered their current period of military service in sound condition when the disability was not noted at the time of the Service member’s entrance to the current period of active duty.
(2) The Secretaries of the Military Departments may overcome this presumption if clear and unmistakable evidence demonstrates that the disability existed before the Service member’s entrance on their current period of active duty and was not aggravated by their current period of military service. Absent such clear and unmistakable evidence, the Secretary of the Military Department concerned will conclude that the disability was incurred or aggravated during their current period of military service.
(3) The Secretary of the Military Department concerned must base a finding that the Service member’s condition was not incurred in or aggravated by their current period of military service on objective evidence in the record, as distinguished from personal opinion, speculation, or conjecture. When the evidence is unclear concerning whether the condition existed prior to their current period of military service or if the evidence is equivocal, the presumption of sound condition at entry to the current period of military service has not been rebutted and the Secretary of the Military Department concerned will find the Service member’s condition was incurred in or aggravated by military service.
No...almost all of this wrong (with due respect and understanding that you are only trying to help).
The first part ignores/gets wrong the fact that despite a condition pre-existing service, it can still be (and is presumed to be) in the line of duty because of service aggravation. There is a presumption of service incurrence AND a presumption of service aggravation. The burden is on the military to show that BOTH presumptions are overcome. The evidentiary burden is high on the military's part to overcome the presumptions.
Most of the misunderstanding here is because of not understanding/applying the presumptions. (It is VERY EASY to understand how/why the above statements were made....I am not trying to sharpshoot, to shut down discussion, or to derogate from the help you are trying to provide).
The basic point is that you have to start with the presumptions- that a member who enters service for more than 30 days is PRESUMED to be in sound condition, and that any worsening of pre-existing conditions was the result of military service.
With all due respect, this example is very poor in addressing the issues; it was issued in 2005, well before many MAJOR changes in the regulations. That said, at the time the ABCMR decision was rendered, I think it "could have been won," except for the fact that the claimant basically "caved" and admitted no error:
"1. The applicant is no longer arguing that his LODI should have been corrected from "not in line of duty" to "in line of duty" and the evidence submitted with his current request does not support a conclusion that such a correction is or was warranted. As such, that portion of his request pertaining to reconsideration of his original application warrants no further discussion or consideration. [I have no idea why this would have been admitted to or argued, but, it essentially means that the applicant agreed his condition was NOT IN THE LINE OF DUTY; bad findings followed this fatal flaw].
2. The applicant is now arguing, and claims that it has always been his argument, that he did not receive the proper medical care after a lesion on his leg was shaved off and biopsied in September 1999 when he was on active duty and that he should have been retained in an active status until the possible resulting condition was resolved. He also now argues that because the September 1999 biopsy suggested that cancer was a possibility and because within 90 days after his separation such a diagnosis was made he is therefore also entitled to incapacitation pay and reimbursement of medical treatment cost. His argument is primarily based on two issues; one, that his condition was discovered within 90 days of his separation and, two; that medical treatment for various conditions during his current tour of duty, even if those conditions were not incurred or aggravated while in an active status, is evidence that treatment of the 1999 condition also warranted continued treatment."
This case is about condition discovered AFTER separation, and only has to do with TREATMENT, not compensability- for whatever reason, the applicant withdrew his claim that his condition was in the line of duty. (This is a prime example of why it is bad to not have qualified legal representation in fighting cases).
NO!!! This statement ignores the presumption of service incurrence and the presumption of service aggravation.
NO!! I get the logic and reasoning behind the statement. But, again, this ignores the "rules" and the law that applies to cases generally.
First, for "Eight Year Rule" cases, the issue is having the condition while being on orders (whether identified in that period of service of before).
Second, by application of the presumption of sound condition on entry, any symptoms not noted on entry, would seem to require that the condition be found in the line of duty. Once again, there are "weird" circumstances that might change the outcome (and some interesting questions- not derogating to the final final finding of compensability in as to why or how member passed medical screening for entry on active duty in the first place....however, there is no exception that would seem to apply UNLESS the member knowingly lied about their condition, concealed it, etc.; even so, there are more complicated issues that would impact the outcome in those rare circumstances).
Third, the issues are further complicated in the above bolded/quoted part as to whether or not the questions/issues raised turn only on the "symptom(s)" issue as requiring referral to the DES/IDES or whether the condition is compensable. This is horribly complicated, as a symptom (whether correctly diagnosed as part of a disease or disability process) may be just an indicator of a compensable condition (and the condition should be in the line of duty) or it may be a reason- unto itself- as a basis for referral to the Disability Evaluation System (which, the resulting of the analysis of the LOD issue would then matter as to how the case progresses) . However, it is NOT THE CASE that a definitive diagnosis (or diagnoses) is/are required before referral to the DES/IDES. (This point has come up many times in cases and I have seen it play out in practice varying ways). The issues are conflated here- compensability for conditions, requirements for referral to the DES/IDES, and proper diagnoses. Each are separate, and to some extent non-mutually exclusive (but, they are related) issues.
There are other issues and points that bear on this question....I won't try to write a treatise on this subject in this post.
I had some trepidation in tackling my above statement; mainly because of the mixing of issues and- therefore- mixing of standards that might apply. The above statements quoted, seems to be mixing at least two separate issues- LOD determinations with requirements for referral to the DES/IDES. It is always hard to parse out the issues without concrete examples of actual issues (and findings/actions) in cases.
