Need help — Serious problem with IPEB results...

W

WhiteEagle

PEB Forum Regular Member
Registered Member
Hello...I apologize in advance as this will be complicated...

So I’ve been in the med board process since October 2019...before that actually, but wasn’t assigned a PEBLO until that time. I am an m-day soldier in the National Guard with fifteen years of service and have deployed to Iraq (2009-2010).

Med board was triggered by a P3 (lower) — the MEB initially found four conditions to be unfitting:
1. Right ankle tendon tear and avascular necrosis (already previously rated at 10% by VA...this is what triggered the first P3 (lower)
2. Left shoulder AC joint osteoarthritis (already previously rated at 20% by the VA — During the MEB, they modified my profile to add a P3-upper for this...)
3. Lumbar spine osteoarthritis (was previously rated at 10% by VA...during med board, VA increased it to 20%)
4. Right hip strain (rated at 10% by VA during this med board)

I have several other conditions that had already been determined to be service-connected and assigned percentages by the VA, yet they were not found unfitting per AR 40-501. I have a functional capacity assessment by my VA doctor stating one of these conditions pretty much restricts me from being able to be deployed (“cannot live in austere environment”, among other restrictions (no body armor, etc.)

So going from the MEB into the IPEB, I had a 40% (VA math) “unfitting” / DoD percentage for those four conditions the MEB found unfitting. This increased my VA rating to 90% after the VA closed my open cases due to the med board.

And the situation now is that I just received the IPEB results and they only kept the 10% rating for my ankle and said all the rest is “fit”. They stated even though the MEB stated x condition was “unfitting”, they found it fitting. They did that for two of the conditions. They said my back condition was unfitting, but “non-compensable” because I “have not sought treatment recently” after reviewing all my records from the PEB. Folks — I have been receiving steroid injections in my back for pain every two months for a year now and I know for a fact they had those records because my attorney sent them to them and the VA had them because they added two ratings for radicular pain secondary to my back condition based on current treatment notes.

The other two conditions they found “fitting” that the MEB said were “unfitting” are specifically stated in AR 40-501 to be non-retainable. The condition I have a functional capacity assessment for which makes me non-deployable they also found fitting even though that is specifically addressed early in Chapter 3 of AR 40-501.

Obviously, I am going to fight this. I read the posts about delayed formal PEBs and I do not care about that. I am furious about this and I am absolutely going to fight this.

I guess my questions are:

Is this typical behavior from the PEB? Do they just not read the evidence?

What are my chances of getting any of this fixed as a result of the formal PEB?

Should I obtain buddy letters about these conditions? I already included statements from my civilian employer about my work accommodations and from a cohabitant explaining their observations about these conditions.

Any other advice on how to fight this? I cannot imagine having to pull up various sections of Chapter 3 of AR 40-501 that specifically address my conditions as unfitting and read it to them like a bedtime story or something.

I would be grateful for any advice on this. I am extremely angry about this right now. It’s as if they just ignored every medical record in my file and are just hoping I’ll go away or something, but I will not accept this. I’ve already emailed my PEBLO and my attorney. I will be calling my attorney first thing Monday morning.

Thank you and I apologize again for the length of this post...this is a very complicated situation, unfortunately. :(
 
I am sorry to hear about what happened. Are you in contact with Soldiers Counsel? If not contact them ASAP. Being represented by counsel during the FPEB is important. Counsel will knw the strategies that produce the most favorable results. Unfortunately, the whole fit/unfit decision process is sometimes wonky.
 
chaplaincharlie said:
I am sorry to hear about what happened. Are you in contact with Soldiers Counsel? If not contact them ASAP. Being represented by counsel during the FPEB is important. Counsel will knw the strategies that produce the most favorable results. Unfortunately, the whole fit/unfit decision process is sometimes wonky.
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Yes, Sir — I did not receive the form 199 until Friday at 18:30 their time. :( I did email him to inform him I am demanding a formal PEB and a brief rundown of the above discrepancies. I also emailed my PEBLO to let her know I am demanding a formal PEB as well.

