Has anyone had any success in a rebuttal and if so, what advice do you have to give?
Rebuttal
- Thread starter TaniRami
- Start date
Rebuttal of what?
Here is my recent experience with my MEB rebuttal.
I submitted my rebuttal on a Friday in the afternoon. My lawyer and I had submitted evidence that rebutted the MEBs original negative positions and did it politely. By the next Monday, 2 hours into the workday, I had received the MEBs response letter that denied all rebuttal points and was generally unprofessional. Things were taken out of context (on purpose), etc, etc. Imagine a kid sticking his fingers in his ears and shouting. The response was not completed by a Doctor or by the Doctor who supposedly drafted my NARSUM. Instead it was drafted by a physician's assistant, who is supposed to be the assistant to these doctors. Apparently, she took the rebuttal as a an affront to her NARSUM write up. She also signed the rebuttal response and not the Doctor who supposedly drafted my NARSUM.
When I spoke with the DoD OSC Lawyer and asked them why they (the MEB staff) are allowed to do this, the lawyer told me that they'd ( the OSC) previously tried to address this with the MEB medical staff.... how did they address it? By being realistic and not using deceptive logic or misrepresenting things on purpose? No, they asked the MEB staff to take an extra day or two... to make it less apparent that they'd not just said "no" right away to all points. I am 100% serious about this.
Here's my personal opinion as a person who's served for 24 years and up to a BN Commander level. Going through this process, I am very disappointed on how this process is operating. The problem I am seeing with this IDES process is there is no oversight to the actions of the IDES staff. It feels like they can 'do what they want'. Also, the whole thing is 'insiderism' in that they all work in the same office and "take care" of each other. Lots of post on this website also mention this. I wouldn't even fully trust the DoD appointed lawyer. You can never know what emails go on behind the scenes between the staff at a location. When I mentioned to the lawyer I was thinking of filing a congressional complaint, the DoD appointed lawyer started trying to get me not to... If you think about it, why would he do this? It wouldn't negatively impact my case, I told him that I knew it wouldn't positively change my case, but it would bring light to this process and how it's being run.
So, in my opinion, unless you have a pocket O-6 /O-7 or a congress person that you know, you're at the mercy of the IDES staff. The only thing you can do is get your own lawyer. It's probably the best bet to fight this.
I submitted my rebuttal on a Friday in the afternoon. My lawyer and I had submitted evidence that rebutted the MEBs original negative positions and did it politely. By the next Monday, 2 hours into the workday, I had received the MEBs response letter that denied all rebuttal points and was generally unprofessional. Things were taken out of context (on purpose), etc, etc. Imagine a kid sticking his fingers in his ears and shouting. The response was not completed by a Doctor or by the Doctor who supposedly drafted my NARSUM. Instead it was drafted by a physician's assistant, who is supposed to be the assistant to these doctors. Apparently, she took the rebuttal as a an affront to her NARSUM write up. She also signed the rebuttal response and not the Doctor who supposedly drafted my NARSUM.
When I spoke with the DoD OSC Lawyer and asked them why they (the MEB staff) are allowed to do this, the lawyer told me that they'd ( the OSC) previously tried to address this with the MEB medical staff.... how did they address it? By being realistic and not using deceptive logic or misrepresenting things on purpose? No, they asked the MEB staff to take an extra day or two... to make it less apparent that they'd not just said "no" right away to all points. I am 100% serious about this.
Here's my personal opinion as a person who's served for 24 years and up to a BN Commander level. Going through this process, I am very disappointed on how this process is operating. The problem I am seeing with this IDES process is there is no oversight to the actions of the IDES staff. It feels like they can 'do what they want'. Also, the whole thing is 'insiderism' in that they all work in the same office and "take care" of each other. Lots of post on this website also mention this. I wouldn't even fully trust the DoD appointed lawyer. You can never know what emails go on behind the scenes between the staff at a location. When I mentioned to the lawyer I was thinking of filing a congressional complaint, the DoD appointed lawyer started trying to get me not to... If you think about it, why would he do this? It wouldn't negatively impact my case, I told him that I knew it wouldn't positively change my case, but it would bring light to this process and how it's being run.
So, in my opinion, unless you have a pocket O-6 /O-7 or a congress person that you know, you're at the mercy of the IDES staff. The only thing you can do is get your own lawyer. It's probably the best bet to fight this.
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Just that I didn’t agree with the NARSUM. It’s just an extra step before the appeal honestly.
Damn, I already signed to rebuttal. But very good to know so I won’t get my hopes up at all. Thank you!