As an example of some of the issues raised and the complicated nature of the issues- in some cases- folks might want to read this case, which I have litigated before the Court of Federal Claims:
http://www.pebforum.com/site/resources/wollman-v-united-states.59/
One problem is that many folks are "talking past each other," and addressing different points (some of which could potentially be valid depending on the circumstances, but, in the abstract, miss the actual rules, criteria, and laws on the points raised).
I am posting this, not to shut down discussion, but to explain what my views are, and to save folks, in reading one of the posts, not appreciating the complexities, and thinking that they "have no case."
This NGB justification is so wrong.
Just take a look at AFI 36-2910; it is actually stated clearly on the second page of this regulation:
"This interim change authorizes automated/electronic line of duty (LOD) determination processing (paragraph 3.2.). HQ AFPC/JA previously approved the Air Force Reserve Command‟s development and fielding of automated processing. This interim change implements 10 U.S.C. Section 1207a‟s 'eight year rule,' which states members of the Air Reserve Component (ARC) called or ordered to active duty for a period of more than 30 days, who have incurred a disabling condition and have at least eight years of active service, shall have the disability considered incurred while entitled to basic pay for the purpose of determining whether the condition was incurred in the line of duty (paragraph 3.4.1.2.3.)."
This is dead wrong- on two potential avenues of analysis.
First, for purposes of the "Eight Year Rule" being on orders is actually dispositive.
Second, the presumption of sound condition applies.
Take a look at DoDI 1332.18:
b. Presumption of Sound Condition for Members on Continuous Orders to Active Duty Specifying a Period of More Than 30 Days
(1) The Secretaries of the Military Departments will presume Service members, including RC members and recalled retirees, on continuous orders to active duty specifying a period of more than 30 days entered their current period of military service in sound condition when the disability was not noted at the time of the Service member’s entrance to the current period of active duty.
(2) The Secretaries of the Military Departments may overcome this presumption if clear and unmistakable evidence demonstrates that the disability existed before the Service member’s entrance on their current period of active duty and was not aggravated by their current period of military service. Absent such clear and unmistakable evidence, the Secretary of the Military Department concerned will conclude that the disability was incurred or aggravated during their current period of military service.
(3) The Secretary of the Military Department concerned must base a finding that the Service member’s condition was not incurred in or aggravated by their current period of military service on objective evidence in the record, as distinguished from personal opinion, speculation, or conjecture. When the evidence is unclear concerning whether the condition existed prior to their current period of military service or if the evidence is equivocal, the presumption of sound condition at entry to the current period of military service has not been rebutted and the Secretary of the Military Department concerned will find the Service member’s condition was incurred in or aggravated by military service.
No...almost all of this wrong (with due respect and understanding that you are only trying to help).
The first part ignores/gets wrong the fact that despite a condition pre-existing service, it can still be (and is presumed to be) in the line of duty because of service aggravation. There is a presumption of service incurrence AND a presumption of service aggravation. The burden is on the military to show that BOTH presumptions are overcome. The evidentiary burden is high on the military's part to overcome the presumptions.
Most of the misunderstanding here is because of not understanding/applying the presumptions. (It is VERY EASY to understand how/why the above statements were made....I am not trying to sharpshoot, to shut down discussion, or to derogate from the help you are trying to provide).
The basic point is that you have to start with the presumptions- that a member who enters service for more than 30 days is PRESUMED to be in sound condition, and that any worsening of pre-existing conditions was the result of military service.
With all due respect, this example is very poor in addressing the issues; it was issued in 2005, well before many MAJOR changes in the regulations. That said, at the time the ABCMR decision was rendered, I think it "could have been won," except for the fact that the claimant basically "caved" and admitted no error:
"1. The applicant is no longer arguing that his LODI should have been corrected from "not in line of duty" to "in line of duty" and the evidence submitted with his current request does not support a conclusion that such a correction is or was warranted. As such, that portion of his request pertaining to reconsideration of his original application warrants no further discussion or consideration. [I have no idea why this would have been admitted to or argued, but, it essentially means that the applicant agreed his condition was NOT IN THE LINE OF DUTY; bad findings followed this fatal flaw].
2. The applicant is now arguing, and claims that it has always been his argument, that he did not receive the proper medical care after a lesion on his leg was shaved off and biopsied in September 1999 when he was on active duty and that he should have been retained in an active status until the possible resulting condition was resolved. He also now argues that because the September 1999 biopsy suggested that cancer was a possibility and because within 90 days after his separation such a diagnosis was made he is therefore also entitled to incapacitation pay and reimbursement of medical treatment cost. His argument is primarily based on two issues; one, that his condition was discovered within 90 days of his separation and, two; that medical treatment for various conditions during his current tour of duty, even if those conditions were not incurred or aggravated while in an active status, is evidence that treatment of the 1999 condition also warranted continued treatment."
This case is about condition discovered AFTER separation, and only has to do with TREATMENT, not compensability- for whatever reason, the applicant withdrew his claim that his condition was in the line of duty. (This is a prime example of why it is bad to not have qualified legal representation in fighting cases).
NO!!! This statement ignores the presumption of service incurrence and the presumption of service aggravation.