I’ve also considered hiring an outside attorney, if necessary. I am seriously angry about this. :(
 
The issue here is none of these ratings are all that severe you claim that it is but obviously the the C&P exams and VA ratings dont really support that, it is very unlikely you will receive a bunch of low ratings from the DoD only the most severe impairments, Im surprised the MEB even determined many of those to be unfitting its not uncommon for service members to carry on with their military service with 10-20% ratings. The back is probably what I would shoot for getting rated as it would get you 30% and retirement.
 

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Right. The thing is I have a couple of conditions that are at 30% each. One of those is the one that my doctor stated on my functional capacity assessment that I cannot live in an austere environment, cannot wear body armor, etc. They ignored that.

On the two conditions they found unfitting, they stated I needed to be able to carry 150 pound transit cases 100 feet at a vertical distance of 5 feet in full combat gear. I cannot effectively do that with my shoulder condition, but they just ignored that...they did not list those requirements for that condition and found it “fitting” somehow. That one is at 20% right now.

I will be seeking assistance with the NVLSP for this. I’m 90% with the VA now, but somehow only 10% from the IPEB??? I don’t think so.
 
WhiteEagle said:
Yes, Sir — I did not receive the form 199 until Friday at 18:30 their time. :( I did email him to inform him I am demanding a formal PEB and a brief rundown of the above discrepancies. I also emailed my PEBLO to let her know I am demanding a formal PEB as well.

I’ve also considered hiring an outside attorney, if necessary. I am seriously angry about this. :(
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If you disagree with the percentage you got for your referred condition, you could file a VARR.
 
chaplaincharlie said:
If you disagree with the percentage you got for your referred condition, you could file a VARR.
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Please let me clarify — I have absolutely no problem with the ratings the VA assigned. They are correct and in accordance with the results of my C&P exams by QTC as recorded on each DBQ.

My problem is the Army has countermanded what the MEB originally found as unfitting conditions (four of them). The informal PEB threw out two of those unfitting conditions...and one of the two they agreed was “unfitting”, they are saying is “non-compensable” (so they do not include that 20% for that one in my unfitting percentage) because I “haven’t received recent treatment” for it and haven’t “reinjured” it (my back). 1. It wasn’t “reinjured” because it’s been getting continually worse since 2009. 2. I ***am*** receiving recent treatment for it in the form of continuous steroid injections for a solid year now as well as eleven years of tramadol, flexeril, and 800mg ibuprofen.

So they’re basically just lying. That’s my problem with all this. I am playing by their rules, doing what I’m supposed to do and they’re basically not following the regulations, ignoring everything in my medical records...basically, fraud. That’s why I’m upset about all this.
 
The IPEB looks at multiple things to determine a fit/unfit finding not just that P3 profile including but not limited to your commander impact statement and your previous evaluations. Ratings are determined by 38 CFR for both the DoD and the VA the VA determinations are not binding on the DoD each agency retains their jurisdiction and decisions. My case was a rarity in that the VA low-balled and the DoD was higher the VA never budged in spite of the identical evidence used to make the decisions saying something of the order of "your medical records give a better snapshot of your overall limitations" only when I appealed it to a judge did they finally acquiesced. My outcome was a little better because the VA offers more appeal options whereas other factors other than medical evidence factors into the DoD decisions. The DoD will determine how severe your limitations are from the C&P exams not the P3 profile, not saying you cant prevail here but it does look like you need counsel.
 
Commander’s statement said I was not able to perform my duties effectively. NCOERs are very favorable because I busted my *** to do the best I could to support my leadership and my soldiers despite these conditions. For instance, I would forego eating during drill weekends in order to prevent IBS attacks while there for three days...basically just a lot of gatorade and bread. Obviously, that is not tenable on a long-term basis like a deployment. I wrote out everything like that in the MEB appeal and explained why I have great NCOERs, despite debilitating physical pain from multiple service-connected conditions. Apparently they did not read that.