1. Unfortunately, what you describe has been the norm for Army IDES MEB Physicians at several installations for some time now. However, as I always explain to my clients, your rebuttal has more than one intended audience. You and your counsel are also drafting the rebuttal to outline your case for the IPEB members who will be adjudicating it. Many times, the IPEB members reach different conclusions on their initial review of your case than the MEB Physicians.
2. In addition, the Army IPEB Reconsideration Request process has often resulted in the members of ECHO ("Every Case Has Options") Team on the IPEB granting relief before an FPEB convenes in your case. Army MEB Physicians are not nearly as generous as the IPEB ECHO Team members and do sometimes take the submission of a rebuttal as a personal affront. By contrast, ECHO Team members are not defending their professional work product and often allow counsel to submit multiple reconsideration requests.
3. In addition, ECHO Team members have frequently given me valuable feedback as to why they could not grant relief or only granted partial relief. This feedback allows my clients and me to backfill their cases where needed. Note- of the other armed services, only the Coast Guard PEB currently has an IPEB Reconsideration process. While the Coast Guard does not have the functional equivalent of an ECHO Team triaging cases, the PSC-MED-ADMIN staffers who run their PEB system are also very open to multiple requests for reconsideration. Why? Because, like the Army, the Coast Guard PEB members recognize that the IPEB Recon process provides an expeditious and equitable mechanism for processing cases.
4. As for Congressionals, your OSC Counsel was right- they have very little utility as far as influencing the outcome of your case. The typical response sent by the USAPDA is that the Army will ensure that the soldier will be afforded every procedural and substantive right to which they are entitled by law and regulation. These letters usually end with a sentence thanking the Congressperson for his/her continued support of the men and women of the United States Army. While there are undoubtedly exceptions to this general statement, I believe that your time would be much better spent working with your assigned or retained counsel in developing your case. While others may disagree, my comments are based on my personal experience representing hundreds of soldiers- Active Duty, Reservists, and Guardsmen- in this venue for the past twenty-five years.
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There are also structural problems with accountability in the IDES process. While I can't guess whether it is a feature or a bug in the process, there are several structural problems with accountability.
First, by having two separate entities, the MEB and the PEB, the overall processing has divided oversight and chains of command built in. There are very good reasons to have the MEB done and managed at the local level, i.e., a "decentralized" board that reflects the direct commander's assessment. However, the trade-off is that you have every MTF (and for Reserve and National Guard, medical detachment or section) doing things their own way. Yes, the regulations do impose some level of uniformity. But, the tension between flexibility and uniformity remains. It also makes sense that the PEBs are centralized. But, you also run into issues with the PEBs deferring to the MEBs or stating things like, "we are bound by the findings of the MEB" (they are not). By having these two separate boards, you have a built-in scapegoat for failures. MEB errors can be defended by saying that the PEB gives an opportunity for the member to have a hearing, present evidence, and raise whatever issues they want. PEB errors are insulated in a similar way by saying that the MEB is responsible for the documentation in a case and that there are both appeal processes before a final decision and QA processes to ensure proper results. (I have always noted, in my head, the emphasis that the Army PEB Formal puts on the statement that, "This is not the final decision in your case." While it makes sense that the Soldier is told this, it also seems to me to signal that they are just doing their job and higher authorities are really the ones with the responsibility to determine proper outcomes).
The training and experience in the military tell us that when there are multiple officials or organizations (especially when they are not in the same chain of command) with responsibility for something, you have a lack of accountability. I have often thought that if there were an emphasis and reporting on commander's or DES participant's evaluations, in the same way that they changed things years ago to stress safety and then EO issues, to address injured and transitioning member's cases, you would see more accountability.
The other confounding factor for accountability is that any review or correction to an action almost always happens slowly, so the feedback loop is broken. By the time a member has a bad result, challenges it in the BCMR/BCNR or in Court, and a decision is rendered, it is near certain that whoever made the original error in the case has moved on, either to another command or to retirement. The lack of an effective feedback loop and any consequence for errors means that there is missing a motivating factor for ensuring proper actions. Most participants, I believe, want to fulfill their duties and obligations, but even if not, the process has a weak point with accountability.
Jack and I agree completely on this point! I tell my clients that while it would be great to get a change to the MEB through a rebuttal, what we are really doing is giving the IPEB a chance to see the issues that we have raised and to provide evidence and argument that would support our ultimate goal. Otherwise, the IPEB would just look at what the MEB sent and assume that it is basically in order and adequately addresses all issues. I want the IPEB to open the file and see, up front, what I assess the MEB to have missed and to give them a starting point to look to see if the errors either need correction or further evaluation before further processing or if there is a basis to just grant what we want- usually an unfit finding for a condition that the MEB failed to adequately address.
