PLEASE HELP! Denied reenlistment, low disablity rating 10% back fusion

skuba8563

PEB Forum Regular Member
In 2001, my husband developed severe low back and right leg pain. After deployment to Kuwait and continuous activity, his symptoms increased and he was referred, upon his return to Ft Benning, GA, to orthopedic doctor in December 2002. He had complained of having eight to nine months of continual right hip pain and numbness down his right leg. After further evaluation, and chronic and persistent problems, he was referred to a spine surgeon. He was diagnosed with “L3 spondylosis and L3-4 isthmic spondylothesis. In simple terms, he had a roken back from an impact he received in Kuwait. Due to the findings and recommendation of the surgeon, my husband opted for surgery on February 18, 2003. The surgery consisted of “L3-4 posterolateral intertransverse process fusion with an open reduction of the spondylothesis and L3-4 pedicle screw instrumentation fix with local autografts as well as allografts.” After the surgery, we met with Maj. Regan Parr who was the orthopedic doctor who referred the surgery. He stated that he would be placed on permanent profile and it was his recommendation that he did not meet the physical requirements to be retained, and the results would be sent to eh Physical Evaluation Board for review. Based on their review, “the findings of the PEB are the Soldier’s medical and physical impairment prevents reasonable performance of duties required by grade and military specialty.” Once this decision was made he met with Mark Dixon, a transition counselor, who gave no assistance or guidance on the findings of the PEB. My husband was told to “sign here and here” and agree to the findings, even though he did not agree and was told it was final. He was not given any explanation of the results or counseled properly. Upon talking to fellow soldiers, my husband became aware he had the right to a formal hearing. He tried to appeal the PEB findings with assistance through the JAG office at Ft Benning with no avail. So in June 2004, he was separated from the Army. He was given a 10% disability rating.

Since he was separated he has wanted nothing but to reenlist in the Army. When his injury occurred, his unit was getting ready to deploy to Iraq . He feels that he let his fellow soldiers down and didn’t complete what he enlisted to do. In 2006 he met with a local National Guard recruiter and after several months of waiting, was told he was denied a waiver. (His re-entry code is 3 which indicate he needs a waiver). He attempted a congressional and again he was told he was denied and not to pursue it further. No reason was given for the denial. In 2009, he met with a Army Reserve recruiter. This month he was granted a physical in Ohio but was again denied a waiver. This time they stated AR40-501, 2-33 “d. Fusion, congenital (756.15), involving more than two vertebrae. Any surgical fusion (81.0P) is disqualifying and 3-39 “c. Spondylolysis or spondylothesis. More than mild symptoms resulting I repeated outpatient visits, or repeated hospitalization, or limitations effecting performance of duty.” According to his DD-214, he has not completed his first full term of service.

So since there are other options, Navy, Air force, Marines, he decided to try them. Again he ended up with another local Army recuiter. This recruiter made the comment that his reentry code should not have been a 3 and most likely he should have been medically retired because his disability should have been more than 10%. It was also suggested that he have his military records be reviewed by a “medical review board.” I have been following my husband’s career and have been trying to help support him. This has been frustrating and very disappointing for the both of us.

Based on the economy and other factors I think his possibility of getting back in have been exhausted. I just dont believe he will ever be granted a waiver. I also believe that his 10% for haveing spinal fusin is a joke and should be more.

I am a fighter and want to fight for what he deserves. Or should we just walk away and forget about it? Anyone have any ideas or suggestions?
 

xeno

Super Moderator
Staff Member
PEB Forum Veteran
In 2001, my husband developed severe low back and right leg pain. After deployment to Kuwait and continuous activity, his symptoms increased and he was referred, upon his return to Ft Benning, GA, to orthopedic doctor in December 2002. He had complained of having eight to nine months of continual right hip pain and numbness down his right leg. After further evaluation, and chronic and persistent problems, he was referred to a spine surgeon. He was diagnosed with “L3 spondylosis and L3-4 isthmic spondylothesis. In simple terms, he had a roken back from an impact he received in Kuwait. Due to the findings and recommendation of the surgeon, my husband opted for surgery on February 18, 2003. The surgery consisted of “L3-4 posterolateral intertransverse process fusion with an open reduction of the spondylothesis and L3-4 pedicle screw instrumentation fix with local autografts as well as allografts.” After the surgery, we met with Maj. Regan Parr who was the orthopedic doctor who referred the surgery. He stated that he would be placed on permanent profile and it was his recommendation that he did not meet the physical requirements to be retained, and the results would be sent to eh Physical Evaluation Board for review. Based on their review, “the findings of the PEB are the Soldier’s medical and physical impairment prevents reasonable performance of duties required by grade and military specialty.” Once this decision was made he met with Mark Dixon, a transition counselor, who gave no assistance or guidance on the findings of the PEB. My husband was told to “sign here and here” and agree to the findings, even though he did not agree and was told it was final. He was not given any explanation of the results or counseled properly. Upon talking to fellow soldiers, my husband became aware he had the right to a formal hearing. He tried to appeal the PEB findings with assistance through the JAG office at Ft Benning with no avail. So in June 2004, he was separated from the Army. He was given a 10% disability rating.