I will seek out as much legal assistance as possible to fight this. Thank you for your reply. I am sincerely grateful for any and all guidance from folks here.
 
Some semantics that are driving me crazy: the MEB does not determine fitness. They review a condition and render an opinion regarding the medical retention standard. A condition either meets or does not meet the medical retention standard (in OP’s case, IAW AR 40-501 Ch 3.)

The PEB determines fitness and takes the MEB’s recommendation into account. The PEB could determine a service member is fit despite not meeting the medical retention standard (happens all the time in the medical community).

So to say the MEB determined a condition was unfitting is a nonsensical statement.

Bottom line - MEB states whether or not a condition meets the retention standard, and PEB does not have to find unfit simply because a condition doesn’t meet that retention standard.
 
So why bother with the MEB part at all if they’re not going to go by what they said...and better still, why have a regulation if it will not be followed???

One of my conditions is IBS. Another one is my lumbar osteoarthritis. The functional capacity assessment my VA doctor filled out states that I cannot be deployed (cannot wear body armor, cannot live in an austere environment, etc.). For my back, I am having continual steroid injections every two months. It specifically states in chapter 3, paragraph 1, item d. of 40-501 that the condition may render the soldier “unfit for further military service...” if they depend on “specific medications...severe dietary restrictions...frequent special treatments...”. Each one of those items applies to those two conditions (IBS — severe dietary restrictions. Lumbar osteoarthritis — dependence on specific medications (tramadol) and frequent special treatments (steroid injections.)

You’ll note it uses the term “UNFIT” right in the regulation.

It doesn’t make sense to have the MEB use 40-501 and then the PEB just gets to make up their own little rules as they go along, irrespective of what my primary care doctor and the specialists that have been treating me for these conditions have stated as to the severity of these condition.

What this looks like to me is the MEB uses an actual regulation to determine whether a condition is fitting or unfitting continued military service...and then the PEB’s job is to reject all that to prevent the soldier from receiving medical retirement. I’ve been told from various other sources that’s what they’re doing and that is unacceptable. How are my conditions “fitting” if they preclude me from performing my military duties effectively??? My commander’s statement stated as such...that these conditions adversely affect my ability to perform my military duties. I cannot take an APFT, cannot attend an NCOES, cannot do MOS-specific tasks (lifting/carrying equipment cases).

In fact, the PEB stated that my ankle condition was unfitting because I could not carry 150 pound transit cases on a 2-person team one hundred feet at a height of five feet wearing full combat gear. But they did not state that for my lumbar osteoarthritis (rated at 20% by the VA) and my shoulder AC joint osteoarthritis (also rated at 20%). So apparently, with those two issues, NO PROBLEM carrying that gear in full gear.

It makes absolutely zero sense whatsoever.
 
Again, you are confusing the concept of meeting a medical standard with the concept of fitness for service. One is a medical process, the other is a personnel action.

You stated
“What this looks like to me is the MEB uses an actual regulation to determine whether a condition is fitting or unfitting continued military service”

You are incorrect in this assumption. The MEB does not determine fitness, period. They render a medical opinion about whether or not a condition meets the medical retention standard. If it does not, the case is evaluated by the PEB to determine whether or not the condition is unfitting. It literally says this in the regulation and also I know it was repeated to you ad nauseum during your IDES election/briefing. I know this because I have been involved in literally hundreds of these boards from the medical side in my career, besides having gone through one myself.

I get the frustration and understand how the process seems unfair at times. I have personally seen MEB and PEB proceedings unduly influenced by the personal biases of the board members and involved Commanders. They are human too. If you feel that a regulation has not been followed or your treatment was not equitable, there are certainly options for you in addition to the FPEB (which it sounds like you are already tracking should be the next step). All I’m saying is that your frustration at the PEB not executing the MEB recommendation is likely misplaced as that is literally the purpose of the PEB: to take multiple factors into consideration, including the recommendation from the MEB, and make a personnel decision regarding fitness.
 
