MEB/PEB with backdated LOD

Hello everyone,
I'm an O4 Navy Reservist navigating a somewhat unusual situation and hoping to get some insights from those with experience.
I recently went through the Medical Retention Review process, unique to reservists, and was subsequently found "unfit" by BUMED. Given that I have 18 good years and qualify for an early non-regular retirement, I was presented with two options: pursue a Line of Duty-Benefits (LOD-B) or retire. I opted for the LOD-B, which was thankfully approved, and the effective date of my LOD-B was backdated to 2019. This is when I finished my last active duty title 10 mobilization.
Now, I'm being referred to the MEB and PEB. This is where my main questions arise:
Is the MEB and PEB just a formality at this point if BUMED has already found me "unfit"?Would either board make a different decision than BUMED? Anyone go through something similar?
If the MEB and PEB decides to medically retire me, at what rank would I be retired? Would it be my current rank (O4), or my rank in 2019 (O3-E), which is the backdated LOD date?
For context, the condition for which I was referred to the MEB is currently rated at 70% by the VA. I'm assuming the PEB would likely arrive at a similar rating if they also find me unfit.
Any guidance or shared experiences on these specific points would be greatly appreciated!
Thanks in advance.

 

[Provis]

Hello everyone,
I'm an O4 Navy Reservist navigating a somewhat unusual situation and hoping to get some insights from those with experience.
I recently went through the Medical Retention Review process, unique to reservists, and was subsequently found "unfit" by BUMED. Given that I have 18 good years and qualify for an early non-regular retirement, I was presented with two options: pursue a Line of Duty-Benefits (LOD-B) or retire. I opted for the LOD-B, which was thankfully approved, and the effective date of my LOD-B was backdated to 2019. This is when I finished my last active duty title 10 mobilization.
Now, I'm being referred to the MEB and PEB. This is where my main questions arise:
Is the MEB and PEB just a formality at this point if BUMED has already found me "unfit"?Would either board make a different decision than BUMED? Anyone go through something similar?
If the MEB and PEB decides to medically retire me, at what rank would I be retired? Would it be my current rank (O4), or my rank in 2019 (O3-E), which is the backdated LOD date?
For context, the condition for which I was referred to the MEB is currently rated at 70% by the VA. I'm assuming the PEB would likely arrive at a similar rating if they also find me unfit.
Any guidance or shared experiences on these specific points would be greatly appreciated!
Thanks in advance.

I can't answer all your questions. I can say confidently you would be retired as O4. The backdated LOD is for when the injury happened. When it comes to medical retirement you get to keep your rank if medically retired. If medically retired they will use the average of your highest 36 months of pay. Take that and total it together and then divide by 36 to get your high 3. If you weren't active during those highest months don't worry. They use your base pay based on active duty pay charts.

 

[JAX1835]

I can't answer all your questions. I can say confidently you would be retired as O4. The backdated LOD is for when the injury happened. When it comes to medical retirement you get to keep your rank if medically retired. If medically retired they will use the average of your highest 36 months of pay. Take that and total it together and then divide by 36 to get your high 3. If you weren't active during those highest months don't worry. They use your base pay based on active duty pay charts.

Thank you. I would prefer to retire as an O-4.
Would a backdated LOD lead to a backdated retirement date? I haven’t seen any threads about reservists not currently on active duty going to the PEB, so I feel I’m treading into uncharted waters.

 

[Provis]

Thank you. I would prefer to retire as an O-4.
Would a backdated LOD lead to a backdated retirement date? I haven’t seen any threads about reservists not currently on active duty going to the PEB, so I feel I’m treading into uncharted waters.

There is no such thing as backdated retirement. You would retire as an O4.