NO!! I get the logic and reasoning behind the statement. But, again, this ignores the "rules" and the law that applies to cases generally.
First, for "Eight Year Rule" cases, the issue is having the condition while being on orders (whether identified in that period of service of before).
Second, by application of the presumption of sound condition on entry, any symptoms not noted on entry, would seem to require that the condition be found in the line of duty. Once again, there are "weird" circumstances that might change the outcome (and some interesting questions- not derogating to the final final finding of compensability in as to why or how member passed medical screening for entry on active duty in the first place....however, there is no exception that would seem to apply UNLESS the member knowingly lied about their condition, concealed it, etc.; even so, there are more complicated issues that would impact the outcome in those rare circumstances).
Third, the issues are further complicated in the above bolded/quoted part as to whether or not the questions/issues raised turn only on the "symptom(s)" issue as requiring referral to the DES/IDES or whether the condition is compensable. This is horribly complicated, as a symptom (whether correctly diagnosed as part of a disease or disability process) may be just an indicator of a compensable condition (and the condition should be in the line of duty) or it may be a reason- unto itself- as a basis for referral to the Disability Evaluation System (which, the resulting of the analysis of the LOD issue would then matter as to how the case progresses) . However, it is NOT THE CASE that a definitive diagnosis (or diagnoses) is/are required before referral to the DES/IDES. (This point has come up many times in cases and I have seen it play out in practice varying ways). The issues are conflated here- compensability for conditions, requirements for referral to the DES/IDES, and proper diagnoses. Each are separate, and to some extent non-mutually exclusive (but, they are related) issues.
There are other issues and points that bear on this question....I won't try to write a treatise on this subject in this post.
I had some trepidation in tackling my above statement; mainly because of the mixing of issues and- therefore- mixing of standards that might apply. The above statements quoted, seems to be mixing at least two separate issues- LOD determinations with requirements for referral to the DES/IDES. It is always hard to parse out the issues without concrete examples of actual issues (and findings/actions) in cases.
As an example of some of the issues raised and the complicated nature of the issues- in some cases- folks might want to read this case, which I have litigated before the Court of Federal Claims:
http://www.pebforum.com/site/resources/wollman-v-united-states.59/
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Another point....the issues can be VERY COMPLICATED, and it is EXTREMELY DIFFICULT, to apply them to hypotheticals without a full airing and consideration of ALL of the facts.
Jason,
Thanks for the detailed post. What can/should members do when they are told such conditions are not in the line of duty because the condition incurred on a previous tour of active duty, the member was returned to duty making the previous LOD void, the condition was not diagnosed while on active duty and other, baseless, arbitrary and nonsensical rationale for denying LOD?
Mike
Thanks for the detailed post. What can/should members do when they are told such conditions are not in the line of duty because the condition incurred on a previous tour of active duty, the member was returned to duty making the previous LOD void, the condition was not diagnosed while on active duty and other, baseless, arbitrary and nonsensical rationale for denying LOD?
Mike
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In many ways, this is difficult question....I have a short answer and a long(er) answer.
Short answer, challenge (at each opportunity) the findings and actions taken that are adverse to the member.
Longer answer (which subsumes the short answer), demand a LOD and fight out any adverse issue; if referred to a Non-Duty Related PEB, appear at the PEB and challenge the NDR processing; appeal while still in the military; make the issues and concerns known (perhaps by filing a Memorandum for Record and getting it filed in the members record...one way is by citing Privacy Act- this is a somewhat complicated issue as to how and why it should be filed in the record/personnel file, but doing so may help the case should appeals be needed); in some cases (though, I tend to think that some of this is not likely to work, but, if a member is really wanting to fight via every available avenue, then maybe this is a good course of action....though, I think unlikely to work and will probably- absent relief/correction of the action being forthcoming, will only serve to document the disagreement and preservation of issues on later appeal), seek IG assistance, involve/request assistance from Members of Congress (or, perhaps in cases of National Guard members, the Governor of the State), notify the media, seek redress through chain of command (invoke "open door policy", and raise this as far a possible/granted), and perhaps file an UCMJ Art. 138 complaint. Should none of the above work, file either/or a BCMR appeal or complaint in the US Court of Federal Claims (as appropriate). FIGHT. FIGHT. FIGHT SOME MORE.
At the end of the day, it may take filing either administrative appeals or judicial (read as a lawsuit) claims.
I generally think that most of the earlier above suggestions won't/don't work and the real focus/route is through administrative and or judicial appeals (the judicial route is an "animal unto itself," and has some very powerful features...but, viscerally, I hate that this is the route that some folks HAVE TO TAKE to get redress....over my many years of dealing with these issues, generally (and I know you share much of this opinion), if the military simply applied its own rules to cases, in most cases the right result would follow; the problem is that in a sizeable number of cases, the military picks and chooses what cases it will grant relief to, and fails to apply its own rules).
Bottom line, members have to fight adverse decisions in their cases to prevail. (One of the biggest issues out there, in my opinion, is the majority of cases are never challenged- giving license and incentive to the military to issue "erroneous" decisions).
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BTW, I hate my answer (in part based on the context of the question). It is like asking a doctor, "How do I fight cancer?". The problem is that there are some facile answers that can be offered. "Get treatment, take care of your health, eat well, etc." But, the actual execution of the "treatment" is fact dependant and is hard to generalize (though, I tried to answer and do so in my previous post). And the specific answer can be completely different from the facile or easy answer.
