Medical Discharge to Medically Retired- Do I need a lawyer or DAV?

A

Alan Young

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I was shortchanged by the Army when I was medically discharged in 1996. I went to the medical review board and was given a 10% rating, 6months later I was granted 30% by the VA. I never saw the full write up until 10 yrs. later when getting a VA rating re-evaluation due to my conditions deteriorating. I had a bunch of stuff that was not adjudicated. The medical staff told me to see a VA service officer, DAV, etc. I used the DAV, and they got me raised to 60% and back pay (10yrs) from date of initial rating since I should have been rated higher after discharge. Now due to health complications with my injuries my rating has is at 100% and I am getting worse yr. by yr. I have had people tell me I should have been medically retired and not discharged. If that is the case, I would have Tricare for life.


I read an article last yr., that I can’t find online anymore, that basically said the DOD had a standard policy in 1996 that all service members going to a medical board were discharge at 10% and passed to the VA for a disability rating so that the DOD budget didn't get affected by medical retirements from injured service members. It stated that the policy did not change until the post 9/11 veterans coming out of the middle east raised heck. It was then that the more service members started getting medically retired and not medically discharged.

My questions are:

1. Do I have a case for a change/upgrade from medically discharge to medically retired since I could not perform my MOS?
2. Should I go it alone or seek out a service officer or lawyer to help?

3.Can the DAV do this?

Any recommendations on how to proceed would be appreciated.

Cheers,

Al
 
H
Alan Young said:
I was shortchanged by the Army when I was medically discharged in 1996. I went to the medical review board and was given a 10% rating, 6months later I was granted 30% by the VA. I never saw the full write up until 10 yrs. later when getting a VA rating re-evaluation due to my conditions deteriorating. I had a bunch of stuff that was not adjudicated. The medical staff told me to see a VA service officer, DAV, etc. I used the DAV, and they got me raised to 60% and back pay (10yrs) from date of initial rating since I should have been rated higher after discharge. Now due to health complications with my injuries my rating has is at 100% and I am getting worse yr. by yr. I have had people tell me I should have been medically retired and not discharged. If that is the case, I would have Tricare for life.


I read an article last yr., that I can’t find online anymore, that basically said the DOD had a standard policy in 1996 that all service members going to a medical board were discharge at 10% and passed to the VA for a disability rating so that the DOD budget didn't get affected by medical retirements from injured service members. It stated that the policy did not change until the post 9/11 veterans coming out of the middle east raised heck. It was then that the more service members started getting medically retired and not medically discharged.

My questions are:

1. Do I have a case for a change/upgrade from medically discharge to medically retired since I could not perform my MOS?
2. Should I go it alone or seek out a service officer or lawyer to help?

3.Can the DAV do this?

Any recommendations on how to proceed would be appreciated.

Cheers,

Al
Click to expand...
How long were you in before being medically separated?
 
Okay. There is some decent longevity there. Its going to be very hard to win a case going the BCMR route as the condition being rated higher later on doesn't factor in it. The system in place at that time was LDES and so the DOD gets to decide the rating and isn't bound by what the VA rates the condition after getting out. You have to prove that there is a clear and unmistakably injustice. Its very possible that at that time the condition you had would/should have been rated 10%.

Also, just so you know the only 2 things that are going to come out of a medical retirement is getting Tricare and the possibility of getting CRSC. Your VA compensation is most likely greater than the chapter 61 pension you would have received if medically retired and by law to accept VA compensation you need to waive dollar for dollar the pay received so that your pension would be completely offset by getting your VA disability compensation.

Lastly, an attorney would be best to try to get this submitted but know it takes years and the likelihood of winning isn't great. If you believe the DOD messed up I encourage you to move forward. I am not trying to discourage you but wanted you to have proper expectations.
 
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Ref: "Lastly, an attorney would be best to try to get this submitted but know it takes years and the likelihood of winning isn't great. If you believe the DOD messed up I encourage you to move forward. I am not trying to discourage you but wanted you to have proper expectations."--Provis

I echo the comments of @Provis .

If you cannot afford an attorney, this organization might be able to assist you: NVLSP - National Veterans Legal Services Program <---LINK
The National Veterans Legal Services Program (NVLSP) is a national nonprofit organization.


Ron
 
Provis has appropriately raised the issue of the remedy you will derive even if you prevail in obtaining a military retirement.

That said, your only remedy is to submit an application to the Army Board for Correction of Military Records (ABCMR) where your likelihood of success on the facts your present appears to be remote.

The ABCMR requires that an application be submitted within three years of discovering an error or injustice. You appear to have missed that three-year window as you indicate you discovered in or about 2006 that you had conditions in 1996 that were not properly adjudicated at the time you were separated. However, the ABCMR liberally waives that limitations period in the interests of justice. It is more likely than not that the ABCMR will consider your application on the merits, although it is not required to do so. A decision by the ABCMR not to waive the three-year limitations period is essentially unreviewable.