This aligns with what I stated above and I think the Army's approach with this is a good and efficient way of processing cases. You don't really see anything so proactive in the other branches of service.
Again, the Army is better at allowing (even encouraging or initiating) informal communication and earlier resolution of cases. I think Jack is right when he suggests that this is because the Army recognizes the benefit of this approach for efficiency reasons.
Before I served at the OSC representing Soldiers, I was a Trial Counsel for a different command at Ft. Sam Houston. I was once tasked with responding to a Congressional regarding one of the cases that I prosecuted and this was pretty much what the guidance in the manual that the Congressional Liasion office directed us to use as a template. Thank the Member of Congress for their inquiry, recite what the regs require, give a listing of previous and upcoming actions, assure that all procedures and safeguards will be followed, and thank them again. Barring something that is so outside the pale, something that demands corrective action or someone high up in the chain will get relieved, it is rare for the Congressional to result in any action.
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One follow on ponit about rebuttals being for more than one audience. I think that, of course, the main goal is to "win" the case as early as possible. But I also think playing the long game (or at least having it in mind) makes sense, too. You will not get an early correct outcome in every case, and it is valuable to raise and argue points that a reviewing official will see down the line. There are certain issues and arguments that are routinely ignored within the IDES that are considered key by judges reviewing decisions. So, I include in my analysis and drafting of responses and rebuttals the issues that I know a judge will find important. I don't think you go overboard with things that won't influence or be considered by the immediate audience, but I do think it makes sense to think of the long game and to raise and preserve certain errors that will make a judge likely to rule that the military erred in its decisionmaking process. In the above discussion, I am not only thinking of the MEB Convening Authority and the IPEB as my audience, but also the later military officials and, ultimately, a judge when I am drafting rebuttals/responses.
Win the short game, but remember that sometimes, you have to play the long game at the same time.
Win the short game, but remember that sometimes, you have to play the long game at the same time.
Just to give you an idea about the MEB. Typically, the providers are from a random speciality. A lot of the times, the providers are in "time out" for something wrong that they did. We had an ophthalmologist at Ft Bliss reviewing cases. He absolutely hated it. Put very little effort into it. This doesn't happen all the time. And I don't know if it happened in your case. But there isn't a special pool of MEB providers. They are assigned these duties usually on top of their normal clinical work. In the case, of the FT Bliss provider, I believe he went AWOL instead of deploying, and they legit just kept him in the MEB trailers (the MEB didn't even have a standing structure...it was these makeshift trailers).
That being said, I believe psych and some other conditions get signed off by a provider with relevant medical training. Anyways, most providers I've encounter think of NARSUMs as something akin to jury duty. Providers have trouble finishing their patient notes on time - imagine adding a NARSUM. I was fairly lucky. When I went through the IDES process, I knew a lot of the providers because I was a clinical microbiologist that also held hospital admin roles. The process did go fairly smooth for me. Do you happen to know any providers?
Ask for an IMR
A great discussion on legal strategy and the USA process.
While going through the in-brief for the MEB, the physicians assistant came on screen and told us that she'd be the one reviewing our files and drafting our NARSUMs. I told this to a few people and their response was something like: "no, that's not how it happens!.. (handwave) the doctors do those." Well, there was a Doctor's signature on the NARSUM. However, the response to the rebuttal was NOT signed by that doctor or any other doctor. It was signed by the the PA. I'm assuming she did in fact draft the NARSUM and she definitely drafted the response. When I mentioned it to the OSC lawyer he just changed the subject.
Also, when I turned in the NARSUM rebuttal I asked the PEBLO how long would it take to get reviewed?.. a week? "Oh, no..." he said, "it'll be a day at most.". So, the peblo knows how these operate at his location and shrugs.
This process (IDES) needs as much attention as the VA process gets.
Thanks for all of the insight. I am currently appealing PEB findings with the formal (zoom) in two months.
(Guard 34yrs and counting) I've been represented by OSC up to now in this process, but now realize this may not have been the best option.
History-
Referred for neck injury and DDD lumbar. Prior to MEB -3yrs service connected on lumbar 20% w 20% bilateral radiculopathy, unspecified depression 30% . C&P exam results were inaccurate and as result Lumbar removed from referred conditions. MEB appeal got mental health (now 50%) added to referred but denied lumbar. IPEB found neck unfitting 10%, MH unfitting 0% DOD. Appealed unsuccessful and now waiting on FPEB.
