No LOD to prove service connection and non duty board

[Ed L]

I'm a Retired Reservist with 30 years continuous services, in 2018 I was diagnosed with Tyrode cancer and have a total thyroidectomy performed on me. In 2020, due to my due to changes my health, I was given a P3 profile, and it was determined that I no longer meet the Army Medical standards. The MEB Counsel informed me since all this happened as a reservist and not on active duty status, there were no LOD's on record to prove a service connection, I tried to argue the fact about my exposures to burn pits in Iraq in 2003 and 2007 but everything was in vain. In addition, the MEB Counsel informed me that my only viable route for my situation was to transfer to Retired Reserves. I was referred to on a non-duty board where they deemed my injury/illness non-duty related. Fast forward to 2022, the Pact Act deemed my injury/illness as serviced connected with a 60% disability rate. Can I appeal to a Medical Discharge?

 

[RetiredAtty]

The short answer is no. There are a number of medical conditions to which the VA applies a presumption of service connection pursuant to VA statutes in title 38 of the U.S. Code and VA implementing regulations, including those related to Camp Lejeune water exposure, Agent Orange exposure, and burn pit exposure to name a few. However, the DoD is not bound by the VA service presumption statutory or regulatory provisions and consistently refuses to acknowledge or to follow them in determining whether a medical condition was incurred in the line of duty or was duty-related for military disability purposes. That includes the military correction boards. Absent any contemporanous service or private medical records establishing that your cancer was incurred or aggravated during a period of active duty greater than 30 days or during a period of inactive duty, your only option would be to obtain a medical expert opinion to that effect. You could then argue to the Army Board for Correction of Military Records or other military correction board that the expert opinion is specific causation evidence establishing that it was an error or injustice for you not to be referred to the Integrated Disability Evaluation System as a duty-related case with respect to your cancer. Your likelihood of success in that regard is not high and a decent expert opinion would easily cost $3 to $5 thousand or more.

 

[Ed L]

The short answer is no. There are a number of medical conditions to which the VA applies a presumption of service connection pursuant to VA statutes in title 38 of the U.S. Code and VA implementing regulations, including those related to Camp Lejeune water exposure, Agent Orange exposure, and burn pit exposure to name a few. However, the DoD is not bound by the VA service presumption statutory or regulatory provisions and consistently refuses to acknowledge or to follow them in determining whether a medical condition was incurred in the line of duty or was duty-related for military disability purposes. That includes the military correction boards. Absent any contemporanous service or private medical records establishing that your cancer was incurred or aggravated during a period of active duty greater than 30 days or during a period of inactive duty, your only option would be to obtain a medical expert opinion to that effect. You could then argue to the Army Board for Correction of Military Records or other military correction board that the expert opinion is specific causation evidence establishing that it was an error or injustice for you not to be referred to the Integrated Disability Evaluation System as a duty-related case with respect to your cancer. Your likelihood of success in that regard is not high and a decent expert opinion would easily cost $3 to $5 thousand or more.

Thank you very much for your prompt response. I wanted to make sure what my odds were before I decided to pursue anything. Again, thank you very much for taking the time to address my situation. Regards