(A bother to me or concern is how different readers will take my posts and understand them....I hate the idea that people get the wrong idea about the "best way ahead," especially if based on my posts).
(A bother to me or concern is how different readers will take my posts and understand them....I hate the idea that people get the wrong idea about the "best way ahead," especially if based on my posts).
My primary purpose in posting was to illustrate how making sure the correct argument is presented. The example I linked wasn't to suggest they were correct in denying that case but to show how badly a simple symptom -> diagnosis can go if not framed correctly. Any thinking person could connect a lesion found in service that turned out to be cancerous soon after was likely cancerous in service, yet still there is a requirement to present the correct argument. I thoroughly enjoy your sharpshooting though, it is always invaluably educating.
There are a few points I fail to understand. The date of diagnosis seems supremely important. If it happened during service, the military has to somehow have evidence that it was pre-existing and not service aggrivated. If it happened before, evidedence of not service aggrivated. My reasoning wasn't really exploring service aggrivation, mainly because:
Makes it sound like the diagnosis happened after the active periods. His primary problem seems to be to argue that his symptom, present before then, justify ignoring the diagnosis date and saying the true start was sooner. Same way the military says evidence allows them to ignore diagnosis date and assign EPTS. I could see service aggrivation would be an additional argument if the start date was before his active time. If I come down with a disease 20 years from now I don't think I can say it was service aggrivated, or bring in the 8 year rule.
Another issue I don't understand is, anyone making a change would have to presume a regularity to the government's actions. Since he was discharged from AD, they have to assume his non-diagnosis at that time was correct. This would seem to negate any presumptive of service connected. Opens up doors to illustrate they didn't follow reg or law, but don't think anything would rest on a presumption. /shrug. I think this is the primary reason VA service connect is relatively easy compared to showing you deserve a military disability retirement.
Never would I suggest there isn't a case to be made, but I think it is important to make sure your case is fully delevoped with the right evidence to help them make the right decision. These problems get so ugly, and so much evidence is buried, I don't think even just going out and hiring a lawyer will be enough often. You have to understand the issues well enough yourself to aid the lawyer in knowing what evidence is relevant to find and know if the lawyer is on the right track. I have read BCMR cases where the SM was represented and could see the lawyer was making horrible arguments.
I hope this isn't derailing the thread. The discusion about our reserve brothers and sisters being screwed out of compensation for thier service is vitally important. Especially given the talk out there of dropping active duty numbers for reservists since they a cheaper way to fight our wars. Ultimately the barriers to correct administrator error are unbelievably high given how easy the errors are to make.
There are a few points I fail to understand. The date of diagnosis seems supremely important. If it happened during service, the military has to somehow have evidence that it was pre-existing and not service aggrivated. If it happened before, evidedence of not service aggrivated. My reasoning wasn't really exploring service aggrivation, mainly because:
Makes it sound like the diagnosis happened after the active periods. His primary problem seems to be to argue that his symptom, present before then, justify ignoring the diagnosis date and saying the true start was sooner. Same way the military says evidence allows them to ignore diagnosis date and assign EPTS. I could see service aggrivation would be an additional argument if the start date was before his active time. If I come down with a disease 20 years from now I don't think I can say it was service aggrivated, or bring in the 8 year rule.
Another issue I don't understand is, anyone making a change would have to presume a regularity to the government's actions. Since he was discharged from AD, they have to assume his non-diagnosis at that time was correct. This would seem to negate any presumptive of service connected. Opens up doors to illustrate they didn't follow reg or law, but don't think anything would rest on a presumption. /shrug. I think this is the primary reason VA service connect is relatively easy compared to showing you deserve a military disability retirement.
Never would I suggest there isn't a case to be made, but I think it is important to make sure your case is fully delevoped with the right evidence to help them make the right decision. These problems get so ugly, and so much evidence is buried, I don't think even just going out and hiring a lawyer will be enough often. You have to understand the issues well enough yourself to aid the lawyer in knowing what evidence is relevant to find and know if the lawyer is on the right track. I have read BCMR cases where the SM was represented and could see the lawyer was making horrible arguments.
I hope this isn't derailing the thread. The discusion about our reserve brothers and sisters being screwed out of compensation for thier service is vitally important. Especially given the talk out there of dropping active duty numbers for reservists since they a cheaper way to fight our wars. Ultimately the barriers to correct administrator error are unbelievably high given how easy the errors are to make.
I was the one who petition Congress to make DoD presumption standards the same as the VA's which Congress did do in the 2009 NDAA. The presumptions are the same. If the VA correctly serviced connected the condition, then it would be service connected by DoD as well. Both DoD and the VA follow the same exact presumption standards.
Being deemed LOD/service connected does not equate to deserving a military disability retirement. That requires the condition be deemed unfitting by the PEB and rated 30% plus.
Mike
Being deemed LOD/service connected does not equate to deserving a military disability retirement. That requires the condition be deemed unfitting by the PEB and rated 30% plus.
Mike
So the best argument is the LOD didn't follow law and regulation, proved by the VA having the same information and same rules and determining it to be in the line of duty, hence the military failed to properly apply the rules. Then request the fix be for a MEB/PEB process to be started?