This process has proven to be plagued with poor communication, guidance , and interaction. My counsel waited to the day of the submission before sending rebuttals for my review and would wait days before responding to my emails. When I brought up IMR to my PEBLO he responded "that was between you and your counsel". At this point MEB Rebuttal was submitted.
Now I am waiting on PEB Counsel to reach out, which I was told could be around two weeks out from the formal appearance. Well that provides little time to prepare and it seems it's just a set up for denial.
Is it normal for OSCs to interact so close to the appeal?????
Can you clarify on these a bit:
a. the MEB removed your DDD lumbar condition, in that they said you met 'retention standards' on the NARSUM?
b. mental health was added as "does not meet retention standards" on the NASRUM (in the MEB phase) and the MH C&P exam shows a 50% rating, however the IPEB stated that you were not 'unfit' for service. Probably due to no impact on duty performance, ie Commander's statement, evaluations, medical history?
c. Your concern is that you are facing separation with 10%-20% total DoD?
At my location, the OSC counsel takes about 3-4 days to respond. They have a secretary that schedule appointments and they are always a few days out as well.
1. Unfortunately, Soldier's Counsel on both the MEB and PEB levels have very heavy caseloads, and it would not be unusual for the local MEB attorney to provide a rebuttal for review the day before your deadline. The decision as to whether to file an IMR or go straight to a rebuttal depends upon the facts of your case and is typically discussed with OSC counsel after reviewing the initial MEB. After receiving your IPEB findings, you and your counsel can file an IPEB Reconsideration Request to see whether you can achieve your goals without having to go through the formal board process. Typically, for those working with the local MEB attorney versus a civilian counsel, the MEB attorney will usually file an IPEB Recon Request contemporaneously with the request for a formal hearing before handing your case off to an FPEB attorney.
2. After the case is handed off to the FPEB attorney, the local MEB counsel drops from the picture, and the FPEB counsel assumes responsibility for your case. Due to their caseloads being even heavier than those of the MEB counsel, it is quite normal for a service member not to be contacted by his or her FPEB counsel until two weeks or less before a formal hearing. This situation is the norm with the other armed services, too.
3. Note- even though I am a civilian attorney and thus in direct competition with OSC counsel, I have never encountered an inadequate or incompetent OSC attorney. In fact, many OSC attorneys are quite good, and all I have interacted with have been professionally competent. However, their caseloads are pretty staggering. The same is true for their peers in the Navy, Air Force, and Coast Guard. That is why it is incumbent upon the member to provide their attorney with as much information as possible before a hearing to make their job easier and enhance your odds of success.
4. The key reason why many service members choose to hire civilian counsel is so that they can be proactive in case development- in essence, you are paying for the time required to develop a case and overcome obstacles that were presented along the way at the MEB level, during the VA C&P exams, and the formal and post-formal hearing appeal process.
5. If you choose to hire a civilian attorney, then you should do so as early in the process as possible, as it becomes much more difficult to correct errors or commission from your case after the initial IPEB findings, as you will be on a very short clock with deadlines at that point.
6. If you choose to work with your military counsel- whether due to finances or personal preference- then you will need to provide them with as much information as possible regarding your medical conditions, be patient regarding response times by counsel, and learn as much about the process as you can as winning in these situations is all about teamwork between the member and counsel.
Unfortunately, yes. That is why in complicated cases outside counsel may be worth much more than their fee.
Definitely. Hiring my civilian attorney was priceless. There was no way I could have gotten the results I did without him.
I sure can:
a. My PCM medical notes concerning treatment for my Lumbar condition were not in my STR. These were provided to state case manager but somehow was lost in transition. C&P examiner submitted inaccurate DBQ and gave opinioned less likely. The MEB physician indicated I was not currently being treated for condition and due to insufficient clinical doc to support profile it has been updated to permanent L2.
b. There were no negative comments on provided OER's, however commander's stated - inability to remain focused, make swift decisions which could have negative impact on mission; MH conditions (MDD, anxiety, panic) all negatively impact performance; physical conditions require use of opioids and other stimulants to function.
c. Need a 30% or higher dod for unfitting conditions to obtain medical retirement
I'm not surprised. Many physicians if possible delegate their responsibilities... Again, it's how the process is designed. The physicians are busy with seeing patients or doing other medical things. I believe in most cases the physician's sole responsibility is not the MEB. Furthermore, even if it was, most would hate it. Non-stop paperwork. You aren't seeing patients. Finally, there are little to no consequences if they do a half-ass job. It's like doctors working insurance claims...probably give a claimants file a minute glance if that.