The MEB and PEB have different functions. The MEB decided is one or more conditions fail to meet medical retention standards. The PEB is a personnel process. It looks at the whole picture, including needs of the service, commander's statement....
 
Ok, I’ve continued reading posts from folks in similar conditions to mine.

A few months ago, you posted this in someone else’s post:

————————————————————
maruchan said:
I would question, in this climate of 100% readiness for all Soldiers, including physicians, how the PEB is meeting the intent of the applicable regulations by finding you fit given you do not meet the medical retention standard.
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In another post, you stated this:
maruchan said:
In another post, you stated this:
I do not know your specific functional limitations, but if they preclude functional tasks IAW 40-501, 40-502, and 635-40, by regulation (new guidance) you must be found unfit.
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First off, I explained above how I do not meet the medical retention standards on multiple conditions. Why do you think the PEB was correct in finding me “fit” when you stated above it doesn’t make sense for them to do that if I do not meet the medical retention standards???

Second, with respect to your second post, one of the conditions which the VA has rated me 30% for, I have a physician’s functional capacity assessment which specifically states I cannot live in an austere environment, cannot wear body armor, cannot ride in a military convoy unless a certain condition is met (which would not be)...I gave that FCA to the profiling officer at the FMR that occurred the month after I got the FCA. That officer put a deployment-limiting code on my profile, but did not assign a P3 for it. So apparently, I could not deploy, but only had a P2 for that condition. The PEB didn’t even find that condition unfitting despite the FCA from my VA doctor (which was submitted during the MEB along with all other medical tests, supporting documentation, and service-connection of 30% by the VA) stating multiple functional tasks I cannot perform. It required senatorial intervention to force them to fill out that FCA, by the way...

I’ve seen references to Jason Perry several times in other posts. Is he generally successful in helping get soldiers’ unfit percentage to at least 30%? It is a ***lot*** of money (with my limited income) to invest without knowing what our chances of success would be.
 
You seem very frustrated - that energy would be better utilized educating yourself in my opinion. Where did I state that I felt the PEB was correct or incorrect in their findings? What I, and others here, have told you is that the PEB makes fitness determinations based on medical recommendations, among other things. In other words, the MEB does not determine fitness. This remains a fact despite your personal feelings about it.

Did you actually read the posts I was replying to? The first was to a fellow physician who was being held to a different standard by the PEB when compared with a non physician medical provider; specifically, the OP was found fit and denied an FPEB on appeal because of lack of adverse credentialing actions, when other credentialed providers were found unfit for the exact same conditions. The PEB even stated so in the IPEB findings. I assume you aren’t a physician since you couldn’t be bothered to read the entirety of the post for context.

The second post references the new medical readiness regulations, specifically DA PAM and AR 40-502, in addition to the DES regulation AR 635-40. For most Soldiers, a condition that permanently precludes deployability or ability to perform a functional area will result in separation through an unfit finding. That doesn’t mean that the PEB will find all of your claimed conditions to be unfitting. You only need one unfitting condition to be separated.

I cannot (and have not) commented on whether the PEB made the “correct” call for your conditions. I am not on your board. But as an expert in the process from the medical side, I can tell you that your understanding of the roles and functions of the players involved needs some fine tuning. If you feel that the PEB made an error or that you have been treated inequitably, there are plenty of avenues in addition to the FPEB that are available to you.

Best of luck to you.

EDIT - corrected a typo
 
Yeah, right.

The statement you made was since all soldiers (including physicians) are now expected to be deployable, how could the PEB find him fit when he can’t meet the retention standard?

And then I explained that ***I***am also not deployable and also do not meet the retention standards (multiple paragraphs), so the same logic should apply. Apparently, there is a double standard here though.

I’m done here. I am going to find people that will actually help me with this now. Out.
 