The hard part is getting the military to agree the standards are the same. They certainly are in writing, application is a different thing. As witness by several post in this thread, the NGB is doing what they want, laws and regulations be damned. Unfortunately, court maybe the solution but making the right arguments and appeals sets the table for later success in court.
Mike
Mike
NGB has some hidden memo out there with the States that says to ignore the law and process soldiers out. Case in point, non-action on my LOD led to me being separated. My LOD is STILL with my state. I have gone through IG, IG tried telling me I was wrong based on NGB guidance that medically unretainable soldiers are to be separated. If the PEB does not act in a certain time... you get separated. My big issue is why my case was never submitted through an MEB when it was requested with supporting documents. Was it the new commander being ignorant of the rules or BDE trying to have me booted out? I honestly feel it is a little of both. They are trying the same crap on my old squad leader now too. His issues are his knee and PTSD when he was in the Marines.
Originally injured in the Line of Duty while serving in Iraq. Taking care of an Soldier injured in the Line of Duty during a combat deployment SHOULD have been a no-brainer. Instead the Army and the Guard completely ignored regulations and didn't write out an LOD not even mention INCAP pay, which left me holding the bag for thousands of dollars lost for multiple spinal surgeries and 8 months out of work still on crutches.
There's not a doubt in my mind that the Army and the Guard systematically and deliberately STEAL and CHEAT Injured Soldiers. Even after I FORCED them to do a an LOD in late 2013 (8 years after the fact), they did EVERYTHING in their power, mostly outside the law, to CHEAT me out of benefits, DENY me medical care, and IF they had got away with it, I'd be divorced, homeless, and living in my pickup truck somewhere under a bridge.
I have spent the last year being compelled through their complete lack of honor to repeatedly kicking them in the balls to draw the benefits and care I EARNED while serving my country, and I will continue to kick them in the balls (harder each time) till they either figure out that CHEATING Injured Soldiers is wrong, and/or they begin to choke on their balls when they're firmly lodged well into their windpipe. At this point I don't give a damn if they like it our not, I'm flat out fed up with the Army and the Guard trying to CHEAT and STEAL from injured Soldiers, myself included.
And if they think I'm a SOB to deal with as a Staff Sergeant, they don't comprehend how much more viciously I will slam their heads into the rocks once my title is Citizen. The dirty rotten SOB's are due an ass kicking of epic proportions and I have the intelligence, will, and motivation to do just that. Not just for myself but EVERY Injured Soldier they've CHEATED and STOLEN from along the way.
Nemo me impune lacessit
There's not a doubt in my mind that the Army and the Guard systematically and deliberately STEAL and CHEAT Injured Soldiers. Even after I FORCED them to do a an LOD in late 2013 (8 years after the fact), they did EVERYTHING in their power, mostly outside the law, to CHEAT me out of benefits, DENY me medical care, and IF they had got away with it, I'd be divorced, homeless, and living in my pickup truck somewhere under a bridge.
I have spent the last year being compelled through their complete lack of honor to repeatedly kicking them in the balls to draw the benefits and care I EARNED while serving my country, and I will continue to kick them in the balls (harder each time) till they either figure out that CHEATING Injured Soldiers is wrong, and/or they begin to choke on their balls when they're firmly lodged well into their windpipe. At this point I don't give a damn if they like it our not, I'm flat out fed up with the Army and the Guard trying to CHEAT and STEAL from injured Soldiers, myself included.
And if they think I'm a SOB to deal with as a Staff Sergeant, they don't comprehend how much more viciously I will slam their heads into the rocks once my title is Citizen. The dirty rotten SOB's are due an ass kicking of epic proportions and I have the intelligence, will, and motivation to do just that. Not just for myself but EVERY Injured Soldier they've CHEATED and STOLEN from along the way.
Nemo me impune lacessit
Part one;
I will in detail explain my case as soon as possible and on an additional thread
Long story short and to make matters worse;
I was also an Air Guard Technician.
Going thru the NDES process was painful. My unit, the Wing and the NGB all had their own versions of processing LOD’s NDES, MEB…ect…We all have the same AFI, however, they all had different interpretations. NGB/A1 even emailed me that the VA will upgrade my Disability retirement after I get out of the Guard. ??
With all the hard work that I had to do by myself and all the education I had to learn,
3 out of the 4 processes outcomes where positive.
1. I did get Civil Service Disability Retirement because I lost Guard membership.
2. I did get Social Security Disability due to my Parkinson’s Disease
3. I did get VA compensation with a rating of 90% Parkinson was rated at about 50%
However,
4. I did not get National Guard Disability Retirement. The Guard is trying to “Guard Retirement” due to the fact; I have over 20 sat years.
I am grateful for what I received and wish well to everyone that the forum touches.
With so great information that is here, I would have not got as far as I did.
Mike,
Yes my Parkinson “Line of Duty” was approved at lower levels;
MXS/Commanding Officer on 06 Nov 2012 Recommended Approval
Investigation concluded “ARC ONLY – The recommended finding is “EPTS-Service Aggravated”
Member meets the criteria of “In Line of Duty” per the eight year rule. AFI 36-2910, 3.4.1.2.3. Eight Year Rule. IAW 10 U.S.C. 1207a, a disbling condition will be found to be in the line of duty, even though the condition existed…Member has at least eight years of active service (8 years do not have to be consecutive), and the member was on active duty orders more than 30 days at the time the condition became unfitting, as subsequently determined by the physical Evaluation Board.