 

[RetiredAtty]

The MEB determines whether your condition meets retention standards, including whether it impacts your duty performance. Given the BUMED determination, which is presumably supported by medical records and a medical opinion, it is likely that the MEB will conclude the condition does not meet medical retention standards and will refer your case to the PEB. The PEB then must independently determine whether your condition is unfitting, that is, does it prevent you from being able to reasonably perform your military duties. The BUMED determination will be evidence in that regard, but not dispositive. Other factors will include whether you have a P-3 profile (or LIMDU restriction), your commander's statement regarding your ability to perform your duties, your deployability, and your officer or academic efficiency reports, among other things. If the PEB finds the condition unfitting, it will be rated by the VA (the Disability Rating Activity Site) and the Navy must use the VA DRAS rating for your unfitting condition. As the VA has already rated the condition at 70%, it is very likely that VA DRAS will follow that rating assuming that it is, in fact, the same condition and there has been no change to the condition since the earlier rating. In that regard, you need to remain attentive to how the MEB and the PEB define your condition in terms of what VA diagnostic code from the VA Schedule for Rating Disabilities (VASRD) they use when referring the case to the VA. Sometimes the Navy in particular will characterize the condition in a way that changes the diagnostic code to reduce the potential severity and rating. That is an issue best resolved at the Informal PEB if at all possible, prior to a Formal PEB if necessary. In addition, you should also remain mindful that absent new evidence regarding your condition, DRAS is required by VA regulations to follow an existing VA regional office rating pursuant to 38 C.F.R. § 3.104(c), which mandates in pertinent part that “[a]ny finding favorable to the claimant made by … a VA adjudicator, as described in § 3.103(f)(4) … is binding on all subsequent agency of original jurisdiction … adjudicators, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding.” If you think DRAS has not complied with this provision, the best time to initially address that issue is with the one-time VA Request for Reconsideration you are authorized under the IDES in connection with a formal PEB, unless you can convince the IPEB to get VA to change the rating. If you are found unfit with a rating of 30% or more you will be medically retired pursuant to 10 U.S.C. § 1201, as it appears that your condition was incurred or aggravated during a period of active duty service greater than 30 days. Your disability retirement date would be set by the Navy once it cuts orders at some point within a month or two after the Navy's approval of the PEB's findings and recommendation. Your retirement date would not be retroactive to the date you incurred or aggravated the unfitting condition, as the finding of unfitness by a PEB is the critical event. You would be prudent to consult with an attorney who specializes in military disability cases right now, rather than waiting for an appointed counsel, who are often overloaded with cases and particularly with members of the Reserve can't devote any real attention to the case. The moderators on this site can give you recommendations.

 

[Provis]

The MEB determines whether your condition meets retention standards, including whether it impacts your duty performance. Given the BUMED determination, which is presumably supported by medical records and a medical opinion, it is likely that the MEB will conclude the condition does not meet medical retention standards and will refer your case to the PEB. The PEB then must independently determine whether your condition is unfitting, that is, does it prevent you from being able to reasonably perform your military duties. The BUMED determination will be evidence in that regard, but not dispositive. Other factors will include whether you have a P-3 profile (or LIMDU restriction), your commander's statement regarding your ability to perform your duties, your deployability, and your officer or academic efficiency reports, among other things. If the PEB finds the condition unfitting, it will be rated by the VA (the Disability Rating Activity Site) and the Navy must use the VA DRAS rating for your unfitting condition. As the VA has already rated the condition at 70%, it is very likely that VA DRAS will follow that rating assuming that it is, in fact, the same condition and there has been no change to the condition since the earlier rating. In that regard, you need to remain attentive to how the MEB and the PEB define your condition in terms of what VA diagnostic code from the VA Schedule for Rating Disabilities (VASRD) they use when referring the case to the VA. Sometimes the Navy in particular will characterize the condition in a way that changes the diagnostic code to reduce the potential severity and rating. That is an issue best resolved at the Informal PEB if at all possible, prior to a Formal PEB if necessary. In addition, you should also remain mindful that absent new evidence regarding your condition, DRAS is required by VA regulations to follow an existing VA regional office rating pursuant to 38 C.F.R. § 3.104(c), which mandates in pertinent part that “[a]ny finding favorable to the claimant made by … a VA adjudicator, as described in § 3.103(f)(4) … is binding on all subsequent agency of original jurisdiction … adjudicators, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding.” If you think DRAS has not complied with this provision, the best time to initially address that issue is with the one-time VA Request for Reconsideration you are authorized under the IDES in connection with a formal PEB, unless you can convince the IPEB to get VA to change the rating. If you are found unfit with a rating of 30% or more you will be medically retired pursuant to 10 U.S.C. § 1201, as it appears that your condition was incurred or aggravated during a period of active duty service greater than 30 days. Your disability retirement date would be set by the Navy once it cuts orders at some point within a month or two after the Navy's approval of the PEB's findings and recommendation. Your retirement date would not be retroactive to the date you incurred or aggravated the unfitting condition, as the finding of unfitness by a PEB is the critical event. You would be prudent to consult with an attorney who specializes in military disability cases right now, rather than waiting for an appointed counsel, who are often overloaded with cases and particularly with members of the Reserve can't devote any real attention to the case. The moderators on this site can give you recommendations.