On the merits, your case has little likelihood of success absent clear and convincing evidence from your service treatment records and other military records demonstrating that prior to your separation in 1996, you suffered from medical conditions that prevented you from performing your duties that the MEB or PEB failed to consider or improperly considered. Proving the existence of a medical condition prior to separation is not enough; you have the burden of proving through contemporaneous records that the medical condition prevented you from performing your duties and was unfitting. VA decisions after your separation will not be considered sufficient evidence to meet your burden. That is because, particularly in your case, which was decided under the legacy disability system prior to the sweeping changes resulting from the FY2008 NDAA (including requiring the military to use VA ratings), a VA rating of either an unfitting or other condition made after separation is not generally deemed relevant to the military disability decision made by the PEB and is not considered evidence of a material error or injustice sufficient to warrant relief. The ABCMR will take the position, which has repeatedly been upheld by the courts, that a military disability determination is based on the service member’s actual medical condition at the time of separation (the so-called “snapshot in time”) rather than the member’s condition at a future or subsequent point in time as determined by the VA. That is because the purposes of the VA and military disability evaluations are different. The military disability rating is intended to compensate the individual for interruption of a military career because of an impairment at the time of separation. The VA awards ratings because a medical condition affects the individual's civilian employment, and the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability.

Finally, you have no remedy in the US Court of Federal Claims, because the six-year statute of limitations began to run in 1996, following your PEB and separation. That is a jurisdictional bar. On the other hand, you potentially may be able to obtain review of an adverse ABCMR decision in a US district court under the Administrative Procedures Act, through which you’d seek to have the district court overturn the ABCMR decision and seek the equitable relief of military retirement status.
 
Outstanding.

@Provis

Recommend this be posted as an article for future visitors. You could cut out the unnecessary dialogue (such as this post) and leave only the Original Poster's remarks; your comments; and the closure by the retired attorney.

I can help if you have not done it previously.

Ron
 
RonG said:
Outstanding.

@Provis

Recommend this be posted as an article for future visitors. You could cut out the unnecessary dialogue (such as this post) and leave only the Original Poster's remarks; your comments; and the closure by the retired attorney.

I can help if you have not done it previously.

Ron
Click to expand...
will do. Great idea.
 
Thank you very much for your responses. The primary injury that got me medically separated and unable to perform my duties as a U.S. Army MOS 27X30 PATRIOT System Repairer was a spinal injury. I was deemed unable to perform the duites of my MOS by my neurologist and referred to the medical evaluation board. Thanks again for all your insight.Your depth of knowledge is amazing. I will definitely reach out to the lawyers and get a read on opening a case.
 
I am currently 5 months in the BCNR process. I was discharged in 1995 with 10% disability and the VA rated me higher over the years up to 100%. I had major surgery on my left lung in February 2020 and the surgeon was amazed that I hadn’t received 100 percent at discharge because the left lower lobe of my lung had adhered high up on my chest wall from the gunshot wound I had received to my chest. He said my lung had no more than a 10 percent excursion of volume in the past 27 years. I have a good case and I’ll come back to this thread with the news hopefully soon.
 
An unfitness determination is not the adjudication of a benefit. To the
contrary, it results in a loss of an appointment, employment, and the investment of
time, training, and money made in and by the member. Accordingly, the Navy
prescribes that “[w]hen the evidence is not clear concerning a service member’s
fitness, attempt to resolve doubt based on further objective investigation, observation,
and evidence. Benefit of unresolved doubt shall be resolved in favor of the fitness of
the service member under the rebuttable presumption that the member desires to be
found Fit.” SECNAVINST 1450.4E § 3306(a) at 3-17; see also id. at § 3306(b)
(requiring findings be made in either direction by a preponderance of the evidence).
8 See SECNAVINST 1850.4E § 3901(c) at 4-24 (“c. Prohibition Of Conclusion Of
Unfitness. The presence of a disease or injury does not, of itself, justify a finding of
Unfit. Therefore, medical board reports shall not reflect a conclusion of unfitness or
utilize the term ‘Unfit’ because it could be confused with the definition of Unfit or
Not Physically Qualified for continued naval service used within the DES.” The
Physical Evaluation Boards “make determinations of Fitness to continue naval
service.”). Id. § 4(a) at 3.

(((((( These Statements come from my own current ongoing Federal Court Request from "Employment" (Workers Compensation type) benefits at discharge as opposed to a honorable discharge. A injury is an injury. it does not make any sense to use fit or not fit to deny, delay, not offer support "TRICARE" at a minimum for a "employment" injury at time of discharge )))))
 
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