I have reviewed member’s service records and he has more than eight years of active service.
176th WG/JSA Concured on2 Mar 2013
176th WG/Vice Commanding Officer Approved on 2 Oct 2013
Action of the appointing Authority: ARC ONLY – The recommended finding is “EPTS-Service Aggravated”
However,
NGB/A1 Using DD Form 261, Oct 95: found the findings “Not in line of duty” with the following remarks:
“Thee is no documentation indicating that the member was on orders or in a duty status when diagnosed.”
Presumption of fitness that was lost in translation with the many interpretation of laws in my case
I enlisted in June 2010 into the Alaska Air National Guard (AKANG), with a DD Form 2808, dated 14 May 2010 with normal clinical evaluations “except for lower extremities being abnormal”.
I believe that “Presumption” might be relative with this medical exam.
I had a break of service between the Active Duty and the National Guard. This break of service is an issue?
I was “pre diagnosed” with “probable Parkinson’s disease in 2011 (the date that the NGB used when my LOD was denied); I did official did get diagnosed with “Parkinson’s disease” in 2012. I was on AT orders at this time. AT ORDERS at the time of the diagnosis. All prior diagnosis were “probale parkinson”, if that make sense
Apr 2013, my VA claim for compensation approved and “Service connected” the Parkinson’s disease during the Active duty time in the Marines. I had symptom’s of Parkinson’s from 2006. On another note, I was discharged and denied reenlistment in 2006 in the Marines. I had medical issues that were undiagnosed and I could not keep up with the standards of leading Marines. They did not medically process out. I just was honorable discharge. This is the start of my roller coaster and not knowing the processes which I should have addressed at that time
I joined the Army National guard 2006, with a two month break of service between the Marines and Army Guard. I then transferred from the Army Guard to the Air National Guard Technician program with no break of service between the army and air force guards.
Time line
Notes: Military Significant events
1981 - 1985 AD DD-214 Honorable Discharged
1995 - 2006 AD DD-214 Honorable Discharged
2006 – 17 JUN 2010 ARNG NG-22 Release to enlisted into the AKANG
18 JUN 2010 - Present ANG Alaska Air National Guard DD Form Enlistment Document
Significant events time line
14-15 AUG 2010 UTA Assigned Light Duty, due to left arm injury 11 AUG 2010
18-19 SEP 2010 UTA Assigned Light Duty, due to left arm injury 11 AUG 2010
02-03 OCT 2010 UTA Assigned Light Duty, due to left arm injury 11 AUG 2010
01-05 NOV 2010 AT continued to work with restrictions and light duty limitations
29 NOV 2010 UTA Memorandum from Medical Liaison Officer (MLO)
04-05 DEC 2010 UTA I was first seen at the 176 MDG for Left arm pain and tremors. MDG referred me to my Private providers. No Profile Issued.
09 JAN 2011 UTA AF-469 Duty and Mobility Restrictions (Code 31)
09 MAR 2011 Neurologist: Tremor/Left arm pain/tightness/weakness Assessments: 1. Cervical spondylosis: C6-C7 (721.0 Cervical spondylosis). 2. Abnormal neurologic exam: Pill rolling tremor left thumb. Rapid pincer and hand not normal on left side. These are parkinsonian features. 3. Carpal tunnel syndrome. Patient has had surgery to right and left sides for CTS (354.0 Carpal tunnel syndrome). 4. (Tremor) Parkinson’s disease (781.0 Tremor NOS). Referred to doctor in Eagle River and to a Neurosurgeon for Parkinson’s
19 MAY 2011 (Neurology Center): Dull tightness in left arm/Tremors. Impressions: New onset of Tremors that has slowly progressed. Recommends PD medication to see if it suppresses symptoms
04 JUN 2011 UTA Profile- AF-469 Line of Duty for left Arm Pain (176th Clinic)
05 JUN 2011 UTA Modified AF-469
13-14 AUG 11 UTA Profile- AF-469 for Joint pain NOS, nerve pain Left arm
16-17 July 2011 UTA 17 July 2011, Reported to MDG, after a Unit Physical Fitness session. I injured both lower and upper left extremities, while participating in a unit physical fitness program, doing pushups and running. My left arm would not stop uncontrollably shaking. Extreme tightness in the forearm and bicep was unbearably painful. My left leg cramping, as well as my foot and toes were diagnosed with my civilian providers. 176 MDG referred to private medical treatment.
17 AUG 2011 (Neurology Center). Fairly prominent rest tremor in left arm.
Diagnosis: Probable Parkinson’s Disease
16 OCT 2011 UTA LOD was initiated for “Left Elbow”
20 DEC 2011 Civilian Treatment Parkinson Medication prescribed.
Diagnosis: Probable Parkinson’s disease
25-28 JUN 2012 AT Local Training Diagnosis of Parkinson’s disease. Completed the Parkinson’s Disease Disability Benefits questionnaire VA Form 21-0960C-1
05-07 NOV 2012 AT Training Duty; Official Diagnosis: Parkinson ’s disease. By Neurology Center, by civilian provider, (ICD9 332) (06 NOV 2012) I went to civilian provider while on AT orders
2012 Parkinson LOD submited at MDG
Limited knowledge and many questions
1. My LOD and NDES were not processed correctly?
2. I do have presumption of fitness issues?
3. Diagnosis verse onset of Parkinson’s.?
4. Is there a fighting chance for immediate disability retirement from the guard?
I will address all the question form others ASAP
God Bless everyone
More to come
I will in detail explain my case as soon as possible and on an additional thread
Long story short and to make matters worse;
I was also an Air Guard Technician.