I just sent him a direct message with some private IDES attorney options. They all contribute to this forum and specialize in IDES cases

 

[JAX1835]

The MEB determines whether your condition meets retention standards, including whether it impacts your duty performance. Given the BUMED determination, which is presumably supported by medical records and a medical opinion, it is likely that the MEB will conclude the condition does not meet medical retention standards and will refer your case to the PEB. The PEB then must independently determine whether your condition is unfitting, that is, does it prevent you from being able to reasonably perform your military duties. The BUMED determination will be evidence in that regard, but not dispositive. Other factors will include whether you have a P-3 profile (or LIMDU restriction), your commander's statement regarding your ability to perform your duties, your deployability, and your officer or academic efficiency reports, among other things. If the PEB finds the condition unfitting, it will be rated by the VA (the Disability Rating Activity Site) and the Navy must use the VA DRAS rating for your unfitting condition. As the VA has already rated the condition at 70%, it is very likely that VA DRAS will follow that rating assuming that it is, in fact, the same condition and there has been no change to the condition since the earlier rating. In that regard, you need to remain attentive to how the MEB and the PEB define your condition in terms of what VA diagnostic code from the VA Schedule for Rating Disabilities (VASRD) they use when referring the case to the VA. Sometimes the Navy in particular will characterize the condition in a way that changes the diagnostic code to reduce the potential severity and rating. That is an issue best resolved at the Informal PEB if at all possible, prior to a Formal PEB if necessary. In addition, you should also remain mindful that absent new evidence regarding your condition, DRAS is required by VA regulations to follow an existing VA regional office rating pursuant to 38 C.F.R. § 3.104(c), which mandates in pertinent part that “[a]ny finding favorable to the claimant made by … a VA adjudicator, as described in § 3.103(f)(4) … is binding on all subsequent agency of original jurisdiction … adjudicators, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding.” If you think DRAS has not complied with this provision, the best time to initially address that issue is with the one-time VA Request for Reconsideration you are authorized under the IDES in connection with a formal PEB, unless you can convince the IPEB to get VA to change the rating. If you are found unfit with a rating of 30% or more you will be medically retired pursuant to 10 U.S.C. § 1201, as it appears that your condition was incurred or aggravated during a period of active duty service greater than 30 days. Your disability retirement date would be set by the Navy once it cuts orders at some point within a month or two after the Navy's approval of the PEB's findings and recommendation. Your retirement date would not be retroactive to the date you incurred or aggravated the unfitting condition, as the finding of unfitness by a PEB is the critical event. You would be prudent to consult with an attorney who specializes in military disability cases right now, rather than waiting for an appointed counsel, who are often overloaded with cases and particularly with members of the Reserve can't devote any real attention to the case. The moderators on this site can give you recommendations.

Thank you @RetiredAtty for the detailed reply. I appreciate all of the advice. The condition leading to my PEB referral is the same as the condition the VA rated 70%. So if found unfit by the PEB, I’d hope the PEB uses my existing rating if there is an option to do so. My officer record is stellar, but that didn’t matter to BUMED. Main issue was deployability as a reservist. Not sure if BUMED and the PEB have different definitions of “unfit”, guess I’ll find out soon.

 

[dylanwelsh]

I just sent him a direct message with some private IDES attorney options. They all contribute to this forum and specialize in IDES cases

NEARNG member, 36yrs service going through this process. Can I get that list of attorney options. Thank you.