Since he was separated he has wanted nothing but to reenlist in the Army. When his injury occurred, his unit was getting ready to deploy to Iraq . He feels that he let his fellow soldiers down and didn’t complete what he enlisted to do. In 2006 he met with a local National Guard recruiter and after several months of waiting, was told he was denied a waiver. (His re-entry code is 3 which indicate he needs a waiver). He attempted a congressional and again he was told he was denied and not to pursue it further. No reason was given for the denial. In 2009, he met with a Army Reserve recruiter. This month he was granted a physical in Ohio but was again denied a waiver. This time they stated AR40-501, 2-33 “d. Fusion, congenital (756.15), involving more than two vertebrae. Any surgical fusion (81.0P) is disqualifying and 3-39 “c. Spondylolysis or spondylothesis. More than mild symptoms resulting I repeated outpatient visits, or repeated hospitalization, or limitations effecting performance of duty.” According to his DD-214, he has not completed his first full term of service.

So since there are other options, Navy, Air force, Marines, he decided to try them. Again he ended up with another local Army recuiter. This recruiter made the comment that his reentry code should not have been a 3 and most likely he should have been medically retired because his disability should have been more than 10%. It was also suggested that he have his military records be reviewed by a “medical review board.” I have been following my husband’s career and have been trying to help support him. This has been frustrating and very disappointing for the both of us.

Based on the economy and other factors I think his possibility of getting back in have been exhausted. I just dont believe he will ever be granted a waiver. I also believe that his 10% for haveing spinal fusin is a joke and should be more.

I am a fighter and want to fight for what he deserves. Or should we just walk away and forget about it? Anyone have any ideas or suggestions?

I'm confused, you say he received 10% from the Army and he accepted that. 6 years later, he wants to rejoin the Army but can't, due to him being medically coded. I assume now your seeking medical retirement (30% or higher). You didn't mention how much disability he receives from VA.

I think you need to go to the ABCMR to clear the med code or to raise the percentage. This is where the VA rating would be good (to raise the percentage).
 

skuba8563

PEB Forum Regular Member
Yes he agreed but not on purpose. He was advised by the medboard counselor that "his enlistment code was good and that he could always come back in." Let me tell you, this guy was a schiester. I was present with my husband when he signed everything. He was not "counseled" on his choice for a formal review or anything. He was basically told he wouldnt get a higher raiting and to agree and sign. It was their way of getting rid of him. Once my husband found out that he did have rights we went to the JAG office to try to get an appeal for a formal med board and he was denied.

I truly believe he got the shaft. He has metal rods and scrwes holding his back together and has been denied reenlistment becase of the back fusion. His VA rating of 20% is based on the Army's rating at 10%.
 

GUNS'N'STUFF

Well-Known Member
PEB Forum Veteran
Registered Member
Waive the military pay for the VA compensation under =< 30% can still join the service. Just write the board and tell them that. He just has to sign a waiver and will till get 20% from the VA. Service branch will have to approve. nine years old now, wonder if where you guys ever got on this?
 

RonG

PEB Forum Regular Member
PEB Forum Veteran
Lifetime Supporter
Registered Member
Waive the military pay for the VA compensation under =< 30% can still join the service. Just write the board and tell them that. He just has to sign a waiver and will till get 20% from the VA. Service branch will have to approve. nine years old now, wonder if where you guys ever got on this?
Although somewhat dated, this is an interesting thread.

In this case, there is no retired pay to waive since the individual had a DoD rating of less than 30%. He can of course, accept the VA compensation.

Even if the individual discussed in this thread had a DoD disability rating of 30% or more (resulting in a disability retirement), waiving his retired pay to accept VA compensation would not change his retired status. Entitlement to Tricare for Life, etc., would continue. Additionally, when a retiree agrees to waive retired pay, it is dollar for dollar in the amount of VA compensation. Occasionally, there is residual retired pay that is retained by the retiree. The retiree can also decline VA compensation by not submitting the claim form.

The VA form for claiming VA compensation is usually where an individual will first see the opportunity to waive retired pay in order to receive VA compensation.

A recent edition of the VA claim form includes the following:

IMPORTANT INFORMATION ON MILITARY RETIRED PAY (Includes all Uniformed Services Retired Pay): Submission of this application constitutes a waiver of military retired pay in an amount equal to VA compensation awarded, if you are entitled to both benefits. Your retired pay may be reduced by the amount of VA compensation awarded. Receipt of the full amount of military retired pay and VA compensation at the same time may result in an overpayment, which may be subject to collection. If you qualify for concurrent receipt of VA compensation and military retired pay, the waiver of retired pay will not apply. If you do not want to waive any retired pay to receive VA compensation, you should check the box in Item 26. Note that if you check the box in Item 26, you will not receive VA compensation, if granted. If you are currently in receipt of VA compensation and you check the box in Item 26, your VA compensation will be terminated, if you are also eligible for military retired pay. IMPORTANT: VA COMPENSATION PAY IS NON-TAXABLE. THEREFORE, VA COMPENSATION PAY MAY BE THE GREATER BENEFIT.

WILL YOU RECEIVE MILITARY RETIRED PAY IN THE FUTURE?
[blank Box] 26. Do NOT pay me VA compensation. I do NOT want to receive VA compensation in lieu of retired pay.

I too would like to see how this case was resolved; however, skuba8563 has not been seen since 2011.

Ron
 
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