Going thru the NDES process was painful. My unit, the Wing and the NGB all had their own versions of processing LOD’s NDES, MEB…ect…We all have the same AFI, however, they all had different interpretations. NGB/A1 even emailed me that the VA will upgrade my Disability retirement after I get out of the Guard. ??
With all the hard work that I had to do by myself and all the education I had to learn,
3 out of the 4 processes outcomes where positive.
1. I did get Civil Service Disability Retirement because I lost Guard membership.
2. I did get Social Security Disability due to my Parkinson’s Disease
3. I did get VA compensation with a rating of 90% Parkinson was rated at about 50%
However,
4. I did not get National Guard Disability Retirement. The Guard is trying to “Guard Retirement” due to the fact; I have over 20 sat years.
I am grateful for what I received and wish well to everyone that the forum touches.
With so great information that is here, I would have not got as far as I did.
Mike,
Yes my Parkinson “Line of Duty” was approved at lower levels;
MXS/Commanding Officer on 06 Nov 2012 Recommended Approval
Investigation concluded “ARC ONLY – The recommended finding is “EPTS-Service Aggravated”
Member meets the criteria of “In Line of Duty” per the eight year rule. AFI 36-2910, 3.4.1.2.3. Eight Year Rule. IAW 10 U.S.C. 1207a, a disbling condition will be found to be in the line of duty, even though the condition existed…Member has at least eight years of active service (8 years do not have to be consecutive), and the member was on active duty orders more than 30 days at the time the condition became unfitting, as subsequently determined by the physical Evaluation Board.
I have reviewed member’s service records and he has more than eight years of active service.
176th WG/JSA Concured on2 Mar 2013
176th WG/Vice Commanding Officer Approved on 2 Oct 2013
Action of the appointing Authority: ARC ONLY – The recommended finding is “EPTS-Service Aggravated”
However,
NGB/A1 Using DD Form 261, Oct 95: found the findings “Not in line of duty” with the following remarks:
“Thee is no documentation indicating that the member was on orders or in a duty status when diagnosed.”
Presumption of fitness that was lost in translation with the many interpretation of laws in my case
I enlisted in June 2010 into the Alaska Air National Guard (AKANG), with a DD Form 2808, dated 14 May 2010 with normal clinical evaluations “except for lower extremities being abnormal”.
I believe that “Presumption” might be relative with this medical exam.
I had a break of service between the Active Duty and the National Guard. This break of service is an issue?
I was “pre diagnosed” with “probable Parkinson’s disease in 2011 (the date that the NGB used when my LOD was denied); I did official did get diagnosed with “Parkinson’s disease” in 2012. I was on AT orders at this time. AT ORDERS at the time of the diagnosis. All prior diagnosis were “probale parkinson”, if that make sense
Apr 2013, my VA claim for compensation approved and “Service connected” the Parkinson’s disease during the Active duty time in the Marines. I had symptom’s of Parkinson’s from 2006. On another note, I was discharged and denied reenlistment in 2006 in the Marines. I had medical issues that were undiagnosed and I could not keep up with the standards of leading Marines. They did not medically process out. I just was honorable discharge. This is the start of my roller coaster and not knowing the processes which I should have addressed at that time
I joined the Army National guard 2006, with a two month break of service between the Marines and Army Guard. I then transferred from the Army Guard to the Air National Guard Technician program with no break of service between the army and air force guards.
Time line
Notes: Military Significant events
1981 - 1985 AD DD-214 Honorable Discharged
1995 - 2006 AD DD-214 Honorable Discharged
2006 – 17 JUN 2010 ARNG NG-22 Release to enlisted into the AKANG
18 JUN 2010 - Present ANG Alaska Air National Guard DD Form Enlistment Document
Significant events time line
14-15 AUG 2010 UTA Assigned Light Duty, due to left arm injury 11 AUG 2010
18-19 SEP 2010 UTA Assigned Light Duty, due to left arm injury 11 AUG 2010
02-03 OCT 2010 UTA Assigned Light Duty, due to left arm injury 11 AUG 2010
01-05 NOV 2010 AT continued to work with restrictions and light duty limitations
29 NOV 2010 UTA Memorandum from Medical Liaison Officer (MLO)
04-05 DEC 2010 UTA I was first seen at the 176 MDG for Left arm pain and tremors. MDG referred me to my Private providers. No Profile Issued.