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You totally lost me with that last nonsensical post. I thought you said in the OP that you were found unfit for the ankle condition. At 10% DOD?

I don’t know how better to explain to you that being found unfit by the PEB doesn’t mean that all conditions will be found unfit. It means that at least one condition was determined to be unfitting.

Best of luck to you.
 
Pointless, worthless, disgusting waste of time. I can get this same idiotic drivel from the Army.
 
WhiteEagle said:
I guess my questions are:

Is this typical behavior from the PEB? Do they just not read the evidence?

What are my chances of getting any of this fixed as a result of the formal PEB?

Should I obtain buddy letters about these conditions? I already included statements from my civilian employer about my work accommodations and from a cohabitant explaining their observations about these conditions.

Any other advice on how to fight this? I cannot imagine having to pull up various sections of Chapter 3 of AR 40-501 that specifically address my conditions as unfitting and read it to them like a bedtime story or something.

I would be grateful for any advice on this. I am extremely angry about this right now. It’s as if they just ignored every medical record in my file and are just hoping I’ll go away or something, but I will not accept this. I’ve already emailed my PEBLO and my attorney. I will be calling my attorney first thing Monday morning.

Thank you and I apologize again for the length of this post...this is a very complicated situation, unfortunately. :(
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I don't even know if you'll read my response considering you've threatened to leave the forum because of the answers you received, but in case you do, I'd love to share my husband's story with you because they're somewhat similar in certain ways.

My husband's neurologist, for a little over a year, told my husband he wasn't fit for service because of his multiple medical conditions. My husband was hesitant because he's not heard a story about a medboard that was positive. My husband lost his sight for three weeks a little over a year and a half ago due to a horrific reaction he had to a medication he was given while in the ER because of his daily migraines. That's when his neurologist told him it was time for him to go up for a medboard and that it was no longr up to my husband. So he did.

The whole process was, for lack of better words, a cluster you know what. His rating with the VA was 90% and somehow they continued to find him FIT the entire way - from the very start to the ugly end where he had a lawyer by his side at his formal board. They still continued to find him FIT, and when they did, his lawyer was on another level stunned. When he got the boards' notes from the formal board, it stated that they found him FIT because he was given sailor of the year two years in a row a couple of years back.

They disregarded over 10,000 pages of ten years worth of medical documentation. Hospital visits. Notarized letters from his medical team [YES, he had/still has a medical team for his situation], CO, XO, senior chief, commodore, fellow shipmates in his department, you name it. They ignored all of that over the fact that a few years ago, he did his job well enough to where he was awarded that title....because apparently you have to become a sh*tbag when you have a medical issue, otherwise you pay the price.

Because of this, they told him to finish out his contract. Stay on shore duty, because he is non-deployable. He cannot re-enlist. He cannot rank up anymore. Nothing. His career was stop-lossed, more or less. So stay in but just for funsies. And he has - and his contract is up in a few months. We are grateful for the time he has served [11 years] in the military, but we have really had our eyes opened these past 24+ months.

Now that I've ran my mouth - to answer your question, YES...it's typical behavior for these people to ignore and not read the evidence. Like I said above - he didn't want to do a medboard because we've never heard a positive outcome from one [we see it on this forum, but person to person? not even once].

Your chances of getting it fixed? I don't think anyone can really tell you that. We were told things would be on the up for him and here we are......

You could always hire a lawyer. I know you know that - but at this point in the game, that would be your only other option. I WANT to sit here and tell you that I can't believe they say this isn't compensable seeing that you've received medical treatment - but honestly? It doesn't surprise me. My ONLY [saying this politely] thing is that if all you are doing is getting shots for this condition, I can see where they are saying you've not had any issues with it other than just getting your bi-monthly shots. You're not being seen every other week because of the amount of pain you are in. You're not in the emergency room several times a month because of it; that sort of thing.

I hope this helps. I'm sure it didn't - but reading your post took me right back to my husband's situation.
 
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