09 JAN 2011 UTA AF-469 Duty and Mobility Restrictions (Code 31)
09 MAR 2011 Neurologist: Tremor/Left arm pain/tightness/weakness Assessments: 1. Cervical spondylosis: C6-C7 (721.0 Cervical spondylosis). 2. Abnormal neurologic exam: Pill rolling tremor left thumb. Rapid pincer and hand not normal on left side. These are parkinsonian features. 3. Carpal tunnel syndrome. Patient has had surgery to right and left sides for CTS (354.0 Carpal tunnel syndrome). 4. (Tremor) Parkinson’s disease (781.0 Tremor NOS). Referred to doctor in Eagle River and to a Neurosurgeon for Parkinson’s
19 MAY 2011 (Neurology Center): Dull tightness in left arm/Tremors. Impressions: New onset of Tremors that has slowly progressed. Recommends PD medication to see if it suppresses symptoms
04 JUN 2011 UTA Profile- AF-469 Line of Duty for left Arm Pain (176th Clinic)
05 JUN 2011 UTA Modified AF-469
13-14 AUG 11 UTA Profile- AF-469 for Joint pain NOS, nerve pain Left arm
16-17 July 2011 UTA 17 July 2011, Reported to MDG, after a Unit Physical Fitness session. I injured both lower and upper left extremities, while participating in a unit physical fitness program, doing pushups and running. My left arm would not stop uncontrollably shaking. Extreme tightness in the forearm and bicep was unbearably painful. My left leg cramping, as well as my foot and toes were diagnosed with my civilian providers. 176 MDG referred to private medical treatment.
17 AUG 2011 (Neurology Center). Fairly prominent rest tremor in left arm.
Diagnosis: Probable Parkinson’s Disease
16 OCT 2011 UTA LOD was initiated for “Left Elbow”
20 DEC 2011 Civilian Treatment Parkinson Medication prescribed.
Diagnosis: Probable Parkinson’s disease
25-28 JUN 2012 AT Local Training Diagnosis of Parkinson’s disease. Completed the Parkinson’s Disease Disability Benefits questionnaire VA Form 21-0960C-1
05-07 NOV 2012 AT Training Duty; Official Diagnosis: Parkinson ’s disease. By Neurology Center, by civilian provider, (ICD9 332) (06 NOV 2012) I went to civilian provider while on AT orders
2012 Parkinson LOD submited at MDG
Limited knowledge and many questions
1. My LOD and NDES were not processed correctly?
2. I do have presumption of fitness issues?
3. Diagnosis verse onset of Parkinson’s.?
4. Is there a fighting chance for immediate disability retirement from the guard?
I will address all the question form others ASAP
God Bless everyone
More to come
thank you scottCC
Somebody correct me if im wrong, i dont think Guard members can use a Article 138 complaint.This instruction implements AFPD 51-9, Civil Law for Individuals. It explains how to make, send, and consider made under Article 138, Uniform Code of Military Justice (UCMJ). This instruction does not apply to Air National Guard members when not on active duty and not subject to the UCMJ. If there is a congressional in the works trying to utilize the I.G. at state Guard Bureau level is very shaky. They dont want to many irons in the fire, i assure you if there is a congressional inquiry the I.G. already knows about it. News,news,news use the news. My unit is already in the spotlight, so the local news wants to know whats going on. In my case dealing with my unit is a dead end,i burned every bridge. Trying to nail down one person in the works who has definite yes-no answers on what should be done in these situations is nearly impossible. Lets say a police officer decides to pull you over for no reason, he then arrests you on fake charges. you know your innocent and nothing can be proven but what happens next. you beat the rap but guess what, you still have attorney fees time of work etc..etc.
This is what happened in my situation,my base knows they are wrong but they dont care. they have washed they're hands of me and decided "maybe we are wrong" but they will not budge. they just figure they would put me out and i can fight it through the AFBCMR. meanwhile an admin discharge denies me from G.I. bill benefits that would be afforded through a l.o.d. medical seperation. To think that any of the leadership in my unit had any interest in helping me was a completely stupid mistake on my part.im not as fortunate as Mr. Parker and Mr. Perry to have their extensive knowledge on these processes and that is a crippleing factor in these situations.Its a lonely corner when your a sheep in a herd of wolves and this whole thing can be overwhelming. My unit thought i would just outprocess and they would never hear from me again. Really seems like even if you beat this system of error and neglect you still wind up a loser.I agree with Mr. Perry if you dont fight for your case they win hands down.
This is what happened in my situation,my base knows they are wrong but they dont care. they have washed they're hands of me and decided "maybe we are wrong" but they will not budge. they just figure they would put me out and i can fight it through the AFBCMR. meanwhile an admin discharge denies me from G.I. bill benefits that would be afforded through a l.o.d. medical seperation. To think that any of the leadership in my unit had any interest in helping me was a completely stupid mistake on my part.im not as fortunate as Mr. Parker and Mr. Perry to have their extensive knowledge on these processes and that is a crippleing factor in these situations.Its a lonely corner when your a sheep in a herd of wolves and this whole thing can be overwhelming. My unit thought i would just outprocess and they would never hear from me again. Really seems like even if you beat this system of error and neglect you still wind up a loser.I agree with Mr. Perry if you dont fight for your case they win hands down.
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Tarver, i am curious on the AF form 469 it clearly states if: the injury will be resolved between 31-365 days, or check the next line for MEB processing. where you counseled by your commander, and did he and you sign the form acknowledging that you received the breifing? my understanding is if an injury prevents you from continued military service it is automatically supposed to be referred by the M.T.F. to a med board if not resolved by the 365 day deadline.